Pay very close attention to the definitions within the FDCPA or you won't understand the problem.
If you are a third party (friend, relative neighbor) to someone with an owed debt, you are not a "consumer" (2nd Circuit docket 00-7284 Conroy V. AT&T and others) so your protections under the FDCPA are very limited.
Secion 804 (15 USC 1692b) only applies to "debt collectors." This means the "creditor" can harass you, the third party with impunity. Also, a "debt colletor" may call a third party based solely on the highly subjective "belief" you may know how to contact the debtor. If you are called, the "creditor" may use abusive language, call at any time of the day or night and may use false, misleading or deceptive statements because protection from all of these actions is only afforded "consumers" and third parties do not meet the legal definition under the act.
I have been subjected to between 50 and 75 of these calls regarding a daughter that does not live with me.
As a third party, bring action under a "Do Not Call" act because the call in in relation to a bona fide debt and excluded.
My only recourse in this situation was to send a "Redress of Grievances" letter to my Congressman. Within that letter, I included a mark-up to the FDCPA strenghting the protections to third parties. I have included those below.
Warning — the text below is not currently part of the fdcpa. It is the desired revision!
You need to have the current law available to see the changes. The ACTUAL FDCPA may be found at http://www.ftc. Gov/os/statutes/fdcpa/fdcpact.htm
802. Congressional findings and declarations of purpose [15 USC 1692]
(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers and third parties.
803. Definitions [15 USC 1692a]
As used in this title —
(9) The term "Third Party" means any person, business or organization that is not a creditor or debt collector and not is the consumer of the specific debt under collection and does not meet the definition of creditor or debt collector and is not a person, business or organization specifically excluded as a debt collector in Section 803 (6).
804. Acquisition of location information [15 USC 1692b]
Any creditor or debt collector or their assigns may jointly and severally communicate with a third party only for the purpose of acquiring location information about the consumer and shall —
(1) identify himself with his name, identify his employer, state that he is confirming or correcting location information concerning the consumer, provide the current location information on file requiring confirmation and, only if expressly requested, identify his employer's address for legal contact;
(3) not communicate with any such third party before 30 days after a mailed response to consumer is returned undeliverable nor more than once unless requested to do so by such third party unless either the communication was answered by an automated device requesting callers to leave a message or, after obtaining new location information from either the consumer or another source external to the creditor or debt collector, discovers the new information to be incorrect;
(7) Only validate or obtain from a third party the consumer's current residence address and mailing address if different from residence consumer's residence address;
(8) Not make any false, misleading or deceptive statements to the third party;
(9) Not threaten the third party with actions that may not be legally taken;
(10) Not cause to be posted to the third party's credit records an adverse indication;
(11) Not use obscene or profane language or language the natural consequence of which is to abuse the hearer or reader;
(12) Not communicate with a third party by any means that causes the third party to incur a charge for the communication unless requested otherwise by the third party;
(13) When a telephone call is answered by an automated device requesting callers to leave a message, record on the third party's automated device his identity by name, his employer's name and the reason for the call;
(14) Not call at any unusual time or place or a time or place known or which should be known to be inconvenient to the third party.in the absence of knowledge of circumstances to the contrary, a creditor or debt collector shall assume that the convenient time for communicating with a third party is after 8 o'clock antimeridian and before 9 o'clock postmeridian, local time at the third party's location.
Each individual violation of this section by creditor or debt collector creates a separate, cumulative liability under Section 813. Once litigated in favor of a third party, further violations by creditor or debt collector with respect to the third party no longer have the liability limit protections of section 813. If deemed necessary, the third party may enjoin creditor or debt collector from further contact. The creditor or debt collector and employees of a creditor or a debt collector with the responsibility for communicating with a third party are jointly and severally liable for violations.
Warning — preceeding text is requested change not the fdcpa
Since the courts have held that the current language of this act does not give standing to third parties, the change to Section 802 specifically grants legal standing to friends, neighbors, relatives and other individuals contacted by a creditor or debt collector to bring action against that creditor or debt collector removing the impediment ruling that these individuals have not standing to file for Section 804 violations.
The FDCPA currently addresses third parties variously as other persons and third parties, a specific definition is necessary along with consistent use of that definition. The addition to Section 803 intends to define third party in such a way that friends, neighbors, relatives and neighborhood businesses receive protection from abuse by creditors. It needs to be structured in such a way that a contact to the third party during a collection effort can not be ruled as a contact with a consumer merely because the contacted third party also has credit accounts. Creditors and debt collectors need free communication at any time and repeatedly if necessary with other creditors, debt collectors, government agencies, utilities, banks and credit reporting agencies as often as desired to obtain revised location information for a consumer. I believe these business contacts are the best and most reliable method for a creditor/debt collector to use to obtain revised location information about a debtor while the less reliable communication with friend, neighbor or relative becomes the method of last resort. The businesses identified are more willing to share the requested information while the personal contacts are less likely to do so.
The current structure of Section 804 prevents actions by third parties for abusive contacts by a creditor because Section 804 currently only addresses debt collectors. Section 804 currently allows abusive contacts by leaving it solely to the debt collector's opinion the type of information desired and if the information provided by a third party is correct and accurate. Under the current provisions, a debt collector can ask a third party to disclose a consumer's employer, hours of employment, work telephone number, cell phone number, vacation plans, names and addresses of other friends, neighbors and relatives or any other information the debt collector subjectively believes to be location information. An honest I don't know could be subjectively interpreted as he just didn't say allowing the debt collector to call again. A refusal to provide any of the subjectively determined location information allows the debt collector to call back again and again. Currently, there is no provision preventing deception of a third party so a debt collector can use false, misleading or deceptive statements to cause a third party to reveal information that otherwise might not be provided. Currently, Section 804 has no provision to stop a creditor or debt collector from calling a third party at any time of the day or night, calling cell phones, sending letters postage due or sending spam messages to the third party's e-mail. Currently, nothing prevents a creditor or debt collector from placing a general notation in the third party's credit file about the credit worthiness of a third party solely contacted in the collection effort. Currently, the courts held that even if a third party could bring action under Section 804, egregious violation only incurs a maximum liability of $1,000 discouraging actions under this Section and never causing the creditor or debt collector to change behavior. Even if it could be brought, nothing in the current structure prevents a creditor or debt collector from losing the action, paying insignificant damages of $1,000, leaving the court and resuming the abuse of the third party thus forcing the third party into a subsequent identical costly and time consuming action against the same creditor or debt collector. Nothing in the current act prevents a large creditor from creating hundreds of shell creditors and debt collectors and passing the third party among them where each of the shells calls the third party once. Nothing in the current act prevents a creditor from creating a dummy company that does not meet the definition of debt collector and having that company abuse the third party. Nothing in the current language requires the debt collector to give a truthful answer when asked the name of their company. This allows credit card issuing banks to avoid regulatory actions by creating a dummy debt collector company that uses the name of the bank. Then, when a complaint is filed with the FTC, the response from the FTC tells you to contact the bank's regulatory agency but a complaint to the bank's regulatory agency tells you the violation wasn't by the bank so contact the FTC.
As a result, the third series of changes directly to Section 804 force a high, objective standard prior to initiating communication with a third party, severely restrict the type of contact and information requested from these third party friends, neighbors and relatives of the debtor and provide cumulative liability to a third party for multiple violations by a creditor or debt collector. Finally, the maverick employee defense is not permitted by holding the employers responsible for the actions of their employees while conducting the employer's business.
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