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Fair Debt Collection Practices Act

Frequently Asked Questions About Debt Collection and The Fair Debt Collection Practices Act

What is the Fair Debt Collection Practices Act?

The Fair Debt Collection Practices Act – the FDCPA – is a federal law that prohibits debt collectors from taking many forms of illegal conduct and improper actions to collect personal, household or family debts.

Who is a Debt Collector?

A debt collector is anyone who regularly tries to collect debts owed to others. This includes attorneys who collect debts on a regular basis. It does not include any federal, state or local officials. It does not include process servicers

Can the creditor itself be a Debt Collector?

Under Federal Law, the creditor itself usually is not a debt collector. But if the creditor uses a name other than its own to collect a debt – leading you to believe that it is someone else, then it is a debt collector for purposes of the FDCPA.

Who is protected by the Fair Debt Collection Practices Act?

You are protected by the FDCPA if you are a natural person – a consumer – if the Debt Collector is trying to collect a debt for something you became obligated for personal, family or household purposes. Business debts are not covered.

Can debt collectors contact my employer or family?

A debt collector can contact your employer or family only to find out where to find you. They can’t reveal that they are a debt collector or trying to collect a debt. They must identify themselves and indicate that they are just trying to locate you. Once the debt collector knows where to find you, the debt collector can’t contact anyone but your or your attorney without your permission.

When can debt collectors contact me?

Debt collectors can contact you only during normal times. This means not before 8 AM or after 9 PM.

What if I tell the debt collectors I have an attorney?

Once you tell the debt collector you have an attorney, who it is, and how to reach the attorney, the debt collector may no longer contact you unless the attorney doesn’t communicate with the debt collector within a reasonable time.

Can I tell a debt collector to stop bothering me?

If you tell the debt collector in writing that you won’t or can’t pay the debt or that you would like the debt collector to stop contacting you, then the debt collector must stop contacting you.

Can a debt collector contact me at work?

If the debt collector knows that it is against your employer’s policy to be contacted at work, the debt collector must stop contacting you at work.

What constitutes creditor harassment or abuse?

Harassment or abuse by a debt collector is prohibited. Here are some conduct which is considered harassment or abuse:

  • Threats of violence or criminal means to harm you, your reputation or your property
  • Use of profane or obscene language which would naturally harm someone who hears or reads it
  • Publication of a list of people who are not paying debts – a deadbeat list – except if it is to a legitimate credit reporting agency
  • An advertisement for a sale of debt to coerce payment of the debt
  • Excessive ringing of a telephone or repeated or continuous calling with the intent to annoy, abuse, or harass any person – you or a member of your household – at the called number
  • Placement of a call without a meaningful disclosure of who is calling

Are debt collectors allowed to lie in order to collect a debt?

Federal law prohibits false or misleading statements in an effort to collect a debt. Some of the most common types of false statements which are prohibited include:

  • Any statement, words, representation or implication that the debt collector is in any way affiliated with the United States, or any state – including the use of any badge, uniform or facsimile. It may be enough that the creditor or collection agency uses the word “National” or “Federal” or “American” or even the name of a State in its corporate identity.
  • False statement as to the amount of debt, the type of debt or the legal status of the debt
  • Falsely representing that the debt collector is an attorney if he or she is not an attorney
  • A threat that non-payment of the debt may lead to arrest or imprisonment of the debtor, or seizure, garnishment or sale of property or wages of a person unless this action is both lawful and an action the creditor intends to take.
  • A threat to take any action that can’t be taken or is not intended to be taken

There are many other types of false statements which debt collectors may not make. Ask us.

What are unfair practices that a debt collector can’t use to collect a debt?

Federal law specifically prohibits quite a few unfair practices. Here are some of them:

  • Collecting more than is due from the consumer
  • Accepting post-dated checks more than 5 days in advance unless the consumer is informed that he will be notified at least 3 days prior to the deposit.
  • Solicitation of a post-dated check for the purpose of threatening or instituting criminal prosecution
  • Causing charges to be made for communications without disclosing what the communication is for – in other words, utilization of collect telephone calls and telegram fees.
  • Taking or threatening to take action to take or disable your property without a legal right to do so, a present intent to do so or if property is exempt.
  • Communicating with you about debt using a postcard
  • Using anything on an envelope which would reveal that it is from a debt collector, including the use of a name disclosing that it is a debt collector.

Can I recover damages?

If the debt collector violates federal law, you can recover statutory damages of $1,000, any actual damages, and attorneys’ fees.

Will I have to pay my attorney?

At Lakelaw, you pay nothing except for the court filing fee unless we win.

Are there state laws that protect me from debt collectors?

Illinois does not have any special laws to protect you from improper debt collection. The Illinois Fair Debt Collection Practices Act is scheduled to be repealed in 2016 and does not have any specific remedies for consumers. You may have rights under the Illinois Collection Agency Act or the Illinois Consumer Fraud and Deceptive Business Practices Act. However, Wisconsin does have its own debt collection statute. This law can be found in chapter 427 of the Wisconsin Statutes.

How am I protected by the “Wisconsin consumer act – debt collection”?

The Wisconsin Consumer Act: Debt Collection Practices covers not only third party debt collectors but also companies or people that are trying to collect debts for themselves.

Here are some threats which are specifically forbidden to debt collectors in Wisconsin:

  • Criminal prosecution
  • Any action not taken in the regular course or intended to be taken against the consumer
  • Threats or harassment of the consumer or anyone else, including:
    • Violence against persons or property
    • Disclosure of false information about the consumer’s reputation for creditworthiness
    • Contacting the consumer’s employer except in limited circumstances
    • Disclosure of information affecting the consumer’s reputation to anyone not having a legitimate need for the information, unless provided by law
    • Disclosure of information regarding a debt which is known to be disputed by the consumer without disclosing the fact that the debt is disputed
    • Enforcement of a right with knowledge or reason to know that there is no right to do so.
  • Improper communications, including:
    • Communicating with the consumer or others too frequently or at odd hours – before 8 AM or after 9 PM
    • Use of obscene or threatening language
    • Using language which suggests or simulates legal or judicial process or governmental action.

What are my rights to recover under the Wisconsin Consumer Act: Debt Collection Practices?

In Wisconsin, you have rights even greater than those under Federal Law. You can recover:

  • Actual damages, including incidental and consequential damages you suffer because of the violation – not just the $1,000 statutory damages you’d get under Federal Law
  • Double the amount of finance charge on the transaction up to $1,000. There’s nothing like this under Federal Law
  • Damages for emotional distress or mental anguish – even if you don’t suffer a physical injury – you might not get this under Federal Law either.
  • The right to recover any collateral you were induced to surrender.

You have rights under the Wisconsin Consumer Act: Debt Collection Practices in addition to your claims under Fair Debt Collection Practices Act if you live in Wisconsin or the creditor tried to collect the debt from you in Wisconsin.