How to know if you have a legal claim under the FDCPA

Share | The ability to obtain credit is one of the most important privileges a person living in this country can have.  The so-called "American Dream" is inextricably tied to the credit industry.  If you don't have good credit, you cannot buy a home, get decent car insurance rates, get a decent credit card, or get a loan from your local bank. 

This article is about how to know if you have a Fair Debt Collections Practices Act (FDCPA) claim when dealing with your creditors and collection agencies.  For the sake of full disclosure, only an attorney can determine whether a consumer actually has a legal claim worth pursuing in the courts. The information below is only a guideline for consumers to help them understand their rights and possibly prompt them to seek legal counsel.

Activities of all collection agencies are regulated by the Federal Trade Commission and Consumer Financial Protection Bureau through the FCRA and the FDCPA.  Original creditor actions are now regulated by a new prohibition enacted when the Dodd-Frank Act was passed called Unfair, Deceptive Acts and Practices, also known as UDAAP. UDAAP also indirectly applies to third party creditors as well according to a recent CFPB bulletin.

Below are the rules and the context within which those rules create a legal cause of action:

1. A claim by a debtor that a third party debt collector has engaged in prohibited conduct in collecting or attempting to collect a consumer debt.
2. The creditor is typically not a party.
3. The validity of the underlying debt is not relevant or an issue in the action.

 The FDCPA mandates three areas of collector compliance:
1. Identifying oneself as a debt collector.
2. Advising the debtor of the right to verify and dispute the debt.
3. Refraining from harassment, false representations and third party communications.


PRIMARY SOURCES OF THE LAWA. Fair Debt Collection Practices Act. 15 U.S.C. § 1692 et seq.

Now, let's drill down to the core of what all of that means.  1. A claim by a debtor that a third party debt collector has engaged in prohibited conduct in collecting or attempting to collect a consumer debt.  The operative words of this rule are "prohibited conduct."  Prohibited conduct includes:

• Hours for phone contact: contacting consumers by telephone outside of the hours of 8:00 a.m. to 9:00 p.m. local time
• Failure to cease communication upon request: communicating with consumers in any way (other than litigation) after receiving written notice that said consumer wishes no further communication or refuses to pay the alleged debt, with certain exceptions, including advising that collection efforts are being terminated or that the collector intends to file a lawsuit or pursue other remedies where permitted
• Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously: with intent to annoy, abuse, or harass any person at the called number.
• Communicating with consumers at their place of employment after having been advised that this is unacceptable or prohibited by the employer
• Contacting consumer known to be represented by an attorney
• Communicating with consumer after request for validation has been made: communicating with the consumer or the pursuing collection efforts by the debt collector after receipt of a consumer's written request for verification of a debt made within the 30 day validation period (or for the name and address of the original creditor on a debt) and before the debt collector mails the consumer the requested verification or original creditor's name and address
• Misrepresentation or deceit: misrepresenting the debt or using deception to collect the debt, including a debt collector's misrepresentation that he or she is an attorney or law enforcement officer
• Publishing the consumer's name or address on a "bad debt" list
• Seeking unjustified amounts, which would include demanding any amounts not permitted under an applicable contract or as provided under applicable law
• Threatening arrest or legal action that is either not permitted or not actually contemplated
• Abusive or profane language used in the course of communication related to the debt
• Communication with third parties: revealing or discussing the nature of debts with third parties (other than the consumer's spouse or attorney) (Collection agencies are allowed to contact neighbors or co-workers but only to obtain location information; disreputable agencies often harass debtors with a "block party" or "office party" where they contact multiple neighbors or co-workers telling them they need to reach the debtor on an urgent matter.)
• Contact by embarrassing media, such as communicating with a consumer regarding a debt by post card, or using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business
• Reporting false information on a consumer's credit report or threatening to do so in the process of collection

In such cases, the original creditor is NOT a party in this action, has sold the debt to the collector and cannot be listed on the legal Complaint as such.  As for whether a consumer actually owes the money to the collector, it is not an issue that can be legitimately presented in court by the collector.  The legal issue is the conduct by which the collector exercised their right to collect the debt from the consumer.  If any of the three mandates I mentioned of above have been violated by the collector, a consumer has a possible legal claim. 

