Continuing our look at the actual text of the FDCPA (Fair Debt Collection Practices Act), let’s look at Section 1692a which is the definition section.
As in our previous post in this series, my thoughts and commentary will be in italics and underlined.
As used in this subchapter-
(1) The term “Bureau” means the Bureau of Consumer Financial Protection. [This is the organization that regulates the FDCPA].
(2) The term “communication” means the conveying of information regarding a debt directly or indirectly to any person through any medium. [This is purposely broad as it literally means any way to communicate about the debt. Text message. Call. Billboard. Facebook post. Etc.]
(3) The term “consumer” means any natural person obligated or allegedly obligated to pay any debt. [This is critical. It means any person who owes the debt or ALLEGEDLY owes the debt. Often debt collectors try to evade responsibility when they are sued by claiming that the plaintiff really didn’t owe the debt so the plaintiff is not a consumer. That is absolutely wrong — if the debt collector says you owe it, then you are a consumer under the law.]
(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. [Normally creditors are not subject to the FDCPA so we have to know who the creditor is as compared to who the debt collector is — debt collectors are regulated by the FDCPA and creditors normally are not.]
(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. [Two critical factors. One is the definition of debt does not include business debt normally. Secondly, even if you don’t owe the debt but you are alleged to owe the debt, then it counts. Very similar to the definition of consumer above — allegedly owing the debt triggers the FDCPA.]
(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. [So this does not include the original creditor who loaned the money or provided the hospital service, etc. We are dealing with collectors, not original creditors.]
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. [So if a hospital, say Brookwood Hospital, uses an internal collection department but they give it a name to make it sound like a third party debt collector, then the FDCPA stands. We have, for example, a judgment against GE Capital for doing something similar. Bottom line is if a creditor lies and pretends to be a debt collector, then they are a debt collector as far as the FDCPA is concerned.]
For the purpose of section 1692f(6) of this title [normally this means doing foreclosures without a legal right to do the foreclosure], 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 [so an employee of the hospital collecting in the name of the hospital is still a creditor and not a debt collector]
(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 [here you would look at who all does this alleged debt collector actually collect for and what is the principal business of the alleged debt collector];
(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 [so an IRS agent, etc];
(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt [so the process server (Van Slam, etc) is not a debt collector];
(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 [this is the big one — if a company gets the debt and it is not in default, then that company is not going to be a debt collector]; 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 [we used to see this all the time and it is coming back in popularity — the debt collector will illegally call third parties and claim to be looking for location information. But notice location information is only home address, home phone, and place of employment. Nothing else.]
(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.
If you are a victim of abusive debt collection or you simply have questions, feel free to call us at 205-879-2447 and we’ll be glad to chat with you about your questions and options.