Debt Collectors and Peter Pan Both Live Life, At Times, Without Shadows.

Day 10 of 30 Days of Debt Collection finds us, like the groundhog, looking for a shadow. In this case, though, it's the debt collector's shadow we don't want to see, and if we do see it, it doesn't mean 3 more months of winter. It means...

Oh, heck. That metaphor needs to be taken out back and shot. I'm talking today about overshadowing, which is another thing debt collectors aren't supposed to do, and if they do it, they can get in trouble.

Way back on Day 5, I mentioned the "Validation and Verification" requirement, which says that debt collectors have to tell you, in the first written communication, that you have 30 days in which to demand that they verify the debt. That's an important requirement, because if you do, (and you should do it in writing) the debt collector has to stop everything else until he or she verifies the debt.

You have 30 days, though, to dispute or demand verification of the debt. So if you get a letter on September 1, you have until September 30 to dispute the debt. If you send a letter disputing the debt on September 29, you've successfully disputed the debt.

Now, during that 30 days, the debt collector can keep collecting the debt, so in my example, the debt collector is free to call you and write you unless and until you dispute the debt (or tell him to stop altogther by doing this).

Smart debt collectors tend to do not much during that 30 days. The law lets them do stuff, but if they're smart they won't, for fear that a debtor like you who reads a blog like this by a lawyer like me might have written to dispute the debt. Why take chances that a dispute has crossed in the mail and they might get sued?

Some debt collectors, though, don't wait 30 days, and they don't have to. There's nothing wrong with that. It's dumb, but legal.

Some debt collectors, though, do worse: They try to get you to ignore or technically shorten that 30 day period by suggesting, directly or indirectly, that you should or must act before the 30 days is up.

That's overshadowing, and it's illegal. A debt collector "overshadows" when he or she does something that implies that you don't, actually, have 30 days to dispute the debt. That's kind of a confusing concept, so here's an example that helps clarify it. In the case of Bartlett v. Heibl, a case that came out of Wisconsin, a debt collector sent the debtor a letter that included the usual 30-days-to-dispute language, but also said that if the debtor didn't pay within a week, a lawsuit would be filed within a week. The Seventh Circuit Court of Appeals said of that:

On the one hand, Heibl's letter tells the debtor that if he doesn't pay within a week he's going to be sued. On the other hand, it tells him that he can contest the debt within thirty days. This leaves up in the air what happens if he is sued on the eighth day, say, and disputes the debt on the tenth day. He might well wonder what good it would do him to dispute the debt if he can't stave off a lawsuit. The net effect of the juxtaposition of the one-week and thirty-day crucial periods is to turn the required disclosure into legal gibberish. That's as bad as an outright contradiction.

The FDCPA, after all, is interpreted to protect what they call "the unsophisticated" (or sometimes "least sophisticated" consumer.) That is, it's meant to protect people who don't have a law degree or background in debt collection from being confused by tricky lawyer stuff.

Like "overshadowing."

So if you've gotten some confusing debt collection letters...well, you know the rest. (The rest is see a lawyer, remember?)

It makes me want to live in Baltimore, something that that hasn't happened since The Crab Cakes Affair of 1992.

The real estate market is picking back up as the economy recovers, so it might be the right time to start trying to find a home. If you're thinking about doing that, make sure you use a professional to help you. You don't want to overbuy, or undersell, your house, so go with a realtor that knows what they're doing and how to work in the new economy.

One way to tell if you're dealing with a pro is check out their website. Take the one for NG Realty Group, which helps people buy and sell Baltimore Homes.

NG Realty Group provides you a lot of help upfront, in a professional and quick manner, before they even sign you up or worry about a commission. That's a sign that they know what they're doing and they're in it to help you, not themselves. The site breaks their listings down into categories, like "bank owned" and new listings and they have special links if you're a buyer or seller, so you won't waste your time dealing with things you have no interest in. They'll even help you tell, up front, what your home is worth -- so you can be ready to sell at a given price and not feel like you're being undercut. Just type in some information and they'll email you an approximate home value, making you ready to test the market right off the bat.

