How to Stop Creditors Harassing Phone Calls! A FREE Consumer Combat Manual Compliments of Attorney Dave Falvey

Transcription

1 How to Stop Creditors Harassing Phone Calls! A FREE Consumer Combat Manual Compliments of Attorney Dave Falvey Action Advocacy Law Office One Crouch Street Groton, CT (860)

2 Table of Contents Disclaimer... 4 HOW TO STOP HARASSING...4 QUESTIONS AND ANSWERS... 5 PROTECTING YOUR RIGHTS... 9 BE THE RABBIT... 9 PROTECTING YOUR RIGHTS BE THE BEAR THE PENALTIES FOR VIOLATING THE FDCPA...16 Federal Trade Commission...17 HOW TO STOP HARASSING CALLS AT HOME SAMPLE LETTER HOW TO STOP HARASSING CALLS AT WORK SAMPLE LETTER SENDING CERTIFIED MAIL...20 PREPARING THE RECEIPT...20 PREPARING THE GREEN RETURN REPLY CARD...22 Back of Green Card PHONE LOG THE LAW EXPLAINED...27 TEN MOST COMMONLY ASKED QUESTIONS HARASSING PHONE CALLS BY CREDITORS!...38 WHAT ARE YOUR RIGHTS...38 UNDER CONNECTICUT LAW? SEC. 36a Location Information:...39 Sec. 36a Communications SEC. 36a CONDUCT...42 Sec. 36a Representations, devices, practices...45 Sec 36a Violation of provisions...47 Sec 36a-647, et seq. Liability, Exemptions

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4 Disclaimer This booklet is intended as general information. It has not been designed to replace legal advice from an attorney. There may be factors present in your situation that makes the information contained in this booklet inapplicable. Copyright 1996 Revised 2012 HOW TO STOP HARASSING PHONE CALLS A Consumer Combat Manual 4

5 QUESTIONS AND ANSWERS QUESTION 1 Bill collectors are harassing me. How can I stop them? SHORT ANSWER 1 Know the law, use the law, and enforce the law. (See The Law Explained) QUESTION 2 Can a debt collector call me at work? SHORT ANSWER 2 No! (See the Law Explained #1) QUESTION 3 When can a debt collector contact me? SHORT ANSWER 3 Mon.-Sun, 8 AM to 9 PM (See The Law Explained #2) QUESTION 4 Can a debt collector contact my friends, relatives, and neighbors? SHORT ANSWER 4 No. (See The Law Explained) QUESTION 5 Can an attorney be a Debt Collector? SHORT ANSWER 5 Yes. (See The Law Explained #4) 5

6 QUESTION 6 Can a Debt Collector insult me or swear at me? SHORT ANSWER 6 No. (See the Law Explained #5 QUESTION 7 What if I do not owe the amount being collected? SHORT ANSWER 7 You have the right to challenge the debt. The bill collector must give you proof that you owe it. (See The Law Explained #6) QUESTION 8 What will happen when I send a letter demanding that the debt collector stop contacting me? SHORT ANSWER 8 They are supposed to stop contacting you (See The Law Explained #7) QUESTION 9 What can I do if the Debt Collector contacts me after I write a letter telling them not to contact me? SHORT ANSWER 9. Sue him! (See Law Explained #8) QUESTION 10 What if the Creditor tells me that they can t remove the damaging information from my credit report? 6

7 SHORT ANSWER 10. It s a lie. QUESTION 11 What s a creditor? SHORT ANSWER 11 A person or company to which you owe money directly. (Sears, Visa, MasterCard) (See The Law Explained) QUESTION 12 What is a collection agency or bill collector? SHORT ANSWER 12 A collection agency or bill collector is hired by the creditor to collect a debt. (Examples, C.C.S., Global Recovery, Collection Bureau of Conn. Etc.) QUESTION 13 Does Federal Fair Debt Collection- Practice Act apply to both Creditor and Collection agencies? SHORT ANSWER 13 No, it applies only to Collection Agencies and not to CREDITORS! Collection agencies have to pay $1,000 per violation. (See the Law Explained) QUESTION 14 Since the Federal Fair Debt Collection Practices Act applies only to the Collection agencies, can creditors harass me? 7

