Illegal Voicemails by Collectors
Debt collectors are required to know the law. Debt collectors, debt buyers, and collection law firms spend lots of time and money going to seminars and workshops on how to avoid lawsuits. The best way, of course, is to follow the law and not violate the Fair Debt Collection Practices Act (FDCPA). However, debt collectors have found they can collect far more money using tactics that are illegal especially when it comes to leaving voicemails.
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First Type of Illegal Voicemails - Threats or Lies
We don’t see these as often as the other violations but they still are very common. Debt collectors will say they are with the police or the district attorney’s office. Creditors Interchange, a well-known debt collector from Buffalo, had a collector who lied by claiming he was the senior prosecutor for the state of Alabama. Other companies have left voicemails threatening lawsuits that are supposedly filed but actually were not – instead, these were blatant lies. Other abusive collection agencies or collection law firms have threatened people with deportation or physical harm. Any type of illegal threat or lie falls into this first category.
Second Type of Illegal Voicemails - Third Party Disclosures
Abusive debt buyer, collection agencies, and law firms often leave voicemail messages knowing there is a chance that people other than the debtor/consumer will hear the messages. Most answering machines play over a speakerphone so if the debt collector says “Mr. Consumer you need to call us back about this debt you owe right now” and a neighbor or family member (other than spouse) hears this, then a third party disclosure has occurred. This is illegal. So if the debt collector says “This is a debt collector and this is an attempt to collect a debt” and someone else besides your spouse hears this – the law has been violated. Often times children or room-mates share a telephone line and voicemail (whether an answering machine or AT&T voicemail, etc) and so this is a serious and very common violation we see abusive debt collectors committing.
Third Type of Illegal Voicemails - Failure to Leave Mini-Miranda
Debt collectors know when they leave voicemails they must leave the so-called “Mini-Miranda” which is basically where they say “This is a message from a debt collector in an attempt to collect a debt”. It prevents these abusive people from lying like they used to about the purpose of their call – it makes it clear to you that the call is a debt collection call. However, many debt collectors refuse to follow the law and make the mini-Miranda disclosure. The reasons are many – but here is a couple. First, it helps with collection efforts because it creates uncertainty in the mind of the consumer as to the purpose of the call. Do you call back or not? Second, it helps to avoid making third-party disclosures which we discussed above. But the problem with this second reason is it is no excuse to violate one part of the law because you don’t want to violate another part of the law. Amazingly, harassing debt collectors believe they have a constitutional right to leave voicemail messages. They don’t.
Know Your Rights
Debt Collectors May Not Contact You:
- Making repeated and continuous phone calls
- Telling others about your debts, like your neighbors or co-workers
- After they know you are represented by an attorney
- At any unusual time (before 8 a.m. or after 9 p.m.) or place
- Call you at work if they know that your employer prohibits it, or if its inconvenient for you.
- After written notification that you refuse to pay debt
- After written notification to cease all further communication
Debt Collectors May Not Harass or Abuse You By:
- Making annoying, harassing and abusive phone calls
- Contacting you without disclosing their identity
- Contacting anyone except you, your attorney, or a credit bureau (with very limited exceptions)
- Threatening to have you arrested if you do not pay your debts
- Threatening any action they do not intend to take such as a lawsuit or wage garnishment
- Using profane or abusive language
Debt Collectors May Not Make False, Deceptive or Misleading Statements:
- Threatening to take any action that cannot legally be taken or that is not intended to be taken
- Falsely threatening an imminent law suit or wage garnishment
- Leading you to believe he/she is an attorney or that a phone call or letter is from an attorney
- Falsely threatening criminal prosecution or jail
- Misrepresenting the amount or legal status of the debt
- Falsely implying affiliation with the United States or any state, including the use of any badge and/or uniform
- Sending a collection letter or leaving a voice mail that fails to contain the mini-Miranda warning: “THIS IS AN ATTEMPT TO COLLECT A DEBT. COMMUNICATION IS FROM A DEBT COLLECTOR”.
- Misrepresenting themselves as being employed by a consumer reporting agency
- Communicating false credit information, including failure to communicate to credit bureaus that a debt is disputed
Debt Collectors Must Provide Certain Notice
Within 5 days of initial communication, a debt collector must provide you with a 30-day validation notice containing:
- The amount of the debt
- The name of the original creditor to whom the debt is owed
- A statement that, unless you dispute the validity of the debt or any portion of it within 30 days after receipt of the notice, the debt can be assumed to be valid by the debt collector
- A statement that, if you notify the debt collector in writing within the 30-day period that the debt or any portion is dispute, the debt collector will obtain verification of the debt or a copy of the judgment against you and a copy will be mailed to you
- A statement that the debt collector will provide you with the name and address of the original creditor (if different from the current creditor) upon your request within the 30-day period
- A statement that the communication is from a debt collector attempting to collect a debt and that any information will be used for that purpose
- If you send the debt collector a letter requesting verification of the debt, the debt collector MUST cease collection efforts until it mails you a verification of the debt.
Steps to Take to Help Your Case
If you are being abused or harassed by creditors or debt collectors there are several things you can do to help yourself:
Don’t Delete or Throw Anything Away
Save every letter, envelope or other document sent to you, regardless of how innocent they look. Often times, a document you think is not important can actually make the difference in being able to protect YOUR RIGHTS!
What to SAVE –
- Collection letters
- Voicemail messages
- Telephone bills
- Notes you have written during a collection call
Many times debt collectors leave false, deceptive and misleading messages, or fail to properly advise you of YOUR RIGHTS!
- Take a photo of your caller ID information
- Save your voicemails to a storage device
Write It Down
Immediately after or during any telephone call you have with a debt collector…take notes…even if you didn’t speak to someone…take notes. If they left you a message…take notes.
- Who called or you spoke with
- Collector’s company name
- Collector’s telephone number
- As much of the conversation as you can remember and be specific.