If you are serious about pursuing a lawsuit against a collector you must know how things work in the legal system.  First, you must have some kind of proof of an actual violation.  The truth is that some claims will require more clear proof than other types of claims.  For example, If a collector "publishes" a debt list and your name is on it in black and white - you have clear and compelling claim if you can produce the publicized list in court.  However, you may not have a claim if your lawsuit alleges that a collector called you on two separate occasions at times after the mandated 9:00 PM limit.  Even though they did break the law, it simply does not rise to the level of a legal claim because it is not egregious enough to warrant the courts' time and resources in comparison to other claims that clearly should be heard by the court.

If you receive a dunning letter (collection letter) and it does not advise you of your right to verify and dispute the debt, you may have a claim.  Don't just take it for granted that a business is always doing what it is supposed to do.  23,000 FDCPA lawsuits last year is proof that they are not. So carefully look over any communication you receive from a collector.  It's safer for you to assume there might be an error on that document than to assume there isn't.

Understanding Your Credit Report

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We are all becoming more aware of how important our credit scores and reports are now that many of us are experiencing financial hardships in the wake of the harsh economic events in recent years. As more aspects of our daily lives become affected by our credit score, it has become more important that consumers understand what is actually in their credit report, how to read it and how to recognize possible errors that might be lurking.  

The three largest nationwide consumer reporting agencies (NCRAs) are Equifax Information Services LLC, TransUnion LLC, and Experian Information Solutions Inc. The NCRAs each maintain credit files on over 200,000,000 adults and receive information from approximately 10,000 furnishers of data. On a monthly basis, these furnishers provide information on over 1.3 billion consumer credit accounts or other “trade lines.” Credit reports play an increasingly important role in the lives of American consumers. Most decisions to grant credit – including mortgage loans, auto loans, credit cards, and private student loans – include information contained in credit reports as part of the lending decision. These reports are also used in other spheres of decision-making, including eligibility for rental housing, setting premiums for auto and homeowners insurance in some states, or determining whether to hire an applicant for a job. As the range and frequency of decisions that rely on credit reports have increased, so has the importance of assuring the accuracy of these reports. These three NCRAs occupy the hub of what can best be described as a national credit reporting system. They, the entities who report information about borrowers to them (furnishers), providers of public records information, and consumers all play roles which affect the accuracy of the information reported in consumer credit reports.

According to a recent Consumer Financial Protection Bureau report, inaccuracies in a credit file can happen in a variety of ways because of how the information gets there in the first place.  The reasons range from errors by the credit applicant when initially applying for credit, to lack of data base integrity within a company's record keeping systems.  Reports by the Federal Trade Commission confirm that credit reports can contain errors significant enough to cause the denial of credit. And those who are not denied credit are only offered unfavorable or 'sub prime' interest rates.  Do the math on a home loan with a 2% interest rate compared to a 4.5% interest rate over 30 years and you will quickly see the payment difference between 650 FICO score compared to a 750 FICO score!  The difference is literally thousands of dollars.  

Components of your credit report

Header or Identifying information including your name, previous names used, known addresses, social security number, date of birth and phone numbers. This information should first on your list of items to scrutinize, especially if you have a common name like John Jones or Michael Smith. An error with one single letter, or a wrong digit in the social security number could be all it takes to compromise the accuracy of the file and therefore cause a really big identity problem. The other rather self-explanatory components include the following:

Trade lines

Public Records

Collections

Inquiries

Here, we have included some of the errors consumers should look out for:

• Inclusion of accounts or records in a credit file that do not belong to the consumer, commonly called a mixed file: Credit reports can contain trade lines or public records about a consumer other than the one who is the subject of the credit report.
• Omission of accounts or records belonging to the consumer: A credit account or public record that belongs to the consumer’s file can be erroneously placed in another consumer’s file, leading to a mixed file, as described above. Alternatively, credit bureau matching algorithms or gaps in data can lead to a consumer trade line being kept separate from the rest of the consumer’s file.
• Trade line or record inaccurately represents information pertaining to the consumer’s account with the creditor: A credit file can inaccurately depict the terms and status of a valid account such as inaccurately depicting the date an account was closed, the credit limit for the account, or whether a trade line is delinquent. Similarly, a collection item on the report may inaccurately reflect the payment status of the debt or the amount of money owed.