8 SHORT ANSWER 14 No! Under Connecticut Law it s illegal for a creditor to harass you. And at one time there was no penalty if a creditor harassed you. However, the law was amended and there is a penalty when a creditor harasses you. The Connecticut Penalty mirrors the Federal Law, namely, a $1,000 per harassing phone call. Now before you decided to be your own attorney and sue the creditor in Small Claims Court, let me caution you. Let s say that you owe a creditor $4,500 and the creditor harasses you. And you have properly documented everything. You bring an action in Small Claims Court for $1,000. The creditor can countersue you for the $4,500. (The $1,000 claim can be off-set against the $4,500 or you simply lose the case. So you can go from the frying pan into the fire.) A better strategy would be filing a complaint with the Connecticut Department of Banking and asking the Banking Commissioner to sanction or fine the company. And you can request that the Banking Commission suspend their license to do business here in Connecticut. This might not happen. But it s far safer to try to invoke an administrative remedy versus a judicial remedy. QUESTION 15 What constitutes harassment? SHORT ANSWER 15 Constantly calling you, constantly calling you after you have written them a letter to stop calling you, threat of violence, use of obscene language, abusive language, threatening to bring a lawsuit which they don t bring. (See The Law Explained) 8

9 QUESITON 16 Is it legal to tape record a telephone conversation? SHORT ANSWER 16 Under the following conditions, it is legal to tape-record a conversation: 1) You did not initiate the telephone call. 2) You inform the bill collector who has contacted you that you are about to tape record the conversation prior to recording. You don t have to get permission to tape record. But you must tell him that you are tape recording the conversation. When you tape record the conversation you start the tape as follows: Today is (date) at (time) and this is (your name) speaking and I am at a phone located at. I have informed the Collection Agency that I am going to tape record this conversation and they are fully aware that I am going to tape record this conversation. Did I tell you Collection Agency that I am tape recording this conversation? Are you going to continue talking to me even though you know this conversation is being tape recorded? PROTECTING YOUR RIGHTS BE THE RABBIT SCRIPT OF WHAT TO SAY WHEN A CREDITOR OR BILL COLLECTOR CALLS YOU. (YOU HAVE ANSWERED THE PHONE.) YOU: Hello. COLLECTOR: Is this Mary Smith? 9

10 YOU: Yes. COLLECTOR: Is this Mary Smith who owes Capital One that ends in the digits 4576 and hasn t paid on the account in 3 months? YOU: YES. COLLECTOR: DO I HAVE TO TELL YOU WHAT S GOING TO HAPPEN TO YOU IF YOU DON T PAY? AND BY LAW I HAVE TO TELL YOU THAT THIS IS A COLLECTION CALL AND ANYTHING YOU SAY WILL BE HELD AGAINST YOU IN A COURT OF LAW BECAUSE I M TAPE RECORDING YOU RIGHT NOW! YOU: I realize that this is a collection call. But there s so much scam lately, I want to make certain that this isn t a scam collection telephone call. Please give me your phone number and I ll call you right back and if I don t call you, you can call me right back. And who should I ask to speak with? COLLECTOR: You better call me right back or there will be hell to pay. YOU: Oh, I ll call you right back. But what is your number? Do you have a toll free number? And who should I ask for? 10

11 Tele: Name: Date: Time: Now you have identified who called you. Many times their number is blocked especially the rogue collection agencies. Now you call them back but first you have written down the date, time and telephone number. Collectors have a right to use a fictitious name. So it will probably be fictitious but that s ok. Write down the name. COLLECTOR: It s a good thing, you worm, that you called me back because we were prepared to file a lawsuit against you and take your first born, attack your wages, your bank accounts and if you own a home, put a lien on it. YOU: Oh, please don t do that. I m prepared to pay you. How much should I send you? COLLECTOR: Send us $xx.xx amount immediately or better yet we ll take it directly from your bank. (This use to be an illegal collection tacit but I still consider it illegal.) YOU: Oh, no I don t have any money in the bank and my (wife/husband/boyfriend,girlfriend) would not allow this. We have a joint account. I said no that I can t do this but where do I sent $xx.xx? What s the address? 11

12 COLLECTOR: WHERE ARE YOU GOING TO GET THIS MONEY? YOU: A FAMILY MEMBER WILL LEND ME MONEY TO GET OUT OF DEBT. COLLECTOR: If we don t receive the money, I m personally going to call you. And I don t have to tell you what that will mean! YOU: Oh, please spare my family, my bank account, my wages and my home and really I thank you for your call to remind me of my obligations. (Next, send one of the form letters and send it Return Requested Receipt. Make a photocopy of the signed letter before you mail the letter. And then if they call you again, write down the date, day of the week, and time and, of course, who called. Now you haven t sent any payment and the same collector calls you. But you have to plan on getting your letter to the post office and time for them to receive it and for it to be mailed back. Therefore, if you tell them 3 weeks or 4 weeks and you plan accordingly, you should have the green card returned to you before the date when they will call.) 12

