LAVELLE LAW GROUP, APC

UNFAIR DEBT COLLECTION PRACTICES AND WHAT YOU CAN DO ABOUT IT

Debt collectors can and do cross the line and violate the rights of innocent Californians.  Nearly all households who are behind on their bills had paid their bills until they faced a financial catastrophe: unemployment, illness, disability, divorce, or succumbed to some of the daily exhortations in their mailbox to borrow and on TV to buy on credit. During recessions even more consumers fall behind because they are laid off by an employer. Recognizing this, federal and many states’ laws require that financially distressed consumers not be abused, deceived, lose their privacy, or be treated unfairly.  Some of the horror stories of the tactics of unscrupulous debt collectors are almost unbelievable.

Debt collectors use various forms of illegal intimidation, including talking with friends and employers about a consumer’s debt without permission from the debtor; making harassing or abusive telephone calls; threatening to take actions that are illegal or not intended; and suing on debts that were paid or not owed.

As a consumer, both the Federal Government and the State of California have provided powerful protections to you against unscrupulous debt collectors.  California's Rosenthal Act and the federal Fair Debt Collection Practices Act (FDCPA) provide important protections for people against overly aggressive and harassing debt collectors. Listed below are some of the most common violations committed by debt collectors. If a debt collector has has threatened you or engaged in any of these tactics with you, please call or email us today for a free case evaluation.

Debt Collectors cannot:

- Telephone you an unreasonable number of times;

- Seek unjustified amounts, which would include demanding any amounts not permitted under an applicable      contract or as provided under applicable law;

- Telephone you at an unusual time or place;

- Use profanity or threatening language;

Reporting false information on a consumer's credit report or threatening to do so in the process of collection;

- Threaten to have the police or the IRS go to your home;

- Continue to contact you after you give them written notification that you do not want to be contacted;

- Accuse you of committing a crime;

- Fail or refuse to identify who they are;

- Call you before 8:00 a.m. or after 9:00 p.m.;

- Use deceptive methods to collect a debt;

- Contact you at work after being told not to;

- Engage in harassing, oppressive or abusive contact;

- Use or threaten violence or physical harm to you or anyone else;

- Cause your telephone to ring repeatedly;

- Falsely represent that they are an attorney or law firm;

- Sue you in any other county except where you signed the contract;

- Contact by embarrassing media, such as communicating with a consumer regarding a debt by post card, or 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[

- Communicate with third parties: revealing or discussing the nature of debts with third parties (other than the consumer's spouse or attorney)(Collection agencies are allowed to contact neighbors or co-workers but only to obtain location information; disreputable agencies often harass debtors with a "block party" or "office party" where they contact multiple neighbors or co-workers telling them they need to reach the debtor on an urgent matter.);

Publish the consumer's name or address on a "bad debt" list.

If a Debt Collector engages in any of the above unlawful acts, they be liable to you for statutory damages up to $1,000, for each violation plus any actual damages such as stress, humiliation, anxiety, or shame, and you may be entitled to recovery of your attorney fees and costs. It may also be possible to have the unpaid debt wiped out.  Please contact us immediately if a debt collector has engaged in any of these tactics with you to see if we can assist you.

Further, The FDCPA requires debt collectors to do the following (among other requirements):

- Identify themselves and notify the consumer, in every communication, that the communication is from a debt collector, and in the initial communication that any information obtained will be used to effect collection of the debt;

- Give the name and address of the original creditor (company to which the debt was originally payable) upon the consumer's written request made within 30 days of receipt of the §1692g notice;

- Notify the consumer of their right to dispute the debt (Section 805), in part or in full, with the debt collector. The 30-day "§1692g" notice is required to be sent by debt collectors within five days of the initial communication with the consumer ( though in 2006 the definition of "initial communication" was amended to exclude "a formal pleading in a civil action" for purposes of triggering the §1692g notice,[24] complicating the matter where the debt collector is an attorney or law firm. The consumer's receipt of this notice starts the clock running on the 30-day right to demand verification of the debt from the debt collector.);

- Provide verification of the debt.   If a consumer sends a written dispute or request for verification within 30 days of receiving the §1692g notice, then the debt collector must either mail the consumer the requested verification information or cease collection efforts altogether. Such asserted disputes must also be reported by the creditor to any credit bureau that reports the debt. Verification should include at a minimum the amount owed and the name and address of the original creditor;

- File a lawsuit in a proper venue. If a debt collector chooses to file a lawsuit, it may only be in a place where the consumer lives or signed the contract. Note, however, that this does not prevent the debt collector from being sued in other venues for violating the Act, such as when the consumer moves outside the venue and a letter demanding payment is forwarded to the new address, even if the debt collector is unaware of such a change in residence.

What to do if you've been harassed by a debt collector - Click Here

In California, you can sue the debt collector and the original creditor for violations of California and federal law. The federal FDCPA covers debt collectors, which is defined by the law to generally exclude the original creditor (for example the credit card issuer). California law defines debt collectors to include the original creditors that collect consumer debt. Most original creditors fall within the definition of a debt collector under California law. Additionally, California law incorporates most of the federal law and makes them violations of California law. Therefore, in California, you can sue the original creditor and the debt collector for violations of state and federal law.

The fair debt collection laws apply to all consumer debt. Under both federal and California law, any person who owes or is alleged to owe a consumer debt (one that was incurred for a personal, household or family purpose) is entitled to the protections of the fair debt collection laws. Debt that was incurred primarily for a business purpose is not covered.

Any person who the debt collector claims owes a consumer debt is covered by the fair debt collection laws. The fair debt collection laws apply to any person who is alleged to owe a consumer debt. If a debt collector seeks to collect money or property from someone, that person can sue for violations of the fair debt collection laws whether or not that person owes any debt or even had any relationship with the original creditor.

Repossession agencies are also covered by the fair debt collection laws. Repossessors are subject to the federal FDCPA if they attempt to repossess property without the right to do so (for example, the repossession is done in breach of the peace). Repossessors are subject to ALL of the protections afforded by California’s fair debt collection laws. This means that in California, you can sue a repossessor for threats, misrepresentations, abuse and unfair conduct in attempting to repossess property, even if the repossessor had a right to take the property and the repossession was entirely lawful.
 
If you have been harassed or a debt collector has violated your rights, contact us to discuss your options and how Lavelle Law Group may be able to help.

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