When we bought our house, lo those many years ago, I didn't have access to anything like this, and I'm sorry I didn't. We had to rely on newspaper ads and luck. The Baltimore Homes Group doesn't leave things to chance, and you won't get newsprint on your hands, either. Check their site out for yourself and see the proof.

RoboCop has moved into the Debt Collection Business.

Day 9 of 30 Days Of Debt Collection, and it's back to what debt collectors can or can't do. Today's concern is this: Can debt collectors use robo-calls without violating the law?

The simple answer to that is... I don't know.

Nothing in the "Fair Debt Collection Practices Act," (FDCPA) expressly says whether or not "robo-calls" are allowable. Debt collectors, at least some of them, are using robo-calls, computer controlled calls that place a phone call and then wait to see if someone picks up (or something similar) but these types of calls haven't been the subject of a specific provision of the FDCPA. Yet.

So let's do what lawyers do, and see if we can ferret out a likely answer to this question.

First, we'll look at what the law allows or doesn't. The FDCPA expressly says that it is harassing or abusive to "[c]aus[e] a telephone to ring ... repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number."

That might seem to answer the question, but there's a loophole there, and this is it: What if the debt collector isn't causing the phone to ring repeatedly "with intent to annoy, etc."

In other words, what if all those robo-calls aren't done to annoy you but to get a hold of you, which is what debt collectors will say they're for. The law only makes it harassing if it's intended to harass you.

When lawyers find an ambiguity -- a loophole or second meaning -- in a law, they go look up case law, reported decisions from courts that have had opportunity to consider what that law means and then determine what it is . (Remember, according to Marbury v. Madison, it's "emphatically the province and duty of the judicial department to say what the law is.")

I've found a couple of cases that considered whether robo-calls were harassing or violated the FDCPA, and it seems to me that a lot depends on the number of calls, and the frequency of calls.

In one case, 54 telephone calls made at work (calls that were apparently of the old-fashioned, unautomated variety) with 24 messages left were deemed by a court to be intended to harass the debtor -- therefore violating the FDCPA.

In another case, from California, automated phone calls as part of a pattern of repeated actions were enough to claim a violation of the FDCPA. In that case, there were 75 calls over a period of time.

By contrast, four calls over seven days, placed by auto-dialer and made without leaving a message, did not violate the FDCPA in a case out of Kansas.

So, more than 4 calls in seven days are needed, at least, it would appear, although the frequency of calls might change things, too: Suppose you got four calls in an hour? That might constitute harassment and prove that the calls were intended to harass you.

Auto-calls by debt collectors might violate other federal laws, too. There's a law called the "Telephone Consumer Protection Act" that was found to have been violated by a debt collector who made "dozens" of automated calls to a consumer who didn't owe the debt. But that case was decided back in 2006. But a recent set of rules changes by the FTC promises to expressly exempt debt collectors from regulations limiting robo-calls, so that avenue may be closing.

To sum up, then, in answering the question: Can debt collectors use robo-calls without violating the law?, I've decided, yes, they can, if they do so reasonably and without intending to harass you.

If you're getting robo-calls, or a lot of hang-ups, what can you do? Get caller ID, for one thing, and take a picture of the ID display whenever you get a robo-call. Everyone's got a digital camera on their cell phone now. They even make disposable digital cameras.

Or mark down the date and time of each call and the result; I recommend keeping a pad of paper and a pen by the phone for just that purpose. If you've got that, it'll be easier for the lawyer you consult -- and you will call a lawyer, right? -- to track down the phone records helping establish those.

Say you clicked on that little ad to get a free iPod, and suddenly your laptop is really slow and freezes up and you didn't win the iPod, either.

If your computer is slow, or bugs-up or freezes or otherwise is causing you problems, don't bother calling some high-priced tech to come to your house or office, or slogging it into some shop on your own. Instead, try Secure Remote Support, a one-click solution for most computer problems.

Secure Remote Support can correct issues of speed and performance remotely and in real time, with security that you'll appreciate. They talk in plain language and help you resolve your problems quickly, effectively, and affordably. Their website alone shows you how friendly and easy to use their service is: It's easy to work and understand, which is a real benefit; you're already having computer problems -- you don't want to have problems working with the people who are supposed to fix them, too.

