Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
|Have You Been Harassed By A Debt Collector?|
Have You Been Harassed By A Debt Collector?
Newspapers continue to report of increased credit card debt and the rise in personal bankruptcy filings. As consumers confront economic difficulty, can debt collectors be far behind? Although there are numerous statutes and judicial pronouncements that apply to the activities of consumer debt collection agencies, there is no longer any California government agency that enforces those specific laws. The California legislature repealed the California Collection Agency Act and its regulations effective June 30, 1992. Thus, notwithstanding the increase in consumer debt and the resulting increased boon to the consumer debt collection industry, there is no longer a State agency monitoring the practices of collection agencies. The principal statutes governing the conduct of collection agencies are the California Fair Debt Collection Practices Act and the Federal Fair Debt Collection Practices Act. The Federal Trade Commission enforces the federal law. It should be noted that these statutes pertain to the collection of debts arising from consumer transactions only. Such statutes do not cover commercial debts. This article is therefore limited to a discussion of activities undertaken by creditors and collection agencies seeking to collect consumer debt. A collection agency has an obligation to correctly identify itself when contacting a debtor. A representative of a collection agency, for example, may not falsely represent that such person is an attorney or represent that the creditor or collection agency is affiliated with, bonded by, or vouched for, by any federal, state or local governmental agency. Under the federal statute, a collection agency may not use a postcard to communicate with a debtor regarding the debt. It is also unlawful, under the Federal Act, for a collection agency to accept a check that is postdated by more than five days, unless the collection agency gives written notice to the person giving the check, at least three but not more than ten business days before deposit, of its intention to deposit the check. In California, it is unlawful for a creditor or collection agency to obtain an affirmation of a debt which has been discharged in bankruptcy from a debtor who has been adjudicated a bankrupt, unless the creditor or collection agency discloses to the debtor, in writing, before the affirmation is sought, that the debtor is not legally obligated to make it. Consumers frequently complain of harassment or abuse by telephone. A creditor or collection agency may not make the following uses of the telephone to collect a consumer debt: 1. Call the debtor without disclosing the caller's identity. 2. Cause the debtor expense for long-distance charges, telegram fees, or charges for other similar communications by misrepresenting the purpose of the call. 3. Cause the debtor's telephone to ring repeatedly or continuously for the purpose of annoying the debtor. 4. Call the debtor with a frequency that is unreasonable and that constitutes harassment. Very little communication is permitted with a debtor's employer. A creditor or collection agency is permitted to communicate with the debtor's employer for only one or more of the following purposes: (a) to verify the debtor's employment; (b) to locate the debtor; (c) to garnish the debtor's wages; and (d) in the case of a medical debt, to discover the existence of medical insurance. No other communication is considered to be "necessary for the collection of the debt" under applicable California statutes. All such communications with the debtor's employer must be in writing except that: (a) one oral communication may be made solely for the purpose of verifying the debtor's employment; (b) a health care provider or agent may communicate orally for the purpose of discovering the existence of medical insurance; and (c) a creditor or collection agency may communicate orally if no response to a written communication was received within 15 days. You may at some point, as you travel down the road of life, accumulate more debt than you would prefer, and be subject to a call from a collection agency. Remember that just because you find yourself in this difficult position does not mean that you have been stripped of your rights to be treated fairly!
[This column is intended to provide general information only and is not intended to provide specific legal advice; if you have a specific question regarding the law, you should contact an attorney of your choice. Suggestions for topics to be discussed in this column are welcome.] Reprinted from New Era Magazine Myles M. Mattenson © 1997-2002