About 'fair debt collection practices act texas'|How to Collect a Debt in Texas
The Fair Debt Collections Practices Act (FDCPA) was established in 1977 in order to banish unfair and immoral collection practices by debt collectors. Many people who are behind on their bills feel threatened or intimidated by bill collectors, and will refuse to talk to them. It's nice to know that even though you owe money to a bank or finance company, you still have rights. The FDCPA defines and protects those rights, and creates an atmosphere of civility so that you can feel comfortable talking to your creditors. In most cases, creditors have repayment options, or can suggest alternative financing arrangements in order to get you back on track with your financial obligations. An important fact to note is that the FDCPA only applies to third-party collection agents. These agencies (collection agencies, collection attorneys) are collectors that are collecting for someone else. First-party collectors are agents that collect for debts that their company owns, such as a mortgage company that calls you directly if you miss a payment. Many first-party collectors will abide by the FDCPA in order to reduce their litigation exposure, but they are not bound by it. Another thing to consider is that the FDCPA does not override individual state laws concerning collections. As a consumer, state laws will in most cases give you more rights, and limit the collector's rights, such as divulging information to spouses without prior consent by the consumer. Below are the major points that a consumer should know about the FDCPA. These are the basic, everyday issues, and not meant to be a comprehensive review of the Act. Knowing these points will help you to understand what a creditor can and cannot do, and whether your rights are being violated. The Fair Debt Collections Practices Act Location Information Basically: The collector is allowed to try to find you. Details: A common practice of debt collectors is to pull your credit bureau report, and look for your last listed place of employment. They will then call your job and try to contact you. This is allowed by the FDCPA as long as the collector identifies who they are and where they are calling from, and does not indicate to anyone but you that you have a debt. Collectors are also able to call any other third-parties for your contact information, including family members, neighbors, other creditors, your attorney, and anyone else they can find, providing that they follow the above rules. Example: A collector was collecting on mortgages in Florida, and needed to find a particular debtor before the foreclosure sale. Their phone number was unlisted, and they were not responding to the letters he was sending. He looked on 411.com for every home on their block, and started calling neighbors. He contacted the next-door neighbor, who advised him that the debtors were still living in the home and having wild, loud parties every night. She offered to walk her cordless phone over to the debtors, knock on the door, and wake them up for the collector. He could hear the neighbor opening her door, her feet crunching in her gravel driveway, and then loud bangs on what was presumably the debtor's front door. The phone was then passed to the debtor, and they proceeded to have a lovely conversation. All of this was allowed by the FDCPA because the collector never indicated to the neighbor that the person he was looking for owed a debt, just that he really wanted to talk to them. Communication with Debtors Basically: The collector can contact you to ask you for money owed. Details: The collector needs to contact you between 8 A.M. and 9 P.M., but not during times that they know to be inconvenient to you. So, if you've told the collector that you work the night shift and sleep in the morning, they would be prohibited from calling you in the morning. If you advise the collector that you have an attorney, and provide the attorney's name and number, the collector is required to communicate only with your attorney. If you advise a collector that you are not allowed or able to receive calls at work, they are prohibited from calling your job. If you contact a collector in writing and advise them to cease communication (or, "stop contacting me"), the collector can only contact you one additional time to let you know that they will stop contacting you. They can also contact you after a cease communication to let you know of special offers of repayment or discounted payoffs (special remedies). A collector can never communicate with third parties without your specific permission. Third parties are considered anyone but you, your spouse (in most states), your attorney, or your parent or guardian if you are a minor. Exceptions include credit reporting agencies, creditors, attorneys or representatives of the creditor or collector, and executors and administers of a debtor's estate. The collector cannot send you a letter that has any indication that you owe money to them on the envelope. That includes an ink stamp saying "PAST DUE", as well as the name of the collection agency if it implies a debt. So, Big Debt Collectors, Inc. cannot have their name on the