The Fair Debt Collection Practices Act: Do I have a claim?
How do you know if you can sue under the FDCPA, The Fair Debt Collection Practices Act:
It provides protection for consumers form debt collection practices that are abusive and unfair
The FDCPA, also known as the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, provides very powerful tools for consumers to combat those collection firms or companies engaging in debt collection utilizing tactics that are abusive, misleading, intimidating or otherwise prohibited under the terms of the Fair Debt Collection Practices Act. The Fair Debt Collection Practices Act defines a debt collector as those individuals or persons whose primary business is for the collection of any debts. It can be the attempted debt collection or direct or indirect debt collection. There are various restrictions on the nature and type of communications that a debt collector can have with the potential consumer. Report to Congress.Staff Commentary
Generally, a debt collector shall only communicate with a debtor between 8:00 in the morning and 9:00 at night. Further, if the debt collector is aware that the debtor has an attorney, there can be no direct communication unless the attorney fails to respond in a reasonable time period. Further, the debt collector may not contact the consumer’s place of employment if the debt collector knows that the employer does not permit that type of communication.
A debt collector may not subject the debtor to conduct which is harassing, oppressive, and abusive such as the threat of violence, use of profane language, or excessive telephone use. These are some examples of types of harassing conduct.
The debtor collector may not use false or misleading representations, such as they intend to commence a lawsuit when in fact they have no intention of commencing the lawsuit. The debtor collector cannot represent that the consumer is committing a crime or is disgraced by not paying the debt, representations that the documents are not legal process forms or do not require a response, or that the debt collector is a credit reporting agency. As a general matter, there are numerous restrictions on debt collectors and many rights provided to those that owe money.
If liability is demonstrated under the Fair Debt Collection Practices Act, there are various civil penalties including actual damages, discretionary damages by the court up to $1,000 or any class action damages, the lesser of $500,000 or 1% of the net worth. The Fair Debt Collection Practices Act permits the recovery of attorney’s fees if a litigant is successful against a debt collector.
There might be a separate claim under New Jersey law that might mirror any claim under federal law for violation of the fair debt collection practices act. The theory would be the same as any claim under the New Jersey Consumer Fraud Act. As an example if the collector made an affirmative misrepresentation of fact which resulted in an ascertainable loss arguably there would be a claim under New Jersey law under the New Jersey Consumer Fraud Act for any ascertainable loss.
Similarly if there were a deceptive business practice such as threatening, making false promises or otherwise coursing individuals into paying their debts in a deceptive or unreasonable way arguably under New Jersey law if a debt collector were to obtain funds from any aggrieved consumer there might be an ascertainable loss which would be actionable and recoverable under the New Jersey Consumer Fraud Act. The New Jersey Consumer Fraud Act provides many remedies to those who have been a victim of fraud or consumer fraud or a deceptive business practice. Consumers who paid money arguably would be a victim of a deceptive or a deceptive practice in violation of the New Jersey Consumer Fraud Act.
We need remember that the New Jersey Consumer Fraud Act should be construed liberally to affect its remedial purpose and assist consumers who have been relieved of their money as a result of a deceptive as this practice were in violation of the New Jersey Consumer Fraud Act. (UDAP)