Sometimes it’s very hard to figure out just what exactly constitutes unlawful debt collection. Maybe someone is aggressively pressing you to make payments you can’t afford. Maybe a debt collector is threatening to take specific action against you if you don’t pay by a certain date. Honestly, at times it can all seem unfair or illegal. So just what exactly constitutes “unfair” debt collection practices?
You might be surprised to learn that “unfair” debt collection practices are distinguished from “abusive” or “deceptive” debt collection practices by the FDCPA. This is not to say that a specific event can’t be both “unfair” and “abusive,” or “unfair” and “deceptive,” etc. It’s just to say that “unfair” conduct doesn’t have to be “abusive” and/or “deceptive” to constitute illegal behavior. The FDCPA does not provide a definitive list of violations, but instead identifies some conduct that is generally viewed as unfair debt collection.
So what are some examples of “unfair” debt collection practices? Here are three (3) examples that I find most frequently occur:
Example #1: The collection of any amount (including any interest, fees, charges, or other expenses) that were not expressly authorized by the agreement creating the debt or otherwise permitted by law.
For example, if a debt-buyer has filed a lawsuit against you and asks the Court for interest, attorney’s fees and court costs, but the original credit card agreement did not expressly give them the authority to do so, they have probably engaged in unlawful debt collection activity which may give rise to a counter-claim or separate lawsuit of your own under the FDCPA. It wouldn’t be fair for a collector to tag on additional expenses to you when that was never part of the original deal, and that is what this section of the law seeks to prohibit and prevent.
Another variation of this scenario involves those instances where a debt-buyer tries to collect a debt from you that you have already paid off. If they refuse to acknowledge your proof of payment, etc., then they have probably engaged in illegal collection activity.
Example #2: Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
This example most usually refers to a situation where a future payment is arranged with a debt collector (whether by phone or by check, etc.) and the debt collector decides that even though you only authorized the payment to go through on the 15th or 28th of the month, they will deposit that payment right away because you provided the info.
The reason this is unfair, is because it can obviously cause a number of financial issues for the paying debtor – such as bounced payments on overdrawn accounts, bank fees, penalties, defaults to other creditors, etc.
The trick here is to make sure that if a payment is being made by phone for a future date, that you have something in writing confirming the due date before you provide the payment information to ensure that it doesn’t become a “he-said/she-said” type scenario. Without proof on your side, you will be at a severe disadvantage to show that the payment was withdrawn too soon.
Example #3: Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.
This action may seem very technical in nature, but in practice has a very meaningful purpose behind it. It is prohibited as being “unfair” because it leaves the debtor open to other people learning about the existence and collection of the debt. Debtors have a right to privacy, and listing that language or symbol on an envelope certainly discloses the existence of a defaulted debt to any mail-person, family member, friend, or neighbor that comes in contact with the envelope. This of course can be very upsetting and embarrassing for the debtor and thus it is prohibited.
What if I think something was unfair but I can’t find it listed in the FDCPA?
Again, the FDCPA makes it very clear that they are not providing an exhaustive list. To the contrary, the drafters of this important consumer law were aware that they could not possibly think of every type of violation. Thus, if you believe that something unfair happened to you, it is important to make sure that you consult with an experienced and knowledgeable attorney who has filed many FDCPA lawsuits. There is only a one (1) year statute of limitations to file a lawsuit under the FDCPA, so if you have any questions, don’t delay reaching out for help.
The attorneys at Graham & Borgese have handled hundreds of FDCPA lawsuits and would be happy to discuss your potential claim. If you would like to take advantage of our free consultation offer, contact us via email or by telephone today to learn more.