LAWSUITS NEWS & LEGAL INFORMATION

Bill Collector Harassment & Illegal Debt Collection Practices FAQ

What is considered debt collection harassment? I was late on my last credit card payment and the bank called me to find out about my payment—is that harassment?

The Fair Debt Collection Practices Act states that “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,” and provides a set of rules to determine what can be termed as debt collector harassment.

Generally, a call by a collector to follow up on a late payment does not in of itself amount to harassment. However, numerous types of conduct over the phone can constitute harassment and illegal debt collection practices, including:

• Calling before 8:00 a.m. or after 9:00 p.m.
• Calling during times of the day the caller knows or should know are inconvenient to the debtor
• Calling repeatedly, including calling multiple times in a short period of time
• Calling again after a debtor has hung up the phone
• Calling after the debtor asked the collector to stop
• Calling at a debtor’s workplace if the debtor previously told the collector that his/her employer doesn’t approve of these calls
• Calling family members or other third parties
• Using obscene, profane or abusive language
• Not disclosing the collector’s name over the phone
• Pretending to be an attorney or a government official
• Threatening arrest or criminal action
• Threatening action not permitted by law, such as for example, garnishment of all of the debtor’s wages, or taking of the debtor’s property before a judgment is obtained
• Misrepresenting the amount that is owed
• Asking to pay interest, fees or expenses not allowed by law

What kind of proof should I gather that I’m being harassed by bill collectors? Should I record my phone conversations?

Immediately after or during any telephone call you have with a bill collector, you should write down the date, time, who you spoke with, and as much of the conversation as you can remember. Also, obtain and keep your cell phone records, as they will show the duration of the calls.

When you do not answer the phone, you should save every voicemail. Even when the debt collector does not leave a voicemail and there is a missed call, you should take digital photos of your Caller ID, showing the date and time of incoming calls.

You should likewise save every letter or e-mail sent to you that in any way relates to your debt, even if it does not at first glance appear to be important. Similarly, you should save each and every piece of correspondence that you send to the debt collector yourself.

With respect to recording phone conversations, different states have different laws on whether it is legal. While the majority of states do not prohibit it, the following 12 states have laws against recording telephone conversation without the consent of all parties to the communication: California, Connecticut, Florida, Illinois, Massachusetts, Maryland, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Do not record any telephone call originating from or coming into any of these 12 states unless the caller itself tells you that the phone is being recorded, in which case you can do the same. If you cannot determine the location of the collection calls, you should not record them to be on the safe side.

What if the person calling me is a recording? Is that what’s called “robocalling”?

Yes, if you answer the phone and hear a recorded message, it’s a robocall. If robocalls are made to you frequently or during off hours, they can constitute harassment even if you never get to talk to an actual live person. Such claims for harassment under the Fair Debt Collection Practices Act can be also further strengthened if you can identify who the caller is and send them a letter requesting such calls to stop, but the calls then still continue.

Robocalls also are regulated by the Telephone Consumer Protection Act, which, as explained in more detail below, makes it illegal to place robocalls without the other party’s consent. Accordingly, depending on the specific facts, robocalls can violate the Fair Debt Collection Practices Act, the Telephone Consumer Protection Act, or both.

Are the notices I receive in the mail also considered “harassment”?

The Fair Debt Collection Practices Act prohibits not just “harassment” but also other types of improper conduct by the debt collectors. With some exceptions, the Fair Debt Collection Practices Act does not distinguish between illegal debt collection practices over the phone and illegal debt collection practices by mail. As such, various kinds of correspondence from the debt collectors can constitute debt collection harassment or other illegal conduct prohibited under the Fair Debt Collection Practices Act, including:

• Correspondence threatening filing of criminal charges
• Correspondence threatening action not permitted by law
• Correspondence misrepresenting the amount that is owed
• Correspondence asking to pay interest, fees or expenses not allowed by law
• Correspondence requesting payment on an old debt that has expired
• Correspondence sent to an individual with the same name as the debtor but who does not actually owe the debt
• Correspondence that looks like a court or “official” document when in reality it is not
• Correspondence demanding disclosure of personal financial information

Also, the same bill collector sometimes both calls the debtor and sends out letters, and depending on the facts, evidence of both can be helpful in stating a claim under the Fair Debt Collection Practices Act.

