Getting contacted by a debt collector can rank among one of the worst experiences of everyday life. And it happens over a billion times each year in the United States, according to industry estimates. Debt collection has become a complex global industry, reliant on strong-arm tactics including harassing phone calls and threats that are often illegal. The coercion runs along a spectrum from moral persuasion to threats of violence, and increasingly involves institutions such as the courts and law enforcement. Given the complexity of debt collection laws and regulations that vary from state to state, there are hundreds of ways a debt collector can engage in illegal practices. It’s important to know your rights and to record abusive and illegal practices. In many cases, your debt can be erased (due to collectors’ misconduct) or reduced. In some cases, you might even have the right to sue for damages.
Debt collectors count on you to not do your homework. They count on you to be an easy mark and to be overwhelmed by bureaucracy, harassment, and shame. Our current economic downturn only amplifies the problem. Most people have less money and more debt. Debt collectors themselves are making less money per account (it’s highly labor intensive with collectors making contact with only about fifteen out of two hundred or more targets), causing more aggressive and increasingly illegal tactics. Even if collectors do not engage in activities and techniques that are technically illegal, they are likely to use intentionally deceptive practices.
In this chapter we briefly describe some of the laws around debt collection, the different ways debt is collected, who is hurt most by the debt collection industry, and what people can do to protect themselves, their families, and their communities. While this chapter can’t tell you everything you need to know to handle your specific situation, it provides a basic outline of how the debt collection industry works and points you to resources that can help you fight this system that wants you to fail.
What Is a Collection Agency and Why Are They Calling You?
A collection agency often works on behalf of an original creditor (OC). An OC can be a department store, a credit card company, or a hospital—basically wherever you open a line of credit. When bills go unpaid, the OC contracts with collection agencies or third-party debt collectors to collect the debt. Some collection agencies take a commission of every debt they collect on behalf of the OC, while other agencies lease or buy your debt outright from the OC after a period of non-payment. But the collection agency doesn’t pay full price. In fact, it will almost certainly pay much less, usually 2–25% of the debt’s face value. So if you owe $1,000, the collection agency might pay $150 for the right to collect that $1,000 from you. They then attempt to collect the full $1,000, and more if fees are attached, making a hefty profit in the end.
In short, the collection agency is essentially buying the right to take a gamble on your debt—debt that the OC may have already charged off. But they aren’t just buying your debt. They are buying the debts of hundreds, even thousands, of people like you at a time. For their gamble to pay off, they need to convince only a small minority of consumers—through legal means or otherwise—to pay. The collection agency might also tack on additional late fees and interest all while harassing you by phone and by mail to collect.
The debt collection machine
The debt collection industry—also known as “accounts receivable management,” or ARM for short—is financed by Wall Street and closely tied to credit card issuers and other lenders such as collection companies, offshore call centers, big law firms, and debt speculators. Each year, over three hundred thousand debt collectors amass more than $50 billion in debt, profiting over $10 billion total. The collection industry has expanded significantly in recent years, shadowing the rise of consumer credit. From 2000 until the end of 2010, commercial banks doubled the total amount of consumer loans. Should consumers default, the debt collection industry is ready. The number of U.S. consumers subject to third-party debt collectors has doubled since 2000. Ten years ago, debt collectors pursued one in fourteen people in the United States; today, it’s one in seven. This includes many people who fell victim to illness, scams, divorce, or unemployment—even death. “Dead people are the newest frontier in debt collecting, and one of the healthiest parts of the industry,” the New York Times reported in 2009. Collection agencies like DCM Services are taking advantage of improved database technology to track down the kin of deceased debtors and pressure them to pay, even though they are not legally obligated to assume the debt of a spouse, sibling, or parent.
Credit card debt and other small loans are bought and sold like other debt obligations, e.g., mortgages and student loans, as part of big portfolios. The biggest are managed by the largest debt buyers. The largest collection agency, NCO Group, is owned by the nation’s biggest bank, JPMorgan Chase. JPMorgan Chase and other big banks supply enormous lines of credit to the leading debt buyers in order to “generate cash flow.” Creditors profit at your expense on multiple levels, creating a dependent and exploitative relationship.
Today, debt collectors increasingly rely on the civil court system and local law enforcement to secure legal judgments to garnish wages, freeze bank accounts, and seize property. According to a report by the National Consumer Law Center, “Often, the grab extends to people who have already repaid or never owed the debts—parents, children, people with similar names, victims of identity theft. Harassment, threats, and even jail become tools of the collection trade.” Hundreds of district attorneys across the country have partnered with collectors in what amounts to a government-sponsored shakedown, lending out their official letterhead to give the impression that failure to pay up could lead to criminal charges. The collectors charge extra fees on top of the original payment, which typically go back to the DA’s office.
