In my experience, many of my clients are plagued by collection calls. Many
of these calls violate a bankrupcty discharge, or are made once the debt
collector knows that my client is represented.
In those cases, I would argue that the Fair Debt Collection Practices Act
has been violated. Additionally, the FDCPA prohibits certain types of
calling practices, such as calling before 8 AM and after 9 PM. The FDCPA
also prohibits calling a consumer when it is inconvenient for the consumer.
Some courts have found that excessive daily phone calls can trigger this
In some cases, a technicality may mean that the FDCPA does not apply. For
example, the party calling might be an original creditor and not a debt
collector. Regardless of whether the FDCPA applies, I look to the Telephone
Consumer Protection Act to determine whether there is an additional federal
cause of action.
Under the TCPA, it is unlawful for calls to be placed to your home or cellular
phone under specific circumstances.
For example, under the TCPA, it is unlawful for a company to call your
home phone using a pre-recorded voice or computer-generated voice without
your permission. This means that collection calls that start with a recording
violate the law. A call may sound like this: "This is an important
phone call for STEVE JOHNSON. If you are not STEVE JOHNSON, then please
hang up now. If you are STEVE JOHNSON, then remain on the line..."
That call is absolutely made with a pre-recorded voice. It violates the
TCPA unless the company placing the call has your prior consent. I'll
discuss consent more later in this post.
Another type of prohibited phone call is when a company calls your cellular
phone using an automated dialing system. As a general rule, if the phone
call involves a pre-recorded message like the previous example, then the
call wsa likely made with an automated dialing system. Another way to
tell is if there are a few seconds of dead air from the time you pick
up to the time a human being starts speaking. This is a general indicator
that the debt collector called several phones at once, and was put through
to you because you answered the phone call. The lag time is the system
connecting the collector to you. Again, the debt collector must have your
consent to make these types of calls.
Both of these types of TCPA violations are worth $500 per phone call in
damages. If the violation is a knowing violation, then a judge may triple
this amount, making each violation worth $1500.
You may be wondering, "How does someone consent to these types of
calls?" In general, when you open a credit card or receive services
like medical services, you are agreeing to being contacted. This consent
extends to debt collectors. Consent can be revoked in several ways. The
most effective methods put the revocation in writing. Sending a letter
to a debt collector requesting calls to stop is a good way to do this.
Moreover, if you send a "stop calling me" letter and the collector
persists, you may have an FDCPA violation on your hands.
Another means of revoking consent is filing a bankruptcy. While this isn't
as strong as a letter revoking consent, severing personal liability on
a debt is a pretty clear message that you don't want to be called
any more. So is the discharge injunction. The discharge injunction tells
creditors to leave you alone--I would argue that it's all you need
to do to revoke consent.
At the end of the day, both the FDCPA and the TCPA protect consumers from
unwanted phone calls. However, the TCPA has a broader reach. Under the
TCPA, it doesn't matter whether the caller is a debt collector. Under
the FDCPA, it does matter.