1 Fair Debt Collection Practices Act 1 The Fair Debt Collection Practices Act (FDCPA)(15 U.S.C et seq.), which became effective March 20, 1978, was designed to eliminate abusive, deceptive, and unfair debt collection practices. In addition, the federal law (15 U.S.C et seq.) protects reputable debt collectors from unfair competition and encourages consistent state action to protect consumers from abuses in debt collection. The Dodd-Frank Act granted rulemaking authority under the FDCPA to the Consumer Financial Protection Bureau (CFPB) 2 and, with respect to entities under its jurisdiction, granted authority to the CFPB to supervise for and enforce compliance with the FDCPA. 3 Debt That Is Covered The FDCPA applies only to the collection of debt incurred by a consumer primarily for personal, family, or household purposes. It does not apply to the collection of corporate debt or to debt owed for business or agricultural purposes. Debt Collectors That Are Covered Under FDCPA, a debt collector is defined as any person who regularly collects, or attempts to collect, consumer debts for another person or institution or uses some name other than its own when collecting its own consumer debts. That definition would include, for example, an institution that regularly collects debts for an unrelated institution. This includes reciprocal service arrangements where one institution solicits the help of another in collecting a defaulted debt from a customer who has moved. Debt Collectors That Are Not Covered An institution is not a debt collector under the FDCPA when it collects: Another s debts in isolated instances. Its own debts it originated under its own name. Debts it originated and then sold, but continues to service (for example, mortgage and student loans). Debts that were not in default when they were obtained. Debts that were obtained as security for a commercial credit transaction (for example, accounts receivable financing). 1 These reflect FFIEC-approved procedures. 2 In December 2011, the CFPB restated the Federal Trade Commission s implementing regulation at 12 CFR Part 1006 (76 Fed. Reg )(December 16, 2011). The regulation only addresses the procedures for state application for exemption from the provisions of the Act. 3 Dodd-Frank Act Secs. 1002(12)(H), 1024(b)-(c), and 1025(b)-(c); 12 U.S.C. Secs. 5481(12)(H), 5514(c), and 5515(c).
2 Debts incidental to a bona fide fiduciary relationship or escrow arrangement (for example, a debt held in the institution s trust department or mortgage loan escrow for taxes and insurance). Debts regularly for other institutions to which it is related by common ownership or corporate control. Debt collectors that are not covered also include: Officers or employees of an institution who collect debts owed to the institution in the institution s name. Legal process servers. Communications Connected with Debt Collection 15 U.S.C. 1692b and c For communications with a consumer or third party with the collection of a debt, the term consumer is defined to include the borrower s spouse, parent (if the borrower is a minor), guardian, executor, or administrator. When, Where, and With Whom Communication is Permitted Communicating with the Consumer A debt collector may not communicate with a consumer at any unusual time (generally before 8 a.m. or after 9 p.m. in the consumer s time zone) or at any place that is inconvenient to the consumer, unless the consumer or a court of competent jurisdiction has already given permission for such contacts. A debt collector may not contact the consumer at his or her place of employment if the collector has reason to believe the employer prohibits such communications. If the debt collector knows the consumer has retained an attorney to handle the debt, and can easily ascertain the attorney s name and address, all contacts must be with that attorney, unless the attorney is unresponsive or agrees to allow direct communication with the consumer. Ceasing Communication with the Consumer When a consumer refuses, in writing, to pay a debt or requests that the debt collector cease further communication, the collector must cease all further communication, except to advise the consumer that: The collection effort is being stopped. Certain specified remedies ordinarily invoked may be pursued or, if appropriate, that a specific remedy will be pursued. Mailed notices from the consumer are official when they are received by the debt collector.
