What are illegal debt collection practices? A frequent inquiry involves the question of creditors and what they can say to the debtor or to third parties about the debt they are trying to collect. More generally, the issue is what can they legally do in order to collect a debt.
THE LAW: The federal Fair Debt Collection Practices Act (FDCPA) and the Michigan Occupational Code set forth the law on debt collection practices. The FDCPA is codified at 15 USC 1692, while the specific Michigan law is codified MCL 339.901a et. seq. MCL 339.915 and MCL 339.915a tell us what acts are prohibited by debt collectors. These laws are intended to protect consumers and accordingly apply only to the collection of personal, family, and household debt.
The prevalence of abuse, deception and unfair debt collection practices by debt collectors led to the establishment of the federal and Michigan fair debt collection practices laws. Abusive collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. These effects in turn affect commerce. The laws are intended to remedy that situation and protect consumers from abuse by requiring that alternative non-abusive measures be used. Debtors should feel confident in calling upon these laws when they are violated.
Illegal debt collection tactics: Debt collectors cannot use false, deceptive, or misleading representations or unfair or unconscionable means to collect any debt. If you think the means fall within these categories, they probably do. Collectors are supposed to only speak with the consumer about the debt. They cannot communicate with anyone about the debt, other than the consumer unless they are trying to find out how to locate them. If this happens, the collector has to identify himself and state that he is confirming or correcting location information concerning the consumer, and if asked, he has to identify his employer. He cannot talk about the debt at all and cannot contact anyone, other than the consumer more than once unless he is asked to or unless he reasonably believes that the earlier response was erroneous or incomplete and that the person now has correct or complete location information. Communication by post card is out of the question as is using any mark on any envelope or the like, that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt.
Rules are set forth with regard to communication with the consumer specifically. Unless the consumer has given their prior consent or the collector has a court order, a debt collector may not communicate with the consumer in connection with the collection of any debt at any unusual time or place, or that which should be known to be inconvenient to the consumer. The assumption is that the convenient time for communicating with a consumer is after 8:00 a.m. and before 9:00 p.m. local time at the consumer’s location. Furthermore, the collector cannot contact the consumer’s place of employment if he knows or has reason to know that the employer prohibits the consumer from receiving such communication.
What the debtor should do: During their colloquy with the collectors, every consumer should demand that the collector provide proof of the debt. The law provides for this, calling it debt validation. Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector is required by law to send the consumer a written notice.
The notice MUST contain the amount of the debt, the name of the creditor, and three specific statements:
- That unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
- That if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
- That upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
If the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the collector must STOP collection of the debt, or any disputed portion thereof. The collector cannot resume collection until they obtain verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
If all else fails and the consumer just wants to end the communication all together, they can. Consumers have the power to put a stop to all communication by notifying the collector in writing of their refusal to pay the debt and/or their desire for the the debt collector to cease further communication with the consumer. Thereafter, the collector is not allowed to communicate except to notify the consumer that they will terminate their efforts, or that they are going to sue.
Go after them for statutory damages! There simply is no reason to not take a stand against abusive debt collectors. Sue them and come out ahead! You do not have to do it alone. The law provides for reasonable attorney fees and expenses in addition to actual damages as well as additional damages as the court may allow. MCL 339.916, § 813 Civil liability [15 USC 1692k]. The debt collectors only defense is to show by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. In order to prove your case, you must keep an record of conversations. You should always document the name of the person with whom you spoke as well as the date, time, and content of the conversation. If you are going to send a writing to the creditor, send it “certified mail” or “return receipt requested.” Never send your original documents to anyone as copies will suffice until it comes time to appear in court.