The FDCPA Explained: Dealing with a Debt Collector
The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., is a United States statute added in 1978 as Title VIII of the Consumer Credit Protection Act.* Its purposes are to eliminate abusive practices in the collection of consumer debts, to promote fair debt collection, and to provide consumers with an avenue for disputing and obtaining validation of debt information in order to ensure the information’s accuracy. The Act creates guidelines under which a debt collector may conduct business, defines rights of consumers involved with a debt collector, and prescribes penalties and remedies for violations of the Act. It is sometimes used in conjunction with the Fair Credit Reporting Act.
People and entities covered by the FDCPA
The FDCPA broadly defines a debt collector as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” While the FDCPA generally applies only to third party debt collector not internal collectors for an “original creditor” — some states, such as California, have similar state consumer protection laws which mirror the FDCPA, and regulate original creditors. In addition, some federal courts have ruled that a collector of debt is not a “creditor” but is rather a “debt collector” under the FDCPA where the collector of debt buys defaulted debt from an original creditor for the purpose of debt collection. The definitions and coverage have changed over time. The FDCPA itself contains numerous exceptions to the definition of a “debt collector,” particularly after the October 13, 2006, passage of the Financial Services Regulatory Relief Act of 2006. Attorneys, originally explicitly excepted from the definition of debt collection, have been included (to the extent that they otherwise meet the definition) since 1986.
The FDCPA’s definitions of “consumers” and “debt” specifically restricts the coverage of the act to personal, family or household transactions. Thus, debts owed by businesses (or by individuals for business purposes) are not subject to the FDCPA.
In the federal tax case of Smith v. United States, the United States Court of Appeals for the Fifth Circuit stated that the taxpayer’s: “. . . . invocation of the Fair Debt Collection Act is entirely without merit, as the statute expressly excludes ‘any officer or employee of the United States… to the extent that collecting or attempting to collect any debt is in the performance of his official duties’ from the definition of ‘debt collector.’ 15 U.S.C. section 1692a(6)(C).” In 1998, however, Congress amended the Internal Revenue Code by adding a new section 6304, “Fair Tax Collection Practices,” which refers to and includes certain rules that are similar to some provisions of the Fair Debt Collection Practices Act.