If you have fallen behind on your bills, it may seem like the phone calls about your debts will never stop. In our last post, we discussed two ways to prevent creditors and debt collectors from calling you: (1) using certain provisions of the federal Fair Debt Collection Practices Act (FDCPA), and (2) filing for bankruptcy. In California, debtors can also rely on the Rosenthal Fair Debt Collection Practices Act (RFDCPA) to curb the often objectionable behavior of third-party debt collectors and original creditors. This post will provide an overview of the RFDCPA, and highlight some of the key differences between the FDCPA and the RFDCPA.
The Rosenthal Fair Debt Collection Practices Act
In California, residents are not limited to the protections offered to debtors by the federal FDCPA. California enacted the Rosenthal Fair Debt Collection Practices Act (RFDCPA) to set additional limits on debt collection practices. Many of the provisions of the RFDCPA are identical to the FDCPA. However, there are some important differences. The RFDCPA is widely considered to be broader than the federal FDCPA.
The RFDCPA Applies to Original Creditors
Generally, the federal FDCPA applies only to third-party debt collectors. The RFDCPA applies not only to debt collectors, but to original creditors as well. However, not all original creditors must comply with the RFDCPA. The following debt collectors are required to comply with the RFDCPA:
- third-party debt collectors and collection agencies;
- anyone who collects consumer debts in the regular course of business;
- companies who make forms and tools for debt collection; and
- original creditors.
If, for example, a debt collection agency is contacting you (a California resident) because of an overdue payment on a credit card. it must comply with both the federal FDCPA and the RFDCPA. In California, original debtors must comply with the RFDCPA. And because the RFDCPA requires that most original creditors must comply with the federal FDCPA, this means that original creditors must also comply with both the federal FDCPA and the RFDCPA in California.
The RFDCPA does not apply to every individual who is trying to collect a debt in California. It also does not apply to every type of debt. The following debts and debt collectors are not (or may not be) covered by the RFDCPA:
- Occasional debt collectors (such as someone contacting an acquaintance who owes him or her money);
- Foreclosure by an attorney or mortgage servicer (the RFDCPA does not automatically apply); and
- Business debts (the RFDCPA only applies to consumer credit transactions).
Collection Activities Prohibited by the RFDCPA
The RFDCPA proscribes many debt collector activities. The following list contains some of the regulations that apply to debt collectors in California. It is important to note that some of the prohibitions below appear in both the federal FDCPA and the RFDCPA Furthermore, “debt collector” under the RFDCPA includes most original creditors.
DEBT COLLECTORS CANNOT USE THREATENING OR UNLAWFUL CONDUCT. If an aggressive debt collector is contacting you about a debt, you should consult with an experienced attorney to discuss your rights. Under the RFDCPA, debt collectors cannot:
- Threaten to use (or use) physical force or criminal tactics to hurt or harm you, your property, or your reputation;
- Attempt to intimidate you by accusing you of committing a crime for not paying the debt (unless you fall into a very small category of debtors who can be charged with a crime for not paying a debt);
- Make defamatory statements about you to someone else or threaten to do so;
- Threaten that you may lose any defense to the debt if the collector assigns the debt to someone else; or
- Threaten to arrest you, seize your assets, or garnish your wages unless the collector actually plans on taking such an action and the collector is legally allowed to do so (typically the collector must sue you and obtain a judgment against you before garnishing your wages).
THE RFDCPA LIMITS HOW DEBT COLLECTORS CAN COMMUNICATE WITH YOU. The RFDCPA limits the methods debt collectors can use to contact you. Debt collectors are also prohibited by the RFDCPA from saying certain things.
- Debt collectors cannot use obscene or profane language;
- Debt collectors cannot call you repeatedly or at odd times during the day (such as very early in the morning or late at night);
- Debt collectors cannot harass you by calling you frequently;
- Debt collectors cannot misrepresent themselves in a way that would cause a debtor to spend money they otherwise would not have (such as for a long-distance telephone call); and
- Debt collectors must disclose who they are when they call you on the phone.
