|
Click here for a FREE online credit evaluation! The Fair Debt
Collection Practices Act
As amended by Public Law 104-208, 110 Stat. 3009 (Sept. 30, 1996)
801. Short Title [15 USC 1601 note]
This title may be cited as the "Fair Debt Collection Practices Act."
802. Congressional findings and declarations of purpose [15 USC 1692]
(a) There is abundant evidence of the use of abusive, deceptive, and
unfair debt collection practices by many debt collectors. Abusive debt
collection practices contribute to the number of personal bankruptcies, to
marital instability, to the loss of jobs, and to invasions of individual
privacy.
(b) Existing laws and procedures for redressing these injuries are
inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt collection
practices are available for the effective collection of debts.
(d) Abusive debt collection practices are carried on to a substantial
extent in interstate commerce and through means and instrumentalities of
such commerce. Even where abusive debt collection practices are purely
intrastate in character, they nevertheless directly affect interstate
commerce.
(e) It is the purpose of this title to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who
refrain from using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect consumers
against debt collection abuses.
803. Definitions [15 USC 1692a]
As used in this title --
(1) The term "Commission" means the Federal Trade Commission.
(2) The term "communication" means the conveying of information regarding
a debt directly or indirectly to any person through any medium.
(3) The term "consumer" means any natural person obligated or allegedly
obligated to pay any debt.
(4) The term "creditor" means any person who offers or extends credit
creating a debt or to whom a debt is owed, but such term does not include
any person to the extent that he receives an assignment or transfer of a
debt in default solely for the purpose of facilitating collection of such
debt for another.
(5) The term "debt" means any obligation or alleged obligation of a
consumer to pay money arising out of a transaction in which the money,
property, insurance or services which are the subject of the transaction
are primarily for personal, family, or household purposes, whether or not
such obligation has been reduced to judgment.
(6) The term "debt collector" means 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. Notwithstanding the
exclusion provided by clause (F) of the last sentence of this paragraph,
the term includes any creditor who, in the process of collecting his own
debts, uses any name other than his own which would indicate that a third
person is collecting or attempting to collect such debts. For the purpose
of section 808(6), such term also includes any person who uses any
instrumentality of interstate commerce or the mails in any business the
principal purpose of which is the enforcement of security interests. The
term does not include --
(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.
(7) The term "location information" means a consumer's place of abode and
his telephone number at such place, or his place of employment.
(8) The term "State" means any State, territory, or possession of the
United States, the District of Columbia, the Commonwealth of Puerto Rico,
or any political subdivision of any of the foregoing.
804. Acquisition of location information [15 USC 1692b]
Any debt collector communicating with any person other than the consumer
for the purpose of acquiring location information about the consumer shall
--
(1) identify himself, state that he is confirming or correcting location
information concerning the consumer, and, only if expressly requested,
identify his employer;
(2) not state that such consumer owes any debt;
(3) not communicate with any such person more than once unless requested
to do so by such person or unless the debt collector reasonably believes
that the earlier response of such person is erroneous or incomplete and
that such person now has correct or complete location information;
(4) not communicate by post card;
(5) not use any language or symbol on any envelope or in the contents of
any communication effected by the mails or telegram that indicates that
the debt collector is in the debt collection business or that the
communication relates to the collection of a debt; and
(6) after the debt collector knows the consumer is represented by an
attorney with regard to the subject debt and has knowledge of, or can
readily ascertain, such attorney's name and address, not communicate with
any person other than that attorney, unless the attorney fails to respond
within a reasonable period of time to the communication from the debt
collector.
805. Communication in connection with debt collection [15 USC 1692c]
(a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent
of the consumer given directly to the debt collector or the express
permission of a court of competent jurisdiction, a debt collector may not
communicate with a consumer in connection with the collection of any debt
--
(1) at any unusual time or place or a time or place known or which should
be known to be inconvenient to the consumer. In the absence of knowledge
of circumstances to the contrary, a debt collector shall assume that the
convenient time for communicating with a consumer is after 8 o'clock
antimeridian and before 9 o'clock postmeridian, local time at the
consumer's location;
(2) if 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, unless the attorney fails to respond
within a reasonable period of time to a communication from the debt
collector or unless the attorney consents to direct communication with the
consumer; or
(3) 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.
