The Fair Debt Collection Practices Act (FDCPA)

by Jed Berliner, Western & Central Massachusetts Consumer Lawyer

July 2, 2007

On occasion, a consumer has rights against a collector (or a creditor under many states’ laws) which might – MIGHT – avoid the need for bankruptcy relief. One weapon is the Fair Debt Collection Practices Act, or FDCPA.

The FDCPA prohibits contacts with third parties if the collector knows the debtor is represented by an attorney, otherwise contact with third parties is permitted but only to locate the debtor. In practice, a writing is required advising of attorney representation to avoid a he said/she said dispute.

The collector must inform the debtor in every communication that the communication is from a debt collector. The collector must send the consumer a dispute/verification invitation within five days of initial contact, and the collector must suspend collection until the debt is verified if a dispute is received within 30 days.

Telephone communications are restricted to between 8a and 9p. Contact at work is prohibited only if the collector has reason to believe that such communications is against employer policy.

A debt collector may not harass, oppress, or abuse a consumer, but this is not defined and is left up to the courts. A collector may not publish a list of nonpayers, except to credit bureaus, or use obscene or profane language, or make repeated telephone calls for annoyance purposes.

Debt collectors may not use false or misleading means to collect a debt, and may not collect more than is justly owed.

Actual damages, $1,000.00 statutory penalties, and attorney fees may be recovered.

From your attorney’s point of view, a tape recording of an abusive call is best. Second best is a detailed narrative of what took place and how you felt. Be aware the it is very difficult to convince a judge or jury that you are in the right, so the more proofs you have the better.

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Jed Berliner practices exclusively in consumer bankruptcy, foreclosure defense, and related consumer protection litigation such as credit card defenses and suing debt collectors. He established his Springfield, MA practice in 1988. Attorney Berliner is a regular and active contributor to the Bankruptcy Law Network, the Bankruptcy Roundtable, and the National Association of Consumer Bankruptcy Attorneys, three specialized consumer bankruptcy forums on the Internet, and is an informal mentor to regional practitioners. He is recognized by his peers as an expert in consumer bankruptcy issues. He thoroughly enjoys being rated "excellent" in his client surveys.

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Last modified: October 4, 2008