As amended by Public Law 104-208, 110 Stat. 3009 (Sept. 30, 1996) To amend the Consumer Credit Protection Act to prohibit abusive practices by debt collectors. Be
it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the Consumer Credit
Protection Act (15 U.S.C. 1601 et seq.) is amended by adding at the end
thereof the following new title:
TITLE VIII - DEBT COLLECTION PRACTICES [Fair Debt Collection Practices Act]
Sec.
801. Short Title
802. Congressional findings and declaration of purpose
803. Definitions
804. Acquisition of location information
805. Communication in connection with debt collection
806. Harassment or abuse
807. False or misleading representations
808. Unfair practice
809. Validation of debts
810. Multiple debts
811. Legal actions by debt collectors
812. Furnishing certain deceptive forms
813. Civil liability
814. Administrative enforcement
815. Reports to Congress by the Commission
816. Relation to State laws
817. Exemption for State regulation
818. Effective date
§ 801. Short Title [15 USC 1601 note]
This title may be cited as the "Fair Debt Collection Practices Act."
§ 802. Congressional findings and declarations of purpose [15 USC 1692]
(a) There is abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many debt
collectors. Abusive debt collection practices contribute to the number
of personal bankruptcies, to marital instability, to the loss of jobs,
and to invasions of individual privacy.
(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt
collection practices are available for the effective collection of
debts.
(d) Abusive debt collection practices are carried on to a
substantial extent in interstate commerce and through means and
instrumentalities of such commerce. Even where abusive debt collection
practices are purely intrastate in character, they nevertheless
directly affect interstate commerce.
(e) It is the purpose of this title to eliminate abusive debt
collection practices by debt collectors, to insure that those debt
collectors who refrain from using abusive debt collection practices are
not competitively disadvantaged, and to promote consistent State action
to protect consumers against debt collection abuses.
§ 803. Definitions [15 USC 1692a]
As used in this title --
(1) The term "Commission" means the Federal Trade Commission.
(2) The term "communication" means the conveying of information
regarding a debt directly or indirectly to any person through any
medium.
(3) The term "consumer" means any natural person obligated or allegedly obligated to pay any debt.
(4) The term "creditor" means any person who offers or extends
credit creating a debt or to whom a debt is owed, but such term does
not include any person to the extent that he receives an assignment or
transfer of a debt in default solely for the purpose of facilitating
collection of such debt for another.
(5) The term "debt" means any obligation or alleged obligation of
a consumer to pay money arising out of a transaction in which the
money, property, insurance or services which are the subject of the
transaction are primarily for personal, family, or household purposes,
whether or not such obligation has been reduced to judgment.
(6) The term "debt collector" means any person who uses any
instrumentality of interstate commerce or the mails in any business the
principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.
Notwithstanding the exclusion provided by clause (F) of the last
sentence of this paragraph, the term includes any creditor who, in the
process of collecting his own debts, uses any name other than his own
which would indicate that a third person is collecting or attempting to
collect such debts. For the purpose of section 808(6), such term also
includes any person who uses any instrumentality of interstate commerce
or the mails in any business the principal purpose of which is the
enforcement of security interests. The term does not include --
(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;
(B) any person while acting as a debt collector for another
person, both of whom are related by common ownership or affiliated by
corporate control, if the person acting as a debt collector does so
only for persons to whom it is so related or affiliated and if the
principal business of such person is not the collection of debts;
(C) any officer or employee of the United States or any State to
the extent that collecting or attempting to collect any debt is in the
performance of his official duties;
(D) any person while serving or attempting to serve legal process
on any other person in connection with the judicial enforcement of any
debt;
(E) any nonprofit organization which, at the request of
consumers, performs bona fide consumer credit counseling and assists
consumers in the liquidation of their debts by receiving payments from
such consumers and distributing such amounts to creditors; and
(F) any person collecting or attempting to collect any debt owed
or due or asserted to be owed or due another to the extent such
activity (i) is incidental to a bona fide fiduciary obligation or a
bona fide escrow arrangement; (ii) concerns a debt which was originated
by such person; (iii) concerns a debt which was not in default at the
time it was obtained by such person; or (iv) concerns a debt obtained
by such person as a secured party in a commercial credit transaction
involving the creditor.