(b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804,
without the prior consent of the consumer given directly to the debt
collector, or the express permission of a court of competent jurisdiction,
or as reasonably necessary to effectuate a postjudgment judicial remedy, a
debt collector may not communicate, in connection with the collection of
any debt, with any person other than a consumer, his attorney, a consumer
reporting agency if otherwise permitted by law, the creditor, the attorney
of the creditor, or the attorney of the debt collector.
(c) CEASING COMMUNICATION. If a consumer notifies a debt collector in
writing that the consumer refuses to pay a debt or that the consumer
wishes the debt collector to cease further communication with the
consumer, the debt collector shall not communicate further with the
consumer with respect to such debt, except --
(1) to advise the consumer that the debt collector's further efforts are
being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke
specified remedies which are ordinarily invoked by such debt collector or
creditor; or
(3) where applicable, to notify the consumer that the debt collector or
creditor intends to invoke a specified remedy.
If such notice from the consumer is made by mail, notification shall be
complete upon receipt.
(d) For the purpose of this section, the term "consumer" includes the
consumer's spouse, parent (if the consumer is a minor), guardian,
executor, or administrator.
806. Harassment or abuse [15 USC 1692d]
A debt collector may not engage in any conduct the natural consequence of
which is to harass, oppress, or abuse any person in connection with the
collection of a debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this section:
(1) The use or threat of use of violence or other criminal means to harm
the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural
consequence of which is to abuse the hearer or reader.
(3) The publication of 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)1 of this Act.
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone
conversation repeatedly or continuously with intent to annoy, abuse, or
harass any person at the called number.
(6) Except as provided in section 804, the placement of telephone calls
without meaningful disclosure of the caller's identity.
807. False or misleading representations [15 USC 1962e]
A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.
Without limiting the general application of the foregoing, the following
conduct is a violation of this section:
(1) The false representation or implication that the debt collector is
vouched for, bonded by, or affiliated with the United States or any State,
including the use of any badge, uniform, or facsimile thereof.
(2) The false representation of --
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received
by any debt collector for the collection of a debt.
(3) The false representation or implication that any individual is an
attorney or that any communication is from an attorney.
(4) The representation or implication 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 the debt collector or creditor intends to
take such action.
(5) The threat to take any action that cannot legally be taken or that is
not intended to be taken.
(6) The false representation or implication that a sale, referral, or
other transfer of any interest in a debt shall cause the consumer to --
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this title.
(7) The false representation or implication that the consumer committed
any crime or other conduct in order to disgrace the consumer.
(8) Communicating or threatening to communicate to any person credit
information which is known or which should be known to be false, including
the failure to communicate that a disputed debt is disputed.
(9) The use or distribution of any written communication which simulates
or is falsely represented to be a document authorized, issued, or approved
by any court, official, or agency of the United States or any State, or
which creates a false impression as to its source, authorization, or
approval.
(10) The use of any false representation or deceptive means to collect or
attempt to collect any debt or to obtain information concerning a
consumer.
(11) The failure to disclose in the initial written communication with the
consumer and, in addition, if the initial communication with the consumer
is oral, in that initial oral communication, that the debt collector is
attempting to collect a debt and that any information obtained will be
used for that purpose, and the failure to disclose in subsequent
communications that the communication is from a debt collector, except
that this paragraph shall not apply to a formal pleading made in
connection with a legal action.
(12) The false representation or implication that accounts have been
turned over to innocent purchasers for value.
(13) The false representation or implication that documents are legal
process.
(14) The use of any business, company, or organization name other than the
true name of the debt collector's business, company, or organization.
(15) The false representation or implication that documents are not legal
process forms or do not require action by the consumer.
(16) The false representation or implication that a debt collector
operates or is employed by a consumer reporting agency as defined by
section 603(f) of this Act.
808. Unfair practices [15 USC 1692f]
A debt collector may not use unfair or unconscionable means to collect or
attempt to collect any debt. Without limiting the general application of
the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or
expense incidental to the principal obligation) unless such amount is
expressly authorized by the agreement creating the debt or permitted by
law.
(2) The acceptance by a debt collector from any person of a check or other
payment instrument postdated by more than five days unless such person is
notified in writing of the debt collector's intent to deposit such check
or instrument not more than ten nor less than three business days prior to
such deposit.
(3) The solicitation by a debt collector of any postdated check or other
postdated payment instrument for the purpose of threatening or instituting
criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or other
postdated payment instrument prior to the date on such check or
instrument.
(5) Causing charges to be made to any person for communications by
concealment of the true propose of the communication. Such charges
include, but are not limited to, collect telephone calls and telegram
fees.
