The Fair Debt Collection Practices Act was passed in 1977 to outline the ways in which consumers can be contacted by collection agencies. Most agencies are aware that consumers are protected by the FDCPA from abusive acts and practices, but there are other intricacies of the law to be aware of...such as when a debt collector may contact a debtor.
First, who is a debt collector?
The FDCPA defines a ‘debt collector’ as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” For the full definition, click here.
Who is NOT a debt collector?
The legislation is pretty extensive defining who is not considered a debt collector. The restrictions in the FDCPA don’t apply to these persons in the same way as a typical collection agency. Who falls into this category according to §803?
“(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;
(B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;
(C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;
(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;
(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and
(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.”
Without further ado, here are three times a debt collector may not contact a debtor*:
Unusual or inconvenient times and places: The hours between 9pm and 8am (local to the consumer) are considered unusual, unless the collection agency knows or has reason to know that the debtor keeps different hours.
Lawyered up: If the consumer has an attorney whose services are related to that debt, a collector may not contact that person. Exceptions apply when a reasonable amount of time has passed with no reply after contacting the attorney, or the attorney grants permission for direct communication.
At work: Debt collectors may not contact a debtor at his/her job. Here’s a direct quote from FDCPA: “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.”
*without consumer’s express permission, or that of a competent court with jurisdiction
Alright, so that was a quick primer on who is and is not a debt collector, and some of the restrictions on when a debtor can be contacted. To learn more about the regulations and legislation surrounding debt collection, please visit our compliance page on the NSB website.