When the FDCPA applies to a collection lawyer
Enforcing a judgment can place a lawyer inside the Fair Debt Collection Practices Act, and the 1986 repeal that put them there is the first thing to understand. This page states what the Act provides on who it covers and what it forbids. It does not say whether any particular firm is covered, because that turns on facts in that firm's own files, and it is not legal advice.
Consumer and commercial debts
The Act reaches one kind of debt, and a judgment does not move a debt out of it.
Under 15 U.S.C. 1692a(5)1, a debt is an obligation of a consumer to pay money arising from a transaction whose subject was primarily for personal or household use, and the obligation counts whether or not it has been reduced to judgment. So a consumer judgment stays a consumer debt. A commercial one was never in the Act to begin with.
The person on the other side is a consumer, meaning any natural person obligated or allegedly obligated to pay a debt. 15 U.S.C. 1692a(3). Which side of the personal, family or household line a judgment falls on is read from the original transaction, and this page does not sort any reader's judgment.
For the communication rules, the word reaches further than the debtor. Under 15 U.S.C. 1692c(d)2, consumer there includes the consumer's spouse, the parent of a minor consumer, a guardian, an executor or an administrator. Read the limits as applying only to the named debtor and you have misread who the person is.
Five tests that place a collection lawyer inside or outside the Fair Debt Collection Practices Act. Inside: the debt is a consumer debt, an obligation arising from a transaction primarily for personal, family or household purposes, under 15 U.S.C. 1692a(5), and a judgment does not change that. Inside: the debt is owed or due another, under 15 U.S.C. 1692a(6). Inside: the collector's principal purpose is collection, or it regularly collects, under 15 U.S.C. 1692a(6), which the Supreme Court in Heintz v. Jenkins held reaches lawyers who regularly collect through litigation. Outside: to the extent the activity concerns a debt the person originated or one not in default when it obtained it, under 15 U.S.C. 1692a(6)(F), or a person serving legal process under 15 U.S.C. 1692a(6)(D). Outside: an officer or employee of a creditor collecting in the creditor's name, under 15 U.S.C. 1692a(6)(A), but not a creditor using a name suggesting a third person collects. The closing line reads that whether a given firm is in is read from its own files.
Lawyers who regularly collect
The definition of debt collector has a few moving parts, and the one that catches lawyers is the plainest of them.
A debt collector is a person in a business whose principal purpose is collecting debts, or a person who regularly collects or attempts to collect, directly or indirectly, debts owed or due another. 15 U.S.C. 1692a(6). Two routes in. The first reaches the collection of any debts and does not require that it be regular. Only the second carries the 'owed to another' limit, and it is the one that requires regularity.
Named exclusions sit next to the definition. An officer or employee of a creditor collecting in the creditor's own name is not a debt collector under 1692a(6)(A). Neither is a person collecting a debt it originated, or one that was not in default when it obtained it, under 1692a(6)(F). While serving legal process in the judicial enforcement of a debt, a process server is excluded under 1692a(6)(D). And a party who takes an of a defaulted debt solely to collect it for another is not a creditor, under 1692a(4): the assignment does not launder the debt into one's own.
Lawyers were once on that list. The earlier Act excluded any attorney collecting a debt as an attorney for a client, and in 1986 Congress repealed that exemption in its entirety, putting no narrower litigation exemption in its place, as the Supreme Court recounted in Heintz v. Jenkins, 514 U.S. 291 (1995). The Court then held the Act applies to attorneys who regularly engage in consumer-debt-collection activity, even when that activity is litigation. In ordinary English, the Court said, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly attempts to collect them. This page gives no number of matters that makes a firm a regular collector, and does not say whether any reader's firm is one.
Who you may talk to
Once the Act reaches a lawyer, the first set of rules is about communication, which the Act defines broadly.
Communication means the conveying of information regarding a debt, directly or indirectly, to any person through any medium. 15 U.S.C. 1692a(2). Whether a particular enforcement paper, a restraining notice, an information subpoena, a notice of or a writ, is itself a covered communication is a question the courts work out, and this page does not answer it.
With third parties the default is silence. Under 15 U.S.C. 1692c(b), without the consumer's consent or a court's express permission, a debt collector may discuss the debt only with the consumer, the consumer's lawyer, a consumer reporting agency where law allows, the creditor and the lawyers, plus what is reasonably necessary to effectuate a postjudgment judicial remedy. Reaching out to find the debtor, a collector is held to 15 U.S.C. 1692b3: identify himself, say he is confirming or correcting location information, and not say the consumer owes a debt.
