July 28, 2005

Devries Column

Debt collectors may not harass consumers

This week’s question:
My wife and I recently fell behind on some of our bills because of some huge medical bills that we incurred. We have been married 20 years, have excellent credit, but just cannot pay a couple of our bills in full right away. Our problem is that we get repeated, harassing telephone calls, one after the other, at all hours of the day and night from two different bill collectors from the same company. Can anything be done about this?

Mitch M.
Almaden Valley

Dear Mitch:
You just might be able to do something about this, Mitch. Although I do not specialize in collection defense cases, I have some familiarity with the Federal Fair Debt Collection Practices Act. This is a federal law that protects all residents of the state of California, as well as residents of other states.

The Federal Fair Debt Collection Practices Act is found in the United States Code, Sections 1692-1692o. For shorthand reference, the acronym is “FDCPA.” This is the primary federal legislation dealing with unfair and deceptive consumer debt collection practices.

The FDCPA is administratively enforced by the Federal Trade Commission (FTC) and other federal regulatory agencies.

If a debt collector violates this federal law, civil liability may be imposed. This is a “strict liability” statute, meaning that if a violation is found, it doesn’t matter if the debt collector accidentally violated the law, or knew about it or not. Willfulness is irrelevant.

The following are a few of the key provisions of the law:

A debt collector may not communicate with a consumer concerning collection of a consumer debt at an unusual time or place that the collector knows, or should know, is inconvenient for the consumer.

Communications (e.g. telephone calls) between 9 p.m. and 8 a.m. are presumed to be inconvenient.

The debt collector may not contact the consumer if the consumer is represented by an attorney with respect to the debt.

A debt collector may not communicate with a consumer at the consumer’s workplace concerning collection of a consumer debt if the collector knows, or should know, the consumer’s employer prohibits its employees from receiving such communications.

A debt collector is prohibited from harassing, oppressing or abusing any person to collect a consumer debt.

A debt collector may not use or threaten to use violence or any other criminal means against anyone’s physical person, reputation or property. (The FTC staff has indicated this provision prohibits implied threats of violence—e.g. “We’re not playing around here—we can play tough.”)

A debt collector may not use obscene or profane language or language the “natural consequence of which is to abuse the hearer or reader.” (According to the FTC Staff, a collector may not call the debtor a “liar” or “deadbeat” or use religious slurs or racial/sexual epithets.)

Although the debt may be reported to a proper credit-reporting agency, the debt collector cannot threaten to add a consumer to a “deadbeat list” and/or publish that list.

A debt may not be advertised for sale to coerce payment by shaming the debtor.

Telephone calls: A debt collector must make a “meaningful disclosure” of his or her identity. “Continuous” or “repeated” calls may not be made. Nor can the debt collector allow a telephone to ring repeatedly with intent to annoy, harass or abuse.

Debt collectors may not falsely imply that legal action on the debt has commenced. Nor may a debt collector claim more than is actually owed, or falsely assert that a debt has matured or is immediately due and payable.

A debt collector cannot misrepresent the applicable stature of limitations.

A debt collector may not send the debtor a letter falsely representing it is the “final demand” before legal remedies will be exercised.

A debt collector may not falsely represent or imply he or she is an attorney or that a communication is from an attorney.

A debt collector cannot threaten one with arrest, imprisonment, or other “disgraceful” conduct.

A debt collector may not threaten to take any action that is unlawful or not intended to be taken.

Subject to certain exceptions, all collection-related communications with a consumer must cease when the consumer notifies the debt collector in writing that he or she (a) refused to pay the debt; or (b) wants further communications to cease.

If the debt collector violates the Federal Fair Debt Collection Practices Act, the debt collector may face actual damages, statutory damages of $1,000, court costs, and attorney’s fees.

If I were you, Mitch, I would (1) make sure to get the caller’s name, position, company, address, and telephone number. I would also demand verbally and in writing that all contact with you stop, if that is your wish. I would also immediately make a detailed memo for my file as to the date, time, and contents of each and every call and demand that all further contact be in writing—or for them to contact your attorney if that is your wish.

Since there are space limitations to this column, you may want to read the entire federal law for yourself. Log on to www.findlaw.com. (You may need to register and put up with some advertising, but the Web site is free.) On the home page, find “For Legal Professionals.” Then click on U.S. Law: Cases & Codes. Then click on Federal and scroll down to Codes, Statutes & Regulations. At that point, select U.S. Code and scroll down to “U.S. Code (Laws made by the U.S. Congress.) In the “Title” box, enter 15 and in the Section box enter 1692. Then click on Search and the Debt Collection Practice Act will be in front of you. This is very interesting.

As I always say, Mitch, be sure to consult with your own attorney as to a complete understanding of this or any other law, especially as it may relate to your particular situation. Good luck!

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.