Practical Solutions to Deal With Unfair Debt Collectors

Older couple at computer
Don't be afraid. Know your rights when you're dealing with abusive collectors. Getty Images

There is almost nothing less empowering than dealing with debt collectors. They can be intimidating and aggressive. And some are even downright threatening and abusive. But you should always keep in mind that you are not alone. Here are some practical solutions for when a debt collector gets out of hand. 

The Fair Debt Collection Practices Act

Let's review. The Fair Debt Collection Practices Act (FDCPA) outlines the types of behavior that would be considered out of line for a debt collector.

Here are some examples of the types of actions the FDCPA prohibits:

  • threaten violence or harm
  • publishing a list of names of people who have not paid debts (except what they can legally disclose to credit reporting agencies)
  • using obscene or profane language
  • repeatedly using the phone to annoy
  • claiming to be attorneys, government representatives or law enforcement if they are not
  • claiming that the debtor has committed a crime or will be arrested for not paying a debt 
  • claiming that they operate or work for a credit reporting company
  • misrepresenting the amount owed
  • claiming that papers they send a borrower are legal forms, like subpoenas, lawsuit papers or arrest warrants
  • claiming that papers they send a borrower are not legal forms, when they actually are, like settlement documents or binding agreements
  • seizing, garnishing, attacking or selling the borrower’s property or wages unless they are permitted by law to take the action and intend to do so
  • claiming that action will be taken against the borrower when saying that is illegal or the collector has no intention of taking the action
  • giving false credit information about the borrower to anyone, including a credit reporting company
  • identifying the collector’s employer as a false company name
  • trying to collect any interest, fee, or another charge on top of the amount owed unless the contract that created the debtor or state law allows the charge
  • depositing a postdated check before its time
  • taking or threatening to take the borrower’s property unless it can be done legally
  • contacting the borrower using a postcard

A Note About the Internet and Computers: These are just examples. For instance, the FDCPA was enacted long before most of us had a personal computer on our desks or a smartphone in our hands. Cyber-bullying was unknown. In this day and age, although it is not spelled out as such in the FDCPA, shaming someone online for not paying a debt would be a violation. 

A Collector's Remedies

First of all, before we discuss the debtor's remedies, it might be helpful to know exactly what the creditor can do to you. Many people feel overwhelmed when faced with such bullying tactics. They automatically ascribe more power and authority to the collector than is warranted. As you can see by the list above, there are many things a collector would like to do but cannot legally. In fact, there is very little most collectors CAN do other than ask for the money. If they are unsuccessful getting you to pay by asking nicely, they can turn the account over to a lawyer to file suit. Check out these articles to learn more about what happens if you're sued by a creditor:

Timeline of a Consumer Lawsuit: Before the Lawsuit Is Filed

Timeline of a Consumer Lawsuit: Pretrial and Trial

Timeline of a Consumer Lawsuit: Motions and Appeals

Timeline of a Consumer Lawsuit: Collecting the Judgment

First Steps

Here are some things you may want to do to prepare. 

First, keep all bills, statements, demand letter and other correspondence. If you communicate y email with the collector, do not trash those emails. and foremost is a log.

Second, for every contact you have with a collector, you need to keep a record of it. I always tell clients to record even the unanswered calls and the calls that go to voicemail. *Why? Because that is the most efficient way we have of showing the collector's call pattern."

Here is a link to a good collection log you can print off your computer. Here is another good collection log.

 

Communication logs are important for several reasons. 

  • They will show how often collectors are contacting you.
  • If the log is filled out at the same time or just after the call, the court will often give the log more weight. The longer you wait to fill out the log, the fewer details you'll remember accurately and that may make the log less useful in a lawsuit.  
  • It can provide a pretty accurate record of what transpired during the call that an attorney can use later to include in a lawsuit or during negotiations with the collector. 

A client of mine even used her log sheet when the repossession agency sent someone to repossess her car! 

Your Remedies

When you have evidence that a collector is using unfair practices, there are four courses of action you might want to take.

