The Common Law
Overzealous debt collection – what are my rights?
I've got outstanding credit card debt. I really want to work something out, pay the debt, and get my finances in order. But the debt has been outsourced to a debt-collection agency that calls me all the time and refuses to work with me on restructuring the debt. Are there any laws that protect me from harassing debt collectors?
The new year often brings about a renewed commitment to organizing financial affairs. Your failure to repay a debt does not mean that a debt collector has the right to harass you. Federal and state laws govern the conduct of debt collectors and are intended to eliminate abusive debt collection practices and ensure fair treatment of all persons owing monies.
The Fair Debt Collection Practices Act, the federal law regulating debt collection, is only applicable in certain situations. First, the debt collector must be in the business of collecting debts owed to a third party. This means that the FDCPA does not apply to a store that tries to get you to repay a debt owed directly to the store. Second, the collector must use an instrumentality of interstate commerce (usually the mail or the telephone). Third, the unpaid debt must relate to a consumer debt; the FDCPA does not apply to business debts.
When applicable, the FDCPA provides the debtor numerous protections from unwanted communications with the debt collector. A debt collector cannot communicate with a debtor at unusual times or places, which usually means a debtor cannot be contacted before 8am or after 9pm. The FDCPA limits communication with the debtor at the debtor's workplace and requires the collector to contact the debtor's attorney if the collector knows that the debtor has an attorney. The FDCPA also prohibits harassing or abusive forms of conduct, including making repeated calls with the intent to harass the debtor, using obscene language, or threatening violence.
The Texas Debt Collection Act (Chapter 392 of the Texas Finance Code) is the state law designed to protect debtors from harassing and abusive debt collectors. The TDCA specifically prohibits a debt collector from making threats or from using deceptive or misleading representations to try to recover the unpaid debt. It also protects the debtor from harassment or abusive conduct, such as excessive and annoying phone calls or the use of abusive language or profanity.
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Marrs, Ellis & Hodge LLP, www.jmehlaw.com.
The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.