Debt Collection Overview -- The FDCPA

Federal and state laws regulate the collection of debts. The applicable federal law is the Fair Debt Collection Practices Act, or FDCPA. The FDCPA governs the techniques a debt collector may employ in the collection of a debt. The FDCPA does not apply to those creditors who collect debts in-house or to government employees whose job is to collect government debts, such as student loans.

 

Prohibited Debt Collection Practices

A debt collector is not allowed to violate a debtor's privacy or use abusive or harassing collection tactics. A debt collector may not:

  • Telephone a debtor before 8 a.m. or after 9 p.m.
  • Telephone repeatedly as a form of harassment
  • Use obscene language, make racial or religious slurs or comments about a debtor's character
  • Contact a debtor at work if prohibited by the debtor's employer or upon the debtor's request
  • Contact a debtor when the debtor hires an attorney for debt collection purposes
  • Claim that papers are legal papers when they are not
  • Send forms that appear to be legal papers when they are not
  • Falsely accuse a debtor of a crime
  • Threaten a debtor with violence
  • Garnish wages or sell property if not allowed by law
  • Threaten to sue a debtor when no suit is intended
  • Lie about the amount of the debt
  • Threaten arrest
  • Continue contact with a debtor after the debtor gives written notice to cease contact
  • Misrepresent their identity
  • Advertise a debt for sale or distribute a list of debtors
  • Leave telephone messages with third parties disclosing the existence of the debt
  • Sending a debt collection letter without disclosing that the letter is for the collection of a debt and that any information obtained from a debtor may be used for that purpose.

 

Permissible Practices

There are a number of things that a debt collector is allowed to do. A debt collector may:

  • Sue to collect a debt
  • Access a debtor's credit report
  • Report truthful negative information on a debtor's credit report
  • Send mail in care of another person sharing a debtor's address
  • Attempt to collect the debt from a co-signer
  • Add charges allowed by law to the debt or agreed to in the original creditor agreement
  • Contact a debtor by mail (the envelope must not reference the debt)

 

Conclusion

Debtors have certain rights under federal law that require debt collectors to respect a debtor's privacy and to refrain from using abusive debt collection practices. Violations may be addressed with the FTC, state agencies, or through individual litigation.

Comments (10)add comment
John Duran: ...
Is it legal to use a third party affidavit to support a summary judgment motion? The third party affidavit is an affidavit that is not using the original custodian of record that is required in Utah civil rules, rule 56?
Does anyone have case law or anything that would help me argue against this third party affidavit as being illegal and untrustworthy?
1

March 13, 2013
Steven Daily: ...
John,
It is perfectly proper to provide an affidavit from someone who is not a party to the lawsuit. Indeed, it would seem strange to have a rule requiring that only persons with an ax to grind (the parties) can be allowed to give evidence.

As far as the affidavit being untrustworthy, it is of course proper to argue this, if you have grounds for doing so. As for not being from the original custodian, I am not sure what you mean. Rule 56 does not address this specifically. It requires that the affidavit be based on personal knowledge.

Steve Daily
LawServer.com
2

March 14, 2013
John: ...
Steve Daily

Sorry your right personal knowledge is what I was getting at. If they were not original custodian of record, when the credit card was used or card account created then how can a person have personal knowledge of the account?

How can a person say this is how something is done in the order performed if they did not work for that company and were not present during the creation of the account, how then can a person say they have personal knowledge?

Is not personal knowledge one that is present at the scene of the crime, one who has seen the crime?

I guess my question comes doen to this how can a person say they have personal knowledge of something - If they just read about it somewhere?

Would the testimony be untrustworthy?




3

March 14, 2013
Steven Daily: ...
John,
It sounds like you are referring to business records. It is proper to provide evidence based on business records supported by an affidavit from a custodian of records. See section 803(6) of the Rules of Evidence:

http://www.utcourts.gov/resources/rules/ure/0803.htm

For example, if a utility is suing the owner of a house to collect money for electricity used, you seem to be arguing that they need to find the employee who personally connected the wires to the house from the power supply, and the employee who personally sealed the envelope with the bill inside and mailed it. This argument will not win in court. If it did, the court system would collapse with the pointless waste of time and money involved in proving even simple facts. Instead, business records are introduced into evidence (such as billing statements), and an employee who is familiar with those records and how they are kept testifies (live or by affidavit) as to how they are kept and what they mean.
Rule 803(6) provides an exception to the hearsay rule for such records.

Steve Daily
LawServer.com
4

March 14, 2013
John Duran: ...
it is business records your correct sorry for not providing the proper information but do you think it is ok for someone to provide the information by affidavit who only have read the documents but was not working for the company as a custodian ?

How can someone who has not work for the company who own the records provide accurate and trustworthy testimony?

5

March 14, 2013
John Duran: ...
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:


(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;


(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;


(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

What is (E) below saying I do not understand that can you please explain that to me?

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
6

March 14, 2013
Steven Daily: ...
John,
The witness is almost always an employee of the business involved, but this is not stated as a requirement anywhere. The key is whether they can testify from personal knowledge as to subsections (A) through (C). If not, then the business record is inadmissible. Subsection (E) simply means that if there is something about the record and testimony that is inherently suspicious (such as credit card record dated on a day when the bank was closed for business and did no processing), the court can exclude it as being untrustworthy, even though all the other requirements have been met.

Steve Daily
LawServer.com
7

March 14, 2013
John Duran: ...
Ok you have been a great help in this case this person works for the attorney's office not the Bank and the Bank is not a Plaintiff in this case against me just a company called "Recovery Associates services"

Also the person who gave the affidavit testimony works for "Recovery Associates services" not the Bank, she never worked for the Bank only RAS, so she does not have personal knowledge as stated in the Rules.

Thanks

John Duran

8

March 14, 2013
John: ...
I personally have an appeal pending in the Utah Court of Appeals Case No. 20120601

I tried to get an attorney to take my case pro bona or I was looking for an attorney to ghost write the appeal for me.

I believe I have some good issues because the attorney for Portfolio Recovery Associates filed a summary disposition I filed a response and the Appeals court denied their Summary motion for dismissal and said this:

Appeal Court reasondenyingdening summary disposition dismissal

This matter is before the court on Portfolio Recovery Associates motion for summary dismissal based on John M. Duran's failure to pay the filing fee. Dismissal for failing to pay the filing fee is within this court's discretion. See Utah R. App. P. 3(f). Duran has appealed both the underlying judgment and the denial of his motion to waive the fees in this debt collection action.

Given the posture of this case, we decline to exercise our discretion to dismiss the appeal.

IT IS HEREBY ORDERED that the motion for summary dismissal is denied.

Yes again forgot I have two issues on appeal: I filed motions to waive filing fees and bond costs and the judge denied it and I was not given a hearing - statute mandates hearing

9

March 14, 2013
Steven Daily: ...
John,
Best wishes for success with your appeal.

Steve Daily
LawServer.com
10

March 15, 2013

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