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Fair Debt Collection: 2.12 Careful Evaluation of Appealing Adverse Lower Court FDCPA Decisions

Some circuit court panels have little empathy for consumers who are struggling with debt, debt collectors, and the anxiety and other problems that are often associated with financial struggles. In considering the appeal of an adverse lower court decision, a fundamental consideration is how the consumer’s case will present to an appellate panel that does not come to the case with some empathy for a struggling consumer.

Fair Debt Collection: 2.13 Consumers Representing Themselves in Court

Consumers representing themselves in court must overcome tremendous hurdles. Unless the pro se consumer is legally trained, in addition to learning the FDCPA, they must master the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the local court’s rules, and often other state and federal laws that are related to their claim. Unrepresented consumers lack the objectivity that a good lawyer could bring to their case. They cannot speak about the plaintiff in the third person, a serious handicap if there are emotional distress damages involved.

Fair Debt Collection: A.1 Cross-Reference Table of Public Law 95–109 Section Numbers with 15 U.S.C. Section Numbers

The Fair Debt Collection Practices Act, as currently codified at 15 U.S.C. §§ 1692–1692p, is reprinted in this appendix. Because many cases, articles, and the Federal Trade Commission refer to the Public Law 95–109 section numbers, the following table is provided. The Public Law 95–109 section numbers are also in brackets following each heading of the Act reprinted in this appendix.

Fair Debt Collection: History of Amendments

15 U.S.C. §§ 1692–1692p; Pub. L. No. 95–109, 91 Stat. 874 (Sept. 20, 1977); Pub. L. No. 95–473, 92 Stat. 1466 (Oct. 17, 1978); Pub. L. No. 95–630, 92 Stat. 3680 (Nov. 10, 1978); Pub. L. No. 98–443, 98 Stat. 1708 (Oct. 4, 1984); Pub. L. No. 99–361, 100 Stat. 768 (July 9, 1986); Pub. L. No. 101–73, 103 Stat. 440 (Aug. 9, 1989); Pub. L. No. 102–242, 105 Stat. 2301 (Dec. 19, 1991); Pub. L. No. 102–550, 106 Stat. 4082 (Oct. 28, 1992); Pub. L. No. 104–88, 109 Stat. 949 (Dec. 29, 1995); Pub. L. No. 104–208, 110 Stat. 3009–425 (Sept. 30, 1996); Pub. L. No. 109–351, tit.

Fair Debt Collection: 15 U.S.C. § 1692. Congressional findings and declaration of purpose [FDCPA § 802]

(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.

Fair Debt Collection: 15 U.S.C. § 1692a. Definitions [FDCPA § 803]

As used in this subchapter—

(1) The term “Bureau” means the Bureau of Consumer Financial Protection.

(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.

Fair Debt Collection: 15 U.S.C. § 1692b. Acquisition of location information [FDCPA § 804]

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;

Fair Debt Collection: 15 U.S.C. § 1692d. Harassment or abuse [FDCPA § 806]

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.

Fair Debt Collection: 15 U.S.C. § 1692e. False or misleading representations [FDCPA § 807]

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.

Fair Debt Collection: 15 U.S.C. § 1692f. Unfair practices [FDCPA § 808]

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.

Fair Debt Collection: 15 U.S.C. § 1692g. Validation of debts [FDCPA § 809]

(a) Notice of debt; contents

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;

Fair Debt Collection: 15 U.S.C. § 1692h. Multiple debts [FDCPA § 810]

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.

Fair Debt Collection: 15 U.S.C. § 1692k. Civil liability [FDCPA § 813]

(a) Amount of damages

Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter 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;