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Credit Repair: Collectors And Your Legal Rights

May 10, 2008
The Law is on Your Side

Getting contacted by a collector is never a good thing. But there are laws that govern the behavior of collectors, and there are steps you can take to control the situation. Credit repair expert Jim Kemish discusses the rights and remedies that anyone facing a collector should know.

Fair Debt Collection Practices Act (FDCPA)

The FDCPA is the consumer protection act designed to prohibit abusive practices by debt collectors. The FDCPA specifically defines a collector as any person that collects debts owed to others, and may include attorneys that collect debts on a regular basis. Note that the language indicates "debts owed to others", and therefore excludes original creditors from its scope.

Getting Started

When a debt collector initiates a collection effort they must send you a written notice indicating: 1) How much you owe, 2) The name of the creditor to whom the debt is owed, 3) Notice that unless you, within thirty days after receipt of the notice, dispute the validity of the debt or any portion thereof, the debt will be assumed valid by the debt collector, 4) That if you dispute the debt in full or in part within thirty days, the debt collector will obtain verification of the debt and mail it to the consumer, and 5) Upon written request within thirty days, the debt collector will provide you with the name and address of the original creditor, if different from the current creditor.

Exercising Your Rights

Your rights under the FDCPA, as indicated above, allow you to dispute the validity of the debt in full or in part within 30 days of receiving written notice. Your legal rights, as in all credit repair efforts, are the tools that you will use to establish the facts. An extra benefit of disputing the validity of the debt is that the collector must cease all communication until they have furnished the documentation that you have requested. In many cases, especially with older debts where documentation could be hard to obtain, you may never hear from the collector again.

Bringing an Attorney into the Picture

If you have an attorney, the debt collector must contact the attorney instead of you. This is a good way to put an end to abusive collection calls. The collector will undoubtedly be on best behavior when communicating with an attorney and a good deal of grief may be avoided. In many cases unscrupulous collectors sense weakness in the consumer and take advantage, often acting illegally to extort payment. We highly recommend hiring an attorney for anyone that feels out of their depth and uncomfortable when speaking with a pushy collector.

Cease Communication Letter

If you would like the debt collector to stop contacting you altogether you can send a letter asking them to stop. Once they receive your letter, they are allowed to contact you only one additional time for the purpose of telling you that they intend to take a certain specific action. This strategy is often recommended by credit repair companies, but be aware that in some cases, especially with recent or large collections, your letter may push the collector into taking legal action to recover, such as filing a lawsuit.

Statue of Limitations

Statutes of limitations (SoL) for collecting debt are typically far less than the SoL for reporting on your credit report. Debts may be collectable through the courts for as little as three years. If a debt is beyond the SoL the collector may attempt to pursuade you to pay, but as he cannot enforce the collection, his efforts have no "teeth". Communicate your knowledge of the SoL to the collector. As an aside, should a collector attempt to collect a post-SoL debt by filing a lawsuit, you must appear and raise the SoL defense to have the lawsuit dismissed. It is also crucial to understand that the SoL clock starts with the original creditor. For most states the clock starts on the day you made your last payment on the account. This date can not be reset by the passing from creditor to collector, or from one collector to another. But beware that in some states partial payment can reset the SoL clock. Check your state statutes of limitation, easily found on the internet, or speak with a credit repair expert before assuming anything.

Bad Behavior

The FDCPA prohibits a wide range of specific inappropriate behavior by collectors. Prohibited practices include contacting you before 8 a.m. or after 9 p.m., calling you at work if you tell them that your employer does not approve, use of threats, obscene language, repeated calls designed to scare you into making payment, implying affiliation with the government, or implying that you have could be arrested for not paying a debt. In the credit repair business we are regularly asked about specific collection practices. Many of the stories we hear detail outrageous and illegal behavior...

Pick up the Phone

If you feel that a collector is behaving in an improper or illegal manner, the ultimate resource for answers is the FTC. If you find yourself on the telephone with a collector in such a situation it is entirely appropriate for you take careful notes: Ask their name (the FDCPA prohibits the use of false names), ask them to repeat anything that you are uncomfortable with, and then call the FTC. They welcome phone calls. The toll-free number is (877) FTC-HELP. That's easy!

Copyright 2007 James W. Kemish. All Content. All Rights Reserved.
About the Author
Jim Kemish, a well known credit repair expert and consumer advocate, is the president of Sky Blue Credit, a leading credit repair service since 1989. Jim is also the president of Power Mortgage, a Florida mortgage company.
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