13 PROTECTING YOUR RIGHTS BE THE BEAR COLLECTOR: You said on such and such a date that you were going to mail us $xx.xx. You failed to send this money. What s your excuse, worm? YOU: Who is this calling? COLLECTOR: This is Mr. White Shark from the Shark Collection Agency, you worm. YOU: I did send you a letter which said to stop calling me and I told you in that letter that I was going to tape record this conversation COLLECTOR: I m not giving you permission to record this conversation. YOU: I am starting my tape recording at the present time. This Mary Doe and today s date is: Monday mm/day/ time and I am talking with Mr.White Shark and I informed him via letter dated with a return receipt number of that I was going to tape record his conversation... COLLECTOR: I did not give you permission to record this conversation. 13

14 YOU: Well, you are continuing to call me and I have clearly told you that I m tape recording you. Obviously, you can hang-up if you desire. COLLECTOR: I am going to continue to talk to you, worm, but you can t continue to tape record this conversation. I don t give you permission, you low life. YOU: Well, I won t talk to you without you giving me permission to tape record this conversation. I am tape recording you right now. COLLECTOR: Low rent and that s what you are low rent, I am going to continue talking to you. You are a poor excuse for a worm. You didn t send us any letter. YOU: Well, I sent it return receipt requested and I have the green card that it was received and signed for and in the letter I clearly gave you notice that I was going to tape record any conversation. I am tape recording you now. COLLECTOR: So what worm! This means nothing. You owe the money and you better give us permission to withdraw the money directly from your bank. 14

15 YOU: Well, I have been told by a lawyer that once I send you that letter, you can t call me again. Otherwise, you have violated the Federal Debt Collection Practices Act. COLLECTOR: Who told you this? YOU: A lawyer. COLLECTOR: That lawyer doesn t know anything. You were talking to a nickel and dime baloney lawyer. And you know why I call him a baloney lawyer? Because he eats baloney sandwiches for lunch. That s not the law and there s no such law. (This is a verbatim transcript of any actual collector!) COLLECTOR: When our law firm of Barracuda, Barracuda and Shark finishes with you, worm, you won t even be able to be chum. ( chum is fish bait). YOU I have had all I can take. I m calling my lawyer. (Hang up.) (The above is obviously an exaggeration, somewhat, of what has happened to people. Many collectors have been trained not to be this wildly aggressive but this type of behavior happens. This aggressive behavior has slowed down considerably because the collection agencies have been sued many times.) 15

16 THE PENALTIES FOR VIOLATING THE FDCPA The Court can award $1,000 per harassing phone call to you, plus attorneys fees. Therefore, there are attorneys who will represent you against a bill collector on a contingent fee basis which means that if the attorney doesn t make a recovery for you, there will be no charge for legal fees. And don t forget, the penalty is up to a $1,000 for each harassing phone call. If the same bill collector called you 3 times, the attorney could claim damages of $3,000!! How do you find an attorney to represent you on a contingent fee basis? CALL OUR OFFICE (860) FEDERAL AND STATE AGENCIES WHICH WILL HELP YOU ENFORCE YOUR RIGHTS TO BE FREE FROM COLLECTION HARASSING AGENCY PHONE CALLS. DON T HESITATE TO CALL YOUR PUBLIC SERVANTS. & FILE A COMPLAINT! Attorney General State of Connecticut 55 Elm St., 5th Floor Hartford, CT (860) Website: attorney-general@ct.gov Connecticut Dept. of Banking Office of the Commissioner 260 Constitution Plaza Hartford, CT (800) (860) (860) (Consumer Credit) Website: 16

17 Department of Consumer Protection Attn.: Complaints Dept. 165 Capital Dr. Hartford, CT (860) (860) Complaint Center Website: Federal Trade Commission Bureau of Consumer Protection Attn: David Madine 600 Pennsylvania Ave., NW Washington, D.C (203) FTC-HELP ( ) Website: HOW TO STOP HARASSING CALLS AT HOME SAMPLE LETTER Mary Collector, Office Manager XYZ Collection Bureau 100 Main St. Anywhere, CT Certified Return Receipt Requested #Z Date: RE: Account # Creditor: Dear Ms. Mary Collector: 17

18 Your agency telephoned me at HOME at approximately (TIME). I found your phone call to be harassing, annoying and intimidating. I am trying to pay my bills and straighten out my current financial situation. However, I do not want to talk with you and will not. Please do not call me at work or at home. My employer does not allow me to discuss personal matters at work and your calls to my home are very annoying. NOTICE: In the event you continue to contact me, I will tape record our conversation. Sincerely Yours, John Jones 21 Elm Street Anywhere CT, HOW TO STOP HARASSING CALLS AT WORK SAMPLE LETTER Ms. Mary Collector, Office Manager XYZ Collection Bureau 100 Main Street Anywhere, CT