return address, but BDC, Inc. can. In no way can they send postcards through the mail as a contact attempt or location attempt. Harassment Basically: The collector is not allowed to make you feel uncomfortable. Details: This is what the anti-harassment portion of the FDCPA boils down to: collectors must act professionally and ethically. Collectors cannot contact a debtor more than once a day unless specifically given permission by the debtor. They cannot use threats of violence, obscene language, or cause your phone to ring repeatedly. They cannot threaten legal remedies (lawsuits, foreclosure, repossession, etc.) unless they are legally allowed to take those actions. They cannot advertise your debt for sale, or put your name on a list as a debtor (except to a credit reporting agency). They must identify themselves and whom they work for when communicating with you. Example: A field collector who worked for a mobile home financing agency before the FDCPA took effect used to have an effective way of getting the debtor to communicate with him. If a debtor were avoiding his calls and letters ("ducking"), he would go to the mobile home and remove the air conditioning unit and front door from the home. In South Carolina, in the summer, this usually resulted in prompt responses from the debtors. This is a prime example of why the FDCPA came into being, and the abuses it was meant to stop. False or Misleading Representation Basically: The collector cannot lie to you. Details: The collector cannot give you false or misleading information about your debt, their identity, what they will or will not do to you, or anything else. Specifically, they are prohibited they cannot provide false or misleading information about: - The amount of money owed - The legal status of the debt - Their ability to garnish wages, repossess property, or any other remedies unless allowed by law - The timeframe of any legal action or remedy - Any action that will not or cannot be taken by the collector - The identity or nature of any communication (i.e. sending a letter that appears to be from an attorney or government office, or pretending to call from a police office or government bureau) - Their identity, or identity of their company - Any information given to a consumer or debtor in any communication Example: In mortgage collections, the obvious remedy for non-payment is foreclosure. It is not uncommon to hear collectors advise debtors that their home will be seized and sold by the bank. This is allowed by the FDCPA, because it is a real legal remedy. However, to insinuate that it will happen "soon", or to give unrealistic timelines is prohibited. If a home is in New York, a notoriously lengthy foreclosure state, a collector cannot say that the home will be foreclosed on "soon" if the legal process hasn't started yet. However, in Texas, the foreclosure process takes about six weeks. Unfair Practices Basically: The collector cannot do things to unjustly cost you money or hurt your character. Details: The collector cannot collect any money other than what is owed through the default of the loan, and the provisions of the contract. Many contracts, such as mortgages, credit card applications, and car loans, stipulate that you will be liable for legal fees or collection costs. Therefore, the collector will also be collecting the costs and fees as well as the original debt, plus any interest as indicated by the contract. A collector cannot send a letter COD, or call you collect, because that would cost you money that is not reasonable for collection purposes. The collector also cannot accept or solicit postdated checks that are dated more than five days ahead, unless they send a letter indicating their intention to do so***. Of course, the collector cannot threaten to or actually deposit a postdated check early. ***Post-Dated checks vs. Check-by-Phone - It is a common practice for collectors to request that you do a "check-by-phone" when they are requesting money either immediately, or when setting up a payment plan with you. This service allows a collector to print a check in-house and deposit it to a bank using your check information (Routing number, Checking Account Number, and a Check Number). This is allowed by the FDCPA, and not considered an Unfair Practice as long as the collector sends a letter reminding you that you have authorized that payment if it is dated more than five days out. Conclusion The best way to get out of serious debt is to work with your creditor. They may be able to help you in ways you were not aware of. The FDCPA is designed to empower the debtor to feel comfortable communicating with a collector, and to make sure that the collector is playing fair and being nice. Communicate openly, and remember that your situation does not rob you of your rights. Caveat The author is not a legal professional, nor does he profess to be so. The above article is meant to be a summary of the Fair Debt Collection Practices Act as it is understood by the author. If you feel that your rights as a consumer have been violated in any way, it is recommended that you consult an attorney to determine your legal recourse. |
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