The FDCPA generally bars all forms of unfair, false, abusive or deceptive collection practices.
The debtor has the following rights under the law:
- The collector must cease communication with the debtor once the consumer notifies the collector in writing to cease further communication
- To dispute the debt
- To receive a written notice from the collector within five days after the initial communication from the collector. The initial notice must state the amount of the debt, the name of the creditor to whom the debt is owed, and other important information under the law
- To dispute the debt in writing and ask for proof (“validation”) of the debt within 30 days of the consumer’s receipt of the initial written notice from the debt collector
- If the consumer disputes the debt in writing within 30 days of her receipt of the initial written communication from the collector, the collector must cease collection of the debt until the collector mails validation or verification of the debt to the consumer
This list does not contain all of the debtor’s rights under the Act.
Stopping Collection Harassment
The Best Way To Stop Collection Harassment Is To Call An Attorney
It is important that you document your communication with all collectors. Ask any third parties who have been contacted to keep notes of these communications or send you an email stating the date of the call, what was said during the call, the approximate time of the call, and, if possible, the five Ws: Who, What, Where, When, and Why.
Who called you; what was the individual’s name; the company’s name; it’s address; and it’s telephone and fax numbers. Ask for all of this information.
What did you say to them, and what did they say to you
Where did the conversation take place and were there any witnesses to the conversation
When did the conversation take place and at approximately what time of the day. If you don’t remember the precise date, remember the week or month or take notes of the conversation immediately after you are finished with the call
Why did the debt collector or person call you
In Minnesota you may record telephone conversations with a collector and not inform the collector that you’re doing so.
Income and Assets That Are Protected Under The Law
Are there protections under the law other than Bankruptcy or Debt Negotiation?
Yes. In many cases an individual’s income and assets are protected under the law.
For instance, social security, disability, pension and veteran’s benefits cannot be taken by creditors. Generally, 75% of all wages are protected under the law and cannot be garnished. In Minnesota, $360,000 in equity in a consumer’s homestead cannot be taken by a creditor.
The typical assets of many consumers are protected without filing bankruptcy. Income and assets that are protected under the law are “exempt” or protected from creditors.
However, if the consumer fails to assert their rights in a timely fashion after they’ve been garnished, their exemption rights may be lost. That is why it is important to hire an experienced attorney who can protect your income and assets.
If you are sued (served with a summons and complaint) you should immediately call an attorney. We want you to call us.
Fair Debt Collection Practices Act
What is the Fair Debt Collection Practices Act?
The Fair Debt Collection Practices Act, known as the “FDCPA”, is a federal law that governs the actions of collection agencies and law firms. It protects consumers from abusive conduct by debt collectors. It prohibits debt collectors from using any false, deceptive or misleading means to collect a debt.
If a Debt Collector Violates the FDCPA, You Are Entitled To Money Damages and Attorneys’ Fees. We sue debt collectors who violate the law. There are no attorneys’ fees unless you receive a recovery.
What debts are covered?
Debts incurred primarily for personal, family or household purposes are covered under the FDCPA. Business debts are not covered.
The following are some of the more common violations by collectors:
- Calling you at work after you tell the collector you can’t take calls at work
- Communicating with others regarding your debt
- Calling your family, friends, employers or co-workers
- Disregarding a written request from you to cease further contact
- Harassing you, abusing you, threatening violence against you
- Threatening to destroy your reputation
- Adding improper charges to the debt
- Lying to you or falsely implying that you have committed a crime
- Using any unfair, deceptive, false or misleading practice in an attempt to collect a debt
- Concealing their identity on the phone
- Failing to fully identify themselves
- Using obscene or profane language or simply not dealing with you in a professional manner
What are the rules under the FDCPA that govern communications by debt collectors?
Collectors cannot disclose your debt to anyone except you or your spouse. Collectors cannot call or write anyone regarding your debt except you and your spouse.
Debt collectors are not allowed to communicate by postcard or use any symbol or envelope that shows they are a debt collector.
How can an attorney help you with debt collectors?
Once a debt collector learns you are represented by an attorney and has the contact information for the attorney, the debt collector can only communicate with the attorney.
If any of your rights have been violated under the FDCPA, you have one year from the date of the violation to file a lawsuit against the debt collector. You may be entitled to money damages and attorneys’ fees.
What can you do if you feel you are a victim of debt collection abuse?
As soon as a collector contacts you start a file. Make notes of times and dates of phone calls. Your notes should include the date of the call, the approximate time of the call, what the collector said to you, and what you said to the collector. A good way of making a record of calls from collectors is to send an email to us, a family member, or a friend regarding what happened. If third parties are called regarding your debt ask them to take notes of what was said or send you an email confirming the conversation with the collector.
If you have the ability, record all your phone conversations. If this is not possible make sure you take notes of all your conversations. Save all your correspondence and the envelopes from collectors. Collectors are required to give you a written notice within 5 days of verbally contacting you.
Save all debt collection letters, the envelopes they come in, and messages that are left on your home or cell phones. Take photos of the incoming calls from collectors on your home, business or cellular phone.
Debt Negotiation or Debt Settlement
What are a person’s options if they owe a debt they cannot pay and do not choose or can’t file bankruptcy?
Debt Negotiation or Debt Settlement, is an option for most outstanding personal debt. It is a process where debt is settled for less than the outstanding balance in full payment and satisfaction of the total debt.
How does a person qualify for Debt Negotiation?
Generally, a creditor will not negotiate a debt settlement if the consumer is currently making all their monthly minimum payments. However, once payments stop and balances continue to grow because of late fees, interest, and other charges, lenders or collectors are usually willing to negotiate a settlement.
What debts qualify for Debt Negotiation?
Most personal debt will qualify as long as the creditor is willing to negotiate the debt. A creditor is not obligated to participate in debt negotiation. Some debts that do not qualify are secured debt (home and car loans), tax liens, domestic judgments. Recently we have started negotiating guaranteed student loans.
How much can a person expect to save with Debt Negotiation?
There is no set amount or percentage a consumer can expect to save. It depends on the creditor or the collector and the debt. However, a consumer can save as much as 50% or more when using an experienced attorney.
Are there any drawbacks to Debt Negotiation?
Yes, the most obvious being the consumer’s credit report will show a settlement for the debt which is not as good as paying the debt in full. However, for a debt that has been charged off as a bad debt by the creditor, a settlement will result in a better credit score than no payment on the debt or a charge off or a judgment if you are sued.
The consumer must also have a source of funds for paying the lump sum or installment (monthly payments) settlement. Generally, the creditor or collector will give the consumer 90 days to pay the settlement if a lump sum settlement is made.
Finally, any money saved in the settlement may have tax consequences. It is important to consult with a tax professional or attorney.
How can an attorney help with Debt Negotiation?
An attorney can negotiate the best settlement of your debt. Many factors determine the amount of a settlement. An experienced attorney understands the importance of these factors to negotiate the best settlement.