How a collection agency thinks
It is key to understand how collection agencies think if you want to know how to best engage with them. First, it is usually pointless to go back and contact the original creditor. The OC almost certainly has an agreement with the collection agency that prevents them from negotiating directly with you. Collectors often receive little training beyond, “Here’s your desk, your phone, and your computer—now go make us some money.” Many collection agency workers’ pay is tied to a monthly quota of how many debts they collect, and it’s common for collectors to employ more aggressive and illegal tactics toward the end of the month. Because they work on monthly commission, individual collectors are also most likely to pursue the people with the largest debts and the people who seem most likely to pay. Collectors usually start with a relatively low base pay and, at larger agencies, their bonus is usually 2% of the overall debt they collected, giving them an incentive to collect more debt by any means necessary.
Remember that you are the most important variable to a collection agent. To quote one message board familiar with their tactics,
It is your fears, your fantasies . . . your partial understanding of the truth that empowers the third-party debt collectors and each of these is a weapon to be used against you. . . . By carefully stating half-truths and letting your imagination run away the third-party debt collector can bend your mind so that it sees what truths the third-party debt collector wants it to see.
There are two common types of collection agencies: letter writers—who write letters directing you back to the OC to make your payment—and just plain “collection agencies”—who require you to pay them directly so they can get their commission from the OC or make back the money they’ve already paid to buy your debt. Both must include a mini-Miranda (a required statement from the collectors stating they’re collecting a debt and any information gathered will be used to collect that debt) in their letters or read aloud during their phone calls. If they do not, you may have grounds to sue.
If your first contact with a collection agency is over the phone, the mini-Miranda warning should sound something like this:
Hello, I am [name of collector]. I am [or “this office is”] a debt collector representing [creditor]. Information obtained during the course of this call will be used for the purpose of collecting the debt.
If your first contact with the collection agency is via mail, the mini-Miranda should look something like this:
This correspondence is an attempt to collect a debt. Any information obtained will be used for that purpose. Unless within thirty days of your receipt of this notice, you notify us that you dispute the validity of this debt, it will be assumed to be correct. If you notify this office within thirty days that you dispute the validity of the debt, we will obtain verification of the debt or a copy of the judgment. If you request it within thirty days, we will provide you with the name and address of the original creditor (if different from the current creditor).
Do not ignore the call or letter. The biggest mistake people make when they get letters or calls from debt collection agencies is to ignore them and hope they will go away. Because you have thirty days to contest the debt, you must act immediately. If you ignore the contact, you are by default agreeing that the debt is legitimate. If it is legal in your state, you can record your conversations and create a log of how often they contact you. If you are uncertain about your state’s laws, consulting a lawyer would be wise.
Regardless of whether the debt is “legitimate” or not:
- Write a letter to the office of the collection agency or attorney and state that you (a) dispute the bill, and that (b) you want a full accounting of the monies claimed to be owed (validation of debts). The Fair Debt Collection Practices Act of 1996 (FDCPA) requires they contact the original creditor to secure full account detail. Without a confirmed accounting of this debt, they cannot return to the collection process.
- In responding to a call, advise the collector that (a) you are disputing the debt and that you are doing so in writing to their offices, and that (b) you do not want to receive a call from this agency at your place of work and that they can only contact at your home (or on your cell phone if you don’t have a home telephone) between the hours of X and Y.
There’s a chance that you may not hear back. Remember, the collection agency is most likely to pursue the people they think are most likely to pay. You may have to continue to write to them, and even threaten to sue. (See Appendix D for sample letters.)
Some Important Things to Know
The Consumer Financial Protection Bureau
Over the past year, the newly established Consumer Financial Protection Bureau (CFPB) has set their sights on the debt collection industry. They will oversee three types of debt collectors: companies buying debt that other companies have given up on collecting, collectors going after debt on behalf of an original creditor, and companies litigating to collect debt. The CFPB supervises 175 of the 4,500 companies officially classified as debt collectors. Although those companies take in about 63% of the industry’s account receipts, they represent a small percentage of the industry itself. The bureau’s rules only cover companies that have over $10 million in annual receipts, leaving smaller companies virtually free from these regulations. Because these larger companies tend to work with larger creditors (who have stricter requirements), they are often not the ones consumers have to worry about. The CFPB is also looking to regulate collectors who use social media sites to track down and harass debtors. There isn’t much information on the CFPB because it is so new, but debtors of all stripes should be aware of the organization and keep up to date with its development.
