Avoid Fair Debt Collection Practices Act Liability

The federal Fair Debt Collection Practices Act is a powerful weapon for a consumer who feels money_tableabused by a debt collection agency. The Act contains detailed provisions prohibiting collectors from using harassing or abusive tactics, making false or misleading representations, and engaging in unfair practices. It requires a collection agency to provide specific notices and disclosures to debtors. A collector that violates the Act can be liable for damages, attorneys’ fees, and costs.

Consumer attorneys are increasingly using the FDCPA to go on the offensive for debtors. Lawsuits under the FDCPA have grown dramatically, and, FDCPA violations are increasingly included in counterclaims to collection lawsuits.

General office personnel often collect dealership debts. They send written materials and make phone calls in their efforts. Those in charge of collection practices for dealerships generally believe they are exempt from the coverage of the FDCPA. For collection activities in the name of the dealer, they are correct. A creditor can collect its own debts without being subjected to the restrictions of the FDCPA.

Unfortunately, there is a critical exception that many dealership personnel do not understand. Under the FDCPA, a “debt collector” is one who collects on debts owed to others. Because of that definition, a creditor is not subject to the FDCPA, but a creditor that uses another name to collect its own debts forfeits its exemption from the FDCPA. Under the Act, a “debt collector” subject to the Act includes “any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.”

Train dealership personnel involved in collections. When they call or write, they must do so on behalf of the dealership. If they attempt to use the name of a fictitious company to give added weight to collection attempts, they may subject the dealership to liability under the FDCPA for damages, attorneys fees, and costs.