How long can adverse information remain on the credit report?

The FCRA limits with some exceptions how long a credit bureau can communicate certain adverse information in a credit report. Many adverse items including records of late payments, delinquencies, or collection items typically stay on a credit report for up to seven years. Likewise, civil suits and civil judgments typically stay on the report for no more than the longer of seven years or the governing statute of limitations, while paid tax liens typically cannot be reported more than seven years after the date of payment. Credit reports generally cannot list bankruptcies for more than 10 years after the order for relief or date of adjudication, except that repayment plans are only reported for seven years. There are also restrictions on communicating a medical service provider’s name, address, and telephone number pertaining to medical debts in a credit report

Debt Settlement: Fraudulent, Abusive, and Deceptive Practices Pose Risk to Consumers

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Sure, we can settle your debts!

As consumer debt has risen to historic levels, a growing number of for-profit debt settlement companies have emerged. These companies say they will negotiate with consumers' creditors to accept a lump sum settlement for 40 to 60 cents on the dollar for amounts owed on credit cards and other unsecured debt. However, there have been allegations that some debt settlement companies engage in fraudulent, abusive, or deceptive practices that leave consumers in worse financial condition. For example, it has been alleged that they commonly charge fees in advance of settling debts or without providing any services at all, a practice on which the Federal Trade Commission (FTC) recently announced a proposed ban due to its harm to consumers. The Committee asked for an investigation of these issues. As a result, GAO attempted to (1) determine through covert testing whether these allegations are accurate; and, if so, (2) determine whether they are widespread, citing specific closed cases. To achieve these objectives, GAO conducted covert testing by calling 20 companies while posing as fictitious consumers; made overt, unannounced site visits to several companies called; interviewed industry stakeholders; and reviewed information on federal and state legal actions. GAO did not use the services of the companies it called or attempt to verify the facts regarding all of the allegations it found.


GAO's investigation found that some debt settlement companies engage in fraudulent, deceptive, and abusive practices that pose a risk to consumers. Seventeen of the 20 companies GAO called while posing as fictitious consumers say they collect fees before settling consumer debts--a practice FTC has labeled as harmful and proposed banning--while only 1 company said it collects most fees after it successfully settles consumer debt. (GAO was unable to obtain fee information from 2 companies.) In several cases, companies stated that monthly payments would go entirely to fees for up to 4 months before any money would be reserved to settle consumer debt. Nearly all of the companies advised GAO's fictitious consumers to stop paying their creditors, including accounts that were still current. GAO also found that some debt settlement companies provided fraudulent, deceptive, or questionable information to its fictitious consumers, such as claiming unusually high success rates for their programs--as high as 100 percent. FTC and state investigations have typically found that less than 10 percent of consumers successfully complete these programs.

Other companies made claims linking their services to government programs and offering to pay $100 to consumers if they could not get them out of debt in 24 hours. GAO found the experiences of its fictitious consumers to be consistent with widespread complaints and charges made by federal and state investigators on behalf of real consumers against debt settlement companies engaged in fraudulent, abusive, or deceptive practices. Allegations identified by GAO involve hundreds of thousands of consumers across the country.

 Federal and state agencies have taken a growing number of legal actions against these companies in recent years. From these legal actions, GAO identified consumers who experienced tremendous financial damage from entering into a debt settlement program. For example, a North Carolina woman and her husband fell deeper into debt, filed for bankruptcy in an attempt to save their home from foreclosure, and took second jobs as janitors after paying $11,000 to two Florida companies for debt settlement services they never delivered. Another couple, from New York, was counted as a success story by an Arizona company even though the fees it charged plus the settled balance actually totaled more than 140 percent of what they originally owed.