Statute of limitations on debt
In every state there is a statute of limitations (SOL) for outstanding debts—a limit on the number of years in which a creditor may attempt to pursue payment. (It should be noted, however, that federal student loans, child support obligations, and income taxes in certain states like California do not have a statute of limitations.) Each state is different, so you should check. Kentucky and Ohio have extremely long periods (fifteen years for written debt agreements) while Mississippi and North Carolina have much shorter periods (three years for written debt agreements). In most states, however, debt collectors can still attempt to collect debt after the SOL expires. Even after it expires, courts may award judgments against you if you fail to raise the SOL as a defense. Ordinarily it is up to the person being sued to point out that the SOL has expired. If there is a dispute about which state’s laws apply, you can be sure that the collection agency will argue for the state with the longer period.
When does the SOL clock start?
The SOL clock starts running on the date of the last activity of your account. This is often the date of your last payment but—and this is key—it may also be the date when you entered into a payment agreement or simply acknowledged liability for the debt. This is why it is important to always contest liability. If your debt is beyond the SOL you can contest the debt on these grounds and, should you want to play offense, you can also attempt to set up the collection agency for an FDCPA violation and hit them with a lawsuit.
Know your FDCPA violations
Even if your debt falls within the SOL, there is a good chance the debt collector will engage in abusive or deceptive practices that are illegal under the FDCPA, but it is up to you to know your rights, be vigilant, and document any violations. Violations are grounds for dismissing debt and related lawsuits. Not all collectors are subject to the FDCPA’s rules, however. Third party collectors, debt buyers, and law firms must comply with the FDCPA, but in-house collectors, or creditors who are trying to collect their own debts, do not have to follow the FDCPA.
Some common FDCPA violations
There are countless ways collectors violate the FDCPA and the longer you engage with a debt collector or agency (while continuing to dispute the debt), the greater the chance you will catch them in the act. Unfortunately (or fortunately if you’re a debt collector) only a small fraction of violations go reported. You do not need a lawyer to contest debt obligations or report FDCPA violations; you can take action on your own and even win damages. If you decide to sue a collector, you must do so within one year from the date the law was violated. If you win, you could win up to $1,000 on top of any wages or reimbursements.
Due to lax regulations and a lack of will to enforce them, debt collectors routinely break the law by verbally abusing and threatening debtors. Some debt collectors have “embedded” themselves in hospitals, pretending to be hospital employees and approaching people when they’re at their most vulnerable. Jessica Silver-Greenberg writes, “To patients, the debt collectors may look indistinguishable from hospital employees, may demand they pay outstanding bills and may discourage them from seeking emergency care at all, even using scripts like those in collection boiler rooms.”
Debt collectors also call pretending to be police officers and claim that they have a warrant to arrest a debtor if they don’t pay up. Collectors will often continually harass people for debts that they don’t owe, have already paid, or have already been dismissed in court. Collectors frequently target the wrong person, mistaking one person for someone else with the same or similar name. Debt collectors will lie and say that they are calling on behalf of debt relief agencies, learn all about a debtor’s situation, and collect all of their personal information and then use it against them. Collectors have been known to illegally call employers and inform them of employees’ debts. In the most extreme cases, debt collectors have made disturbing threats to seriously harm debtors and their families. Although illegal, these tactics are widespread.
Even debt collectors who follow the law can legally mislead you or trick you in other ways. Credit card companies have started data-mining cardholder’s purchases and using software to create psychological profiles of them. These profiles are then used by debt collectors to psychologically manipulate debtors to pay more than they have to, including artificial late fees that would otherwise have been waived. This tactic, although manipulative and immoral, is completely legal. After using a psychological profile to swindle one debtor out of an additional $2,000, debt collector Rudy Santana explained, “It’s all about getting inside their heads and understanding what they need to hear.”
Debt buyers also contract with specialized collection law firms to collect on debts. In recent years, these firms have swamped small claims and other state courts, filing “mass-produced” lawsuits, mirroring reckless practices in the mortgage market, such as “robo-signing.” Despite the fact that these suits typically lack proper documentation, most result in judgments, as the proceedings are skewed against debtors. If consumers are lucky enough to be properly “served,” or notified of the lawsuits filed against them, many of them will not even have access to civil courts due to the forced arbitration clauses in millions of credit card and other consumer loan contracts. These lawsuits pay little regard to accuracy. Noach Dear, a civil court judge in Brooklyn who has presided over as many as one hundred credit card lawsuit cases in one day, estimates that “roughly 90 percent of the credit card lawsuits are flawed and can’t prove the person owes the debt.”
