The Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act
15 U.S.C. § 1692 et seq.
I. Overview
A. Enacted in 1978 to prevent personal bankruptcy, marital instability, loss of

employment and invasion of personal privacy.
B. Prohibits false, deceptive, misleading, harassing, abusive and offensive

conduct during collection of consumer debts.
II. Definitions
A. “Consumer”: any natural person obligated or allegedly obligated to pay a

debt. 15 U.S.C. § 1692a(3).
B. “Debt”: any obligation or alleged obligation of a consumer to pay money for

goods or services that are primarily for personal, family or household
purposes. 15 U.S.C. § 1692a(5).
a. DOES NOT COVER taxes, criminal restitution. Obligation must result

from a consumer transaction.
b. DOES NOT COVER businesses or individuals alleged to owe debts

incurred in the operation of a business.
C. “Debt Collectors”: any person who uses any instrumentality of interstate

commerce (phone, mail, email) in any business, the principal purpose of
which is collection of the debts of another. 15 U.S.C. § 1692a(6).
a. APPLIES TO:
i. Attorneys who regularly collect debts. Heintz v. Jenkins, 514 U.S.

291, 115 S.Ct. 1489 (1995).
ii. Creditors who hold themselves out to be debt collectors.
b. DOES NOT APPLY TO:
i. “Creditors”: any person or entity that extends credit, creating a debt,

to whom the debt is owed. 15 U.S.C. § 1692a(4). Examples: Chase
Bank, MBNA Bank, HSBC.
ii. Any officer or employee of the creditor.
iii. Any officer or employee of the United States or any State.

iv. Companies with common ownership with a creditor.
v. Anyone attempting to serve legal process.
D. “Communication”: conveying of information regarding a debt directly or

indirectly to any person through any medium. 15 U.S.C. § 1692a(2).
III. Requirements and Prohibitions (this is not a complete list)
A. Restricted Communications
a. Cannot discuss the debt with a 3rd party. 15 U.S.C § 1692b(2).
b. Can only contact a 3rd party one time for the purpose of obtaining location
information. 15 U.S.C. § 1692b(3)
c. Can’t call before 8am or after 9pm. 15 U.S.C. § 1692c(a)(1).
d. Cannot contact consumer if known to be represented by an attorney. 15

U.S.C. § 1692c(a)(2)
e. Cannot contact consumer’s place of work if consumer notified debt

collector not to call work. Oral notice is sufficient. 15 U.S.C. §
1692c(a)(3).
f. Cannot contact consumer if consumer advises debt collector in writing to

cease communications OR that consumer refuses to pay. 15 U.S.C. §
1692c.
B. Abuse/Harassment
a. Act provides a general prohibition against harassing, abusive and/or

oppressive conduct. 15 U.S.C. § 1692d.
b. Collector can’t threaten violence or use of criminal activity towards

consumer or property. 15 U.S.C § 1692d(1).
c. Collector can’t use obscene or profane language. 15 U.S.C. § 1692d(2).
d. Collector can’t publish lists of debtors or advertise debts, including

blacklisting. 15 U.S.C. § 1692d(3).
e. Collector can’t cause phone to ring repeatedly for purposes of harassing or

annoying. 15 U.S.C. § 1692d(4).
f. Collector can’t place calls to consumer without meaningful disclosure of
identity. 15 U.S.C. § 1692d(6).
C. False, Deceptive or Misleading
a. FDCPA provides a general prohibition against use of false, deceptive or

misleading collection tactics. A collector’s actions are to be interpreted
from the perspective of the "least sophisticated consumer." Martsolf v.
JBC Legal Group, P.C., 2008 U.S. Dist. LEXIS 6876 (M.D. Pa. Jan. 30,
2008); Nelson v. Select Fin. Servs., 430 F. Supp. 2d 455, 457 (E.D. Pa.
2006).
b. Collector cannot make any false, deceptive or misleading statements.

