What Debt Collectors Can’t Do…#4

This time, in our monthly series, we’re talking about false or misleading representations debt collectors may make to consumers.

Of the many prohibitions in this section, let’s zoom in on one particular no-no:

Representing or implying that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

Bottomline: debt collectors can not call you up, tell you that you owe X amount of money, and then inform you that you will be arrested if you don’t pay that money by the end of the day. Or that you’ll be thrown into jail if you don’t pay the debt.

That’s not how debt collection, or the legal process in general, works.

But it is scary, to listen to someone you don’t know, who you assume probably knows more about this area than you do, threaten you with legal actions that seem out of your control.

Here’s a tip: people who are thrown into jail have received some sort of judicial notice – whether by court order or bench warrant – that they are facing jail time. The only other way I can think of is if you violate a criminal law, like assaulting someone or disturbing the peace or distributing drugs, you can expect that if you get caught, you’ll likely be spending a night or two in jail before getting to see the judge to discuss a bond.

My point is that jail happens to those who commit criminal acts and are considered a threat to themselves or the community, NOT to people who have a debt being collected on. There is no authority for a private individual or entity to have someone locked up in jail. That only happens after a judge or jury has weighed the evidence, or law enforcement recognizes that there’s an imminent threat of harm, or the criminal act already occurred and the damage is done.

So if you get that call from the debt collector, and they threaten jail time or arrest if you don’t pay your debt, make a record of it and let them know they’ve violated the Fair Debt Collection Practices Act.

What Debt Collectors Can’t Do….#3

For #2, go here.

For #1, go here

This time around in our “what debt collectors can’t do” series, let’s talk about when player 3 enters the game. For all of you non-video gamers, you are Player 1, debt collector is Player 2, and any third party is Player 3. There are a series of prohibitions in 15 U.S.C. 1692b concerning what debt collectors can’t do if they communicate with third parties. Here’s a brief check list of prohibitions in that section:

  • Failing to identify themselves as a debt collector;
  • Stating to a third party that the consumer owes any debt;
  • Contacting a third party more than once, unless requested to do so;
  • Using postcards;
  • Using language or symbols on any envelope or communication indicating debt collection business;
  • Contacting a third party after knowing the consumer is represented by an attorney.

But hold up, wait a minute. Does my dog count as a third party? Uh, no. Here’s the specific language describing what a third party is:

“Any debt collector communicating with any person other than the consumer…”

So not my dog. But definitely your neighbor, boss, spouse, girlfriend, boyfriend, friend you are only friends with on facebook and don’t talk in real life, sister, brother, nephew, niece, aunt, uncle, grammy, grampa, and even your kids.

In an effort to be even more exhaustive in my list making, here’s a list of third parties a debt collector CAN contact when trying to collect a debt:

  • The consumer
  • The consumer’s attorney
  • A consumer reporting agency (if permitted by local law)
  • The creditor
  • The creditor’s attorney
  • The debt collector’s attorney

Anyone else, and the debt collector better have prior specific permission from the consumer or local court OR only be seeking location information for the consumer from a third party. Location information means basically the contact information for the consumer, like address and telephone number. And this statute also specifically includes “employer information” as part of the “location information” that a debt collector may seek from a third party.

What Debt Collectors Can’t Do…#2

Hey hey hey. I’ve got another good one for you to think about when you’ve got debt collectors calling you:

Debt collectors are prohibited from communicating with your place of employment if the debt collector has reason to know that your employer prohibits those kinds of communications.

This issue seems to flare up with some regularity, and like everything in the law, has a few caveats. Here’s the full legalese from the statute:

Communication with the consumer generally. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt….(3) at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication.” 15 U.S.C. 1692c(a)(3)

Lauritzen Gardens resized

Here are the takeaways from the statute that you should keep in mind next time you get a phone call from a debt collector while you’re toiling away, working for the man:

  • A debt collector can call your employer all they want IF you give the debt collector permission to do so. This isn’t legal advice, this is just common sense – don’t do that.
  • Does your employer have a policy on personal phone calls in the workplace? Whether explicitly and painstakingly recorded in an employee handbook, or informally acknowledged in the office that personal calls on the company’s dime “is just not cool, man,” your employer probably doesn’t want to get calls from debt collectors any more than you want debt collectors to call your employer.
  • This provision was included because who really likes to have their dirty underwear aired in front of their work colleagues? I better not see any hands waving in the air.
  • The best way to make sure the debt collector understands that your employer does not allow debt collection phone calls is to verbally inform the debt collector on the phone, and write down the time, date, and who you talked to in order to keep a record.
  • And if your employer is OK with those kinds of harassing phone calls, you should probably polish up that resume and find a better employer.

What Debt Collectors Can’t Do….#1

I’m starting a series, hopefully to help those of you receiving calls from debt collectors, or other types of communications from debt collectors (Ex: my post on The Worst Thing a Debt Collector can Do to You).

To start the series, let’s talk about one violation that seems to occur with alarming regularity:

Causing the phone to ring or engaging any person in telephone conversations repeatedly

This language is taken directly from the federal statute, 15 U.S.C. 1692(d)(5), outlining one of many forms of harassment a debt collector may not use in order to collect a debt. Here’s the full text of 1692(d)(5):

“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.”

So how many telephone calls does it take to count as harassment? It depends.

Frustrating answer, isn’t it? There isn’t a bright line rule because courts analyze the statute under a case-by-case basis. This means the facts of one case don’t necessarily predict the outcome of another case that might have similar, but distinguishable facts.

Here are some factors to consider if a debt collector has been calling you:

  • How many calls have been made to your home or office or cell phone?
  • Over what length of time have those calls been made? Common sense would suggest that the more calls made over a short course of time, the more likely it is that you have a violation.
  • Are they leaving messages if you don’t pick up the call?
  • Are you picking up the call every time they call?
  • Are they calling after working hours?

Bottomline: if you feel as though a debt collector is harassing you with their constant phone calls, contact a FDCPA attorney to see what they think.