|
The
Fair Debt Collection Practices Act
As amended
by Public Law 104-208, 110 Stat. 3009 (Sept. 30, 1996), to amend
the Consumer Credit Protection Act to prohibit abusive practices
by debt collectors.
Be it
enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the Consumer Credit
Protection Act (15 U.S.C. 1601 et seq.) is amended by adding
at the end thereof the following new title:
TITLE
VIII - DEBT COLLECTION PRACTICES [Fair Debt Collection Practices
Act]
§
801. Short Title [15 USC 1601 note]
This title may be cited as the "Fair Debt Collection Practices
Act."
§
802. Congressional findings and declarations of purpose [15 USC
1692]
(a) There is abundant evidence of the use of abusive, deceptive,
and unfair debt collection practices by many debt collectors.
Abusive debt collection practices contribute to the number of
personal bankruptcies, to marital instability, to the loss of
jobs, and to invasions of individual privacy.
(b) Existing laws and procedures for redressing these injuries
are inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt
collection practices are available for the effective collection
of debts.
(d) Abusive debt collection practices are carried on to a substantial
extent in interstate commerce and through means and instrumentalities
of such commerce. Even where abusive debt collection practices
are purely intrastate in character, they nevertheless directly
affect interstate commerce.
(e) It is the purpose of this title to eliminate abusive debt
collection practices by debt collectors, to insure that those
debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote
consistent State action to protect consumers against debt collection
abuses.
§
803. Definitions [15 USC 1692a]
As used
in this title --
(1) The term "Commission" means the Federal
Trade Commission.
(2) The term "communication"
means the conveying of information regarding a debt directly
or indirectly to any person through any medium.
(3) The term "consumer"
means any natural person obligated or allegedly obligated to
pay any debt.
(4)
The
term "creditor" means any person who offers or extends
credit creating a debt or to whom a debt is owed, but such term
does not include any person to the extent that he receives an
assignment or transfer of a debt in default solely for the purpose
of facilitating collection of such debt for another.
(5)
The
term "debt" means any obligation or alleged obligation
of a consumer to pay money arising out of a transaction in which
the money, property, insurance or services which are the subject
of the transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to
judgment.
(6) The term "debt
collector" means any person who uses any instrumentality
of interstate commerce or the mails in any business the principal
purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another. Notwithstanding
the exclusion provided by clause (F) of the last sentence of
this paragraph, the term includes any creditor who, in the process
of collecting his own debts, uses any name other than his own
which would indicate that a third person is collecting or attempting
to collect such debts. For the purpose of section 808(6), such
term also includes any person who uses any instrumentality of
interstate commerce or the mails in any business the principal
purpose of which is the enforcement of security interests.
The
term does not include --
(A)
any
officer or employee of a creditor while, in the name of the creditor,
collecting debts for such creditor;
(B) any person
while acting as a debt collector for another person, both of
whom are related by common ownership or affiliated by corporate
control, if the person acting as a debt collector does so only
for persons to whom it is so related or affiliated and if the
principal business of such person is not the collection of debts;
(C) any officer
or employee of the United States or any State to the extent that
collecting or attempting to collect any debt is in the performance
of his official duties;
(D) any person
while serving or attempting to serve legal process on any other
person in connection with the judicial enforcement of any debt;
(E) any nonprofit
organization which, at the request of consumers, performs bona
fide consumer credit counseling and assists consumers in the
liquidation of their debts by receiving payments from such consumers
and distributing such amounts to creditors; and
(F) any person
collecting or attempting to collect any debt owed or due or asserted
to be owed or due another to the extent such activity (i) is
incidental to a bona fide fiduciary obligation or a bona fide
escrow arrangement; (ii) concerns a debt which was originated
by such person; (iii) concerns a debt which was not in default
at the time it was obtained by such person; or (iv) concerns
a debt obtained by such person as a secured party in a commercial
credit transaction involving the creditor.
(7) The term "location
information" means a consumer's place of abode and his telephone
number at such place, or his place of employment.
(8) The term "State"
means any State, territory, or possession of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, or
any political subdivision of any of the foregoing.