(7) The term "location information" means a consumer's place of
abode and his telephone number at such place, or his place of
employment.
(8) The term "State" means any State, territory, or possession of
the United States, the District of Columbia, the Commonwealth of Puerto
Rico, or any political subdivision of any of the foregoing.
§ 804. Acquisition of location information [15 USC 1692b]
Any debt collector communicating with any person other than the
consumer for the purpose of acquiring location information about the
consumer shall --
(1) identify himself, state that he is confirming or correcting
location information concerning the consumer, and, only if expressly
requested, identify his employer;
(2) not state that such consumer owes any debt;
(3) not communicate with any such person more than once unless
requested to do so by such person or unless the debt collector
reasonably believes that the earlier response of such person is
erroneous or incomplete and that such person now has correct or
complete location information;
(4) not communicate by post card;
(5) not use any language or symbol on any envelope or in the
contents of any communication effected by the mails or telegram that
indicates that the debt collector is in the debt collection business or
that the communication relates to the collection of a debt; and
(6) after the debt collector knows the consumer is represented by
an attorney with regard to the subject debt and has knowledge of, or
can readily ascertain, such attorney's name and address, not
communicate with any person other than that attorney, unless the
attorney fails to respond within a reasonable period of time to the
communication from the debt collector.
§ 805. Communication in connection with debt collection [15 USC 1692c]
(a) 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 antimeridian and before 9 o'clock postmeridian,
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.
(b) COMMUNICATION WITH THIRD PARTIES. Except as provided in
section 804, 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
postjudgment judicial remedy, a debt collector may not communicate, in
connection with the collection of any debt, with any person other than
a 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.
(c) 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.
(d) 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.
§ 806. Harassment or abuse [15 USC 1692d]
A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person in
connection with the collection of a debt. Without limiting the general
application of the foregoing, the following conduct is a violation of
this section:
(1) The use or threat of use of violence or other criminal means
to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to
pay debts, except to a consumer reporting agency or to persons meeting
the requirements of section 603(f) or 604(3)1 of this Act.
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent to annoy,
abuse, or harass any person at the called number.
(6) Except as provided in section 804, the placement of telephone
calls without meaningful disclosure of the caller's identity.
§ 807. False or misleading representations [15 USC 1692e]
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of
any debt. Without limiting the general application of the foregoing,
the following conduct is a violation of this section:
(1) The false representation or implication that the debt
collector is vouched for, bonded by, or affiliated with the United
States or any State, including the use of any badge, uniform, or
facsimile thereof.
(2) The false representation of --
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully
received by any debt collector for the collection of a debt.
(3) The false representation or implication that any individual
is an attorney or that any communication is from an attorney.
(4) The representation or implication that nonpayment of any debt
will result in the arrest or imprisonment of any person or the seizure,
garnishment, attachment, or sale of any property or wages of any person
unless such action is lawful and the debt collector or creditor intends
to take such action.
(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.
(6) The false representation or implication that a sale, referral,
or other transfer of any interest in a debt shall cause the consumer to
--
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this title.
(7) The false representation or implication that the consumer
committed any crime or other conduct in order to disgrace the consumer.
(8) Communicating or threatening to communicate to any person
credit information which is known or which should be known to be false,
including the failure to communicate that a disputed debt is disputed.
(9) The use or distribution of any written communication which
simulates or is falsely represented to be a document authorized,
issued, or approved by any court, official, or agency of the United
States or any State, or which creates a false impression as to its
source, authorization, or approval.
(10) The use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information
concerning a consumer.
(11) The failure to disclose in the initial written communication
with the consumer and, in addition, if the initial communication with
the consumer is oral, in that initial oral communication, that the debt
collector is attempting to collect a debt and that any information
obtained will be used for that purpose, and the failure to disclose in
subsequent communications that the communication is from a debt
collector, except that this paragraph shall not apply to a formal
pleading made in connection with a legal action.
