Debtor’s Rights

Protecting Your Rights as a Debtor

At Wasson & Thornhill our focus is on bankruptcy and debt relief; however, there’s more to debtor’s rights than just bankruptcy. Whether your need to file bankruptcy or not, we offer other services to make sure your rights are protected from illegal actions of debt collectors.

If you feel you have been harassed by a creditor, that a creditor failed to accurately report to the credit bureaus, or that the credit bureaus themselves are incorrectly reporting your financial situation, you may have a claim for damages under one or more of these Federal statutes:

  • Fair Debt Collection Practices Act (FDCPA)
  • Fair Credit Reporting Act (FCRA)
  • Telephone Consumer Protection Act (TCPA)

Naturally, we bring the same personal approach to these services as we do our bankruptcy and debt relief services.

Fair Debt Collection Practices Act (FDCPA)

There are rules regulating the actions a creditor can take in order to collect money from you. The Fair Debt Collection Practices Act, or the FDCPA, governs the actions of third party collectors (not the original company you owed, but the third party company now collecting on that debt) in their attempts to collect on personal debt (not business debt).

The problem is, creditors don’t always abide by the FDCPA rules. If your rights have been violated, you may have a claim against the collector. Many times, your claim can be handled at the same time as a bankruptcy. Sometimes, you can avoid bankruptcy if you main creditor has committed FDCPA violations. And sometimes, these cases come up AFTER bankruptcy when a creditor tries to collect on a debt that was discharged. Common FDCPA violations occur when a third party debt collector does the following:

  1. Ask you to pay more than you owe
    The collector cannot misrepresent the amount you owe. [15 USC 1692e] § 807(2)(a)
  2. Ask you to pay interest, fees, or expenses that are not allowed by law
    The collector can't add on any extra fees that your original credit or loan agreement doesn't allow. [15 USC 1692f] § 808(1)
  3. Call repeatedly or continuously
    The FDCPA considers repeat calls as harassment. [15 USC 1692d] § 806(5)
  4. Use obscene, profane, or abusive language
    Using this kind of language is considered harassment. [15 USC 1692d] § 806(2)
  5. Call before 8:00 am or after 9:00 pm
    Calls during these times are considered harassment. [15 USC 1692c] § 805(a)(1)
  6. Call at times the collector knew or should know are inconvenient
    Calls at these times are considered harassment. [15 USC 1692c] § 805(a)(1)
  7. Use or threaten to use violence if you don't pay the debt
    Collectors can't threaten violence against you. [15 USC 1692d] § 806(1)
  8. Threaten action they cannot or will not take
    Collectors can't threaten to sue or file charges against you, garnish wages, take property, cause job loss, or ruin your credit when the collector cannot or does not intend to take the action. [15 USC 1692e] § 807(5)
  9. Illegally inform a third party about your alleged debt
    Unless you have expressly given permission, collectors are not allowed to inform anyone about your debt except:
    • your attorney
    • the creditor
    • the creditor's attorney
    • credit reporting agency
    • your spouse
    • your parent (if you are a minor)
    • [15 USC 1692c] § 805(b)
  10. Repeatedly call a third party to get your location information
    The collector can only contact a third party once unless it has reason to believe the information previously provided is false. [15 USC 1692b] § 804(1) The Fair Debt Collection Practices Act, FDCPA, dictates how debt collectors can act when collecting a debt from you. These are things a debt collector can't do. If you need to reference the law, citations have been provided.
  11. Contact you at work knowing your employer doesn't approve
    A collector is not allowed to contact you at work if you’ve let them know your employer doesn’t approve of these calls. [15 USC 1692c] § 805(a)(3)
  12. Fail to send a written debt validation notice
    Within five days of the collector's initial communication, it must send you a notice include the amount of the debt, name of the creditor, and notice of your right to dispute the debt within 30 days. [15 USC 1692g] § 809(a)
  13. Ignore your written request to verify the debt and continue to collect
    A collector can't continue to collect on a debt after you've made a written request to verify the debt as long as the request was made within 30 days of the collector's written notice. [15 USC 1692g] § 809(b)
  14. Continue to collect on the debt before providing verification
    After receiving your written dispute, the collector must stop collecting on the debt until you have received verification. [15 USC 1692g] § 809(b)
  15. Continue collection attempts after receiving a cease communication notice
    If you make a written request for the collector to cease communication, it can only contact you one more time, via mail to let you know one of the following: that further efforts to collect the debt are terminated, that certain actions may be taken by the collector, or that the collector is definitely going to take certain actions. [15 USC 1692c] § 805(c)

