– the Debt Collectors are at My Door!
Have you ever gotten a
call from a debt collection company?
Remember that last month’s cable bill that you and your roommates
disputed in college – ten years ago? You
know that it never got paid and it keeps cropping back up again in a generally
unpleasant manner. Perhaps you’ve lost a
job or had an illness and just got behind on your bills. Whatever the reason, life happens! When life happens, sometimes it leaves unpaid
bills along the way and this can result in an unpleasant interaction with debt
Fortunately, the law
provides some protection to keep consumers from being abused by aggressive
creditors. In order to take advantage of
these protections, however, you need to know what your rights are. The collection of debts is regulated by the
Fair Debt Collection Practices Act (FDCPA).
Because this is a federal law, the law is the same anywhere in the
United States. Whether a debt collector
is pursuing you here in Maryland, or elsewhere, there are certain protections
to which you are entitled.
The FDCPA applies to both
debt collectors who are collecting on others accounts as well as creditors who
use any type of alias when collecting on their own accounts. It does not apply to creditors who are
collecting on their own accounts under their own names.
The FDCPA limits the
information that a debt collector can provide to any third person about the
collection of a debt. First, the debt
collector may only identify his employer if expressly requested by the person
he has called. Second, the collector may
not disclose to a third party that a debt is owed. Third, the collector may, under most
circumstances, only contact a third party about the debt one time. Fourth, the debt collector may not
communicate by post card. Fifth, the
debt collector may not use any indication on the outside envelope that the
communication is in connection with a debt collection. Finally, if the debt collector knows that the
person is represented by an attorney, the debt collector may not communicate
with any third person other than the attorney, unless the attorney fails to
respond within a reasonable period of time to the debt collector.
The FDCPA states that a
debt collector may only communicate with the debtor/consumer in certain ways
and at certain times. The debtor is the
individual who owes or is alleged to owe the debt. A collector cannot communicate with a
consumer at an unusual time or place, or in a manner which the collector knows
or should know to be inconvenient to the consumer. Unless the collector has knowledge to the
contrary, the collector may not call before 8 a.m. or after 9 p.m. The collector may not communication with a
consumer directly when the collectors knows that the consumer is represented by
an attorney, unless the attorney gives consent to direct contact, or if the
attorney fails to respond within a reasonable period of time. Finally, the collector cannot contact a
consumer while the consumer is at work, if the collector knows that the
employer prohibits that type of communication.
A collector may not
communicate with third parties about a debt.
Exceptions exist which cover the debtor’s attorney, credit reporting
agencies and the creditor’s own attorney.
A debtor can make the collector stop communication by requesting in
writing that the creditor do so. If the
debtor stops communication, the creditor may contact the consumer thereafter
only to notify the consumer that it is stopping collection activity, that it
may or will invoke a specific remedy.
A debt collector may not
harass a consumer. The collector may not
threaten violence or any other action that would be a criminal offense against
the consumer. The collector may not use
obscene or profane language when communicating with the consumer. It may not publish the identity of consumers
who refuse to pay except to a consumer reporting agency. It may not advertise the sale of the debt in
an effort to enforce payment. It may not
cause the telephone of the debtor to ring repeatedly in order to annoy, abuse
or harass anyone at that number.
A debt collector is
prohibited from providing false or misleading information in connection with
the collection of a debt. A collector
may not falsely state or imply that they are an agent of the state or federal
government. They may not misrepresent
the character, legal status or amount of any debt. They may not misstate the compensation they
are entitled to receive for collecting the debt. A debt collector may not impersonate an attorney. They cannot threaten that the debtor will be
arrested, imprisoned, or that property will be seized, garnished, attached, or
that a person’s wages will be garnished unless such action is lawful and the
debt collector intends to take that action.
A debt collector may not
threaten any action that cannot be taken, or is not intended to be taken. They may not state or imply that the sale or
transfer of debt will cause the consumer to lose a claim or defense in connection
with the debt or that the consumer will be subject to an action which is
prohibited under the law.
They debt collector may
not falsely state or imply that the consumer has committed a crime or other
conduct to disgrace the consumer. The
collector may not communicate or threaten to communicate information about the
debt that is false, including failure to communicate that the debt is disputed.
The debt collector may
not use written communication that is designed to falsely imply that it comes
from any court, state, or federal agency.
They cannot use any false or deceptive means to contact a consumer.
The debt collector must
identify itself a debt collector in the initial communication and must inform
the consumer that any information collected will be used for the collection of
The debt collector cannot
collect a fee from the consumer as part of the collection, unless the consumer
has previously agreed to pay such a fee.
The debt collector is limited in how and under what circumstances that
post-dated checks may be accepted from the consumer.
Within five days after
its initial communication, the debt collector is required to provide the
consumer with certain information about the debt. This information includes the amount of the
debt; the name of the creditor to whom
it is owed; a statement that unless the
consumer, within thirty days, disputes the validity of the debt, or any portion
of the debt, that the collector will assume the debt is valid; a statement that
if the consumer notifies the debt collector in writing, within the thirty-day
period, that the debt, or any portion thereof, is disputed, the debt collector
will obtain verification of the debt, or a copy of a judgment against the
consumer, and a copy of such verification or judgment will be mailed to the
consumer by the debt collector; and a statement that upon the consumer’s
written request, within the thirty-day period, the debt collector will provide
the consumer with the name and address of the original creditor, if different
from the current creditor.
If the consumer notifies
the debt collector that the debt is disputed, following the initial
communication, the debt collector may not engage in further collection activity
on the debt until it receives and provides the consumer with verification of
the debt from the original creditor.
If a consumer owes
multiple debts, a collector may not apply any payment on an undisputed debt to
one that is in dispute, and where applicable, must following the directions of
the consumer in applying the payment.
If a debt collection
brings a legal action, i.e., sues, a consumer, to enforce a security interest
in real property, the action must be brought in the jurisdiction where that
property is located. Otherwise, the debt
collector may only sue the consumer where the consumer signed the contract
being sued upon or where the consumer resides.
Under most circumstances,
a debt-collector cannot garnish your wages, garnish you bank account, put a
lien on your home, or otherwise seize any asset without first obtaining a court
judgment. There are some
exceptions. The most common are where
the creditor has a security interest in the property by way of a lien or a
contract. In addition, if you owe tax
debt, you may be subject to an attachment without a judgment.
The attorneys at Baldwin
& Briscoe have the experience to get the debt collectors off of your
back. Whether or not the debt is
disputed, we can assist you in resolving a debt-collection matter. You don’t have to wait until you are sued to
retain an attorney. Often, retaining an
attorney will allow you to work out a solution that can avoid a lawsuit
If you are sued, the debt
collector, under most circumstances, must obtain a judgment before it can take
any property. Depending on the amount of
the suit, and the court in which it is brought, this can take anywhere from
approximately two-months to a year. You
can negotiate a resolution of the debt while the suit is pending that may be
able to avoid a judgment being entered against you.
If you are facing a
debt-collection situation, contact the attorneys at Baldwin, Briscoe & Steinmetz to
understand your rights and responsibilities and discuss a plan for resolving
The information contained
on this page is provided as general information and does not constitute legal
advice. The experienced attorneys at
Baldwin, Briscoe & Steinmetz, P.C. can assist you if you are facing a debt
collector. Call today to schedule a
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