Direct contact has its own fences. Once a collector knows the consumer is represented by a lawyer on the debt and can readily find that lawyer's name and address, it may not contact the consumer directly, under 15 U.S.C. 1692c(a)(2), unless the lawyer fails to respond in a reasonable time or consents. Absent knowledge otherwise, the convenient hours are after 8 a.m. and before 9 p.m. at the consumer's location. 15 U.S.C. 1692c(a)(1). And after a written refusal to pay or a request to stop, the collector may write only to say its efforts are ending, that it or the creditor may invoke remedies it ordinarily invokes, or that it intends to invoke a specified one. 15 U.S.C. 1692c(c). In Heintz the Court said those exceptions can plausibly be read to allow actually invoking the remedy, consistent with preserving creditors' judicial remedies, while adding that it need not interpret the Act's conduct provisions authoritatively.
What you may threaten, charge, and send
The conduct rules do not pause for enforcement. They govern a covered lawyer's words about remedies, the sums it may collect and the paper it sends.
Threats are measured against intent and legality. Representing that nonpayment will bring arrest, imprisonment, or the seizure, garnishment, attachment or sale of property or wages is a violation unless the action is lawful and the collector or creditor intends to take it. 15 U.S.C. 1692e(4)4. And threatening action that cannot legally be taken, or is simply not intended, violates 1692e(5) on its own terms.
Simulating a court document violates 15 U.S.C. 1692e(9), as does falsely suggesting a court or agency issued or approved a paper. A false representation or deceptive means used to obtain information about a consumer violates 1692e(10). That is where pretexting runs into the Act. The required debt-collector disclosure, by contrast, carries an exception for the formal pleading in a legal action, under 1692e(11), so a lawyer who files does not caption the complaint as a dunning letter.
On money, 15 U.S.C. 1692f(1)5 bars collecting any amount, including interest, fees and expenses, unless the agreement creating the debt expressly authorizes it or the law permits it. And over all of it sits 15 U.S.C. 1692d6, which forbids any conduct whose natural consequence is to harass, oppress or abuse any person in collecting a debt.
Validation and the price of getting it wrong
Two more mechanics matter to a firm that collects consumer debts: a written notice early, and the exposure if the Act is broken.
Within 5 days of the first communication, the collector must send a written notice, unless that information is already in the initial communication or the consumer has paid the debt. It states the amount of the debt, the name of the creditor to whom it is owed, and the consumer's right to dispute within 30 days. 15 U.S.C. 1692g(a)7. On a written dispute inside that window, or a request for the original creditor's name and address, the collector must stop collecting the disputed amount until it obtains and mails the consumer verification of the debt, a copy of a judgment, or that name and address, under 1692g(b). Suing does not start the 5 day clock. A formal pleading in a civil action is not an initial communication for this notice, under 1692g(d).
Exposure is set out in 15 U.S.C. 1692k(a)8. A collector that breaks the Act is liable for actual damages, additional damages up to $1,000 in an individual action, and, in a successful action, costs and a reasonable attorney's fee. There is a narrow escape under 1692k(c): no liability if the collector proves the violation was unintentional and resulted from a bona fide error despite procedures reasonably adapted to avoid it. An action must be brought within 1 year of the violation, under 1692k(d).
That is the shape of the Act, not its application to a file. A practice's own records hold how often it collects and whose debts it pursues, and those are the facts the definitions turn on. Nobody writing this is a lawyer and none of it is advice. Whether the Act reaches a given firm, and whether a given enforcement paper is a communication the Act governs, are questions for counsel with the file open. What a page can do is narrower. It can tell a reader which words in the statute decide the question, and that a judgment does not answer it.
Sources
Every section named above, with how current the text we read was. Read any of them yourself.
- 15 U.S.C. 1692a, Definitions. Enacted July 21, 2010. Check the link for later amendments. Read the section, opens in a new tab Back
- 15 U.S.C. 1692c, Communication in connection with debt collection. Enacted Sept. 20, 1977. Check the link for later amendments. Read the section, opens in a new tab Back
- 15 U.S.C. 1692b, Acquisition of location information. Enacted Sept. 20, 1977. Check the link for later amendments. Read the section, opens in a new tab Back
- 15 U.S.C. 1692e, False or misleading representations. Enacted Sept. 30, 1996. Check the link for later amendments. Read the section, opens in a new tab Back
- 15 U.S.C. 1692f, Unfair practices. Enacted Sept. 20, 1977. Check the link for later amendments. Read the section, opens in a new tab Back
- 15 U.S.C. 1692d, Harassment or abuse. Enacted Sept. 20, 1977. Check the link for later amendments. Read the section, opens in a new tab Back
- 15 U.S.C. 1692g, Validation of debts. Enacted Oct. 13, 2006. Check the link for later amendments. Read the section, opens in a new tab Back
- 15 U.S.C. 1692k, Civil liability. Enacted July 21, 2010. Check the link for later amendments. Read the section, opens in a new tab Back