1. Go to the Original Creditor

You have the right to deal directly with the original creditor if that creditor has not sold the account. If the creditor has just hired a collector to attempt to get you to pay, you can demand to deal directly with the lender. This would be more likely just after your default, before the debt is charged off the creditor's books. After the debt has been sold, you will be limited to dealing with the debt buyer, who is the new creditor.

2. Cease and Desist Letters

If the calls and other contacts are getting you down, consider just asking the creditor to stop contacting you. You will need to send a trackable letter, like a certified letter or one that requires delivery confirmation. After that, the creditor can contact you to acknowledge the letter or to tell you that your account is being sold or that it is being turned over to an attorney. That's about it. Here's a template for writing that letter.

Does this really work? Yes, it does, but one downside may be that the collector will just turn the account over to an attorney.

If the creditor fails to respect your wishes and continues to contact you, those contacts are a violation of the FDCPA.

3. Negotiate

Knowledge is power. Some people who know their rights and are willing to engage the collector will attempt to negotiate directly with the creditor. If you have kept a log of your communications with the creditor, you can use that information to point out the deficiencies in the collector's methods. That will often soften them up and make them more willing to work with you because they know you have the goods on them, and they know that you're sophisticated and savvy and know how to build a case against them. 

Read more at Negotiate with Your Creditors and Settle Your Debts.

4. File a lawsuit

Finally, you can file a lawsuit against the creditor and the collector. If you sue, you can get damages that may include amounts for physical and emotional duress, lost wages, and recovery of garnished wages. Even if you cannot prove any damages, the FDCPA allows you to recover up to $1,000 from the collector if you can show that a violation occurred. The collector will also be required to pay your attorney’s fees and costs. The court may also order the collector to stop engaging in the unfair acts.

The FDCPA and Bankruptcy

Consumers who find themselves suffering these unfair debt collection practices are often the type of debtor who really ought to be considering whether a bankruptcy case would be useful. A Chapter 7 bankruptcy could wipe out your liability on most of your debts (with notable exclusions like recent income taxes, student loans and domestic support obligations). A Chapter 13 repayment plan would allow you to reorganize your debt and make payments under the protection of the court.

Filing a bankruptcy will not extinguish your rights under the FDCPA. You could still file suit against creditors even if you are in bankruptcy. In fact, in many cases, you can use the bankruptcy court to file suit.

If a creditor continues to harass you even though you filed a bankruptcy case, the creditor is violating the automatic stay, an injunction designed to protect debtors from just such contact. You may have the right to bring suit against the collector under both the bankruptcy code and the FDCPA.

If the creditor harasses you after your debt is discharged in a bankruptcy case, you can bring suit then for violation of the discharge and for violation of the FDCPA. Be aware, however, that some courts have decided that your only recourse is a suit for violation of the discharge, which does not carry with it statutory damages of $1,000 and the requirement that the defendant pay attorney’s fees and costs, although the court may still award those to you.

Where to Get Help

So, you’ve disputed the debt and you’ve asked the collector to stop contacting you, you have gathered records, made notes on phone calls, and recorded conversations, what do you do with all that information?

It depends in part on whether you want to bring a private suit for damages against the collection agency or whether you just want the harassment to stop, or both. If you file a complaint with the Federal Trade Commission, the Consumer Financial Protection Bureau or your state’s attorney general office, those agencies may bring suit against the collector for the good the citizens in each’s constituencies. They may obtain orders from the court for the agency to stop operating, a money judgment or the imposition of fines. These agencies may be able to get you damages or refunds as a part of their lawsuits.

Perhaps you have a good case, but the FTC or the CFPA or your state’s attorney general will not pursue it. You can visit with a private attorney who will evaluate your evidence and help you decide if a lawsuit is worth your time and effort. Most consumer attorneys will offer you a free initial consultation. If you have a good case, the attorney will usually not require that you put up a retainer for fees because the statute requires that the collector who loses the case will pay reasonable attorney’s fees and costs. A good place to find an experienced consumer lawyer is the National Association of Consumer Advocates. The link to NACA's lawyer director is on the first page of the website.