Debt collection and your rights

This week, the Office of the Attorney General’s “Consumer Caution Corner” focuses on educating consumers about debt collection and their associated rights. If you are behind in paying your bills, or a creditor’s records mistakenly make it appear that you are, a debt collector may be contacting you. The Federal Trade Commission, the nation’s consumer protection agency, enforces the Fair Debt Collection Practices Act, which prohibits debt collectors from using abusive, unfair, or deceptive practices to collect from you. Under the FDCPA, a debt collector is someone who regularly collects debts owed to others. This includes collection agencies and lawyers who collect debts on a regular basis, and companies that buy delinquent debts and then try to collect them.

Here are some questions and answers about your rights under the Act:

What types of debts are covered?

The Act covers personal, family, and household debts, including money you owe on a personal credit card account, an auto loan, a medical bill, and your mortgage. The FDCPA does not cover debts you incurred to run a business.

Can a debt collector contact me any time or any place?

No. A debt collector may not contact you at inconvenient times or places, such as before 8:00am or after 9:00pm, unless you agree to it. And collectors may not contact you at work if they are told (orally or in writing) that you are not allowed to get calls there. Debt collectors can contact you by phone, letter, email, or text message to collect a debt, as long as they follow the rules and disclose that they are debt collectors. No matter how they communicate with you, it is against the law for a debt collector to pretend to be someone else—like an attorney or government agency—or to harass, threaten or deceive you.

What practices are off limits for debt collectors?

Debt collectors are prohibited from saying that:

• you will be arrested if you do not pay your debt;

• they will seize, garnish, attach, or sell your property or wages unless they are permitted by law to take the action and intend to do so; or

• legal action will be taken against you, if doing so would be illegal or if they do not intend to take the action.

Harassment. Debt collectors may not harass, oppress, or abuse you or any third parties they contact. For example, they may not:

• use threats of violence or harm;

• publish a list of names of people who refuse to pay their debts (but they can give this information to the credit reporting companies);

• use obscene or profane language; or

• repeatedly use the phone to annoy someone.

False statements. Debt collectors may not lie when they are trying to collect a debt. For example, they cannot:

• falsely claim that you have committed a crime; or

• misrepresent the amount you owe.

Unfair practices. Debt collectors may not engage in unfair practices when they try to collect a debt. For example, they may not:

• try to collect any interest, fee, or other charge on top of the amount you owe unless the contract that created your debt—or your state law—allows the charge; or

• deposit a post-dated check early.

Can federal benefits be garnished?

Many federal benefits are exempt from garnishment, including:

• Social Security benefits

• Supplemental Security income (“SSI”) benefits

• Civil service and federal retirement and disability benefits

• Military annuities and survivors’ benefits

• Federal Emergency Management Agency federal disaster assistance

Federal benefits may be garnished under certain circumstances, including to pay delinquent taxes, alimony, child support, or student loans.

Do I have any recourse if I think a debt collector has violated the law?

You have the right to sue a collector in a state or federal court within one year from the date the law was violated. If you win, the judge can require the collector to pay you for any damages you can prove you suffered because of the illegal collection practices, like lost wages and medical bills. The judge can require the debt collector to pay you up to $1,000, even if you cannot prove that you suffered actual damages. You also can be reimbursed for your attorney’s fees and court costs. A group of people also may sue a debt collector as part of a class action lawsuit and recover money for damages up to $500,000, or 1 percent of the collector’s net worth, whichever amount is lower. Even if a debt collector violates the FDCPA in trying to collect a debt, the debt does not go away if you owe it.

What should I do if a debt collector sues me?

If a debt collector files a lawsuit against you to collect a debt, respond to the lawsuit, either personally or through your lawyer, by the date specified in the court papers to preserve your rights. For the full FTC “Debt Collection” publication, pick up a copy at the OAG (on Capital Hill) or request one by email from consumer_counsel@cnmioag.org.

Each week, the OAG’s Consumer Protection Education Program aims to provide consumers and businesses with the “know-how” to identify and protect themselves from unfair trade practices and marketplace schemes. If you would like to file a consumer complaint, pick up a form at the OAG (on Capital Hill) or request one by email from consumer_counsel@cnmioag.org. After completing the consumer complaint, submit it by email or in-person.

We cannot act as your private attorney. If you need legal assistance, we will recommend that you contact a private attorney or legal aid organization. We cannot give legal advice or act as your private attorney.

***
Michael J. Cyganek is consumer counsel of the Office of the Attorney General.