Tuesday September 07 , 2010

Collection Letters Cannot Place Burdens On Consumers

Debt collection notices mean what they say and nothing more. The disclosures required by both the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”) and Rosenthal Fair Debt Collection Practices Act, California Civil Code §§ 1788-1788.32 ("Rosenthal Act") in various written communications from debt collectors to consumers is clearly spelled out in each respective statute. Debt collectors often like to “tinker” with this language with the result often being an abridging or overshadowing of the consumers rights. The Court agreed with Hyde & Swigart in Edstrom v. All Service and Processing, 2005 U.S. Dist. LEXIS 2773 (N.D. Cal. 2005), that 15 U.S.C. § 1692g(a)(3) was violated when the debt collector required all disputes to be in writing. Consumers must remember that a dispute can be made orally over the telephone and a debt collector must respect that. Once a consumer disputes the account, either orally or in writing, certain rights attach. For example, once the debt collector knows that the consumer disputes all or a portion of the account, they must communicate that dispute with any Credit Reporting Agency they communicate with in the future. See 15 U.S.C. § 1692e(8). While certain rights attach if the account is disputed orally, it is always recommended to dispute the account in writing and within the first thirty (30) days of receiving the initial written communication from the debt collector. This requires the debt collector, not only to report the debt disputed to any credit reporting agency, but also requires collection action to stop until the debt collector obtains and provides verification of the account. Any collection action before validation is provided violates both the FDCPA and RFDCPA.