They'll work with you by phone, email or live chat, and they're there 24 hours a day, seven days a week. That's exactly what you want -- your computer might go down at 10 at night, or 8 in the morning, or on Sunday, and good luck finding someone to fix it then, unless you try Secure Remote Support.

How much is my case worth? (Debt Collection Edition)

For Day 8 of 30 Days of Debt Collection, let's take a breather from all the technicalities of the Fair Debt Collection Practices Act to look at what can happen if you win a case like this, if you sue your debt collector for violating federal (and sometimes state) laws, and win.

A recent case in California saw a jury award $500,000 to a couple that was harassed by a debt collector, the amount breaking down to $100,000 for "actual damages" and $400,000 for punitive damages. Manny Newburger, a prominent lawyer who defends debt collectors (but who is not a bad guy) says that's a unique case, an outlier, and that it's mainly based on state law. I don't know all the facts of the case, but I tend to think Manny's right, first because Manny's a good lawyer, second because my own experiences suggest that a half-million in damages isn't likely in many cases, and third because the FDCPA doesn't allow punitive damages, so the jury couldn't have awarded the California couple punitive damages under the FDCPA.

So what is an FDCPA case worth? Let's begin with what can be recovered.

First, there are "statutory" damages. Those are damages that can be awarded to you as a victim of a violation even if you weren't harmed by the violation at all. Think of it as an award you get for enforcing the law. "Statutory" damages for an individual are capped at $1,000 per case (more or less... as usual, things can be more complicated and lawyer can get tricky, but it's best to assume $1,000.) A court, not a jury, decides how much of the $0-to-$1,000 you can get based on how serious the allegations are.

Then there are "actual" damages. As the name says, "actual" damages are "actual" harm caused you by the violation. These can range from out-of-pocket costs (maybe you paid money you didn't owe?) to harm to your credit to "mental distress," the harm you suffer by being badgered by a debt collector (even if you actually owe the money, remember, they can't violate the law.)

And, finally, if you win, the Court can award you your costs and fees -- the money you've paid me, or some other lawyer. (They can even, in some cases, award more to the lawyer, but that's for another day.)

So how does that all shake out in real life? Each case is different (but you knew I'd say that, right?), which is why over the remainder of the 30 days (21 after today) I'll check in periodically with some actual cases and actual awards, today's being the first of those, a look at the case of Joseph and Debra Smith vs. the Law Offices Of Mitchell N. Kay.

Joseph and Debra Smith, in 1989, were in a real bind. Here's how the Court summarized it:

By September of 1989, the plaintiffs were in a desperate state. Joseph Smith was bedridden at home Deborah Smith was six and a half months pregnant and still working, Joseph and Deborah were fighting, and, perhaps worst of all, the bankruptcy court had not yet ruled on their chapter seven petition. The plaintiffs were very worried that the bankruptcy court might not approve their petition. They owed more than $42,000. ... It was during this period that the communications from the Law Offices Mitchell N. Kay arrived, demanding prompt payment of a $206 debt.

Ultimately, there were four letters from the Kay offices, coming at a time described like this by Mrs. Smith:

I said, well, you know, I can't stop working. I have to work. The baby was due at Christmas. It was hard. During my preg-nancy I was having problems with my kidneys and was on medicine. So with working and him home in a hospital bed then coming home and taking care of him and our eight-year-old and being pregnant and working eight to nine hours a day, it was starting to get to me.

Joseph Smith said about first hearing from the collector:
At this time, I was laid up in a hospital bed at home. I was very upset. I was in a pos-tion where I did not know what to do. I was in a state of shock. Actually, I knew I had already filed for bankruptcy. That was an embarrassing enough situation, but after the threats and so forth, that was putting me to a point where I was pulling my hair out at this point. I didn't know what to do.

Keep in mind, the filing of a bankruptcy petition initiates an "automatic stay," telling debt collectors not to contact the debtors (assuming the debt collectors know of the bankruptcy.)

The Smiths sued and the debt collector didn't appear at trial, so the Smiths told their side of the story to a jury, which then awarded them $15,000.