§
804. Acquisition of location information [15 USC 1692b]
Any
debt collector communicating with any person other than the consumer
for the purpose of acquiring location information about the consumer
shall --
(1) identify himself,
state that he is confirming or correcting location information
concerning the consumer, and, only if expressly requested, identify
his employer;
(2) not state that
such consumer owes any debt;
(3) not communicate
with any such person more than once unless requested to do so
by such person or unless the debt collector reasonably believes
that the earlier response of such person is erroneous or incomplete
and that such person now has correct or complete location information;
(4) not communicate
by post card;
(5)
not
use any language or symbol on any envelope or in the contents
of any communication effected by the mails or telegram that indicates
that the debt collector is in the debt collection business or
that the communication relates to the collection of a debt; and...
(6) after the debt
collector knows the consumer is represented by an attorney with
regard to the subject debt and has knowledge of, or can readily
ascertain, such attorney's name and address, not communicate
with any person other than that attorney, unless the attorney
fails to respond within a reasonable period of time to the communication
from the debt collector.
§
805. Communication in connection with debt collection [15 USC
1692c]
(a)
COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior
consent of the consumer given directly to the debt collector
or the express permission of a court of competent jurisdiction,
a debt collector may not communicate with a consumer in connection
with the collection of any debt --
(1) at any unusual
time or place or a time or place known or which should be known
to be inconvenient to the consumer. In the absence of knowledge
of circumstances to the contrary, a debt collector shall assume
that the convenient time for communicating with a consumer is
after 8 o'clock antimeridian and before 9 o'clock postmeridian,
local time at the consumer's location;
(2) if the debt
collector knows the consumer is represented by an attorney with
respect to such debt and has knowledge of, or can readily ascertain,
such attorney's name and address, unless the attorney fails to
respond within a reasonable period of time to a communication
from the debt collector or unless the attorney consents to direct
communication with the consumer; or
(3) at the consumer's
place of employment if the debt collector knows or has reason
to know that the consumer's employer prohibits the consumer from
receiving such communication.
(b)
COMMUNICATION WITH THIRD PARTIES. Except as provided in section
804, without the prior consent of the consumer given directly
to the debt collector, or the express permission of a court of
competent jurisdiction, or as reasonably necessary to effectuate
a postjudgment judicial remedy, a debt collector may not communicate,
in connection with the collection of any debt, with any person
other than a consumer, his attorney, a consumer reporting agency
if otherwise permitted by law, the creditor, the attorney of
the creditor, or the attorney of the debt collector.
(c)
CEASING COMMUNICATION. If a consumer notifies a debt collector
in writing that the consumer refuses to pay a debt or that the
consumer wishes the debt collector to cease further communication
with the consumer, the debt collector shall not communicate further
with the consumer with respect to such debt, except --
(1)
to advise the consumer that the debt collector's further efforts
are being terminated;
(2)
to notify the consumer that the debt collector or creditor may
invoke specified remedies which are ordinarily invoked by such
debt collector or creditor; or
(3)
where applicable, to notify the consumer that the debt collector
or creditor intends to invoke a specified remedy.
If such notice from the consumer is made by mail, notification
shall be complete upon receipt.
(d)
For the purpose of this section, the term "consumer"
includes the consumer's spouse, parent (if the consumer is a
minor), guardian, executor, or administrator.
§
806. Harassment or abuse [15 USC 1692d]
A debt
collector may not engage in any conduct the natural consequence
of which is to harass, oppress, or abuse any person in connection
with the collection of a debt. Without limiting the general application
of the foregoing, the following conduct is a violation of this
section:
(1)
The use or threat of use of violence or other criminal means
to harm the physical person, reputation, or property of any person.
(2)
The use of obscene or profane language or language the natural
consequence of which is to abuse the hearer or reader.
(3)
The publication of a list of consumers who allegedly refuse to
pay debts, except to a consumer reporting agency or to persons
meeting the requirements of section 603(f) or 604(3)1 of this
Act.
(4)
The advertisement for sale of any debt to coerce payment of the
debt.
(5)
Causing a telephone to ring or engaging any person in telephone
conversation repeatedly or continuously with intent to annoy,
abuse, or harass any person at the called number.
(6)
Except as provided in section 804, the placement of telephone
calls without meaningful disclosure of the caller's identity.