(6) Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if --
(A) there is no present right to possession of the property claimed as
collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
(7) Communicating with a consumer regarding a debt by post card.
(8) Using any language or symbol, other than the debt collector's address,
on any envelope when communicating with a consumer by use of the mails or
by telegram, except that a debt collector may use his business name if
such name does not indicate that he is in the debt collection business.
809. Validation of debts [15 USC 1692g]
(a) Within five days after the initial communication with a consumer in
connection with the collection of any debt, a debt collector shall, unless
the following information is contained in the initial communication or the
consumer has paid the debt, send the consumer a written notice containing
--
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt
of the notice, disputes the validity of the debt, or any portion thereof,
the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of the
debt or a copy of a judgment against the consumer and a copy of such
verification or judgment will be mailed to the consumer by the debt
collector; and
(5) a statement that, upon the consumer's written request within the
thirty-day period, the debt collector will provide the consumer with the
name and address of the original creditor, if different from the current
creditor.
(b) If the consumer notifies the debt collector in writing within the
thirty-day period described in subsection (a) that the debt, or any
portion thereof, is disputed, or that the consumer requests the name and
address of the original creditor, the debt collector shall cease
collection of the debt, or any disputed portion thereof, until the debt
collector obtains verification of the debt or any copy of a judgment, or
the name and address of the original creditor, and a copy of such
verification or judgment, or name and address of the original creditor, is
mailed to the consumer by the debt collector.
(c) The failure of a consumer to dispute the validity of a debt under this
section may not be construed by any court as an admission of liability by
the consumer.
810. Multiple debts [15 USC 1692h]
If any consumer owes multiple debts and makes any single payment to any
debt collector with respect to such debts, such debt collector may not
apply such payment to any debt which is disputed by the consumer and,
where applicable, shall apply such payment in accordance with the
consumer's directions.
811. Legal actions by debt collectors [15 USC 1692i]
(a) Any debt collector who brings any legal action on a debt against any
consumer shall --
(1) in the case of an action to enforce an interest in real property
securing the consumer's obligation, bring such action only in a judicial
district or similar legal entity in which such real property is located;
or
(2) in the case of an action not described in paragraph (1), bring such
action only in the judicial district or similar legal entity --
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.
(b) Nothing in this title shall be construed to authorize the bringing of
legal actions by debt collectors.
812. Furnishing certain deceptive forms [15 USC 1692j]
(a) It is unlawful to design, compile, and furnish any form knowing that
such form would be used to create the false belief in a consumer that a
person other than the creditor of such consumer is participating in the
collection of or in an attempt to collect a debt such consumer allegedly
owes such creditor, when in fact such person is not so participating.
(b) Any person who violates this section shall be liable to the same
extent and in the same manner as a debt collector is liable under section
813 for failure to comply with a provision of this title.
813. Civil liability [15 USC 1692k]
(a) Except as otherwise provided by this section, any debt collector who
fails to comply with any provision of this title with respect to any
person is liable to such person in an amount equal to the sum of --
(1) any actual damage sustained by such person as a result of such
failure;
(2) (A) in the case of any action by an individual, such additional
damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named
plaintiff as could be recovered under subparagraph (A), and (ii) such
amount as the court may allow for all other class members, without regard
to a minimum individual recovery, not to exceed the lesser of $500,000 or
1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable attorney's
fee as determined by the court. On a finding by the court that an action
under this section was brought in bad faith and for the purpose of
harassment, the court may award to the defendant attorney's fees
reasonable in relation to the work expended and costs.
(b) In determining the amount of liability in any action under subsection
(a), the court shall consider, among other relevant factors --
(1) in any individual action under subsection (a)(2)(A), the frequency and
persistence of noncompliance by the debt collector, the nature of such
noncompliance, and the extent to which such noncompliance was intentional;
or
(2) in any class action under subsection (a)(2)(B), the frequency and
persistence of noncompliance by the debt collector, the nature of such
noncompliance, the resources of the debt collector, the number of persons
adversely affected, and the extent to which the debt collector's
noncompliance was intentional.
(c) A debt collector may not be held liable in any action brought under
this title if the debt collector shows by a preponderance of evidence that
the violation was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably adapted to avoid
any such error.
(d) An action to enforce any liability created by this title may be
brought in any appropriate United States district court without regard to
the amount in controversy, or in any other court of competent
jurisdiction, within one year from the date on which the violation occurs.