15 U.S.C. § 1692e, e(10).
c. Collector cannot falsely represent character, amount or legal status of debt.

15 U.S.C. § 1692e(2)(A).
d. Collector cannot falsely represent himself/herself as an attorney. 15

U.S.C. § 1692e(3).
e. Collector cannot state or imply that non-payment will result in arrest

or criminal prosecution. 15 U.S.C. § 1692e(4).
f. Collector cannot threaten suit, garnishment or seizure of property without

legal ability to do the same. 15 U.S.C. § 1692e(5). Ex: Threatening suit
to collect a time-barred debt. Martsolf v. JBC Legal Group, P.C., 2008
U.S. Dist. LEXIS 6876 (M.D. Pa. Jan. 30, 2008).
g. Collector cannot report or threaten to report false credit information (like

fraud). 15 U.S.C. § 1692e(8). (ties to FCRA)
D. Unfair or Unconscionable
a. Act provides general prohibition against the use of any unfair or

unconscionable means to collect a debt. 15 U.S.C. § 1692f.
b. Collector cannot attempt to collect any amount not authorized by the

agreement creating the debt or permitted by law. (This usually comes up
if collector takes more than authorized by electronic funds transfer.) 15
U.S.C. § 1692f(1).
c. Collector cannot accept or solicit postdated check without providing

written notice of at least 3 days that intends to deposit. 15 U.S.C. §
1692f(2).
d. Collector cannot accept or solicit postdated check for purpose of
threatening criminal prosecution. 15 U.S.C. § 1692f(3).
E. Notice Requirements
a. Notices sent pursuant to Section 1692g are to be interpreted from the

perspective of the "least sophisticated consumer." Martsolf v. JBC
Legal Group, P.C., 2008 U.S. Dist. LEXIS 6876 (M.D. Pa. Jan. 30,
2008); Nelson v. Select Fin. Servs., 430 F. Supp. 2d 455, 457 (E.D. Pa.
2006)
b. Collector shall provide the following notices:
i. Initial communication (oral or written): “This communication is

from a debt collector in an attempt to collect a debt. Any
information obtained will be used for that purpose.” 15 U.S.C. §
1692e(11).
ii. Each subsequent communication: “This communication is from a

debt collector,” or “this is an attempt to collect a debt.” 15 U.S.C.
§ 1692a(11).
iii. Within 5 days of initial communication (oral or written), in

writing:
1. Amount of the debt, 15 U.S.C. § 1692g(a)(1);
2. Name of the creditor owed 15 U.S.C. § 1692g(a)(2);
3. Right to dispute validity within 30 days, 15 U.S.C. §

1692g(a)(3); and
4. Name and address of the original creditor, 15 U.S.C. §

1692g(a)(5).
5. If disputed by consumer within 30 days, collector will provide

verification of the debt, 15 U.S.C. § 1692g(a)(4).
IV. Enforcement
A. FDCPA is a strict liability statute. 15 U.S.C. § 1692k; Foti v. NCO Fin. Sys.,
424 F. Supp. 2d 643 (S.D.N.Y. 2006).
B. FDCPA claims have a one year statute of limitations. 15 U.S.C. § 1692k(d).

C. Claims can be brought in state or federal court. 15 U.S.C. § 1692k(d); Itri v.
Equibank, N.A., 318 Pa. Super. 268, 282 (Pa. Super. Ct. 1983).
D. Upon successful litigation of an individual suit, plaintiff/consumer is entitled

to:
a. Any actual damages, 15 U.S.C. § 1692k(a)(1), including emotional

distress, McNally v. Client Services, 2008 U.S. Dist. LEXIS 66845 (W.D.
Pa. 2008); and
b. Statutory damages of up to $1000, 15 U.S.C. § 1692k(a)(2)(A); and
c. Costs expended in litigation, 15 U.S.C. § 1692k(a)(3); and
d. Reasonable attorney’s fees, 15 U.S.C. § 1692k(a)(3).

Examples:
 $24,693.80 in Nelson v. Select Financial Serv., Inc., 2006 U.S.Dist.
LEXIS 42637 (E.D.Pa. 2006)(collector used the phrase "verifies the
validity of this debt" in a letter to debtor);
 $9195.83 in Rivera v. Corporate Receivables, Inc., 540 F. Supp. 2d
329 (D. Conn. 2008).
 $5713 in Holliday v. Cabrera & Assocs., P.C., 2007 U.S. Dist. LEXIS
161 (E.D. Pa. Jan. 3, 2007)
E. Upon successful litigation of a class action, the class of consumer is entitled

to:
a. The lesser of $500,000 or 1% of the net worth of the collector. 15 U.S.C. §

1692k(a)(2)(B); and
b. Costs expended in litigation, 15 U.S.C. § 1692k(a)(3); and
c. Reasonable attorney’s fees, 15 U.S.C. § 1692k(a)(3).
F. Defenses
a. Factual dispute
b. Bone fide error:
i. Violation was NOT intentional, AND
ii. Resulted from bona fide error, AND
iii. Collector employs reasonable procedures to prevent such violations.