§
807. False or misleading representations [15 USC 1962e]
A debt
collector may not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt. Without
limiting the general application of the foregoing, the following
conduct is a violation of this section:
(1)
The false representation or implication that the debt collector
is vouched for, bonded by, or affiliated with the United States
or any State, including the use of any badge, uniform, or facsimile
thereof.
(2)
The false representation of --
(A)
the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully
received by any debt collector for the collection of a debt.
(3)
The false representation or implication that any individual is
an attorney or that any communication is from an attorney.
(4)
The representation or implication that nonpayment of any debt
will result in the arrest or imprisonment of any person or the
seizure, garnishment, attachment, or sale of any property or
wages of any person unless such action is lawful and the debt
collector or creditor intends to take such action.
(5)
The threat to take any action that cannot legally be taken or
that is not intended to be taken.
(6)
The false representation or implication that a sale, referral,
or other transfer of any interest in a debt shall cause the consumer
to --
(A)
lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this title.
(7)
The false representation or implication that the consumer committed
any crime or other conduct in order to disgrace the consumer.
(8)
Communicating or threatening to communicate to any person credit
information which is known or which should be known to be false,
including the failure to communicate that a disputed debt is
disputed.
(9)
The use or distribution of any written communication which simulates
or is falsely represented to be a document authorized, issued,
or approved by any court, official, or agency of the United States
or any State, or which creates a false impression as to its source,
authorization, or approval.
(10)
The use of any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information concerning
a consumer.
(11)
The failure to disclose in the initial written communication
with the consumer and, in addition, if the initial communication
with the consumer is oral, in that initial oral communication,
that the debt collector is attempting to collect a debt and that
any information obtained will be used for that purpose, and the
failure to disclose in subsequent communications that the communication
is from a debt collector, except that this paragraph shall not
apply to a formal pleading made in connection with a legal action.
(12)
The false representation or implication that accounts have been
turned over to innocent purchasers for value.
(13)
The false representation or implication that documents are legal
process.
(14)
The use of any business, company, or organization name other
than the true name of the debt collector's business, company,
or organization.
(15)
The false representation or implication that documents are not
legal process forms or do not require action by the consumer.
(16)
The false representation or implication that a debt collector
operates or is employed by a consumer reporting agency as defined
by section 603(f) of this Act.
§
808. Unfair practices [15 USC 1692f]
A debt
collector may not use unfair or unconscionable means to collect
or attempt to collect any debt. Without limiting the general
application of the foregoing, the following conduct is a violation
of this section:
(1)
The collection of any amount (including any interest, fee, charge,
or expense incidental to the principal obligation) unless such
amount is expressly authorized by the agreement creating the
debt or permitted by law.
(2)
The acceptance by a debt collector from any person of a check
or other payment instrument postdated by more than five days
unless such person is notified in writing of the debt collector's
intent to deposit such check or instrument not more than ten
nor less than three business days prior to such deposit.
(3)
The solicitation by a debt collector of any postdated check or
other postdated payment instrument for the purpose of threatening
or instituting criminal prosecution.
(4)
Depositing or threatening to deposit any postdated check or other
postdated payment instrument prior to the date on such check
or instrument.
(5)
Causing charges to be made to any person for communications by
concealment of the true propose of the communication. Such charges
include, but are not limited to, collect telephone calls and
telegram fees.
(6)
Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if --
(A)
there is no present right to possession of the property claimed
as collateral through an enforceable security interest;
(B)
there is no present intention to take possession of the property;
or
(C)
the property is exempt by law from such dispossession or disablement.
(7)
Communicating with a consumer regarding a debt by post card.
(8)
Using any language or symbol, other than the debt collector's
address, on any envelope when communicating with a consumer by
use of the mails or by telegram, except that a debt collector
may use his business name if such name does not indicate that
he is in the debt collection business.
§
809. Validation of debts [15 USC 1692g]
(a)
Within five days after the initial communication with a consumer
in connection with the collection of any debt, a debt collector
shall, unless the following information is contained in the initial
communication or the consumer has paid the debt, send the consumer
a written notice containing --
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days
after receipt of the notice, disputes the validity of the debt,
or any portion thereof, the debt will be assumed to be valid
by the debt collector;
(4) a statement that if the consumer notifies the debt collector
in writing within the thirty-day period that the debt, or any
portion thereof, is disputed, the debt collector will obtain
verification of the debt or a copy of a judgment against the
consumer and a copy of such verification or judgment will be
mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within
the thirty-day period, the debt collector will provide the consumer
with the name and address of the original creditor, if different
from the current creditor.
