18 Feb 2008 04:38:22 | Steve Austin
Think you’ve got the FDCPA (Fair Debt Collection Practices Act)
figured out? Don’t be so sure. While nothing can take the place
of a lawyer’s advice, if you’ve at least overcome these three
biggest myths about the law, you may save yourself a lot of
money and heartache.
FDCPA Myth 3: the Fair Debt Collection Practices Act is the only
law governing collections:
Fact: The FDCPA is a US federal law. Each state has additional
laws that govern fair debt collection practices. Some portions
of those laws may have been invalidated by the federal law. But,
as a general rule, state laws are valid if they provide greater
protections (or restrictions, depending on your point of view),
and invalid if they allow debt collectors too much leeway.
Meanwhile, other countries have their own laws, which may or may
not apply if the collector or debtor is currently located
outside the US.
Reality: it is important to keep in mind all the relevant state
laws. Those state laws may include the laws of up to three or
even more states: the debtor’s current state of residence,
business, and/or work; the debt collector’s state; and the state
of any outside collection agency. The multiplicity of laws is
just one reason why lawyers are so often brought into the
collections process, especially when the amounts are large.
Debt collections that cross national borders are notoriously
complicated, whether it’s a US collector seeking payment from a
foreign national or vice versa. That’s just one reason that
businesses that have a large customer base in another country
will often open a branch office there.
FDCPA Myth 2: if a collector violates fair debt collection
practices, the debt is thrown out:
Fact: it’s true that unfair debt collection practices will
likely cost the collector the judge’s sympathy if the
collections go to court. But the Act does not say that the debt
itself will necessarily be invalidated.
That may be why some unscrupulous collectors still violate the
law. Of course, as already noted, breaking the law is not a good
idea, since the collectors will lose much if not all of whatever
moral standing they might have had. Besides, who wants to be
sued for damages—especially by the person who still owes you
money?
Reality: it’s in the best interest of anyone who owes money to
document any FDCPA violations, and in the best interest of debt
collectors to follow fair debt collection practices scrupulously.
The Number-One FDCPA Myth: the Fair Debt Collection Practices
Act is hard to follow:
Fact: the Act’s requirements are nothing more than common sense
and basic courtesy. The days of debtors’ prison or publishing
debtors’ names in the newspaper are over, and threats are
strictly for the mafia. Any attempt to collect a debt through
humiliation or intimidation, or anything hinting at intimidation
or humiliation, should be avoided.
Reality: The vast majority of violations could have been avoided
if the debt collectors had simply put themselves in the other
person’s shoes and thought about how they would feel if they
were treated in the same way. This also means that it is not in
fact easy for debtors to get out of their obligations by turning
the tables on the organizations to which they owe money.
In short, we’ve come a long way since the days when debtors
might have ended up in the stocks, and the FDCPA is largely to
thank. But if you take fair debt collection practices lightly,
you may find your troubles make a day in the stocks look
pleasant.
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