19 Certified Return Receipt Requested #Z Date: RE: Account # Creditor: Dear Ms. Mary Collector: Your agency telephoned me at WORK at approximately (TIME) on.(date) Please do not call me at work. My employer does not allow me to discuss personal matters at work. Furthermore, I found your phone call to be harassing, annoying and intimidating. I am trying to pay my bills and straighten out my current financial situation. However, I do not want to talk with you and will not. Finally, I do not want you to call me at home under any conditions and I forbid you from contacting neighbors, friends, or relatives. NOTICE: In the event you do contact me, I will tape record our conversation. Sincerely Yours, John Jones 21 Elm Street Anywhere CT,

20 SENDING CERTIFIED MAIL PREPARING THE RECEIPT U.S. Postal Service CERIFIED MAIL RECEIPT STEP ONE: On the Sent to line, write the name of the Collection Agency or Creditor. STEP TWO: Write the street address or P.O. Box number of the Collection Agency on Line Two. STEP THREE: Write the city, state and zip code on Line Three. STEP FOUR: You could miss this point. On your CERTIFIED MAIL RECEIPT, is the number assigned to your receipt. In our example, the assigned number is: This number is on your Receipt and it is repeated 3 times. At the very end of the Receipt, you ll see the number If you look closely, you can peel-off this number as a long strip which has glue on the back of it. Take that long strip off the form and place it on the GREEN CARD as found on Line Two. Article Number. And it says under Article Number (Transfer from service label). See our example. STEP FIVE: Make certain that this Article Number is used directly in your letter! See my example letter. 20

21 It costs approximately $3.40 for a one page letter to send it Return Receipt Requested. I cannot overstate the importance to being able to prove that you sent a letter demanding that the collection agency stop harassing you. You must send it Return Receipt Requested. ALSO, ATTACH THE WHITE RECEIPT TO THE COPY OF THE LETTER YOU ARE RETAINING FOR YOUR FILE. The Post Office will fill in the rest of the form. Blank Certified Mail Receipt: 21

22 Filled Certified Mail Receipt (I have underlined the receipt number): PREPARING THE GREEN RETURN REPLY CARD STEP ONE: Write your name and address on the front of the Green Card. (Front of Green Card) 22

23 STEP TWO: Turn the Green card over. Where it says: 1. Article Address to: write the name and address of the Collection Agency and/or Creditor and be certain to include the name of the person who called you. ***Be careful with the zip code because if it s not exactly correct, it won t get delivered. STEP THREE: Section 2(Article Number) is where you stick the Receipt number sticker ( ). STEP FOUR: In section 3, check off the box with the word Certified Mail next to the square. 23

24 Back of Green Card. STEP FIVE: You will then peel off the white sticky (one on both sides) on the Front of the Green Card and Stick this card to the back of you envelope. You don t have to fill in anything else. The Post Office will take care of the rest. The letter to the Creditor will be inside this envelope. After the creditor signs and dates this, the green card will be taken off the envelope and sent back to you. 24

25 PHONE LOG NAME OF CALLER: DATE: TIME: ADDRESS: NOTES: NAME OF CALLER: DATE: TIME: ADDRESS: NOTES: NAME OF CALLER: DATE: TIME: 25

26 ADDRESS: NOTES: NAME OF CALLER: DATE: TIME: ADDRESS: NOTES: NAME OF CALLER: DATE: TIME: ADDRESS: NOTES: LETTERS SENT LOG NAME OF CREDITOR: DATE SENT: ADDRESS: DATE RECEIVED RETURN OF GREEN CARD: COPY OF LETTER IN FILE WITH GREEN CARD STAPLED TO LETTER : YES/NO 26

27 NAME OF CREDITOR: DATE SENT: ADDRESS: DATE RECEIVED RETURN OF GREEN CARD: COPY OF LETTER IN FILE WITH GREEN CARD STAPLED TO LETTER : YES/NO NAME OF CREDITOR: DATE SENT: ADDRESS: DATE RECEIVED RETURN OF GREEN CARD: COPY OF LETTER IN FILE WITH GREEN CARD STAPLED TO LETTER : YES/NO THE LAW EXPLAINED IN Order to efficiently halt the harassment you are currently experiencing at the hands of your Creditors it is important for you to have an understanding of the Fair Debt Collections Practices Act, FDCPA for short. This Act was passed by the United States Congress on September 20, 1977 in response to the widely held accurate belief that Collection Agencies were using increasingly extreme measures to coerce people into paying their debts. 27

