By Michael Kind, Esq., Guest Blogger
Many people are scared of debt collectors. And for good reason: debt collectors are often accused of using unfair and deceptive tactics. These tactics may include making improper threats or harassing people who allegedly owe money.
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Effects of Unfair Debt Collection Practices
In the 1970s, the U.S. government conducted a study about debt collection throughout the country. It was determined that abusive debt collection practices contribute to bankruptcies, marital instability, the loss of jobs, invasions of peoples’ privacy, and other unwanted results.
Congress enacted the Fair Debt Collection Practices Act (FDCPA) to eliminate abusive debt collection practices by debt collectors. The FDCPA creates guidelines under which debt collectors may conduct business, defines the rights of consumers involved with debt collectors, and prescribes penalties and remedies for violations of the rules.
Prohibited acts under the FDCPA
The FDCPA generally prohibits unfair and deceptive collection practices, restricts communication by debt collectors, and requires transparency through disclosures. For example:
- a debt collector is not allowed to communicate with someone when the collector knows that the person is represented by an attorney. 15 U.S. Code Section 1692c(a)(2)
- a debt collector’s ability to communicate with a debtor who disputes the debt is restricted. Section 1692c(c)
- a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Section 1692e
- a collector may not falsely represented the amount or the legal status of a debt. Section 1692e(2)
- a collector cannot threaten to take action against a person which could not be legally taken (arrests, etc.). Section 1692e(5)
- a collector may not use any false representation or deceptive means to collect or attempt to collect any debt. Section 1692e(10)
- the false representation or implication that documents are not legal process forms or do not require action by the consumer is prohibited. Section 1692e(15)
- a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Section 1692f
- a collector may not collect or attempt to collect an amount not expressly authorized by the agreement creating the debt or permitted by law. Section 1692f(1)
- debt collectors must provide certain disclosures when attempting to collect debt from people. Section 1692g
What is considered a “misleading” statement under the FDCPA?
The FDCPA’s prohibition on misleading statements poses the question, “Misleading to whom?” Does the answer depend on whether the collector meant for the statement to be misleading? Does the answer lie in whether the person was actually misled? Does it matter if that person happens to be extra gullible or uniquely sophisticated about debt collection issues? Or does the judge look to see if the person could have been misled? This approach isn’t easy because some people are more easily tricked than others.
In Nevada (which is in the Ninth Circuit), courts use the third approach: they evaluate the tendency of language to deceive. That means, courts don’t assess whether the person was actually deceived but whether she could have been misled. The test used is whether the least sophisticated reader would be misled or deceived by the language. Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061-62 (9th Cir. 2011) (The standard is designed to protect consumers of below average sophistication or intelligence, or those who are uninformed or naive; “The ‘least sophisticated debtor’ standard is lower than simply examining whether particular language would deceive or mislead a reasonable debtor”).
The FDCPA is a strict liability statute
Is the debt collection company excused if they can prove that the violation was a mistake?
No. The FDCPA is a strict liability law, meaning that a plaintiff does not need to prove that an FDCPA violation was intentional in order to prevail. E.g., Reichert v. Nat’l Credit Sys., 531 F.3d 1002, 1004 (9th Cir. 2008); Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162 (9th Cir. 2006)); McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948 (9th Cir. 2011).
Under the FDCPA, a victim of unfair to deceptive collection practices may recover any damages proven, up to $1,000, plus reasonable attorney’s fees and costs.
For more information about FDCPA claims, contact Mike.