Besides stating what the debt collectors cannot do, does the Fair Debt Collections Practices Act also provide what the debt collectors must do when they are attempting to collect?

Yes, the Federal Debt Collections Act provides that within five days of the collector’s initial communication, they must send you written notice of your right to dispute the debt or request a verification of the debt. If you exercise this right, the debt collector must then stop its collection efforts until it sends you the debt verification.

Also, if a debt collector chooses to file a lawsuit, it may only do so in a place where the debtor lives or signed the contract on which the debt is being collected.

What is the difference between the Telephone Consumer Protection Act, the Fair Credit Reporting Act, and the Fair Debt Collections Practices Act?

As explained above, the Fair Debt Collections Practices Act applies specifically to debt collectors and largely governs their communications with the debtors.

By contrast, the Telephone Consumer Protection Act does not specifically regulate debt collectors, and instead seeks to provide protection against robocalls and nuisance calls in general. Pursuant to the Telephone Consumer Protection Act (TCPA), companies, including debt collectors, are prohibited from making robocalls without a prior consent from the called party.

The Fair Credit Reporting Act governs information provided to credit reporting agencies. The Fair Credit Reporting Act regulates both credit agencies themselves and debt collectors. The act prohibits debt collectors from reporting to a credit agency any information about the debtor that the collector knows—or has “reasonable cause” to know—is inaccurate, such as for example, a wrong debt amount or date of the debt. Additionally, if a debtor disputes a debt, a collector may not report the debt to a credit agency without also telling the agency that it is in dispute.

I heard that if I don’t give these companies my consent to be called then it’s illegal for them to call me. Is that true?

It depends on the types of calls. The Telephone Consumer Protection Act does not generally require consent for calls that do not contain any prerecorded messages and are dialed manually. The types of calls that are illegal without consent under the Telephone Consumer Protection Act are: 1) calls with prerecorded messages; and 2) calls made through an automatic dialing system. Thus, even when you pick up the phone and end up speaking to an actual person, such calls are still illegal if they were autodialed. You can generally tell apart calls that are manually dialed from calls that are autodialed by whether there is first a pause or music playing before you get connected to a live person.

What if I receive a text message from a company to which I never gave consent to be contacted?

The Telephone Consumer Protection Act has been interpreted to apply to text messages as well as autodialed calls, so if you receive such text messages you may have a claim.

I thought if I put my name on the “do not call” list that I wouldn’t get unwanted calls from bill collectors—but I’m still getting called. What’s going on?

Placing one's number on the National Do Not Call Registry stops the majority, but not all, of unsolicited calls. While the National Do Not Call Registry applies to most telemarketers, there are other types of entities that are exempt from the registry, with debt collectors being one of them. Consequently, regardless of whether or not you’ve placed your name on the “do not call” list, you need to seek protection from unwanted calls by bill collectors by arguing either harassment under the Fair Debt Collection Practices Act, violation of the consent requirements under the Telephone Consumer Protection Act, or both.

What should I do if I think I’m being harassed by a bill collector? What information, documents or other “proof” would a lawyer need to be able to consider my bill collector harassment case?

Any time that you believe a bill collector is engaging in any type of conduct described above that may be in violation of the Fair Debt Collections Practices Act, the Telephone Consumer Protection Act, and/or the Fair Credit Reporting Act, you should save all the communications, take notes if you speak to anyone, and contact an attorney who does consumer and/or debtor protection. Whether or not you have a strong claim against a bill collector often depends on the specific facts, and consumer and debt protection lawyers provide free consultations. Even if you may not have an actionable legal claim at the time you speak to a lawyer, he or she can still advise you what additional evidence you will need to gather, as well as what other options you may have to protect your rights.