28 FACT: Debt Collectors still routinely lie and/or misinterpret facts to consumers regarding their rights and their account. One of the most important distinctions made in the FDCPA is the distinction between Creditor and Debt Collectors. Debt Collectors are covered by the Act and Creditors are not. What this means to you is that you cannot use the following information to defend yourself from the ORIGINAL Creditor. The good news is that Connecticut has enacted Conn. Gen. Stat 36a-647 and 36a-648 (see, also, Conn Banking Regulation 36a through 7) which is a copy of the Federal Law and applies Conn. law to CREDITORS. But before you get too excited, if you sue a creditor for the violation of the Conn law on harassment, the creditor can counter-sue on the original debt and usually prevail. FACT: The FDCPA does not protect you from attempts of the ORIGINAL Creditor to collect upon their account. The most important right provided to you by the FDPCA is the right to end ALL contact with the Debt Collectors simply by sending to the Debt collector, via registered mail, a letter demanding that they no longer contact you either at home or at work. Once this is done the Debt Collector must cease all contacts. It is essential that this request be made in writing and sent by way of registered mail, return receipt requested. The Debt Collectors are not required to honor a verbal request to cease calling and I promise you they will never receive your letter unless they sign for it. A sample letter for you to use is included in the back of this booklet. 15 USC 1692c Ceasing Communications: If a consumer notifies a Debt Collector in writing 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: 28

29 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. Sending a written demand to the Debt Collector demanding that they cease further communication with you is your most valuable tool for ending Creditor harassment. Keep copies of the letters you have sent and keep notes of every Debt Collector you have notified by mail as well as the dates you sent those letters out. Save your return receipts! They are your proof that the Debt Collector did indeed receive your letter. TEN MOST COMMONLY ASKED QUESTIONS 1. Can a Debt Collector call me at work? No. the Debt Collector cannot contact you at work once you have informed them that your employer does not allow you to receive personal calls at work. It is very important that you make this fact known to the Debt Collector in a written letter sent by certified mail. You must have 29

30 documentation of everything because the Debt Collector will not voluntarily admit to having been notified. 15 USC 1692(a)(3)- 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 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. 2. At what times can a Debt Collector contact me? 15 USC 1692c(a)(1) A Debt Collector may not communicate with a consumer in connection with the collection of any debt at any unusual time or place or a time 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 A.M. and before 9 o clock P.M. local time at the consumer s location. 3. Can a Debt Collector contact my friends, relatives, or neighbors? Without your permission or the permission of a court of law, the Debt Collector may not contact any individual concerning your debt. However, the Debt Collector may contact a third party for the sole purpose of obtaining your address. Furthermore, the Debt Collector generally cannot communicate with that third party more than once, nor can they reveal who they work for unless specifically asked by the person they have contacted. 30

31 15 USC 1692c(b) Except as provided in section 1692b of this title, without the prior consent of the consumer directly given to the Debt Collector, or the express permission or a court of competent jurisdiction, or as reasonably necessary to effectuate a post-judgment judicial remedy, a Debt Collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the Creditor, the attorney or the Creditor or the attorney of the Debt Collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall: (a) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer (b) 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. What if the Debt Collector is an attorney? Any attorney who collects two or more debts a year is a Debt Collector. This means they are covered by the FDCPA and, therefore you can put a stop to their harassment with a simple written request, sent via registered mail, that they cease all communication with you. Furthermore, an attorney who is not licensed to practice in the State of Connecticut cannot sue you here and the FDCPA requires that any lawsuit against you be brought either where you live or where the contract was signed. 31

32 IMPORTANT NOTE: In cases where the main purpose of the suit is to recover collateral for the loan, the suit may be brought where the property is located. (e.g. Foreclosure) 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. (2) in the case of an action not described in paragraph (1) bring such action only in the judicial district or similar legal entity in which such consumer signed the contract sued upon or in which such consumer resides at the commencement of the action. 5. Can the Debt Collector insult me or swear at me? Absolutely not! The Debt Collector is prohibited by the FDCPA from berating, insulting or swearing at you. You do not have to put up with incivility from any Debt Collector. 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 a. The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person. 32

33 b. The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader. c. 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. What if I do not owe the amount being collected upon? You have the right to dispute the validity of any debt that the Debt Collector is attempting to collect upon. To dispute the debt you must do so in writing and again, I would advise you to send the letter via registered mail. Once you have sent the Debt Collector notice that you dispute the debt, the must cease their collection efforts until they verify the validity of the debt with the original Creditor. A copy of this verification must be mailed to you. A Debt Collector is entitled to assume, by your failure to dispute the validity of the debt within 30 days that the debt is valid. However, an admission of liability on your part may be used by any court in any subsequent court proceeding. 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: a. the amount of debt; b. the name of the Creditor to whom the debt is owed; c. 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; 33

