If you have delinquent financial obligations then you may be getting phone calls and dunning letters from your creditors, bill collectors, debt collection companies, and even lawyers demanding payment. Some of these collection techniques can place a great deal of pressure on a consumer and his family. Most consumers are aware that they have some type of protection against harassment but do not fully understand their rights. Even if consumers are aware of the Fair Debt Collection Practices Act (the consumer debt collection laws), they do not always know which parties are subject to those laws.

Before I discuss who must follow the rules, allow me to provide a brief summary of the Fair Debt Collection Practices Act (FDCPA). The Fair Debt Collection Practices Act consists of a collection of prohibited enumerated and non-enumerated debt collection activity. For example, debt collectors are prohibited from the following activities:

  • Using violence, obscenity, or repeated annoying phone calls;

  • Falsely representing the character, amount, or legal status of any debt;

  • Using unfair or unconscionable means to collect or attempt to collect the debt.

Often consumers mistakenly believe that their creditors violated the act because they repeatedly called them about a debt. However, the important distinction to remember is that the Fair Debt Collection Practices Act applies to debt collectors who collect on behalf of another. It does not apply to first-party creditors. Further, the Act applies only to those debts which arise out of transactions primarily for personal, family, or household purposes. Thus, the Act does not necessarily provide protection for business debt collection activity.

That being said, the Act does apply to lawyers, law firms, and attorneys who were hired to collect a debt. Initially, Congress enacted a provision that exempted lawyers from the prohibitions. However, in 1986 Congress repealed that provision, but did not explicitly state that attorneys are to be considered a debt collector. Instead, the Act remains silent as to whether attorneys are subject to the Act leaving it open to interpretation.

In 1995 the United States Supreme Court ruled on that very issue in the case of Heintz versus Jenkins. The case involved a lawsuit whereby Plaintiff Heintz sued an attorney for FDCPA violations. The Supreme Court ultimately ruled that attorneys are subject to the FDCPA. The Court was persuaded by the fact that Congress had previously repealed attorney immunity in 1986 which suggested they intended for consumers to be protected against attorney debt collection abuse.

In sum, if you are a consumer and want to educate yourself as to the debt collection laws, remember two important things: (1) attorneys are subject to the FDCPA, and (2) the FDCPA only applies to third party debt collectors.

Ben Moskel is an attorney admitted to the New York State Bar Association and publishes a website ( href="http://www.chargeoff.net">http://www.chargeoff.net) about debtor/creditor issues including debt href="http://www.chargeoff.net">charge offs repossession, and debt collection.

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