Reboot Your Life: Tampa Student Loan and Bankruptcy Attorney Blog
First off, to be covered under the Fair Debt Collection Practices Act, the debt must be a consumer debt.
- i.e. not a business debt.
- Examples are credit cards used for personal/household items; a home loan, a student loan, a phone bill/utility bill, dishonored personal check, rent etc.
Second, there must be a third-party debt collector involved – not the original creditor.
- For example, Midland Credit Management/Midland Funding, Asset Acceptance, LVNV, Financial Recovery Services, Inc., Cach LLC,
- Collection attorneys representing an original creditor, who regularly collect debts, are liable for FDCPA violations.
- Mortgage servicers are covered if they acquire the debt post-default
If you are dealing with an original creditor, don’t give up. We do have another law in the State of Florida called the Florida Consumer Collection Practice Act (“FCCPA”) which is a little broader. It covers any “person” trying to collect a debt, and can include the original creditor.
Certain debts are not covered:
- Business debts
- Debts incurred in the absence of a voluntary consumer “transaction”
- Examples: Traffic/parking tickets, impound fees, child support orders, unemployment insurance, municipal fines, retail theft claims, unemployment overpayments, subrogation debts arising from auto accidents, damage to rental car (but loss of use is covered because it’s covered in the contract).
There is a one year statute of limitations to bring the lawsuit for unlawful debt collection – it begins running from the date of the unlawful act. The Florida counterpart to the FDCPA has a little longer statute of limitations: two years instead of one year.
So what exactly does an “unlawful communication” mean?
- Unusual or inconvenient time or place: before 8 a.m. or after 9 p.m. If you work at night, you can let the creditor know that you work nights and sleep days (letting them know the time you normally sleep and do not answer the phone).
- Workplace calls if the “debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communications”. You have to tell them not to call you at work on your work phone number, or that your employer does not allow personal calls. If you use your cell phone, tell the creditor that you cannot take personal calls while at work.
- If the consumer is represented by an attorney and “the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address…” Tell the creditor that you have an attorney. The next step should be that the creditor should ask for the contact info for the attorney. It is a violation if the debt collector instead says things like: why do have an attorney, how can you afford an attorney, an attorney can’t help you — not true, and a violation to boot.
- If the consumer has demanded the collections communications cease.
We never recommend tape recording a conversation. There are laws against this. Instead, just keep notes as to what was said during the call as best you can. These notes are potentially evidence.