DEBT COLLECTORS MUST PROTECT DEBTOR PRIVACY. The RFDCPA contains a number of provisions that were enacted to protect debtors’ privacy. While debt collectors may report your debts to a credit reporting agency, they cannot:
- Contact your employer except to verify your employment, locate you, verify whether you have health insurance (but only if it is collecting medical debt and asks your employer in writing), or to garnish your wages (but only after it gets a judgment against you).
- Reveal information about your debt to your family members (except to your spouse if you are married or your parents if you are a minor). Debt collectors can contact your family members in an effort to locate you, however.
- Publish your name in a publicly available list for failing to pay a debt (commonly referred to as a “deadbeat list”).
- Send you mail that contains information about your debt on the outside of an envelope or send you postcards.
DEBT COLLECTORS CANNOT MISREPRESENT THEMSELVES. The RFDCPA requires debt collectors to be honest about who they are and who they are collecting a debt for. They cannot misrepresent themselves to be attorneys, government agents, or credit reporting agencies. If you believe a debt collector or original creditor is making misrepresentations, you should speak with an experienced attorney to discuss your rights.
DEBT COLLECTORS CANNOT CONTACT YOU IF YOU ARE REPRESENTED BY AN ATTORNEY. If you are represented by an attorney, and he or she agreed to talk to creditors on your behalf, debt collectors cannot contact you once they have received a written notice from your attorney (other than to send you account statements). If your attorney does not return calls from debt collectors or refuses to speak to your debt collectors, they may resume contacting you.
DEBT COLLECTORS MUST RESPECT THE JUDICIAL PROCESS. The RFDCPA imposes requirements on debt collectors that pertain to the judicial process.
- Debt collectors must serve you with notice of a lawsuit if they sue you.
- Debt collectors are prohibited from trying to collect default judgments that were awarded as a result of failing to serve a debtor with notice of a lawsuit.
- Debt collectors can only sue you in the county where you: incurred the debt, lived when you incurred the debt, or live now.
- Debt collectors are prohibited from sending you a document or documentation that appears to have been issued, authorized, or approved by a government agency or attorney but was not.
What To Do if a Debt Collector is Violating the RFDCPA
If you believe that a debt collector has violated or is violating the FDCPA, you should record some information about the debt collector, including:
- Who called you and from what number;
- What time of day the call was places;
- What the debt collector said, and
- Any other information you think is important.
It is critical to make a record of conduct that you think violates the RFDCPA. This information can help you make a claim against a debt collector who has violated the RFDCPA.
If you believe that a debt collector or creditor has engaged in conduct that violates the RFDCPA, you can:
- FILE A COMPLAINT WITH THE CALIFORNIA ATTORNEY GENERAL. The California Attorney General cannot sue on your behalf, but it might contact the debt collector if you file a complaint with its Public Inquiry Unit. For more information, visit the California Attorney General’s consumer protection website.
- CONTACT THE FEDERAL TRADE COMMISSION. The Federal Trade Commission (FTC) enforces the federal FDCPA. You can contact the FTC by visiting the FTC Complaint Assistant.
- SUE THE DEBT COLLECTOR. You can bring a lawsuit against a debt collector for violations of the RFDCPA in court. By filing a lawsuit, you may be able to recover money damages that you incurred as a result of the collector’s violations. If a debt collector has “willfully and knowingly” violated the FDCPA, you are entitled to additional damages ranging from $100 to $1,000. Under these circumstances, the court must also award attorneys’ fees to you. You should speak with an experienced attorney to determine whether you can file a lawsuit against a debt collector.
Contact a Lawyer
If you are in debt and would like to know more about your options to stop collection calls, call Spaulding Law Group for a free consultation. Dial (714) 731-7595 to speak with an experienced bankruptcy lawyer today.