Piper v. Portnoff Law Associates, 274 F.Supp.2d 681 (E.D.Pa. 2003).
iv. Burden of proof is on the collector.
v. Generally only applies to clerical or factual errors. Picht v. Jon R.

Hawks, Ltd., 236 F.3d 446, 451-52 (8th Cir. 2001); Pipiles v. Credit
Bureau of Lockport, Inc., 886 F.2d 22, 27 (2nd Cir. 1989); Baker v. GC
Servs. Corp., 677 F.2d 775, 779 (9th Cir. 1982).
vi. Intentionally excluding required language is not a bona fide error.

Nielsen v. Dickerson, 307 F.3d 623, 640 (7th Cir. 2002).
V. Recent Amendments to FDCPA and Recent Caselaw
A. Amendments
a. FDCPA-compliant collection activities may be undertaken by debt

collectors during the 30-day validation period absent a consumers request
for validation. 15 U.S.C. § 1692g(b).
b. Any collection activities conducted within 30-day validation period must

not overshadow consumer’s validation rights. 15 U.S.C. § 1692g(b).
c. Formal pleading in a civil action does not constitute the initial

communication. 15 U.S.C. § 1692g(c).
d. Notices not related to collection of debt, such as IRS forms, Gramm-

Leach-Bliley Act or other forms required by state or federal law do not
require 1682e(11) notice. 15 U.S.C. § 1692g(e).
e. Exceptions were added for private entities employed by the government to

collect fees, fines and restitution for bad checks. 15 U.S.C. § 1692p.
B. Recent Case Law

Note: Since this is a federal statute, there are hundreds of cases interpreting
the provisions outlined here, and we have not attempted to summarize them,
but we are providing a few recent cases of interest.
a. No “bona fide error” defense for mistakes of law. Letter can’t say “you
must dispute in writing.” Jermyn v. Carlisle, McNellie, et al. - US
Supreme Court - April 21, 2010,
(http://www.supremecourt.gov/opinions/09pdf/08-1200.pdf)
b. Threatening or bringing suit on time-barred debt violates the FDCPA.

Martsolf v. JBC Legal Group, P.C., 2008 U.S. Dist. LEXIS 6876 (M.D.
Pa. Jan. 30, 2008); Richburg v. Palisades Collection LLC, 247 F.R.D.
457 (E.D. Pa. 2008).
c. Vicarious liability: The client of an attorney who is a "debt collector,"
as defined in § 1692a(6), is vicariously liable for the attorney's
misconduct if the client is itself a debt collector. Duraney v. Wash. Mut.
Bank F.A., 2008 U.S. Dist. LEXIS 72087 (W.D. Pa. Sept. 11, 2008).
d. A debtor’s failure to request validation does not waive any right the
debtor might have to deny validity at a letter date, and telling a debtor
that failing to respond will verify the validity of the debt violates
FDCPA. Nelson v. Select Financial Serv., Inc., 2006 U.S.Dist. LEXIS
42637 (E.D.Pa. 2006); Gigli v. Palisades Collection, L.L.C., 2008 U.S.
Dist. LEXIS 62684 (M.D. Pa. Aug. 14, 2008).
e. A debt collection letter can be deceptive under the FDCPA even if it

only implies that it is from an attorney. Using the phrase "Legal
Department" could imply to the least sophisticated debtor that a lawyer
was involved in drafting or sending the letter. Rosenau v. Unifund
Corp., 539 F.3d 218 (3d Cir. Pa. 2008)
f. The FDCPA does apply to litigation activities, including formal

pleadings by attorneys. Phath v. J. Scott Watson, P.C., 2008 U.S. Dist.
LEXIS 17563 (E.D. Pa. Mar. 7, 2008). See exception for 1692g notices.
g. A writing is deceptive where it can reasonably be read to have two or

more different meanings, one of which is inaccurate. A letter was
misleading because it gave the impression that the debt was being
pursued by "high-ranking officer of the company," when in fact it was
not, thereby creating a false impression as to source, authorization or
approval. Campuzano-Burgos v. Midland Credit Mgmt., 497 F. Supp. 2d
660 (E.D. Pa. 2007).
h. “Mini-Miranda” (1692e(11) notice) is required when debt collector

leaves pre-recorded message for debtor. Foti v. NCO Financial Systems,
Inc., 424 F.Supp.2d 643 (S.D.N.Y. 2006).
VI. Other statutes that may apply:
Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227)
Fair Credit Extension Uniformity Act (73 P.S. § 2270.1 et seq.)
Unfair Trade Practices and Consumer Protection Law (73 P.S. § 201-1 et seq.)

