FDCPA: Harassment and Unfair Conduct

How can you tell if a debt collector is harassing you, or just legally attempting to collect a debt?  This is part 2 of a series of posts relating to debt collection and credit repair.  The Fair Debt Collection Practice Act defines conduct that is considered harassment.  According to the Act, a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.

Debt collectors are prohibited from the use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.  They also may not use obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.

Debt collectors may not publish a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency (like Equifax, Experian and TransUnion) or to a few specifically defined entities.   Reporting a debt in collection to the credit bureaus has a significant impact on credit scores, and in essence, is available to anyone that may have a valid purpose to review your credit report.  This includes lenders, employers, insurance companies, etc.  Regardless of how it is ultimately resolved, an account in collection is never a good thing to have on a credit report.  Reporting to the bureaus may be the single most effective tool for debt collectors prior to initiating a lawsuit.   Debt Collectors may not advertise for the sale of any debt to coerce payment of the debt. 

Although vague, the Act also provides that a debt collector may not cause a telephone to ring or engage any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.   Debt collectors must also disclose of the caller’s identity.

Apparently it is not harassment if the debt collector calls repeatedly or continuously without the intent to annoy, abuse or harass.   Let’s face it, debt collectors call repeatedly hoping that you will get tired enough of hearing from them that you will pay a debt.   Now isn’t that annoying?

Harassment is one form of prohibited conduct.  The Act also defines unfair conduct.  A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.  The following debt collection conduct is deemed to be unfair or unconscionable:

  1. The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
  2. The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
  3. The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
  4.  Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
  5. Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
  6. Taking or threatening to take any non-judicial action to effect dispossession or disablement of property if (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;  (B) there is no present intention to take possession of the property; or (C) the property is exempt by law from such dispossession or disablement.
  7. Communicating with a consumer regarding a debt by post card.
  8.  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.

Be sure to document any violations.  There are civil remedies available (which will be detailed in another post) for debtors that are victims of debt collectors that engage in harassing or unfair conduct.

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