(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.
(13) The false representation or implication that documents are legal process.
(14) The use of any business, company, or organization name other
than the true name of the debt collector's business, company, or
organization.
(15) The false representation or implication that documents are
not legal process forms or do not require action by the consumer.
(16) The false representation or implication that a debt
collector operates or is employed by a consumer reporting agency as
defined by section 603(f) of this Act.
§ 808. Unfair practices [15 USC 1692f]
A debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt. Without limiting the general
application of the foregoing, the following conduct is a violation of
this section:
(1) The collection of any amount (including any interest, fee,
charge, or expense incidental to the principal obligation) unless such
amount is expressly authorized by the agreement creating the debt or
permitted by law.
(2) The acceptance by a debt collector from any person of a check
or other payment instrument postdated by more than five days unless
such person is notified in writing of the debt collector's intent to
deposit such check or instrument not more than ten nor less than three
business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated check
or other postdated payment instrument for the purpose of threatening or
instituting criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or
other postdated payment instrument prior to the date on such check or
instrument.
(5) Causing charges to be made to any person for communications
by concealment of the true propose of the communication. Such charges
include, but are not limited to, collect telephone calls and telegram
fees.
(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if --
(A) there is no present right to possession of the property
claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
(7) Communicating with a consumer regarding a debt by post card.
(8) Using any language or symbol, other than the debt collector's
address, on any envelope when communicating with a consumer by use of
the mails or by telegram, except that a debt collector may use his
business name if such name does not indicate that he is in the debt
collection business.
§ 809. Validation of debts [15 USC 1692g]
(a) Within five days after the initial communication with a
consumer in connection with the collection of any debt, a debt
collector shall, unless the following information is contained in the
initial communication or the consumer has paid the debt, send the
consumer a written notice containing --
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or any
portion thereof, the debt will be assumed to be valid by the debt
collector;
(4) a statement that if the consumer notifies the debt collector
in writing within the thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt or a copy of a judgment against the consumer and a copy of
such verification or judgment will be mailed to the consumer by the
debt collector; and
(5) a statement that, upon the consumer's written request within
the thirty-day period, the debt collector will provide the consumer
with the name and address of the original creditor, if different from
the current creditor.
(b) If the consumer notifies the debt collector in writing within
the thirty-day period described in subsection (a) that the debt, or any
portion thereof, is disputed, or that the consumer requests the name
and address of the original creditor, the debt collector shall cease
collection of the debt, or any disputed portion thereof, until the debt
collector obtains verification of the debt or any copy of a judgment,
or the name and address of the original creditor, and a copy of such
verification or judgment, or name and address of the original creditor,
is mailed to the consumer by the debt collector.
(c) The failure of a consumer to dispute the validity of a debt
under this section may not be construed by any court as an admission of
liability by the consumer.
§ 810. Multiple debts [15 USC 1692h]
If any consumer owes multiple debts and makes any single
payment to any debt collector with respect to such debts, such debt
collector may not apply such payment to any debt which is disputed by
the consumer and, where applicable, shall apply such payment in
accordance with the consumer's directions.
§ 811. Legal actions by debt collectors [15 USC 1692i]
(a) Any debt collector who brings any legal action on a debt against any consumer shall --
(1) in the case of an action to enforce an interest in real
property securing the consumer's obligation, bring such action only in
a judicial district or similar legal entity in which such real property
is located; or
(2) in the case of an action not described in paragraph (1),
bring such action only in the judicial district or similar legal entity
--
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.
(b) Nothing in this title shall be construed to authorize the bringing of legal actions by debt collectors.
§ 812. Furnishing certain deceptive forms [15 USC 1692j]
(a) It is unlawful to design, compile, and furnish any form
knowing that such form would be used to create the false belief in a
consumer that a person other than the creditor of such consumer is
participating in the collection of or in an attempt to collect a debt
such consumer allegedly owes such creditor, when in fact such person is
not so participating.
(b) Any person who violates this section shall be liable to
the same extent and in the same manner as a debt collector is liable
under section 813 for failure to comply with a provision of this title.
