BROWN & SEELYE Attorneys at Law

False Statements and Fraudulent Debt Collection Practices

A federal statute known as the Fair Debt Collection Practices Act (often called the "FDCPA") gives you specific legal rights to sue debt collectors who unlawfully threaten, berate, intimidate or harass you; call you during odd hours, make false representations about the debt or their intentions, or otherwise act in ways proscribed by the act (and their are many). False statements may include (and this list is just a small example) threats to:

• Attach your wages when unlawful or not intended;
• Contact your employer about the debt;
• Call you "everyday until the debt is paid;"
• Sell the debt to another company for the purposes of continuing collection on a time-barred debt;
• Contact neighbors about the debt;
• Contact the Department of Homeland Security about your alien status;
• Threaten imprisonment or criminal punishment;
• Report a financed vehicle as "stolen" because you missed one or more vehicle payments;
• File or threaten to file criminal bad check charges on a post dated check that the collector solicited from you;
• Immediately evict (by an agent for a landlord); lockout, or seize personal property where such relief is limited by state law;
• Sue, where no suit is intended;
• Or, a threat implying that the collection agency has multiple employees or investigators working to collect the debt, where only one or two people work for the agency.
• Collect or sue for "collection costs," "attorney's fees," interest not pre-agreed to in excess of that allowed by statute, "fines," or any other fee in excess of the actual amount due, unless the original agreement provides for the amount the collector threatens to collect. For instance, the collector cannot threaten to add attorney's fees or his fees where the agreement you signed does not specifically provide for them. Let's say you went to the dentist and just signed consent form and a medical history. You agreed to pay for all charges if your insurance did not. Nothing is mentioned about anything else. The collector cannot add any other fees or even and especially, his costs, late fees or other charges.
• Add "collection costs, attorney's fees" and similar additional charges have also been held to be deceptive and misleading, because they do not state exactly what debt is being sought.
• Sue or bring any kind of legal action where the threat is not followed through (i.e. a scare tactic), or any number or other threats designed to demoralize, humiliate, degrade; embarrass or intimidate a debtor into payment.
• Or any threat where the collector says he is legal counsel or an attorney/lawyer when he is not;
• Or a threat or attempt to mislead a debtor that a claim will be transferred to an attorney or separate department of a collector (e.g. "This will be transferred to our legal department for further action"). Letters misrepresenting that the account has been transferred to an attorney may include an attorney's letterhead with threats of legal action. Have you ever received a letter from a lawyer who purportedly collects for a major creditor? Has the lawyer been out-of-state? Has the lawyer threatened to sue if payment was not made?
• Other Little-Known Tactics that are also illegal:
  • It is unlawful under the FDCPA to threaten suit if no such action is intended. The attorney cannot sue you in a state that is not your home state, under the FDCPA. Therefore, the threat is an empty one. Empty threats are punishable under the FDCPA!
  • Legal letters that are not reviewed by a lawyer. It is unlawful for such a letter to be sent unless the lawyer reviews the letter? Do you believe that when thousands of letters issue the lawyer reviews each one? Do you also believe in the tooth fairy? Where the correspondence is not reviewed by counsel, the correspondence violates the FDCPA. Look at the letters you receive from lawyers. Were they signed by hand? If not, perhaps they were not reviewed by a lawyer. You may have a case under the FDCPA.
  • The collector's threat to "make this go legal" or to "turn the matter over to the legal department" may violate the FDCPA where the collector has no legal department. Do you think that the collector may be a collection operation only? If so, perhaps they have no legal department, i.e., the legal aspect is handled outside of the company. In this scenario is another violation of the FDCPA.
  • It is also a violation to send a letter stating that the collector will "recommend litigation" or "advise the creditor to sue." Some of such correspondence has been found to violate the FDCPA because it, in essence purports to give legal advice to the creditor. The collector is not permitted to give legal advice, unless, of course, if the collector is an attorney himself.
  • It is also unlawful to sue a consumer in a remote jurisdiction that is not where the consumer resides, or the one in which the contract was made. It is also unlawful to charge for items not due under the contract.

There are literally dozens of ways in which a debt collector and often a collector can break the law. Each time a collector breaks the law, you may be entitled to damages in an amount commensurate with the gravity of the violation (however, most courts limit the liquidated damages to one instance in each case-see your lawyer about this). Some collectors have gone so far as to threaten arrest, jail, or harm to loved ones, including informing friends and work associates of the debtor's financial embarrassment. Remember, creditors cannot garnish your wages involuntarily without filing a lawsuit!!!  A creditor call such as "I am garnishing you or your husband's check next Friday" is totally bogus if they have not sued you previousy and obtained a Writ of Garnishment.

 IF YOU OR SOMEONE YOU CARE ABOUT IS BEING HARRASSED CONTACT US TODAY!!!