Fair Debt Collection Practices Act (FDCPA)

When Congress enacted the FDCPA, the primary concern was that abusive collection practices contributed to personal bankruptcies, marital instability and the loss of employment. The law was designed to provide individuals with a legal mechanism to stop harassment and to ensure that they are provided with accurate information regarding their alleged liabilities. Because the statute is a "strict liability" law, a collector can be found in violation even if they did not intend to break the rules. Our firm perform a detailed regulatory review of every communication to determine if the collector's behavior aligns with these legislative intentions.

A common misconception is that a debtor loses their FDCPA protections if they acknowledge the debt. Under federal law, the right to be free from harassment and deception is independent of the individual's financial obligations. A creditor has a legal right to seek recovery through proper channels, such as the court system, but they do not have the right to bypass procedural safeguards. Defense strategies must be evaluated based on individual circumstances, as a collector’s conduct may be unlawful even when the debt is technically accurate. SJKP LLP ensures that the focus remains on whether the collector respected the boundaries of the law during the recovery process.

A third-party debt collector is generally defined as any person or business that uses any instrumentality of interstate commerce to collect debts owed to another. This includes traditional collection agencies, law firms that regularly engage in debt collection and "debt buyers" who purchase portfolios of defaulted accounts. Under current federal interpretations, even if an entity owns the debt, they may still be classified as a debt collector if their principal business purpose is the collection of debts. We analyze the claimant's standing to determine if they fall within this critical regulatory category.

Original creditors, such as the bank that issued your initial credit card or the medical provider who rendered services, are typically not subject to the FDCPA unless they utilize a different name that implies a third party is involved. This limitation means that while their conduct may be regulated by other state consumer protection laws, they are often exempt from the specific mandates of the federal FDCPA. Outcomes depend on the specific facts of each case, and we often look to state statutes to fill the gaps where federal law does not reach. Understanding these jurisdictional boundaries is essential for building a comprehensive defensive strategy.

Harassment is not limited to physical threats; it includes any conduct intended to annoy, abuse or harass any person in connection with the collection of a debt. Examples may include:

• Repeated telephone calls intended to annoy or harass the recipient.
• The use of profane or obscene language during communications.
• The publication of a "shame list" of individuals who allegedly refuse to pay.
• Threats of violence or other criminal means to harm the physical person, reputation or property of any individual.
• Calling without meaningful disclosure of the caller's identity.

A collector may not use any false, deceptive or misleading representation or means in connection with the collection of any debt. This is one of the most frequently litigated areas of the FDCPA. Conduct that may violate federal law includes:

• Falsely implying that the collector is affiliated with the government or a law enforcement agency.
• Misrepresenting the amount, character or legal status of the debt.
• Falsely representing that an individual committed a crime to disgrace them.
• Threatening to take any action that cannot legally be taken or that the collector does not actually intend to take.
• Utilizing any written communication that simulates a court document or legal process.

Unfair practices are those that are considered unconscionable or predatory under the law. These include attempts to collect amounts not authorized by the original contract or state law. For example, a collector cannot add "administrative fees" or "collection costs" unless the initial agreement specifically allowed for them. Furthermore, the law prohibits the solicitation of post-dated checks for the purpose of threatening criminal prosecution. SJKP LLP performs a forensic audit of all charges and fees to ensure that the collector is not inflating the balance through unauthorized or unfair additions.

In general, a debt collector may not contact an individual at any unusual time or place that is known to be inconvenient. Federal law presumes that the hours before 8:00 AM and after 9:00 PM are inconvenient unless expressly authorized by the consumer. Furthermore, if a collector knows that an employer prohibits personal calls at work, they are legally barred from calling the individual's place of business. We assist our clients in documenting these intrusive contacts to prove that the collector has bypassed these statutory timing rules.

One of the most powerful protections in the FDCPA is the restriction on who a collector can talk to about your debt. A collector may generally only contact third parties, such as neighbors or family members, for the limited purpose of obtaining "location information." During these contacts, they are prohibited from stating that the individual owes a debt. If a collector reveals the existence of a debt to your employer or a third party, they have committed a significant privacy violation. Legal options vary by jurisdiction, and we provide the authoritative advocacy needed to address these unauthorized disclosures.

