The
following in-house memorandum to our collectors was
written to quickly refresh their knowledge of the
Fair Debt Collections Practices Act (hereafter
referred to as FDCPA).
The FDCPA was originally adopted by Congress to
squelch abusive debt collection agencies. Some feel
it went too far and seriously affected a creditor's
ability to collect on legitimate debts because of
fear of lawsuits by underworked attorneys.
What follows is not a normative analysis of the
FDCPA, but an attempt to be certain our agency
complies and to inform our clients.
MEMORANDUM
As you already know, communications generally with
either the primary debtor or a third party require
the following constraints:
1.
No communication at any unusual time or place
(convenient time for communicating with a debtor
is generally defined as 8:00 a.m. through 9:00
p.m., local time, at the debtor's location).
2.
If debtor is known to be represented by an
attorney, then communications should be with that
attorney, unless the attorney fails to respond
within a reasonable period of time to a
communication from us.
3.
Not contact debtor at work if asked not to or we
know employer does not permit those types of calls
to debtor.
If
the debtor notifies us that he refuses to pay the
debt or that the debtor wishes us to cease all
further communication, then we should stop
communicating with the debtor, except:
1.
To advise the debtor that we are ceasing
communication.
2.
That we are invoking specified remedies which we
are entitled to.
Of
course, we already know that we cannot harass,
oppress or abuse the debtor such as making violent
threats, using obscenity, ringing the telephone and
hanging up, etc. We also know that we cannot
misrepresent ourselves, i.e., claim that we are
government entities capable of arresting the person
or taking the property, or imply that we are
attorneys and that we, ourselves, are able sue the
debtors (but we can say, we will refer this matter
to attorneys for legal action) or that nonpayment of
the debt will result in arrest or imprisonment, etc.
Please ask for clarification regarding what is
considered misleading a debtor. It is confusing.
Many
times we contact parties other than the primary
debtor in order to acquire location information for
the primary debtor. This is especially true now that
Chris is engaged in our internet skip tracing
initiative. The Fair Debt Collections Practices Act
("FDCPA") constrains us in our approach to
third parties in acquiring location information. We
need to be aware of these constraints.
The constraints are as follows:
1.
We must make sure that we identify ourselves (but
see #2) and state that we are confirming or
correcting location information concerning the
debtor.
2.
Not state our employer or that we are a collection
agency, unless expressly requested by the third
party.
3.
We must not state that the debtor owes any debt.
4.
Not communicate with any third party more than
once, unless requested to do so by that person or
unless we "reasonably believe" that the
earlier response of the third person is erroneous
or incomplete and that the person now has correct
or complete location information. Note:
"reasonable belief" is not clearly
defined by the act.
Except
as provided above, generally, no communication
should take place with third parties regarding the
primary debtor's debt. Remember however, you are
permitted "leeway" when questioning
debtor's spouse or parent. See me for definition of
"leeway".
Remember
that the FDCPA applies only to natural persons
involving transactions primarily for personal,
family, or household purposes. Therefore, in many of
our accounts, the FDCPA would not apply. However,
there is common law (judge made non-statutory law)
preventing us from committing many of the offenses
defined by the FDCPA, therefore, it is best to
adhere to the FDCPA in all cases.