3 Communicating with Third Parties The only third parties that a debt collector may contact when trying to collect a debt are: The consumer. The consumer s attorney. A consumer reporting agency (if permitted by local law). The creditor. The creditor s attorney. The debt collector s attorney. The consumer or a court of competent jurisdiction may, however, give the debt collector specific permission to contact other third parties. In addition, a debt collector who is unable to locate a consumer may ask a third party for the consumer s home address, telephone number and place of employment (location information). The debt collector must give his or her name and state that he or she is confirming or correcting location information about the consumer. Unless specifically asked, the debt collector may not name the collection firm or agency or reveal that the consumer owes any debt. No third party may be contacted more than once unless the collector believes that the information from the first contact was wrong or incomplete and that the third party has since received better information, or unless the third party specifically requests additional contact. Contact with any third party by postcard, letter or telegram is allowed only if the envelope or content of the communication does not indicate the nature of the collector s business. Validation of Debts 15 U.S.C. 1692g The debt collector must provide the consumer with certain basic information. If that information was not in the initial communication and if the consumer has not paid the debt five days after the initial communication, the following information must be sent to the consumer in written form: The amount of the debt; The name of the creditor to whom the debt is owed; Notice that the consumer has 30 days to dispute the debt before it is assumed to be valid; Notice that upon such written dispute, the debt collector will send the consumer a verification of the debt or a copy of any judgment; and
4 Notice that if, within the 30-day period, the consumer makes a written request for the name and address of the original creditor, if it is different from the current creditor, the debt collector will provide that information. If, within the 30-day period, the consumer disputes in writing any portion of the debt or requests the name and address of the original creditor, the collector must stop all collection efforts until he or she mails the consumer a copy of a judgment or verification of the debt, or the name and address of the original creditor, as applicable. Prohibited Practices Harassing or Abusive Practices 15 U.S.C. 1692d A debt collector in collecting a debt, may not harass, oppress, or abuse any person. For example, a debt collector may not: Use or threaten to use violence or other criminal means to harm the physical person, reputation, or property of any person. Use obscene, profane, or other language that abuses the hearer or reader. Publish a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of Section 603(f) or 604(3) of the Act. Advertise a debt for sale to coerce payment. Annoy, abuse, or harass persons by calling repeatedly their telephone number or allowing their telephones to ring continually. Make telephone calls without properly identifying oneself, except as allowed to obtain location information. False or Misleading Representations 15 U.S.C. 1692e A debt collector, in collecting a debt, may not use any false, deceptive, or misleading representation. For example, a debt collector may not: Falsely represent or imply that he or she is vouched for, bonded by, or affiliated with the United States or any state, including the use of any badge, uniform, or similar identification. Falsely represent the character, amount, or legal status of the debt, or of any services rendered, or compensation he or she may receive for collecting the debt. Falsely represent or imply that he or she is an attorney or that communications are from an attorney.
5 Threaten to take any action which is not legal or intended. Falsely represent or imply 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 intended by the debt collector or creditor. Falsely represent or imply that the sale, referral, or other transfer of the debt will cause the consumer to lose a claim or a defense to payment, or become subject to any practice prohibited by the FDCPA. Falsely represent or imply that the consumer committed a crime or other conduct to disgrace the consumer. Communicate, or threaten to communicate, false credit information or information which should be known to be false, including not identifying disputed debts as such. Use or distribute written communications made to look like or falsely represented to be documents authorized, issued, or approved by any court, official, or agency of the United States or any state if it would give a false impression of its source, authorization, or approval. Use any false representation or deceptive means to collect or attempt to collect a debt or to obtain information about a consumer. Fail to disclose in the initial written communication with the consumer, and the initial oral communication if it precedes the initial written communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose. In addition, the debt collector must disclose in subsequent communications that the communication is from a debt collector. (These disclosures do not apply to a formal pleading made in connection with a legal action.) Falsely represent or imply that accounts have been sold to innocent purchasers. Falsely represent or imply that documents are legal process. Use any name other than the true name of the debt collector s business, company, or organization. Falsely represent or imply that documents are not legal process or do not require action by the consumer. Falsely represent or imply that he or she operates or is employed by a consumer reporting agency.