34 d. 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; e. a statement that, upon the consumer s written request within the thirty day period, the Debt Collector will provide the consumer with name and address of the Original Creditor, if different from the current Creditor. USC 1692g(b)- If the consumer notifies the Debt Collector in writing within the thirty-day period described in subsection (a) of this section 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 a copy of a judgment, or the name and address of the original Creditor, is mailed to consumer by the Debt Collector. 1692g(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. 7. What will happen when I send a letter demanding that the Debt Collector stop contacting me? Once the Debt Collector receives your written request to cease all communication only a couple of options remain. a. The Debt Collector may return your account to the original Creditor. If this happens, you must wait and see what your Creditor will do now. It may 34

35 now be possible to negotiate with the Creditor for the removal of all negative information from your credit report in exchange for either monthly payments or a lump sum settlement. b. The Debt Collector may turn your account over to an attorney to sue you. If this happens the attorney will either sue you or threaten to sue you. In any case, immediately send a written request to the attorney informing him that he is not to contact you. If he sues you and gets a judgment against you, YOU WILL NOT GO TO JAIL. Failure to pay your Creditors is not a crime. Once the attorney has a judgment he can either attempt to garnish your wages, and if you are a federal employee this is almost impossible to do, or place a lien upon your house. If you do not have a house, a Creditor generally will not place a lien on anything other than real estate. Note: In the State of Connecticut, a Creditor may garnish up to 25% of your wages. However, in almost all cases you may ask the court to order a garnishment in an amount far less that 25% of your pay. It is not unusual for the judge to order payments of $35.00 or $25.00 a week, sometimes less. c. Your original Creditor may assign your account to another Debt Collector. If this happens simply send, via registered mail, a written request that all communication for the Debt Collector stop. d. your original Creditor may hire an attorney to sue you. If this happens see b. above. e. Your original creditor may give up or seek to come to an agreement with you. Once this happens you may contact the Creditor and work out a settlement of your account in exchange for the creditor s promise to remove any negative information from your credit report. Contrary to what the Creditor may tell you, THEY CAN REMOVE NEGATIVE 35

36 INFORMATION FROM YOUR CREDIT REPORT. If they cannot promise to remove the information do not work out a deal. At this point they may have already written off your account and may not pursue further collection. 8. What can I do if the Debt Collector violates the FDCPA? You can sue your Debt Collectors. The FDCPA provides that for violation of the Act, the Debt Collector may be fined up to $1, and be required to pay your actual costs arising from the violation. Furthermore, whenever a successful action is brought, the Debt Collector is required to pay all of the legal fees and costs associated with bringing the case. 15 USC 1962k(a)- Except as otherwise provided by this section, any Debt Collector who fails to comply with any provision of this subchapter with respect to any 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, 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 $1,000, 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 the defendant attorney s fees responsible in relation to the work expended and costs. 9. What if the Creditor tells me they can not remove damaging information from my credit report? 36

37 This is a common misperception among consumers and fostered by Creditors. Often, even the individuals working for your Creditors are unaware that the information may be removed. However, the Fair Credit Reporting Act requires only that the information reported on your credit report be true. It does not require that all information be reported. It is important to know that a Debt Collector cannot remove negative information placed on your credit report by the original Creditor. Never pay a Debt Collector any money! You should always deal with the original Creditor so that you may have the damaging information removed. 10. What is the difference between secured and unsecured debt? An important distinction exists between secured and unsecured debt. A secured Creditor possesses a lien on some piece of property that you own. Typically this lien is placed on a car or a home, but it may be on household items such as TV s, computers, or jewelry. If you have pledged any piece of property as collateral for the loan, chances are the loan is secured. For your unsecured debts, you should apply the information you have learned in this booklet, but for your secured debts you must be aware of an additional factor. If a creditor has a lien on any piece of your property, the Creditor or the Debt Collector (if authorized to do so), may bring an action in court to recover the collateral. Foreclosures and repossessions are two of the most common types of collateral recovery. These can only be prevented by either meeting the Creditors terms or a bankruptcy filing. A creditor will be less likely to deal with you and more likely to repossess or foreclose in instances where they are secured. Our office would be happy to give you further information on the pros and cons of a debt management and/or bankruptcy. Debt management is when you don t file bankruptcy. Of course, everyone would prefer to be able to pay all of their Creditors as agreed. Unfortunately, due to a variety of reasons it may not be possible, and then one learns how quickly many of their creditors can change from all smiles, to hard demands. Remember, you have not committed a crime or done anything wrong. You 37

