ID

David S. Osterman, Esquire

Appointments are available Tuesday and Thursday evenings and on Saturday mornings.

40 Bay Street
Manchester, New Hampshire 03104

Tel: 603-626-5450
Toll Free: 866-855-2999
Fax: 603-626-5453

YOUR RIGHTS UNDER THE FEDERAL LAW

The Fair Debt Collection Practices Act (FDCPA) is a United States statute added in 1978 to the Consumer Credit Protection Act. Its purposes are to eliminate abusive practices in the collection of consumer debts, to promote fair debt collection, and to provide consumers with an avenue for disputing and obtaining validation of debt information in order to ensure the information’s accuracy.  The Act creates guidelines under which debt collectors may conduct business, defines rights of consumers involved with debt collectors, and prescribes penalties and remedies for violations of the Act.

Mistreated consumers may file a private lawsuit in a state or federal court to collect damages (actual, statutory, attorney’s fees, and court costs) from third-party debt collectors. The FDCPA is a strict liability law which means that a consumer need not prove actual damages in order to claim statutory damages of up to $1,000 plus reasonable attorney fees if a debt collector is proven to have violated the FDCPA. The collector may, however, escape penalty if it shows that the violation (or violations) was unintentional and the result of a bona fide error that occurred despite procedures designed to avoid the error at issue.

Our next two posts will tell you about some of the requirements Federal law impose on debt collectors.  The law is very specific about conduct that is required of debt collectors and it prohibits certain behavior by them.  In some instances, New Hampshire law is even stricter that the Federal law.

July 18th, 2012 | By admin | Filed under: FDCPA
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DEBT COLLECTORS ARE NOT ALLOWED TO:

Contact consumers by telephone outside of the hours of 8:00 a.m. to 9:00 p.m. local time;

Continue to communicate with you after you ask them to stop doing so.  Communicating with consumers in any way (other than litigation) after receiving written notice that said consumer wishes no further communication or refuses to pay the alleged debt, with certain exceptions, including advising that collection efforts are being terminated or that the collector intends to file a lawsuit or pursue other remedies where permitted;

Cause 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;

Communicate with consumers at their place of employment after having been advised that this is unacceptable or prohibited by the employer.  (In New Hampshire a debt collector cannot contact you at work more than once a month, and must stop doing so upon request.);

Contact a consumer known to be represented by an attorney;

Communicate with a consumer after request for validation has been made: communicating with the consumer or the pursuing collection efforts by the debt collector after receipt of a consumer’s written request for verification of a debt made within the 30 day validation period (or for the name and address of the original creditor on a debt) and before the debt collector mails the consumer the requested verification or original creditor’s name and address;

Misrepresent the debt or use deception to collect the debt, including a debt collector’s misrepresentation that he or she is an attorney or law enforcement officer;

Publish the consumer’s name or address on a “bad debt” list;

Seek unjustified amounts, which would include demanding any amounts not permitted under an applicable contract or as provided under applicable law.  Usually this applies to attempts to collect interest or collection fees that the creditor or agency is not entitled to;

Threaten arrest or legal action that is either not permitted or not actually contemplated;

Use abusive or profane language in the course of communication related to the debt;

Communicate with third parties: revealing or discussing the nature of debts with third parties other than the consumer’s spouse or attorney.  There are exceptions to this rule, but they do not include discussing the specifics of your debt with persons other than you, your spouse, or your attorney;

Contact a consumer by embarrassing media, such as communicating with a consumer regarding a debt by post card, or 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;

Report false information on a consumer’s credit report or threatening to do so in the process of collection.

July 18th, 2012 | By admin | Filed under: FDCPA
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Debt COLLECTORS ARE REQUIRED TO:

Identify themselves and notify the consumer, in every communication, that the communication is from a debt collector, and in the initial communication that any information obtained will be used to effect collection of the debt;

Give the name and address of the original creditor (company to which the debt was originally payable) upon the consumer’s written request made within 30 days of receipt of the collection letter;

Notify the consumer of their right to dispute the debt, in part or in full, with the debt collector. The 30-day notice is required to be sent by debt collectors within five days of the initial communication with the consumer, though in 2006 the definition of “initial communication” was amended to exclude “a formal pleading in a civil action” for purposes of triggering the §1692g notice, complicating the matter where the debt collector is an attorney or law firm. The consumer’s receipt of this notice starts the clock running on the 30-day right to demand verification of the debt from the debt collector;

Provide verification of the debt if a consumer sends a written dispute or request for verification within 30 days of receiving the §1692g notice, then the debt collector must either mail the consumer the requested verification information or cease collection efforts altogether. Such asserted disputes must also be reported by the creditor to any credit bureau that reports the debt. Consumers may still dispute a debt verbally or after the thirty-day period has elapsed, but doing so waives the right to compel the debt collector to produce verification of the debt. Verification should include at a minimum the amount owed and the name and address of the original creditor.

File a lawsuit in a proper venue.  If a debt collector chooses to file a lawsuit, it may only be in a place where the consumer lives or signed the contract.  Note, however, that this does not prevent the debt collector from being sued in other venues for violating the Act, such as when the consumer moves outside the venue and a letter demanding payment is forwarded to the new address, even if the debt collector is unaware of such a change in residence.

Please note that there are specific time requirements within the law.  If you receive a collection demand, do not risk losing your rights by waiting.  We are available for consultations now.

 

July 18th, 2012 | By admin | Filed under: FDCPA
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HOW NOT TO COLLECT A DEBT

FDCPA VIOLATION IN THE NEWS

A Texas woman has filed a lawsuit against Capital Management Services, a national collection agency.  Capital Management Services is alleged to have contacted the Plaintiff after she sent them a cease and desist letter.  This singe violation, if proved, is enough to trigger the Plaintiff’s rights under the FDCPA (Fair Debt Collection Practices Act).  The FDCPA is the Federal law governing debt collectors. If she wins her lawsuit, this Plaintiff should be awarded at least $1,000.00 plus her attorney’s fees and court costs. http://www.setexasrecord.com/news/243625-collection-agency-sued-for-contacting-debtor-after-cease-and-desist-letter

Debt collectors violate the law at their own risk.  In New Hampshire both the FDCPA and New Hampshire Revised Statute 358: C protect you from unfair debt collection actions.  A properly drafted cease and desist letter can protect you from annoying or threatening telephone calls.  If the contacts continue after a cease and desist letter is sent, we can make the collection agency pay you for ignoring State or Federal law.

May 2nd, 2012 | By admin | Filed under: FDCPA,Horror Story
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