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The Fair Debt Collection Practices Act

15 U.S.C. § 1692 et seq.

A. Enacted in 1978 to prevent personal bankruptcy, marital instability, loss of

B. Prohibits false, deceptive, misleading, harassing, abusive and offensive

A. “Consumer”: any natural person obligated or allegedly obligated to pay a

B. “Debt”: any obligation or alleged obligation of a consumer to pay money for

a. DOES NOT COVER taxes, criminal restitution. Obligation must result

b. DOES NOT COVER businesses or individuals alleged to owe debts

C. “Debt Collectors”: any person who uses any instrumentality of interstate

i. Attorneys who regularly collect debts. Heintz v. Jenkins, 514 U.S.

ii. Creditors who hold themselves out to be debt collectors.

b. DOES NOT APPLY TO:

i. “Creditors”: any person or entity that extends credit, creating a debt,

ii. Any officer or employee of the creditor.

iii. Any officer or employee of the United States or any State.

v. Anyone attempting to serve legal process.

D. “Communication”: conveying of information regarding a debt directly or

III. Requirements and Prohibitions (this is not a complete list)

a. Cannot discuss the debt with a 3rd party. 15 U.S.C § 1692b(2).

c. Can’t call before 8am or after 9pm. 15 U.S.C. § 1692c(a)(1).

d. Cannot contact consumer if known to be represented by an attorney. 15

e. Cannot contact consumer’s place of work if consumer notified debt

f. Cannot contact consumer if consumer advises debt collector in writing to

a. Act provides a general prohibition against harassing, abusive and/or

b. Collector can’t threaten violence or use of criminal activity towards

c. Collector can’t use obscene or profane language. 15 U.S.C. § 1692d(2).

d. Collector can’t publish lists of debtors or advertise debts, including

e. Collector can’t cause phone to ring repeatedly for purposes of harassing or

C. False, Deceptive or Misleading

a. FDCPA provides a general prohibition against use of false, deceptive or

b. Collector cannot make any false, deceptive or misleading statements.

c. Collector cannot falsely represent character, amount or legal status of debt.

d. Collector cannot falsely represent himself/herself as an attorney. 15

e. Collector cannot state or imply that non-payment will result in arrest

f. Collector cannot threaten suit, garnishment or seizure of property without

g. Collector cannot report or threaten to report false credit information (like

a. Act provides general prohibition against the use of any unfair or

b. Collector cannot attempt to collect any amount not authorized by the

c. Collector cannot accept or solicit postdated check without providing

a. Notices sent pursuant to Section 1692g are to be interpreted from the

b. Collector shall provide the following notices:

i. Initial communication (oral or written): “This communication is

ii. Each subsequent communication: “This communication is from a

iii. Within 5 days of initial communication (oral or written), in

1. Amount of the debt, 15 U.S.C. § 1692g(a)(1);

2. Name of the creditor owed 15 U.S.C. § 1692g(a)(2);

3. Right to dispute validity within 30 days, 15 U.S.C. §

4. Name and address of the original creditor, 15 U.S.C. §

5. If disputed by consumer within 30 days, collector will provide

B. FDCPA claims have a one year statute of limitations. 15 U.S.C. § 1692k(d).

D. Upon successful litigation of an individual suit, plaintiff/consumer is entitled

a. Any actual damages, 15 U.S.C. § 1692k(a)(1), including emotional

b. Statutory damages of up to $1000, 15 U.S.C. § 1692k(a)(2)(A); and

c. Costs expended in litigation, 15 U.S.C. § 1692k(a)(3); and

d. Reasonable attorney’s fees, 15 U.S.C. § 1692k(a)(3).

E. Upon successful litigation of a class action, the class of consumer is entitled

a. The lesser of $500,000 or 1% of the net worth of the collector. 15 U.S.C. §

b. Costs expended in litigation, 15 U.S.C. § 1692k(a)(3); and

c. Reasonable attorney’s fees, 15 U.S.C. § 1692k(a)(3).