38 have merely found yourself in a situation similar to millions of other good people. Your Creditors and Debt Collectors will try to intimidate, harass and annoy you into paying them money you do not have, but do not give in. Use the information contained in this booklet to help you in straightening out your affairs. It won t be easy, but it can be done. For a free, confidential consultation, please feel free to contact our office. HARASSING PHONE CALLS BY CREDITORS! WHAT ARE YOUR RIGHTS UNDER CONNECTICUT LAW? Under Federal Law, Bill Collectors or agents for the CREDITOR, cannot harass you. But what about the CREDITOR, itself. Can the CREDITOR, itself, harass you and get away with it? Well, Connecticut passed a law which copies or follows the Federal Fair Debt Collection Practices Act (FDCPA) and applied it to the CREDITOR, itself. The Connecticut law is 36a-647 and supplemented with Connecticut Banking Regulations 36a-6471 to 36a This law is referred to as the Connecticut Collection Practices Act (CCPA). What does the Connecticut Collection Practices Act (CCPA) provide? Here is a summary-outline of the law: 38

39 SEC. 36a Location Information: 1) Limitation on calls from CREDITORS (the one to whom money was originally owed). A CREDITOR can only call a person other than the consumer debtor or agent of the consumer debtor (attorney) for purposes of location information. Location information means information identifying the residence or place of employment of a consumer debtor or any other identifying information that facilitates direct contact with a consumer debtor or the debtor s agent, such as a telephone number, cellular telephone number or address. 2) Any CREDITOR, who calls to obtain local information about a consumer debtor, SHALL NOT do any of the following: a) State that the consumer debtor owes any debt nor in any manner communicate debt information. b) Communicate with anyone more than once regarding a particular debtor unless requested by such person to do so or if the creditor reasonably believes that an earlier response was erroneous or incomplete or is no longer applicable. c) Communicate via post card d) Use any language or symbol on any envelope or in the contents of any written communication effected by the mails, telegram or electronic device that indicates that the communication relates to the collection of a debt; and 39

40 e) Communicate with any person other than the attorney for the debtor after the creditor knows the consumer debtor is represented by an attorney regarding the subject debt and has knowledge of the attorney s name and address. If the attorney fails to respond to the creditor s communication within 30 days or fails to give location information, then the creditor can continue to communicate with any person. Sec. 36a Communications 1. Communications with the debtor or debtor s agent. 2. Unless given permission by the debtor or express permission of the court, a creditor shall not communicate with a debtor as follows: a. At any an unusual time or place. After 8:00 am and before 9:00 pm shall be presumed to be an inconvenient time to call. b. At the place of employment of the debtor. 3. Communication with Third Parties: a. The creditor shall not communicate with any person when collecting on a debt other than: 1. The consumer debtor of his/her agent; 2. The consumer debtor s attorney or the consumer debtor s agent attorney; 40

41 3. A consumer reporting agency, if otherwise permitted by law; 4. The creditor s attorney; 5. The creditor s accountant; 6. A creditor, past creditor or prospective creditor of the debtor who is not also the employer of the debtor, provided that any such communication is not for the purpose or with intent of harassing or embarrassing the consumer debtor into paying such debt; 7. A corporation that owns more than 25% of the stock of the creditor; 8. A person who is a consultant to the creditor on matters relating to consumer debts, who supervises or manages the creditor or who services debts owed to the creditor; 9. A person who is not the consumer debtor or consumer debtor agent but who has paid or is paying all or part of the consumer debtor s debt; provided that the creditor shall not demand or otherwise attempt to collect the debt from such person who is not the consumer debtor without the consent of such person; 10. The commissioner and an employee of any federal or state agency; 11. A person who is not a natural person and who is obligated to pay a consumer debtor s debt, whether as a guarantor, endorser or otherwise. 41

42 12. A creditor may communicate with any person if such communication is necessary: a. For the creditor, the debtor or his/her agent to claim or receive benefits under any insurance policy or other insurance coverage, including Medicare and Medicaid; b. For the creditor to effect or negotiate an assignment or purchase of the debt. 13. Prior consent of the consumer debtor or his/her agent does not include consent obtained by any writing which evidences or proves the debt or executed at the time the debt was incurred. SEC. 36a CONDUCT A creditor shall not engage in any conduct that would harass or abuse the debtor. The standard of what constitutes harassment is the reasonable man standard. If a creditor knows that certain conduct which the creditor knows would harass or abuse a person. Conduct which is a violation of this standard is as follows: 1) Using or threatening to use violence or other criminal means to harm the physical person, reputation or property of another person. 2) Using obscene or profane language or language the natural consequence of which to a reasonable person is to abuse the hearer or reader. 42

