Your Options If a Debt Collector Violates the Law
If a debt collector violates the law, you can sue, complaint to a government agency, or use the violation to negotiate a settlement.
When a debt collector violates the law, you have a range of options – from suing the debt collector to filing a complaint with a regulatory agency to using the violation as a bargaining chip in negotiating a settlement on the underlying debt.
Laws that Apply to Debt Collectors
There are several laws that may apply to claims against debt collectors. The Fair Debt Collections Practices Act, or FDCPA, is the most commonly used, and because it is a federal law, it applies in every state. But states have their own laws too that you may be able to use instead of, or in addition to, the FDCPA.
FDCPA. The federal Fair Debt Collections Practices Act sets forth what debt collectors may and may not do when trying to collect a debt from you. This law bars debt collectors from harassing you, acting unfairly, using deception or fraud, or communicating in certain ways when attempting to collect a debt. (Get details in The FDCPA: Illegal Debt Collection Practices.)
State debt collection laws. Some states have debt collection laws that provide legal options in addition to the FDCPA. Some of these laws apply to both debt collectors and original creditors (the FDCPA does not govern actions by original creditors) and some offer may also offer a longer period of time in which you can sue (called the statute of limitations).
State unfair and deceptive acts and practices laws. Many states have consumer protection laws that bar unfair and deceptive acts and practices by businesses, including debt collectors. These laws might provide additional rights, a wider range of available remedies, and longer statutes of limitations than does the FDCPA.
Common law claims. Common law claims are those that are created by case law – you won’t find them in federal or state statutes. Common law claims that you might be able to use against a debt collector include invasion of privacy, infliction of emotional distress, libel, slander, or harassment. Suing for these types of claims is usually not the best option for several reasons.
- The burden of proof is often higher for common law claims than or those based on statutes, so they are usually not as attractive.
- For most common law claims, you cannot get reimbursement for your legal fees from the other side if you win – which means you could end up in the hole financially, even if you win the lawsuit.
Your Options: Informal Actions or a Lawsuit?
If a debt collector violates the law, think about your options and choose the one that best achieves your goals.
Sue the Debt Collector
If the debt collector violates the law, you can always file a lawsuit. But sometimes the cost that comes along with litigation, or the risks in a particular case, makes filing suit an unattractive option.
If you decide to pursue a lawsuit under the FDCPA, you may do so in state or federal court. If your case is successful, you may recover up to $1,000 in statutory damages, and possibly more if you suffered out of pocket losses or other types of damages. In these lawsuits the consumer is almost always represented by an attorney. The amount of money that you sue for will include your attorney’s fees and costs.
You may also decide to represent yourself, known as pro se representation. This might be a better option if your case involves a small amount of money. You can file in your state’s small claims court –courts that are designed for use by nonattorneys and that involve disputes under a certain dollar limit. The filing fee is low and the procedures and rules are much more informal than with regular court. (Learn how to use small claims court in Nolo’s Small Claims Court & Lawsuits area.)
File a Complaint with a Regulatory Agency
You can also file complaint with a government agency, either instead of filing a lawsuit or in addition to filing a lawsuit. Most agencies won’t be able to take on your individual case, but if they get enough complaints about a particular debt collector they might sue or take other action to shut down the business or make the business comply with the law. Some organizations, like the Better Business Bureau and the Consumer Financial Protection Bureau, will forward your complaint to the debt collector and may follow up as well.
Some agencies to complain to:
- Consumer Financial Protection Bureau (CFPB). Use its online complaint form at http://www.consumerfinance.gov/complaint.
- your state’s attorney general office
- your state’s consumer protection office
- your local Better Business Bureau office
If you plan to file a lawsuit, be aware that filing a complaint with one of these agencies does not stop the statute of limitations from running on your claim (the time period in which you must sue).
Use a Violation as a Bargaining Chip in Settlement Negotiations
You may use the debt collector’s violations as a tool to offset the amount of debt you owe. For example, if you owe $5,000 and the debt collector violates a provision of the FDCPA, you could propose to the debt collector that you won’t sue if it knocks $2,000 off your balance. If you do come to an agreement, get it in writing before you give the debt collector any money and make sure the original creditor signs off.