Have You Been Harassed By A Debt Collector?

      Newspapers continue to report of increased credit card debt
and  the  rise  in  personal bankruptcy  filings.   As  consumers
confront economic difficulty, can debt collectors be far behind?

       Although   there  are  numerous  statutes   and   judicial
pronouncements  that  apply to the activities  of  consumer  debt
collection agencies, there is no longer any California government
agency   that  enforces  those  specific  laws.   The  California
legislature repealed the California Collection Agency Act and its
regulations  effective June 30, 1992.  Thus, notwithstanding  the
increase in consumer debt and the resulting increased boon to the
consumer  debt  collection industry, there is no longer  a  State
agency monitoring the practices of collection agencies.

      The  principal statutes governing the conduct of collection
agencies  are  the California Fair Debt Collection Practices  Act
and  the Federal Fair Debt Collection Practices Act.  The Federal
Trade Commission enforces the federal law.

      It  should  be  noted that these statutes  pertain  to  the
collection  of  debts  arising from consumer  transactions  only.
Such  statutes  do not cover commercial debts.  This  article  is
therefore  limited  to a discussion of activities  undertaken  by
creditors  and  collection agencies seeking to  collect  consumer
debt.

      A collection agency has an obligation to correctly identify
itself  when  contacting  a  debtor.   A  representative   of   a
collection  agency, for example, may not falsely  represent  that
such  person  is  an attorney or represent that the  creditor  or
collection agency is affiliated with, bonded by, or vouched  for,
by any federal, state or local governmental agency.

     Under the federal statute, a collection agency may not use a
postcard to communicate with a debtor regarding the debt.

     It is also unlawful, under the Federal Act, for a collection
agency  to  accept a check that is postdated by  more  than  five
days,  unless the collection agency gives written notice  to  the
person  giving  the check, at least three but not more  than  ten
business  days  before deposit, of its intention to  deposit  the
check.

      In  California, it is unlawful for a creditor or collection
agency  to  obtain  an  affirmation of  a  debt  which  has  been
discharged in bankruptcy from a debtor who has been adjudicated a
bankrupt,  unless the creditor or collection agency discloses  to
the  debtor,  in writing, before the affirmation is sought,  that
the debtor is not legally obligated to make it.
      Consumers  frequently complain of harassment  or  abuse  by
telephone.   A  creditor or collection agency may  not  make  the
following uses of the telephone to collect a consumer debt:

          1.    Call  the debtor without disclosing the  caller's
          identity.

          2.     Cause   the  debtor  expense  for  long-distance
          charges,  telegram fees, or charges for  other  similar
          communications  by misrepresenting the purpose  of  the
          call.

          3.   Cause the debtor's telephone to ring repeatedly or
          continuously for the purpose of annoying the debtor.

          4.     Call  the  debtor  with  a  frequency  that   is
          unreasonable and that constitutes harassment.

      Very  little  communication is permitted  with  a  debtor's
employer.   A  creditor  or collection  agency  is  permitted  to
communicate with the debtor's employer for only one  or  more  of
the  following  purposes: (a) to verify the debtor's  employment;
(b)  to locate the debtor; (c) to garnish the debtor's wages; and
(d)  in the case of a medical debt, to discover the existence  of
medical  insurance.  No other communication is considered  to  be
"necessary  for  the  collection of the  debt"  under  applicable
California statutes.

      All such communications with the debtor's employer must  be
in  writing except that: (a) one oral communication may  be  made
solely for the purpose of verifying the debtor's employment;  (b)
a  health care provider or agent may communicate orally  for  the
purpose  of  discovering the existence of medical insurance;  and
(c) a creditor or collection agency may communicate orally if  no
response to a written communication was received within 15 days.

      You may at some point, as you travel down the road of life,
accumulate more debt than you would prefer, and be subject  to  a
call  from  a collection agency.  Remember that just because  you
find  yourself in this difficult position does not mean that  you
have been stripped of your rights to be treated fairly!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1997-2002