Learn more about the Fair Debt Collection Act on the FTC's website: https://www.consumer.ftc.gov/articles/0149-debt-collection

The Federal Fair Credit Reporting Act (FCRA)

The Federal Fair Credit Reporting Act (FCRA) promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies. There are many types of consumer reporting agencies, but the ones we deal with most often are the credit bureaus (Equifax, TransUnion, and Experian). If the credit agency has not been reporting correctly, you may have a claim against them under the FCRA. Claim amounts are dependent upon damages, but they can be steep. For example, if you obtained a mortgage loan at 5% instead of 4% because credit bureau was misreporting an invalid judgment against you, you may be able to recover the difference in interest you will pay over the 30-year mortgage!

Rights under the FCRA:

  1. You must be told if information in your file has been used against you. Anyone who uses a credit report or another type of consumer report to deny your application for credit, insurance, or employment – or to take another adverse action against you – must tell you, and must give you the name, address, and phone number of the agency that provided the information.
  2. You have the right to know what is in your file. You may request and obtain a free credit report from each of the three bureaus once per year via www.annualcreditreport.com.
  3. You have the right to ask for a credit score. Credit scores are numerical summaries of your credit-worthiness based on information from credit bureaus. You may request a credit score from consumer reporting agencies that create scores or distribute scores used in residential real property loans, but you will have to pay for it.
  4. You have the right to dispute incomplete or inaccurate information. If you identify information in your file that is incomplete or inaccurate, and report it to the consumer reporting agency, the agency must investigate unless your dispute is frivolous.
  5. Credit Bureaus must correct or delete inaccurate, incomplete, or unverifiable information. Inaccurate, incomplete or unverifiable information must be removed or corrected, usually within 30 days.
  6. Credit Bureaus may not report outdated negative information. In most cases, a consumer reporting agency may not report negative information that is more than seven years old, or bankruptcies that are more than 10 years old.
  7. A credit reporting agency may provide information about you only to people with a valid need -- usually to consider an application with a creditor, insurer, employer, landlord, or other business. You must give your consent for reports to be provided to employers. A consumer reporting agency may not give out information about you to your employer, or a potential employer, without your written consent given to the employer.
  8. You can limit “prescreened” offers of credit and insurance you get based on information in your credit report. Unsolicited “prescreened” offers for credit and insurance must include a toll-free phone number you can call if you choose to remove your name and address from the lists these offers are based on. You may opt-out with the nationwide credit bureaus at 1-888-5-OPTOUT (1-888-567-8688).
  9. You can seek damages from violators. If a consumer reporting agency, or, in some cases, a user of consumer reports or a furnisher of information to a consumer reporting agency violates the FCRA, you may be able to sue in state or federal court.
  10. Identity theft victims and active duty military personnel have additional rights. For more information, visit www.ftc.gov/credit for more information.

The Telephone Communications Protection Act (TCPA)

The Telephone Communications Protection Act, or the TCPA, is meant to protect consumers by regulating telemarketing calls and the use of automatic telephone dialing systems ( “robo-dialers) and artificial or prerecorded voice messages.

The TCPA doesn’t only apply to creditors. The TCPA applies to solicitors, like telemarketers, as well. TCPA rules to require telemarketers to obtain prior express written consent from consumers before robocalling them, even if there is a prior business relationship. Also, there must be an automatied interactive opt-out mechanism to avoid future robo-calls without having to get to a live person to tell them to stop calling. If you are on the National Do-Not-Call Registry, the TCPA should protect you from getting telemarketing calls.

If you are receiving these types of calls, you may be able to sue the caller! Every phone call holds possible damages to the tune of $350 to $1500 EACH. But, there are specific steps you must take in order to make sure your rights are protected and records are well kept in the event you may have a lawsuit against them. If this is happening to you, call us right away.

For more information please visit: https://www.fcc.gov/general/telemarketing-and-robocalls


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