6 Unfair Practices 15 U.S.C. 1692f A debt collector may not use unfair or unconscionable means to collect or attempt to collect a debt. For example, a debt collector may not: Collect any interest, fee, charge, or expense incidental to the principal obligation unless it was authorized by the original debt agreement or is otherwise permitted by law. Accept a check or other instrument post-dated by more than five days, unless he or she notifies the consumer, in writing, of any intention to deposit the check or instrument. That notice must be made not more than ten or less than three business days before the date of deposit. Solicit a post-dated check or other post-dated payment instrument to use as a threat or to institute criminal prosecution. Deposit or threaten to deposit a post-dated check or other post-dated payment instrument before the date on the check or instrument. Cause communication charges, such as those for collect telephone calls and telegrams, to be made to any person by concealing the true purpose of the communication. Take or threaten to repossess or disable property when the creditor has no enforceable right to the property or does not intend to do so, or if, under law, the property cannot be taken, repossessed, or disabled. Use a postcard to contact a consumer about a debt. Use any language or symbol, other than the debt collector s address, on any envelope when communicating with a consumer; a debt collector may use its business name if such name does not indicate it is in the debt collection business. Multiple Debts 15 U.S.C. 1692h If a consumer owes several debts that are being collected by the same debt collector, payments must be applied according to the consumer s instructions. No payment may be applied to a disputed debt. Legal Actions By Debt Collectors 15 U.S.C. 1692i A debt collector may file a lawsuit to enforce a security interest in real property only in the judicial district in which the real property is located. Other legal actions may be brought only in the judicial district in which the consumer lives or in which the original contract creating the debt was signed. Furnishing Certain Deceptive Forms 15 U.S.C. 1692j No one may design, compile and/or furnish any form that creates the false impression that someone other than the creditor (for example, a debt collector) is participating in the collection of a debt.
7 Civil Liability A debt collector who fails to comply with any provision of the FDCPA is liable for: Any actual damages sustained as a result of that failure; Punitive damages as allowed by the court: in an individual action, up to $1,000; or in a class action, up to $1,000 for each named plaintiff and an award to be divided among all members of the class of an amount up to $500,000 or 1 percent of the debt collector s net worth, whichever is less; Costs and a reasonable attorney s fee in any such action. In determining punitive damages, the court must consider the nature, frequency and persistency of the violations and the extent to which they were intentional. In a class action, the court must also consider the resources of the debt collector and the number of persons adversely affected. Defenses A debt collector is not liable for a violation if a preponderance of the evidence shows it was not intentional and was the result of a bona fide error that arose despite procedures reasonably designed to avoid any such error. The collector is also not liable if he or she, in good faith, relied on an advisory opinion of the CFPB or on prior advisory opinions of the Federal Trade Commission, even if the ruling is later amended, rescinded, or determined to be invalid for any reason. Jurisdiction and Statute of Limitations Action against debt collectors for violations of the FDCPA may be brought in any appropriate U.S. district court or other court of competent jurisdiction. The consumer has one year from the date on which the violation occurred to start such as action. Relation to State Law The FDCPA preempts state law only to the extent that a state law is inconsistent with the FDCPA. A state law that is more protective of the consumer is not considered inconsistent with the FDCPA. Exemption for State Regulation The CFPB may exempt certain classes of debt collection practices from the requirements of the FDCPA if it has determined that state laws impose substantially similar requirements and that there is adequate provision for enforcement.
9 Fair Debt Collection Practices Act 1 Examination Objectives Exam Date: Prepared By: Reviewer: Docket #: Entity Name: To determine the adequacy of the institution's internal procedures and controls to assure consistent compliance with FDCPA. To determine if the institution complies with the requirements of the FDCPA in collecting or attempting to collect third-party consumer debts. Examination Procedures The following procedures are to be completed through interviews with personnel knowledgeable about and directly engaged in the institution's collection activities and through reviews of any written collection procedures, reciprocal collection agreements, collection letters, dunning notices, envelopes, scripts used by collection personnel, validation notices, individual collection files, complaint files, and other relevant records. 1. Determine if the institution is a debt collector under FDCPA. [Click&type] 2. Determine if the institution has established internal procedures and controls to ensure compliance with the FDCPA. [Click&type] 1 These reflect FFIEC-approved procedures.
10 3. If the institution has acted or is acting as a debt collector under the FDCPA, determine if the institution has: a. Communicated with the consumer or third parties in any prohibited manner (15 U.S.C. 1692b and c); b. Furnished the written validation notice within the required time period and otherwise complied with applicable validation requirements (15 U.S.C. 1692g); c. Used any harassing, abusive, unfair, or deceptive collection practice prohibited by FDCPA (15 U.S.C. 1692d, 1692e, 1692f, and 1692j); d. Collected any amount not expressly authorized by the debt instrument creating the debt or by state law (15 U.S.C. 1692f(1)); e. Applied all payments received as instructed and, where no instruction was given, applied payments only to undisputed debts (15 U.S.C. 1692h); f. Filed suit in an authorized forum if the institution sued to collect the debt (15 U.S.C. 1692i). [Click&type] Examiner s Summary, Recommendations, and Comments [Click&type]
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