§ 813. Civil liability [15 USC 1692k]
(a) Except as otherwise provided by this section, any debt
collector who fails to comply with any provision of this title with
respect to any person is liable to such person in an amount equal to
the sum of --
(1) any actual damage sustained by such person as a result of such failure;
(2) (A) in the case of any action by an individual, such
additional damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named
plaintiff as could be recovered under subparagraph (A), and (ii) such
amount as the court may allow for all other class members, without
regard to a minimum individual recovery, not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable
attorney's fee as determined by the court. On a finding by the court
that an action under this section was brought in bad faith and for the
purpose of harassment, the court may award to the defendant attorney's
fees reasonable in relation to the work expended and costs.
(b) In determining the amount of liability in any action under
subsection (a), the court shall consider, among other relevant factors
--
(1) in any individual action under subsection (a)(2)(A), the
frequency and persistence of noncompliance by the debt collector, the
nature of such noncompliance, and the extent to which such
noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B), the frequency
and persistence of noncompliance by the debt collector, the nature of
such noncompliance, the resources of the debt collector, the number of
persons adversely affected, and the extent to which the debt
collector's noncompliance was intentional.
(c) A debt collector may not be held liable in any action brought
under this title if the debt collector shows by a preponderance of
evidence that the violation was not intentional and resulted from a
bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.
(d) An action to enforce any liability created by this title may
be brought in any appropriate United States district court without
regard to the amount in controversy, or in any other court of competent
jurisdiction, within one year from the date on which the violation
occurs.
(e) No provision of this section imposing any liability shall
apply to any act done or omitted in good faith in conformity with any
advisory opinion of the Commission, notwithstanding that after such act
or omission has occurred, such opinion is amended, rescinded, or
determined by judicial or other authority to be invalid for any reason.
§ 814. Administrative enforcement [15 USC 1692l]
(a) Compliance with this title shall be enforced by the
Commission, except to the extend that enforcement of the requirements
imposed under this title is specifically committed to another agency
under subsection (b). For purpose of the exercise by the Commission of
its functions and powers under the Federal Trade Commission Act, a
violation of this title shall be deemed an unfair or deceptive act or
practice in violation of that Act. All of the functions and powers of
the Commission under the Federal Trade Commission Act are available to
the Commission to enforce compliance by any person with this title,
irrespective of whether that person is engaged in commerce or meets any
other jurisdictional tests in the Federal Trade Commission Act,
including the power to enforce the provisions of this title in the same
manner as if the violation had been a violation of a Federal Trade
Commission trade regulation rule.
(b) Compliance with any requirements imposed under this title shall be enforced under --
(1) section 8 of the Federal Deposit Insurance Act, in the case of --
(A) national banks, by the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national banks), by the Federal Reserve Board; and
(C) banks the deposits or accounts of which are insured by the
Federal Deposit Insurance Corporation (other than members of the
Federal Reserve System), by the Board of Directors of the Federal
Deposit Insurance Corporation;
(2) section 5(d) of the Home Owners Loan Act of 1933, section 407
of the National Housing Act, and sections 6(i) and 17 of the Federal
Home Loan Bank Act, by the Federal Home Loan Bank Board (acting
directing or through the Federal Savings and Loan Insurance
Corporation), in the case of any institution subject to any of those
provisions;
(3) the Federal Credit Union Act, by the Administrator of the
National Credit Union Administration with respect to any Federal credit
union;
(4) subtitle IV of Title 49, by the Interstate Commerce
Commission with respect to any common carrier subject to such subtitle;
(5) the Federal Aviation Act of 1958, by the Secretary of
Transportation with respect to any air carrier or any foreign air
carrier subject to that Act; and
(6) the Packers and Stockyards Act, 1921 (except as provided in
section 406 of that Act), by the Secretary of Agriculture with respect
to any activities subject to that Act.
