First, Legal Disclaimer: This Blog is not legal advice. It does not substitute for legal research. No Attorney- Client relationship is established by virtue of merely reading, commenting, or responding to a blog.
Now, the Beef:
The biggest mistake I see lay people and Attorneys do is to threaten the FDCPA against a creditor to which the FDCPA does not apply. If you do that as an Attorney, you hold up a huge sign that says “I have no idea what I’m doing.” You have now robbed your cease and desist letter of its teeth, virtually guaranteeing you will not be taken seriously and round filed.
Now, this is a blog, and I’m framing the approach, not doing free legal research. I’m framing the issue and telling people the number 1 mistake I saw made when I did Big Bank legal collections. Now I’ve seen the light, and represent consumers. But I only represent on legitimate defenses or abuses. I have a reputation to uphold, which is being fierce so that when I say I’m going to do something if you don’t stop, it’s a promise not a threat.
I cannot tell you how many Attorneys, let alone lay people, are Shocked, Shocked I Tell You to discover that their threats were baseless. The devil is in the Definitions. Here’s the rundown, under the FDCPA:
A Creditor is a person (defined pretty loosely) to which you owe money. Think of it as Big Bank.
A Collector under the FDCPA is someone who regularly collects money on behalf of others. And the provisions of the FDCPA only apply to Collectors. There is an exception for in house collections department that’s not obviously named, but that’s a nuanced analysis and beyond the scope of this article.
So the Big difference is first party, in-house collections departments – not subject to the FDCPA, and third-party collections agencies who are subject to the FDCPA. The FDCPA applies to third party collections – got it? So if you are receiving calls from the Collections Department of ABC Hospital, they are not subject to the FDCPA, so no one should threaten them with the FDCPA. It does not t matter if they complain to your mother that you’re not paying, they are NOT violating the FDCPA. You have to get more creative than that and go back to the fundamentals of common law.
But I’m not going to give away all my secrets.