An individual has the right to demand that a debt collector stop all communications by sending a written "cease and desist" letter. Once the collector receives this notice, they are legally prohibited from contacting the individual further, except to notify them that specific legal actions, such as a lawsuit, are being taken. This is a critical administrative tool for individuals facing extreme harassment. SJKP LLP manages these formal requests to ensure they are drafted with absolute rigidity, effectively silencing the collector while we evaluate the next procedural steps in your defense.

Within five days of their initial contact, a debt collector must send a written notice containing the amount of the debt, the name of the creditor and a statement informing the consumer of their right to dispute the debt within thirty days. If the consumer does not dispute the debt, the collector may assume it is valid. However, if the consumer sends a written dispute within that thirty-day period, the collector must stop all collection activities until they provide "verification" of the debt. SJKP LLP ensures that these validation notices are scrutinized for technical compliance with federal standards.

A timely written dispute acts as a functional stay on all collection and reporting activities. The collector cannot continue to call, send letters or file a lawsuit until they have mailed a copy of the verification to the consumer. Verification usually requires more than a simple computer printout; it must be a document that confirms the debt's origin and the collector's right to pursue it. If a collector reports the debt to a credit bureau during this dispute period without marking it as "disputed," they may also be in violation of the Fair Credit Reporting Act. We manage this dispute process to ensure that the collector is held to the highest evidentiary standards.

When a violation of the FDCPA is proven, the court can award actual damages for any financial or emotional harm caused by the collector's conduct. Additionally, the court can award statutory damages up to $1,000 per proceeding, not per violation, depending on the severity and frequency of the collector's actions. While these amounts may seem small, they serve as a critical deterrent and a functional penalty for institutional non-compliance. Our firm focus on documenting these behavioral triggers to maximize the regulatory pressure on the collector.

The FDCPA includes a fee-shifting provision that requires a non-compliant collector to pay the consumer's reasonable attorney fees and court costs. This is a foundational component of consumer protection, as it ensures that individuals can secure high-quality legal representation regardless of their financial status. This provision makes it economically dangerous for collectors to defend against meritorious claims of harassment or deception. At SJKP LLP, we utilize this fee-shifting mechanism to provide our clients with a formidable defense that is focused on holding the collector accountable for their procedural failures.

Some states, such as California with the Rosenthal Fair Debt Collection Practices Act, have expanded the definition of a "debt collector" to include original creditors. This means that even a major bank or a medical provider must follow the same conduct standards as a third-party agency. Furthermore, state laws may provide for higher statutory damages or allow for class-action lawsuits that are more favorable to consumers. We evaluate the specific laws of your jurisdiction to identify these additional layers of protection, ensuring that no defensive opportunity is overlooked.

In addition to conduct standards, state laws may impose specific licensing requirements on debt collectors. If a collector is operating without a required state license, their entire collection effort may be considered unlawful by operation of state law. Some states also provide for additional remedies, such as the cancellation of the debt or treble damages for willful violations. SJKP LLP provides the detailed regulatory review needed to integrate these state-level advantages into your comprehensive defense strategy, providing a multi-layered barrier against creditor aggression.

FDCPA litigation specifically targets violations of the federal statute by third-party collectors. In contrast, "Unlawful Debt Collection" is a broader term that encompasses all illegal recovery activities, including those by original creditors or those involving criminal extortion. An FDCPA claim is a specific federal tool, while an unlawful collection claim may rely on a combination of common law, state statutes and criminal codes. We provide a unified legal framework that addresses both specific federal violations and general behavioral illegality simultaneously.

Debt Collection Defense is the process of contesting the actual existence or the amount of the debt, often in response to a lawsuit. An FDCPA claim, however, can be filed even if the debt is valid. It is common to utilize an FDCPA violation as a "counterclaim" in a debt collection lawsuit to offset the alleged liability or to force a dismissal. By separating the "debt dispute" from the "conduct dispute," we ensure that our clients have multiple paths to a resolution. Legal options vary by jurisdiction, and we provide the tactical force required to manage these parallel litigation tracks.