s part of a general litigation and consumer protection practice, consumer debt obligations and issues with debt collection are present in many cases with diverse facts and claims. The Fair Debt Collection Practices Act, or FDCPA, 15 USC 1692 et.,seq,, is a broad federal statute that serves both a guidelines and best practices for debt collectors, and provides robust remedies for consumers.
Who can bring a claim under the FDCPA?
Only certain debts, and certain collection practices are covered by the FDCPA. Most importantly, only consumer debt is protected under the FDCPA, meaning the subject of the debt is primarily for personal, family, or household purposes. So, while debts taken out for your business are not protected, almost every other kind of “personal, family, or household” transaction qualifies, including utility bills, medical bills, and credit card obligations. If it is not a mortgage or business expense, odds are the creditor is obligated to comply with the FDCPA.
What debt collection practices does the FDCPA protect against?
Obviously, debt collectors need some way to encourage debtors to pay their debt obligation. But what crosses the line and violates your rights? Broadly, the FDCPA is intended to prevent harassment, disclosing personally identifiable information, disclosing the recipient’s status as a debtor, false or misleading representations, and other unfair practices.
These practices largely fall into three categories: harassment, invasion of privacy, and deceptive or misleading statements. Harassment violations are self-explanatory, and consist of repeated phone calls or letters, and the use of threatening language, or language which invokes non-existent creditor’s rights. Invasion of Privacy violations are rooted in the common law tort of invasion of privacy, and include conduct such as identifying the recipient of a letter as a debtor, or disclosing the existence of a debt or an account to a third-party. Most interesting, are deceptive or misleading statement violations. Courts determine whether a debt collection letter is false or misleading statement under the “least sophisticated consumer” standard. A notice is deceptive if it would make the least sophisticated consumer uncertain as to her rights, or if a reasonably reading conveys two or more different meanings, one of which is inaccurate. Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 25 (2d Cir. 1989).
“The Act is aimed at protecting consumers in general from abusive debt collection practices and the test is how the least sophisticated consumer- one not having the astuteness of a “Philadelphia lawyer” or even the sophistication of the average, everyday, common consumer-understands the notice he or she receives. This least-sophisticated-consumer standard best effectuates the Act’s purpose of limiting the “suffering and anguish” often inflicted by independent debt collectors. We apply this test when considering claims made pursuant to § 1692g.” Russell, 74 F.3d at 34.
Finally, the FDCPA is a strict liability statute, and plaintiffs are not required to show that debt collectors intentionally violate the Act, Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1175-76 (9th Cir. 2006). Even if your debt is past-due or in default, debt collectors are still liable for their conduct under the FDCPA.
If you have been receiving letters or phone calls from debt collectors, especially if these contacts feel like harassment, or are confusing, you may have a valid FDCPA claim.