THE Fair Debt Collection Practices Act (FDCPA) is a federal law that was enacted in 1978 by the United States Congress to protect consumers from abusive debt collectors.
Note, however, that the FDCPA applies only to third party collectors who collect debt for original creditors. It does not apply to the original creditor itself who uses its own employees to collect debt.
Let’s use our beloved Pres. Trump’s businesses as examples since he owns a lot of them. You go to Washington D.C. and stay in his hotel. What’s the name of the hotel? The Trump Hotel. You stay there for a week and rack up a bill of $50,000. The credit limit on your credit card used to secure your stay at the hotel only has a credit limit of $5,000. In short, you owe Pres. Trump $45,000. He sends your $45,000 bill to a debt collector in LA. The LA debt collector calls you 20 times a day and calls you at your place of work and talks to your boss about your debt. Is this debt collector covered by the FDCPA? Sure he is because he is a third party collector.
What can this person do and not do to collect the $45,000 from you?
1. He can contact you in person, by mail, telephone, telegram, or fax. However, he may not contact you at inconvenient times or places, such as before 8 a.m. or after 9 p.m., unless you allow it. He may not contact you at your workplace if he knows that your employer doesn’t allow personal calls.
2. He may not use repetitious phone calls that are intended to annoy, abuse or harass you or any person answering the phone. He may not use abusive or profane language. For example, he cannot shout at you on the phone and call you a “no good lazy and good for nothing bum! Pay the $45,000 today in certified bank funds, or the FBI will arrest you and ship you to a gulag in Siberia in a twenty-foot container with a giant cobra!” No, this kind of language is not allowed by the FDCPA.
3. He cannot threaten you with violence. For instance, he cannot tell you that he is going to send the biggest guy to separate your head from your shoulders if you don’t pay the $45,000 today.
4. He cannot use any false or misleading statements. These are examples of false statements:
a) Implying that they are attorneys or government representatives when they are not.
b) Implying that you have committed a crime.
c) Falsely representing that they work for a credit bureau.
d) Misrepresenting the amount of the debt owed.
e) Indicating that papers being sent are legal forms, when they are not.
f) Indicating that papers being sent are not legal forms, when they are.
g) Saying that you will be arrested if you do not pay the debt.
h) They will seize, garnish, attach, or sell property or wages, unless the collection agency or creditor intends to do so, and it is legal to do so.
I) Actions, such as a lawsuit, will be taken against the debtor, when such action may not legally be taken, or when they do not intend to take such action.
j) Giving false credit info about you to anyone, including a credit bureau.
k) Sending you anything that looks like an official document from a court or government agency, when it is not.
L) Using a false name.
Now let’s assume a different scenario. The Trump hotel uses its own employees to collect the $45K from you. Does the FDCPA apply to these employees? No, it does not. The employee can tweet about you all they want. They can call you and tell you that they are going to nuke your house in half an hour if you don’t pay up. They can tell you that they are ready to press the big red button that will send over the swat team of the FBI and the CIA to your door in ten minutes if you don’t pay up.
But why even worry about whether the Trump hotel sends a third-party collector or uses their own employees to collect the $45,000 from you when you can file a Chapter 7 petition to wipe out the $45,000 from the face of the earth? You can use a Chapter 7 petition to tell the collector to stop the third party collector or the Trump employees dead on their tracks! They won’t be able to call you or even send you a collection letter.
They have to shut up completely and they lose the right to file a lawsuit against you to collect the debt. At the same time, you will be able to keep all of your assets, including your house, your cars, everything in your house, and all of your retirement accounts up to $1 million. You can get a fresh start in life without having to look over your shoulder to see if there are any FBI or CIA agents chasing after you.
If you need debt relief, set an appointment to see me. I will analyze your case personally.
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Disclaimer: None of the foregoing is considered legal advice. Each case is different.
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Lawrence Bautista Yang specializes in Bankruptcy, Business, Real Estate and Civil Litigation and has successfully represented more than five thousand clients in California. Please call Angie, Barbara or Jess at (626) 284-1142 for an appointment at 20274 Carrey Road, Walnut, CA 91789 or 1000 S. Fremont Ave., Mailstop 58, Building A-10 South Suite 10042, Alhambra, CA 91803.