(e) No provision of this section imposing any liability shall apply to any
act done or omitted in good faith in conformity with any advisory opinion
of the Commission, notwithstanding that after such act or omission has
occurred, such opinion is amended, rescinded, or determined by judicial or
other authority to be invalid for any reason.
814. Administrative enforcement [15 USC 1692l]
(a) Compliance with this title shall be enforced by the Commission, except
to the extend that enforcement of the requirements imposed under this
title is specifically committed to another agency under subsection (b).
For purpose of the exercise by the Commission of its functions and powers
under the Federal Trade Commission Act, a violation of this title shall be
deemed an unfair or deceptive act or practice in violation of that Act.
All of the functions and powers of the Commission under the Federal Trade
Commission Act are available to the Commission to enforce compliance by
any person with this title, irrespective of whether that person is engaged
in commerce or meets any other jurisdictional tests in the Federal Trade
Commission Act, including the power to enforce the provisions of this
title in the same manner as if the violation had been a violation of a
Federal Trade Commission trade regulation rule.
(b) Compliance with any requirements imposed under this title shall be
enforced under --
(1) section 8 of the Federal Deposit Insurance Act, in the case of --
(A) national banks, by the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national
banks), by the Federal Reserve Board; and
(C) banks the deposits or accounts of which are insured by the Federal
Deposit Insurance Corporation (other than members of the Federal Reserve
System), by the Board of Directors of the Federal Deposit Insurance
Corporation;
(2) section 5(d) of the Home Owners Loan Act of 1933, section 407 of the
National Housing Act, and sections 6(i) and 17 of the Federal Home Loan
Bank Act, by the Federal Home Loan Bank Board (acting directing or through
the Federal Savings and Loan Insurance Corporation), in the case of any
institution subject to any of those provisions;
(3) the Federal Credit Union Act, by the Administrator of the National
Credit Union Administration with respect to any Federal credit union;
(4) subtitle IV of Title 49, by the Interstate Commerce Commission with
respect to any common carrier subject to such subtitle;
(5) the Federal Aviation Act of 1958, by the Secretary of Transportation
with respect to any air carrier or any foreign air carrier subject to that
Act; and
(6) the Packers and Stockyards Act, 1921 (except as provided in section
406 of that Act), by the Secretary of Agriculture with respect to any
activities subject to that Act.
(c) For the purpose of the exercise by any agency referred to in
subsection (b) of its powers under any Act referred to in that subsection,
a violation of any requirement imposed under this title shall be deemed to
be a violation of a requirement imposed under that Act. In addition to its
powers under any provision of law specifically referred to in subsection
(b), each of the agencies referred to in that subsection may exercise, for
the purpose of enforcing compliance with any requirement imposed under
this title any other authority conferred on it by law, except as provided
in subsection (d).
(d) Neither the Commission nor any other agency referred to in subsection
(b) may promulgate trade regulation rules or other regulations with
respect to the collection of debts by debt collectors as defined in this
title.
815. Reports to Congress by the Commission [15 USC 1692m]
(a) Not later than one year after the effective date of this title and at
one-year intervals thereafter, the Commission shall make reports to the
Congress concerning the administration of its functions under this title,
including such recommendations as the Commission deems necessary or
appropriate. In addition, each report of the Commission shall include its
assessment of the extent to which compliance with this title is being
achieved and a summary of the enforcement actions taken by the Commission
under section 814 of this title.
(b) In the exercise of its functions under this title, the Commission may
obtain upon request the views of any other Federal agency which exercises
enforcement functions under section 814 of this title.
816. Relation to State laws [15 USC 1692n]
This title does not annul, alter, or affect, or exempt any person subject
to the provisions of this title from complying with the laws of any State
with respect to debt collection practices, except to the extent that those
laws are inconsistent with any provision of this title, and then only to
the extent of the inconsistency. For purposes of this section, a State law
is not inconsistent with this title if the protection such law affords any
consumer is greater than the protection provided by this title.
817. Exemption for State regulation [15 USC 1692o]
The Commission shall by regulation exempt from the requirements of this
title any class of debt collection practices within any State if the
Commission determines that under the law of that State that class of debt
collection practices is subject to requirements substantially similar to
those imposed by this title, and that there is adequate provision for
enforcement.
818. Effective date [15 USC 1692 note]
This title takes effect upon the expiration of six months after the date
of its enactment, but section 809 shall apply only with respect to debts
for which the initial attempt to collect occurs after such effective date.
Approved September 20, 1977
|
