Should You Be Careful How You Should Behave toward the Debt Collector?
It’s crazy. Sometimes they get really vindictive. You can imagine if your job is to call people all day who owe money, these people are not going to be happy. They’re not going to be nice. They’re not going to be friendly, and you’re going to get bitter and cynical, and you’re going to want to retaliate. It’s kind of natural.
If you go to YouTube, you can see all of these videos of clever debtors who are trying to cause problems for a debt collector. The best advice I give people is just be careful because the call’s probably being recorded, and that might be used against you later on. It’ll just make you look bad. I encourage people just to take notes, listen patiently, and ask questions.
Ask the Collector If You Are in the Process of Having Your Wages Garnished?
You can ask them, are you going to garnish me? If they start saying, we’re going to garnish you. You could start asking them questions. If they answer in a way that violates the law, you just got a violation.
Interviewer: Are you baiting them to do it at that point?
Andrew Campbell: The judges aren’t so happy about. They don’t like that, but here’s the way I look at it. Let’s say I owe money. I’m in default. I haven’t paid it. This collector calls me. It’s not my job to educate the debt collector. It’s not my job to make sure they understand the law, and it’s not my job to make sure they explain the law and they do things in a proper way.
So, if I say to them, what are you going to do, garnish me? And they don’t have a judgment, and they say, yes, we’re going to garnish you. I now have a violation, because they should know they can’t say that.
The Collection Agencies Are Responsible for Training Their Employees on Appropriate Practices
Sometimes I have these corporate collection agency attorneys call me and complain that’s unfair. I say to them, are you kidding me? You have the easiest method of figuring out what your collector is doing wrong when you get sued. All you have to do is train them not to do that again to avoid being liable.
Here’s one defense I didn’t tell you about. Under the FDCPA, there’s something called the bona fide error exception. It can be used as a defense. The debt collector has to prove that defense. But they could say, despite the maintenance of reasonable procedures, this violation occurred. They have to prove that they had reasonable procedures in place and prove that they maintain these procedures, and that it just slipped through the cracks.
If they can prove that, they can get out of liability.
Interviewer: Do they ever pretend the practice was conducted only by a rogue employee or something like that?
Andrew Campbell: That could work as long as they can prove that they trained that employee not to do that.
Many times, they can’t because they never properly train the employee, and they never properly supervised or monitored the employee. That’s one of the bigger problems.
Interviewer: You don’t ever see debt collector’s texting people, do you?
Collection Agencies Are Subject to Substantial Fines for Sending Text Messages about Debts
Andrew Campbell: Very rarely. A text message constitutes a phone call under the Telephone Consumer Protection Act. If you had not provided them that cell phone number on the application for credit, and they text message you, they could be liable for five hundred to fifteen hundred dollars per text message. The problem with the text is they never have enough room to say this is a debt collector and this is an attempt to collect a debt.
Interviewer: Can you provide some more stories of cases that you worked on that illustrate abusive collection practices?
Andrew Campbell: Let me give you an example of a bad decision. I didn’t think it was a very good decision. A number of people call me up and they think they’ve been harassed or abused because the phone keeps ringing. Well, that’s not enough.
If you pick up that phone and answer the phone—that’s the first step. You have to answer the phone. Answer the phone and tell the collector, I can’t pay you. Obviously, tell them the truth. If you can’t pay them, you can’t pay them. If you can pay them, by all means, please pay them, because I want everyone to pay their debts.
You Must Answer Collection Calls with Some Resolution, Either That You Can Pay or You Cannot Pay
If you can’t pay them, tell them, I just can’t pay you today, but I can pay you x amount on this date. So you’ve told the collector what you can and can’t do. Now, if you hang up, and the collector calls you again that same day, to me, that’s a violation.
It Is a Violation If the Collector Subsequently Contacts You
But to be safe, I would want repeated type of behavior, because establishing harassing, oppressive, or abusive behavior requires more than one type of violation. It’s kind of a pattern of abuse. If they consistently call you again and again after you’ve said to them, I can’t pay you today, but I can pay you this day and this day, or I can’t pay you today, and they keep calling that same day, I think that’s harassing or oppressive or abusive.
