#1 of 2 Many consumers on this and other Boards are aware of two key elements of FDCPA - (1) That there is a 30 day period after â??Initial Communicationâ? during which a consumer may invoke VOD rights, and if so invoked the Collector is prohibited from collection activities until VOD is provided (FDCPA §809), and (2) That FDCPA broadly gives the consumer the power to limit or restrict communications from a Collector (FDCPA § 805 and 807). These sections of law, taken individually and in tandem, create a lot of confusion and many questions about the applicability of the laws cited. First, letâ??s see what is meant by â??Communicationâ? under FDCPA. Section 803 defines â??communication as Therefore, a report to a CRA is definitely â??communicationâ?, as are telephone calls, letters and emails. The qualifying characteristic of the definition is the phrase â??information regarding a debtâ?. Therefore, the simple act of leaving a message (with a person or on voice mail) that simply gives the callerâ??s name and phone number, and even possibly a simple generic â??importantâ? statement would not meet the definition of Communication and therefore, if done in the face of a valid VOD request would not be a violation. Expanding on the message by stating â??important legal matterâ? would be sufficiently vague as to not give notice that a debt exists and therefore imparts no â??informationâ?. Stating the name of the creditor/CA/JDB would obviously be a violation. This does not mean a collector calling and stating â??Hi, itâ??s me againâ? does not represent a FDCPA violation - you just have to know which FDCPA Section is itâ??s a violation of. The statement itself does not rise to the level of a â??communicationâ? as defined in FDCPA, but could be a violation of §805( c ) if there is a Cease-Communication request in place or § 806 if placed repetitively in an attempt to harass or annoy. NCLC disagrees with the above interpretation. To quote Section 5.3.2.2 of the NCLC Fair Debt Collection Practices Manual: The NCLC manual goes on to cite the above other sections of FDCPA but provides no case law to substantiate their conclusion. I believe it is much safer for us to adopt my position and argue the type of calls the NCLC uses as examples under the harassment prohibitions in FDCPA, which IMHO is a much stronger argument. Letâ??s look closer at the prohibitions on â??communicationâ? under FDCPA. The operative section is §805 which I include in full: Section 805(a) gives the collector his â??safety valveâ? - â??Without the prior consent of the consumer given directly to the debt collector â?? and â?? the express permission of a court of competent jurisdictionâ?. Absent either of these conditions, Section 805 is in full operation. Just what does 805 prohibit? 1. Communication â??at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumerâ?, 2. All communication with the consumer if the collector knows the consumer is represented by an Attorney, and 3. Communication â??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.â?. Letâ??s look at each of these individually: The Courts are clear on what is an â??inconvenientâ? time or place for a Collector to communicate with a consumer. The answer is simple - the consumer has the absolute right to determine it with no restrictions. The collector must respect the consumerâ??s statement that being called at a certain place or a certain time is â??inconvenient.â? While the Act gives 8AM to 9PM as a safe time to communicate, this provision is easily trumped by a consumer stating that those hours are â??inconvenientâ? for that consumer. The following have been upheld by Courts as â??inconvenientâ?: * daytime hours for a consumer who works nights * when a consumer was entertaining family and friends * when a consumer was eating a meal * when a consumer was attending to an illness in the family There is no statutory prohibition on calling on Sundays, and FDCPA treats Sunday as any other day, but a consumerâ??s religious proscriptions on conducting business on the consumerâ??s Sabbath is certainly within the definition of â??inconvenientâ?. This Sabbath can be Friday, Saturday or Sunday depending on the consumerâ??s faith. This also applies to non-Christian high holy days, such as Yom Kippur. The prohibition on Inconvenient Communication is also extended to places. The following have been upheld by Courts as Inconvenient places for Communication: * A neighborâ??s home * a hospital * a funeral parlor * the consumerâ??s place of employment But be forewarned, the Inconvenient Place or Time protections (except for the Statutory prohibition on calls between 9PM and 8AM do not come into place until the Consumer affirmatively asserts them. The Collector must be warned in advance that communication at a particular place or time is Inconvenient for the communication to become a violation. A smart Collector will always ask, after ascertaining the consumerâ??s identity, â??Is this a convenientplace and time to talk?â?
#2 of 2 continued.... The workplace prohibition is an even more interesting one. It is the only actual place that FDCPA addresses specifically. FDCPA places a specific burden on the collector for employment contacts: â?? if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communicationâ?. Letâ??s face it - workers talk to each other. If a co-worker is getting collection calls at work, it is often that others know of it. If worker â??Aâ? gets a call from collector â??Xâ? at work and informs the collector that â??My employer does not allow personal calls at workâ?, I would take the position that worker â??Aâ?â??s statement just invoked the FDCPA prohibition on workplace communication for all other workers at that place of employment. The statement is simple: My Employer does not allow....â? That is a blanket statement and no collector can reasonably infer that it applies to that consumer alone, but is a blanket policy for all employees of that firm. The first call to worker â??Bâ? at that firm is an automatic FDCPA violation. The collector will respond with â??but Consumer â??Bâ? did not invoke the Inconvenient Place doctrine, so how could I have known? The answer resides in the act in the phrase â??has reason to knowâ?, and being previously told is definitely â??reason to knowâ?. A common misconception is that a collector is prohibited from contacting (or reporting a Trade Line) to a Credit Reporting Agency. This is simply incorrect and several Courts have so ruled. It is interesting to note that Courts have ruled that a collector who makes a threat to report a debt to a CRA in the Initial Communication letter if the debt is not paid within a period shorter than the 30 days permitted to request VOD has violated FDCPA, while a collector who does not make the threat but simply does report has NOT violated. The reasoning is simple - overshadowing the 30 day period, not prohibited communication. Moving on to the 30 day VOD periods, the Courts have consistently ruled that the 30 day VOD doers not preclude a collector from attempting to collect, but there are restrictions on what a collector can do during the 30 day VOD period. Simply put, the FTC and the Courts have ruled that the collection efforts cannot minimize, or overshadow, the VOD rights statement. Here are some examples of what Courts have found to be Overshadowing: * Demands for payment in five, ten or fifteen days in the same communication as the VOD rights statement that gives 30 days to request Verification. * Threatening suit within a time frame of less than the 30 day VOD time rame * Threat to make an adverse credit report before the 30 day VOD time period has expired * Threats of unspecified dire consequences for nonpayment before the 30 days Once the VOD is made within the 30 day period of initial communication (which begins on RECEIPT of Initial Communication), the collector is prohibited from taking any collection action until Verification is provided. The Courts have ruled the following to be violations: * Making an offer to settle the debt * taking an administrative garnishment without responding to VOD letter * seeking a default judgment * sending verification to someone other than the consumer * when reporting to a CRA, failing to report debt as disputed (also a FCRA violation) * Filing suit * burying the debt validation notice on page 8 of a 16 page communication In summary, consumers have enhanced rights in the first 30 days of receipt of a collectorâ??s Initial Communication, and knowing these enhanced rights, and enforcing them vigorously, should be a priority.
