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An Overview of the Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act or "FDCPA" is a federal statute aimed at eliminating abusive debt collection practices by debt collectors. The FDCPA applies to the collection of debts that are primarily for personal, family, or household purposes. That is, it does not apply to the collection of commercial debts. It also does not apply to creditors who collect their own debts in their own names.

In conjunction with the debt collector's initial communication with a consumer or within five days thereafter, the debt collector must send the consumer a written notice specifying (i) the amount of the debt, (ii) the name of the creditor to whom the debt is owed, (iii) a statement 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, (iv) a statement 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 a 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 (v) a statement 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.

The FDCPA prohibits a collector from communicating with a consumer in connection with the collection of any debt at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector must assume that the convenient time for communicating with a consumer is after 8 am and before 9 pm. A debt collector may not communicate with a consumer if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer. A debt collector may not communicate with a consumer at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.

A debt collector may generally not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector may not communicate further with the consumer with respect to such debt, except to advise the consumer that the debt collector's further efforts are being terminated, to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor, or where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. For example, a debt collection may not use or threaten the use of violence or use obscene language. A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. For example, a debt collector may not misrepresent the character, amount, or legal status of any debt or represent that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Examples of conduct constituting a violation of this prohibition include

depositing or threatening to deposit any postdated check prior to the date on such check or instrument, communicating with a consumer regarding a debt by post card, and 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.

Any debt collector who fails to comply with the FDCPA with respect to any person is liable to such person in an amount equal to the sum of any actual damage sustained by such person as a result of such failure, plus attorney fees and related costs.

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