Interviewer: I thought a number of calls are a component of harassment. What if a debt collector calls you ten times a day, every day?
Andrew Campbell: Well, I think the dispositive issue, the issue that controls, is did you answer the call? Because if you picked up the phone and you told the collector, I cannot pay you today. I don’t have the money. Stop calling. And they call you nine more times that day, to me, that’s abusive.
But if you never pick up the phone, the collector never knows if you’re there. If you’re not there, you’re not being harassed or abused. You could be out at work, right?
There needs to be a pattern or practice of abuse. Most federal judges, although they’re good people and they’re extremely intelligent, they come mainly from the corporate side of the world. Sometimes they’re prosecutors, but most of the times they’re from big law firms who do not represent debtors.
They have a view, and I’m not saying it’s wrong or they’re doing anything unethical or they’re doing anything that’s not proper. It’s just that their viewpoint—their experiences—are all from the creditor side. They don’t see it in the same light, necessarily, as a lot of FDCPA attorneys.
Interviewer: Do you have any other interesting cases of abuse you can tell us?
An Unethical Practice Addressed by Congress Was Debt Collectors Organizing a Block Party against a Debtor by Calling Several Neighbors of the Debtor at the Same Time
Andrew Campbell: Some time ago, I don’t remember the exact period of time, but there was a collector who was testifying in front of Congress about abusive behavior. He told them collectors try to have block parties. Congress asked, what’s a block party? He replied, I’ll be on the phone with a debtor, and they’re not going to pay me. So then what I do is I make a phone call to the debtor’s neighbor, and I say can you go over to so and so, and just give them the phone. I can’t reach them right now.
So, while the debtor’s on hold, unbeknownst to the debtor, the collector’s calling the neighbor—more than one neighbor—and that’s called a block party. Then, suddenly, the debtor has knocks on his door. Imagine the debtor’s reaction. What do they tell the neighbor? Do they have to lie to the neighbor?
If they tell the neighbor the truth aren’t they embarrassing themselves? It creates such a problem. That’s called a block party. I haven’t personally experienced that. I just heard testimony about it.
Another thing I hear, and apparently—I heard this from another attorney—it’s actually happened. There are collection agencies whose owners will come in and tell the employees, look, there is no FDCPA for the next three hours. Collect as much money as you can. Don’t worry about the FDCPA. You won’t be fired. Just collect the money. They’ll just say no FDCPA today.
How Collectors Are Paid Is the Primary Reason for Unethical Debt Collection Practices
Earlier I mentioned the compensation system. This is very important. This is the number one reason why there are so many violations—because the debt collectors are typically only getting paid by having to meet quotas. They’re compensated based upon the amount of money they collect. The easiest way to collect money is to scare people because fear is a huge motivator.
That’s why the FDCPA exists, because the easiest way to get people to act in a certain way and if you watch the news you’ll know this—they try to scare you. The Tylenol scandal in the ‘80s actually never existed. This was where they said somebody was messing with the Tylenol, well, that never happened. The myths on Halloween where somebody handed out poison candy. That was all a completely false story that somehow got around. That’s the easiest way to manipulate people, is by fear. That’s kind of a knee jerk reaction based on the compensation system.
Is the Amount of Some Debts Considered Too Small to be Collected?
Interviewer: Is there any like de minimis exemption where a debt is so small that it’s prohibitive to be collected upon?
Andrew Campbell: They cannot threaten to take action that they don’t intend to take or cannot legally take. You bring up a good question there. Let’s say there’s a debt of eighty-five dollars I owe to the phone company. Many of these phone companies’ debts are really small. The debt goes into default, and maybe it gets up to a hundred and eighty or two hundred dollars.
A Debt Collection Agency Must Not Offer Idle Threats to Consumers or They Will Incur a FDCPA Violation
The debt collector, if they call and they threaten to sue, they had better be able to prove that they’ve sued on those types of debts before. A debt that small typically, is never sued upon. If they threaten to sue, they better be able to prove they intend to follow through.
If I have a client that calls me about those circumstances, I’d be looking up that collector and checking out the court dockets. I would look to see if they ever sued on debts that small before. If they haven’t, they just violated the FDCPA.
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