SICK OF DEBT COLLECTORS? – unlawful debt collection practices and legal options for California consumers
GOOD NEWS AND BAD NEWS
Debt collectors are a**holes, and are notorious for their obnoxious and harassing methods.
The good news is that strong federal and state laws exist to protect consumers. The bad news is that debt collectors and creditors are a**holes, and do not always abide by these laws. However, consumers, especially those in California, have legal recourse against such abusive and deceptive practices. This includes the federal Fair Debt Collections Practices Act (FDCPA); California’s own Rosenthal Fair Debt Collections Practices Act (Rosenthal Act), the Telephone Consumer Protection Act (TCPA), the Fair Credit Reporting Act (FCRA), and the California Consumer Credit Reporting Agencies Act (CCRAA).
Creditors, professional debt collectors, and collection attorneys who violate these laws are subject to paying damages, and victims can obtain $1000 in statutory penalties.
PROHIBITED and UNLAWFUL CONDUCT
Below is a list of unlaw debt collection practices. However, it is key to remember that the law is nuanced, and such behavior are subject to constant litigation. In other words, it’s never black or white, so talk to an expert.
Attempt to collect on an old debt that has expired (4 years in California)
Threaten you
Contact you (calls, texts, emails, etc) between 9 pm and 8 am
Contact you with a robo-call (any recorded message or AI generated voice)
Contacting you too often
Continued contact after you sent them a written request to “stop contact”
Contact at work when told not to
Contacting a third-party, like your employer, family, friends, or neighbor
Disclosing your debt to someone else
Repeated contact in order to harass
Use profane, offensive, or abusive language
Issue false or inaccurate credit reports
Attempt to collect unjustified amounts of money (like additional fees or penalties)
Send letters that looks like a court or “official” document
Send letters with false or misleading information
Threatening you with jail or arrest if you don’t pay (unpaid debt is never a crime)
Threatening to garnish your wages or seize assets before initiating a lawsuit
Threaten to arrest, sue, or physically harm you.
Continue calling although they have yet to validate your debt
Use misleading means in connection with your debt collection
Called you but did not explicitly tell you they were debt collectors
WHAT YOU SHOULD DO
In short, (1) RECORD WHAT HAPPENED and (2) TELL THEM TO STOP. Remember the law functions best on paper, so (1) write down the 5 Ws (when what where why & who), and (2) make all requests both verbally and in writing.
Debt collectors who do any of the activities listed above are breaking the law! Therefore, you can be compensated each time they break the law!
Do all of the following to build up your case:
Tell them to stop calling you. You only need to do this once. The moment you do and they keep calling, you can be compensated for each call.
Keep a log showing the time and date the debt collector called you.
Make note of what laws they are violating. Are they calling before 8am or after 9pm? Write it down!
Tell a credit agency your credit is incorrect and wait 30 days for the issue to be resolved, and then take action.
Seek help from an attorney!
You also have significant legal recourse if the debt they are attempting to collect is due to identity theft or fraud. Click here to read more.
WHAT IF YOU HAVE BEEN SUED?
First and foremost, talk to an attorney. But below are some common scenarios:
You were sued for a credit card debt.
Debt buyers who bring a credit card lawsuit often do not have the original contract, and have no admissible records of their ownership of the account. The debt collector’s sloppy record-keeping and reluctance to appear in court with a witness often means they will be unable to prove their case in court if challenged by a competent lawyer.
You were sued on an auto loan deficiency balance.
Many auto lenders fail to comply with the Rees-Levering Automobile Sales Finance Act, by issuing consumers defective post-repossession notices. The result is that the consumer does not owe any debt after the vehicle is auctioned. Please contact us for a free analysis of your notice, and to see if you have other typical auto loan defenses.
You were sued on a student loan debt.
There may be a statute of limitations which applies to bar the lawsuit. However, the statute of limitations issue is a complex one, as many of the student loan contracts choose the laws of states other than California. The lenders often do not fully analyze if their own lawsuit is stale, because they hope you will fail to respond and default.
The debt they sued on is quite old.
The “statute of limitations” on a written contract is four years in California. If more than four years have passed since your last payment on the debt, you may prevail in the lawsuit.
How long do I have to respond to the lawsuit?
You have only 30 days from receipt of the summons and complaint. The deadline is not the first court hearing in the matter. It is 30 days from receipt of the summons. You must file a formal answer within the thirty days, not send a letter, or call the court. If you fail to respond within 30 days, the debt collector will try to get a default judgment against you. This means you automatically lost and the collector is entitled to collect on the debt with legal force.
They sued me years ago and never told me.
Unfortunately, many process servers don’t follow the rules, and deliver lawsuits to old addresses, or even lie about having delivered the lawsuit. There is no time limit for setting aside a default judgment, when the consumer was not properly notified of the lawsuit.
SEEK AN ATTORNEY TO OBTAIN POSSIBLE FINANCIAL COMPENSATION.
Should I represent myself?
NO! You will almost certainly lose without an attorney, even if you should win on the legal issues. This is because you won’t understand the complex procedures applicable in court, and judges do not waive the rules for self-represented persons. As Abraham Lincoln said - “He who represents himself has a fool for a client.”
Can you afford an attorney?
YES. Many consumer protection attorneys, including our team, can handle ID Theft matters for you on a contingency basis. Like those personal injury billboards you see while driving – you don't pay unless you win.
