How can a consumer prove a debt collector has violated the Act?
Phone messages and letters directly from the collection agency could be used as proof. A person could also produce copies of phone records, as collectors can’t call you at work and can’t call before 8 a.m. or after 9 p.m. They also can’t conceal their identity on the phone.
In addition, if the debt collector disregarded a written request to stop further contact with the consumer because the debt is disputed, that could help establish harassment. If you submit a written request, the collections efforts have to cease. If they continue after the consumer has disputed the debt, then that is likely a violation of the Act.
What defenses could a collection agency make to dispute a consumer claim?
First, the agency could show that the plaintiff has failed to prove one of the three elements required under the law. If the plaintiff fails to show that he’s a consumer, or that the defendant is a debt collector, that’s a great defense.
However, if a plaintiff does prove all three elements, there are three ways the debt collector can ask the court to forgive the agency’s actions. First, it can claim as a defense that the act or omission giving rise to the claim was completely unintentional. Second, the agency can say that the act or omission was a bona fide error, or that the violation was made despite the maintenance of procedures that were reasonably put in place to avoid the error. A third defense is that it was a truthful error and the agency was not trying to be aggressive in pursuit of the debt. If the debt collection company can make a strong showing that the questionable actions are not common practice, the company may be able to avoid, or at least lessen, its liability.
What are the consequences of failing to comply with the Act?
A debt collection agency can be liable for damages. Those damages could include any actual damage sustained by the consumer as a result of the action taken. In addition, the court may allow additional damages of up to $1,000. In the case of a class action suit, the court may allow an amount for all class members not to exceed the lesser of $500,000 or 1 percent of the net worth of the debt collector. In some cases, an award of damages for emotional distress has been allowed.
Jennifer Ervin is an associate, bar results pending, at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. Reach her at (404) 223-2219 or [email protected].