Not all hope is lost, though. If you suspect you’ve fallen victim to “robo-signing,” you can do a few things to fight back. First, you or an attorney should read the complaint and supporting documents carefully for any omissions, errors, or deceptions that could help you win. If your state requires debt buyers to be licensed, check whether the debt buyer is licensed. Suing without a license may constitute a violation of the FDCPA. You should also check to see if the plaintiff’s name is the same party mentioned in the supporting documents and if they have proof of the underlying contract. Often a contract is not even attached to the complaint and, if it is, it’s often photocopied and illegible. Carefully scrutinize the affidavit and make sure the affiant (the person who swears to the affidavit) has not been charged with malpractice before your case. If you look up the affiant’s signature online and the signature in front of you does not match, you may have grounds for contestation. The burden of proof is with the affiant and the collectors, so make sure they can prove they know your case front to back. If they don’t, you may be able to have the case dropped.
Know Your Rights
With all of this in mind, it’s important to know what debt collectors legally can and can’t do. Below is a basic list to help protect you:
- A debt collector can only call a third party once about you unless it believes the third party gave it false information the first time.
- Contacting you before 8:00 a.m. or after 9:00 p.m. is illegal.
- You must tell a collector not to contact you at work or by phone by sending them a cease and desist letter (see Appendix D, sample letter #2). You must send this certified mail and keep a copy for yourself so you have proof of receipt. If the collection agency contacts you again, other than to advise you of their intent to take action, then they are violating the FDCPA.
- It is your right not to speak with debt collectors; however, that doesn’t cancel the debt.
- A debt collector cannot sell a debt to another collection agency knowing that it has expired (see SOL) or is in dispute.
- A debt collector may try to lead you to believe that you have no grounds for requesting a “validation of debt” (see Appendix D, sample letter #1).
- A debt collector may try to represent themselves as an attorney or law firm even if they are actually not an attorney or law firm. Regardless, collection attorneys have to follow the FDCPA just like collection agencies.
- If a debt collector sends an initial notice advising you of your right to a validation of debt, then they cannot demand payment within the next thirty days.
- A collector cannot call your job and tell your HR department that they need your work information (wages, schedule) unless a valid suit was filed by them and tried in a court of law with a judgment in their favor. Until this happens (if it happens), they cannot contact your HR department or place of work, even if they claim to be looking for information to sue you. It is legal, however, for credit rating agencies to buy your personal data (employment and salary records) and sell it to debt collectors.
- It is not unheard of for debt collectors to use fake case numbers and fake lawyers to scare an alleged debtor into paying. This is in clear violation of the FDCPA.
- The mini-Miranda (see above) should be on each and every communication you get from a debt collector.
- A collector is not allowed to reveal information about the envelope’s contents on the outside of the envelope for others to see. Words such as “past due” or “collections” are in clear violation of the FDCPA.
- A debt collector cannot impersonate a law officer or claim they can throw you in jail for not paying your alleged debt.
The Social Impact of the Collection Industry
Hopefully you don’t ever see a lawsuit, but if you do, you should know what you can expect and its implications on you and society at large. Plaintiffs file lawsuits because they assume: (1) the vast majority of consumers will not show up or contest lawsuits, and (2) a majority of judges will award a default judgment in the vast majority of cases, based often on inaccurate documents. It is best that you do not ignore the lawsuit and educate yourself. Unfortunately, due to intimidation and illegal tactics, collectors and creditors often force debtors into the criminal justice system. These practices most directly affect working-class people and people of color, and they contribute to and sustain what is today known as the prison-industrial complex.
On debt row
In 1983, the U.S. Supreme Court made it illegal for indigent people to be imprisoned for failing to pay their debts. Yet to this day, people are locked up for being in debt. In 2009, for example, Minnesota courts issued 845 arrest warrants against debtors, half who owed less than $3,500 and one who owed only $85. After serving time, they are burdened with legal financial obligations (LFOs). LFOs are fines, fees, and other costs associated with a criminal sentence, such as supervision fees if on probation, administrative fees, “pay to stay” fees, and prison fees. LFOs pile up quickly, causing debtors to waive legal counsel because of those costs, which increases the likelihood of re-incarceration. This leads to a cycle of debt and imprisonment that many people are unable to escape.