(b) If the consumer notifies the debt collector in writing within
the thirty-day period described in subsection (a) that the debt,
or any portion thereof, is disputed, or that the consumer requests
the name and address of the original creditor, the debt collector
shall cease collection of the debt, or any disputed portion thereof,
until the debt collector obtains verification of the debt or
any copy of a judgment, or the name and address of the original
creditor, and a copy of such verification or judgment, or name
and address of the original creditor, is mailed to the consumer
by the debt collector.
(c) The failure of a consumer to dispute the validity of a debt
under this section may not be construed by any court as an admission
of liability by the consumer.
§
810. Multiple debts [15 USC 1692h]
If any
consumer owes multiple debts and makes any single payment to
any debt collector with respect to such debts, such debt collector
may not apply such payment to any debt which is disputed by the
consumer and, where applicable, shall apply such payment in accordance
with the consumer's directions.
§
811. Legal actions by debt collectors [15 USC 1692i]
(a)
Any debt collector who brings any legal action on a debt against
any consumer shall --
(1) in the case of an action to enforce an interest in real property
securing the consumer's obligation, bring such action only in
a judicial district or similar legal entity in which such real
property is located; or
(2) in the case of an action not described in paragraph (1),
bring such action only in the judicial district or similar legal
entity --
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the
action.
(b) Nothing in this title shall be construed to authorize the
bringing of legal actions by debt collectors.
§
812. Furnishing certain deceptive forms [15 USC 1692j]
(a)
It is unlawful to design, compile, and furnish any form knowing
that such form would be used to create the false belief in a
consumer that a person other than the creditor of such consumer
is participating in the collection of or in an attempt to collect
a debt such consumer allegedly owes such creditor, when in fact
such person is not so participating.
(b) Any person who violates this section shall be liable to the
same extent and in the same manner as a debt collector is liable
under section 813 for failure to comply with a provision of this
title.
§
813. Civil liability [15 USC 1692k]
(a)
Except as otherwise provided by this section, any debt collector
who fails to comply with any provision of this title with respect
to any person is liable to such person in an amount equal to
the sum of --
(1)
any actual damage sustained by such person as a result of such
failure;
(2)
(A) in the case of any action by an individual, such additional
damages as the court may allow, but not exceeding $1,000; or
(B)
in the case of a class action, (i) such amount for each named
plaintiff as could be recovered under subparagraph (A), and (ii)
such amount as the court may allow for all other class members,
without regard to a minimum individual recovery, not to exceed
the lesser of $500,000 or 1 per centum of the net worth of the
debt collector; and
(3)
in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable
attorney's fee as determined by the court. On a finding by the
court that an action under this section was brought in bad faith
and for the purpose of harassment, the court may award to the
defendant attorney's fees reasonable in relation to the work
expended and costs.
(b)
In determining the amount of liability in any action under subsection
(a), the court shall consider, among other relevant factors --
(1)
in any individual action under subsection (a)(2)(A), the frequency
and persistence of noncompliance by the debt collector, the nature
of such noncompliance, and the extent to which such noncompliance
was intentional; or
(2)
in any class action under subsection (a)(2)(B), the frequency
and persistence of noncompliance by the debt collector, the nature
of such noncompliance, the resources of the debt collector, the
number of persons adversely affected, and the extent to which
the debt collector's noncompliance was intentional.
(c)
A debt collector may not be held liable in any action brought
under this title if the debt collector shows by a preponderance
of evidence that the violation was not intentional and resulted
from a bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.
(d)
An action to enforce any liability created by this title may
be brought in any appropriate United States district court without
regard to the amount in controversy, or in any other court of
competent jurisdiction, within one year from the date on which
the violation occurs.
(e)
No provision of this section imposing any liability shall apply
to any act done or omitted in good faith in conformity with any
advisory opinion of the Commission, notwithstanding that after
such act or omission has occurred, such opinion is amended, rescinded,
or determined by judicial or other authority to be invalid for
any reason.
|
