Bankruptcy FAQ

Laws You Should Know: Protecting Yourself from Creditors

Laws You Should Know: Protecting Yourself from Creditors

Several federal statutes control what creditors can do to collect debts from you. It may be that insisting on your rights under the law can solve your particular problems, and that you can avoid bankruptcy.

Section 1692c of the Fair Debt Collection Practices Act (the full Act may be found in legal compilations at 42 U.S.C, §1692, et.seq.) gives you an impressive array of rights and protections against creditors. It provides:

1. Communication with the consumer generally

   Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt:

   1. At any unusual time or place, or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antemeridian [a.m.] and before 9 o'clock postmeridian [p.m.], local time at the consumer's location;
      
      
   2. if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or
      
      
   3. at the consumer's place of employment, if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.
      
      
2. Communication with third parties

   Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

3. Ceasing communication

   If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except:

   1. to advise the consumer that the debt collector's further efforts are being terminated;
      
      
   2. to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or
      
      
   3. where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt.
      
      
4. "Consumer" defined

   For the purpose of this section, the term ''consumer'' includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator.

   That is an awful lot of legal terminology, but it is always better to have the actual statute to quote when you talk to collection people. What it all means is that a creditor

   • Cannot call you early in the morning or late at night.
     
     
   • Cannot call you at your job, if you tell the debt collector you cannot get collection calls at work.
     
     
   • Cannot contact you directly if you have an attorney.

     Note: The fact that a creditor cannot contact you directly if you have an attorney is a very good reason to get one. He or she can help you understand your rights, and may be able to negotiate a settlement or a payment plan with a creditor.

   • Cannot contact other people about your debt.
     
     
   • Cannot bother your family.
     
     
   • Cannot contact you at all, if you tell them in writing not to do so.

     Note: Now, what this last item means is that they have to sue you to get a response, and most creditors are more than willing to do so. It does not mean that you are off the hook!

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