Fees often begin even before one reaches the courthouse. The people sued—often low-income, elderly, or disabled people—frequently do not receive notice and are not aware of court proceedings. If they are notified, many people cannot defend themselves even though some of these lawsuits are filed without having proof of any debt owed. At least thirteen states, for example, authorize or mandate charging indigent individuals “defender fees”—sometimes thousands of dollars—for exercising their right to counsel. Due to no money for adequate legal representation, language barriers, and sheer intimidation, debtors routinely lose court judgments. Between January 2006 and July 2008 alone, the top twenty-six debt buyers won more than $1 billion in judgments against New York City residents—mostly from low-income communities and communities of color—and only about 1% of those sued by creditors had legal counsel. In some cases, courts seem to actively seek to punish members of marginalized groups. According to the American Civil Liberties Union, “in Washington [State], Hispanic defendants generally receive higher LFOs than white defendants convicted of similar offenses.” Anyone can be sued, but those with fewer resources—disproportionately, people of color—are most likely to be ensnared in a cycle of debt and prison.
Wage Garnishment and Work
Debts can also be collected through wage garnishment, which basically means that your employer withholds some of your wages if ordered to do so by a court or the government. The amount that can be seized depends on your “disposable income,” or the amount left after legally required deductions are made (such as taxes and employee retirement systems). It is important that you check how much of your wages can be garnished based on your income so you don’t end up in any more financial trouble. Although Title III of the Consumer Credit Protection Act (CCPA) forbids any employer from firing you because of any one debt, you can be fired if your wages need to be garnished for two or more debts. If your employer commits any Title III violations, you may have grounds for reinstatement to your job, payment of back wages, and a restoration of the garnished amount. Wage garnishment laws can differ from state to state, so it’s best to look up what your state does and does not allow. If a state’s garnishment law differs from Title III of the federal wage garnishment law, your employer must observe the law that requires the smaller garnishment amount. For specific information on how much your wages can be garnished, it’s best to contact the Federal Trade Commission, the CFPB, or your state’s attorney general.
If you’ve had a judgment made against you, employers can choose not to hire you if they don’t want to go through the trouble of having to dedicate their resources to fulfilling a court’s order. Your bank may also freeze your account after they receive a garnishment order. If you’ve written checks or have your account tied to electronic payments, those payments may go unpaid. Depending on the bank, they may charge you with having insufficient funds. If your bank account has been frozen, you should seek an attorney right away. You should also tell the bank if your account has funds that are exempt from being frozen or garnished.
Debt collection is not merely a particular job of the collection industry. It is not just an aftershock of a credit transaction gone wrong. Rather, it is a powerful weapon—one that is used intentionally—that controls your time, your work, and your relationship with the people around you. Debt collection is a practice that extends to every level of society, from the courts and credit rating agencies to your workplace, your home, and your community. Debt collection isn’t exclusively the domain of debt collection agencies, either. The federal government, municipalities, employers, and private companies all have the power to collect debt and view you as a means to make more money. Though the individual consequences are severe, debt collection—as a way of punishing and extracting profit from working people—preserves wider racial and economic inequalities, harming millions and undermining the struggle for a more egalitarian society.
Ideas for Collective Action
It remains to be seen how effective and “consumer friendly” the Consumer Financial Protection Bureau will be, but people should not always expect to rely on them or the Federal Trade Commission to solve their problems. There is no cure-all for resisting debt collection. Debt affects people differently and everyone has different experiences. A good first step is to try to educate yourself and your friends on how debt collection works, who the big players are, and what powers you potentially have to resist. Open up that conversation and talk to each other to find solutions together. Ask why you owe anything at all and how you got into the situation you’re in. Are you “just irresponsible” (as debtors have often been told) or are there larger factors at play that have to do with employment, racism, and other forms of exploitation and oppression? Is it a matter of us spending beyond our means or is it about who controls our labor and wages, our value, and our worth?
In addition to sharing information, experiences, and strategies with others, there are two other main ways we can begin to fight back against debt collectors: letter-writing, and lawsuits for violating the FDCPA. Both could be made into mass actions that attempt to overwhelm debt collectors while also helping us reduce our debts. With the right organizational structure, debtors being chased by a common debt collector or debt collection agency can coordinate a well-timed letter-writing campaign to dispute their debts. If many debts with the same collector are disputed, it will disrupt and possibly halt their business. As far as we know, such a collective action has never been tried. But if a collector violates the FDCPA (which won’t be hard to find out), a class-action lawsuit could be organized.
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