(c) For the purpose of the exercise by any agency referred to in
subsection (b) of its powers under any Act referred to in that
subsection, a violation of any requirement imposed under this title
shall be deemed to be a violation of a requirement imposed under that
Act. In addition to its powers under any provision of law specifically
referred to in subsection (b), each of the agencies referred to in that
subsection may exercise, for the purpose of enforcing compliance with
any requirement imposed under this title any other authority conferred
on it by law, except as provided in subsection (d).
(d) Neither the Commission nor any other agency referred to in
subsection (b) may promulgate trade regulation rules or other
regulations with respect to the collection of debts by debt collectors
as defined in this title.
§ 815. Reports to Congress by the Commission [15 USC 1692m]
(a) Not later than one year after the effective date of this
title and at one-year intervals thereafter, the Commission shall make
reports to the Congress concerning the administration of its functions
under this title, including such recommendations as the Commission
deems necessary or appropriate. In addition, each report of the
Commission shall include its assessment of the extent to which
compliance with this title is being achieved and a summary of the
enforcement actions taken by the Commission under section 814 of this
title.
(b) In the exercise of its functions under this title, the
Commission may obtain upon request the views of any other Federal
agency which exercises enforcement functions under section 814 of this
title.
§ 816. Relation to State laws [15 USC 1692n]
This title does not annul, alter, or affect, or exempt any
person subject to the provisions of this title from complying with the
laws of any State with respect to debt collection practices, except to
the extent that those laws are inconsistent with any provision of this
title, and then only to the extent of the inconsistency. For purposes
of this section, a State law is not inconsistent with this title if the
protection such law affords any consumer is greater than the protection
provided by this title.
§ 817. Exemption for State regulation [15 USC 1692o]
The Commission shall by regulation exempt from the requirements
of this title any class of debt collection practices within any State
if the Commission determines that under the law of that State that
class of debt collection practices is subject to requirements
substantially similar to those imposed by this title, and that there is
adequate provision for enforcement.
§ 818. Effective date [15 USC 1692 note]
This title takes effect upon the expiration of six months after
the date of its enactment, but section 809 shall apply only with
respect to debts for which the initial attempt to collect occurs after
such effective date.
Approved September 20, 1977
ENDNOTES
1. So in original; however, should read "604(a)(3)."
LEGISLATIVE HISTORY:
Public Law 95-109 [H.R. 5294]
HOUSE REPORT No. 95-131 (Comm. on Banking, Finance, and Urban Affairs).
SENATE REPORT No. 95-382 (Comm. on Banking, Housing, and Urban Affairs).
CONGRESSIONAL RECORD, Vol. 123 (1977):
Apr. 4, considered and passed House.
Aug. 5, considered and passed Senate, amended.
Sept. 8, House agreed to Senate amendment.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 13, No. 39:
Sept. 20, Presidential statement.
AMENDMENTS:
SECTION
621, SUBSECTIONS (b)(3), (b)(4) and (b)(5) were amended to transfer
certain administrative enforcement responsibilities, pursuant to Pub.
L. 95-473, § 3(b), Oct. 17, 1978. 92 Stat. 166; Pub. L. 95-630, Title
V. § 501, November 10, 1978, 92 Stat. 3680; Pub. L. 98-443, § 9(h),
Oct. 4, 1984, 98 Stat. 708.
SECTION 803, SUBSECTION (6), defining "debt collector," was
amended to repeal the attorney Sat law exemption at former Section
(6)(F) and to redesignate Section 803(6)(G) pursuant to Pub. L. 99-361,
July 9, 1986, 100 Stat. 768. For legislative history, see H.R. 237,
HOUSE REPORT No. 99-405 (Comm. on Banking, Finance and Urban Affairs).
CONGRESSIONAL RECORD: Vol. 131 (1985): Dec. 2, considered and passed
House. Vol. 132 (1986): June 26, considered and passed Senate.
SECTION 807, SUBSECTION (11), was amended to affect when debt
collectors must state (a) that they are attempting to collect a debt
and (b) that information obtained will be used for that purpose,
pursuant to Pub. L. 104-208 § 2305, 110 Stat. 3009 (Sept. 30, 1996).
Source:
http://www.ftc.gov/os/statutes/fdcpa/fdcpact
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