43 3) Publicly disseminating or displaying a list of, pictures of or other information about consumer debtors or consumer debt agents who allegedly refuse to pay debts which could identify them to the general public. 4) Advertising for sale any debt to coerce payment of the debt; 5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously if the natural consequence of such action to a reasonable is annoyance, abuse or harassment. 6) Placing telephone calls without meaningful disclosure of the caller s identity. 7) Soliciting any amount, including any interest, fee, charge or expense incidental to the principal obligation, unless such amount is authorized by the agreement creating the debt or permitted by law; 8) Soliciting a postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution. 9) Depositing or threatening to deposit a postdated check or other postdated payment instrument prior to the date on such check or instrument; 10) Causing charges to be made to be or expenses to be incurred by any person in connection with communications concerning the consumer debtor s debt by misrepresenting the true purpose of the communication or concealing the identity of the person making the communication. Such charges and expenses include collect telephone calls and telegram but it isn t limited to these examples. 43

44 11) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property unless: A) There is a present right to possession of the property claimed as collateral through an enforceable security interest. B) There is a present intention to take possession of the property; and C) The property is not exempt by law from such dispossession or disablement; 12) Communicating with a consumer debtor or consumer debtor agent regarding a debt by post card.; 13) Using any language or symbol on any envelope when communicating with a consumer debtor or consumer debtor agent by use of the mails or by telegram that would convey the impression that the communication concerns collection of a debt; 14) Refusing to make a reasonable effort to determine the validity of a debt the consumer debtor disputes unless such verification has already been made; 15) Instituting or threatening to institute a civil action in any court location which the creditor or its attorney knows is not proper venue for such action; or 16) Sending any written communication to a consumer debtor which recites the time period within which a debt must be paid to avoid further action but which does not recite the date on which such time period commences. 44

45 Sec. 36a Representations, devices, practices A creditor shall not use any fraudulent, deceptive or misleading representation, device or practice 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 creditor is vouched for, bonded by or affiliated with the United States, any state or any political subdivision thereof, including the use of any title or 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 attorney or consumer collection agency that may be employed 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 or may result in the seizure, garnishment, attachment or sale of any property or wages of any person unless such action is lawful and the creditor intends to take such action. 5) The representation or implication that nonpayment of any debt will or may result in the arrest, imprisonment or criminal prosecution of any person. 45

46 6) The threat to take any action that cannot legally be taken or that is not intended to be taken. 7) The false representation or implication that a sale, referral or other transfer of any interest in a debt shall cause the consumer debtor or consumer debtor agent to: A) Lose any claim or defense to payment of the debt; or B) Become subject to any practice prohibited by the provisions of 36a to 36a-647-7, inclusive, of the Regulations of the Connecticut State Agencies. 8) The false representation or implication that the consumer debtor committed any crime or engaged in any shameful or disgraceful act. 9) Communicating or threatening to communicate to any person debt information that is known or that should be known to be false, including the failure to communicate that a disputed debt is disputed. 10) The use or distribution of any written communication that simulates or is falsely represented to be a document authorized, issued or approved by any court, official or agency of the United States or of any state or which creates a false impression as to its source, authorization or approval. 11) The use of any other false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer debtor or consumer debtor agent. 12) The failure to disclose clearly in all communications made to collect a debt or to obtain information about a consumer debtor or consumer debtor agent that the creditor is attempting to collect a debt. This subsection shall not apply to any creditor coumm88cations for the purposes of acquiring location information permitted by 46

47 section 36a of the Regulations of the Connecticut State Agencies. 13) The false representation or implication that accounts have been turned dover to innocent purchases for value. 14) The false representation or implication that documents are legal process. 15) The use of any business, company, or organization name other than the true name of the creditor s business, company or organization. 16) The false representation or implication that documents are not legal process forms or do not require action by the consumer debtor or consumer debtor agent. 17) The false representation or implication that a creditor operates or is employed by a consumer reporting agency. Sec 36a Violation of provisions A creditor shall not be found to have violated these provisions, if the creditor can prove by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error in spite of the fact that the creditor maintained reasonable procedures to avoid these errors. And in considering any violation by an employee of the creditor, the banking commissioner shall consider the extent of the creditor s education program for its employees in determining whether the creditor maintains procedures reasonably adapted to avoid such errors. Sec 36a-647, et seq. Liability, Exemptions 47

48 (a) A creditor who violates the Connecticut Collection Practices Act (CCPA) shall be liable to a person who is harmed in an amount equal to the sum of: (1) any actual damages (2) If the person is an individual, then the court can award an amount not to exceed $1, (3) If the person is successful in bringing a law suit, then a reasonable attorney s fee can be awarded in the court s discretion. (b) In determining liability of the creditor, the Court shall consider the frequency and persistence of noncompliance by the creditor, the nature of the noncompliance and how such noncompliance was intentional. ( c) A creditor can t be held liable if it shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error in spite of maintaining reasonable procedures to avoid any such error. (d) (Statute of Limitations) An action to enforce liability under this section may be brought in any court of competent jurisdiction not later than one year after the date on which the violation occurs. 48