Then -- then -- the debt collector came in and said that was too much. At that point, the trial court decided to reduce the amount of damages to $3,000, or to hold a new trial on damages. The judge based his decision in part on feeling that the debtors, who had been sued before and had a lawyer and were aware of the protections bankruptcy gave them, could not have been too distressed by the four letters.

Can Debt Collectors Tell My Mother-In-Law How Much I Owe Them?

It's bad enough to owe money, isn't it, without having some debt collector call up someone you know, a relative or friend or neighbor, and let them know that you're in hock up to your ears?

Luckily, Day 7 of 30 days of Debt Collection is here to point out to you that debt collectors can't do that.

Debt collectors are allowed to try to find you. You can't just go into hiding and expect them to give up on contacting you until you show up on TV running for public office or something. They get to try to locate you, but Congress, in its wisdom, has limited what they can do to try to track you down. Here's the law:

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 communication from the debt collector.

The first thing you'll see in there is the part I mentioned yesterday, about how if you get a lawyer and tell the debt collector you have a lawyer, the collector has to try to call the lawyer, not you.

The rest of it is for today. It's pretty clear what the law allows or disallows. A debt collector who calls you mother-in-law has to say who he is... but can't say who he works for, unless he's asked.

So the debt collector has to say "It's Jim," but can't say "It's Jim from ABC Collection Agency." Unless your mom-in-law asks him to do so.

Even if she does ask, though, Jim can't go on to say "I work for ABC Collection Agency, and your son-in-law owes us money."

And then, Jim can't call Mom-in-law back, except if he later thinks the information Mom-in-law gave him might have changed. So if Mom-in-law says "I don't know how to get ahold of him, but I'm seeing him on Labor Day," it might be okay for Jim to call back the day after Labor Day and follow up to see of Mom-in-law now has a phone number or address.

Here's the part I like best about this part of the FDCPA. The law says that a debt collector can "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."

There are debt collection companies all over that have to abide by that, and they go by various names, some of which have "collection" in them. The law appears to forbid companies expressly identified in their name as being in the debt collection business from putting their own name on the outside of the envelope.

So if you, or your relatives, friends, neighbors, landlords or anyone, are getting calls or letters from debt collectors, save the envelope, and make sure the person who gets the call notes exactly what was said in the conversation.

And then... let me hear everyone say what I'm going to say now:

Call a lawyer. Or have your mother-in-law do it for you.

Cross-Pollinization

Dang it! I meant to upload that picture of the Spaghetti Pizza. Oh, well, you'll see it someday. And here's the weekly update of what I'm reading and writing when I'm not inventing new kinds of pizzas.

What I'm Writing:

2012 is coming sooner than you think... and it's not good. Joe the Magician really tapped into something in The End of Light, and people are gonna be upset when they realize. (AfterDark).

Rachel was a pop star/predestined savior of Valhalla. Well, who isn't? Rachel's clone fills her in on the reason why the Valkyries are in love with her, and why they cloned her so much. (Lesbian Zombies Are Taking Over The World!)

Bumpy's on his way to New York City... alone. As Up So Down nears its conclusion, Bumpy leaves his mom's hospital and gets a ride to the airport for a trip to NYC. (5 Pages.)

Four Vice Presidents Who Would Make Chuck Norris Cry Like A Baby. Spiro Agnew: Tough guy? You bet. Plus some hot photos of Mrs. Vice Presidents! (The Best Of Everything)

Stop Debt Collectors In Their Tracks! "30 Days of Debt Collection" helps you understand the single most important law ever passed by mankind. I'm not overselling that, am I? (Family and Consumer Law: The Blog.)

At least I'm hearing from agents, even if all they do is reject me. This week, and agent gives me some pointers that I opt to take as a challenge. (Aaaauggh!)

While I was moping about Gettysburg, a friend of mine was actually fighting in a war. And yet, I still think my experience was more significant, as I relate part 18 of my memories of my year in D.C. and Morocco. (Thinking The Lions)

What I'm Reading:

"Give me some of that good stuff." Have you read Lena Vanelslander's poems? I have, and they're good. (Ma Chanson de Rien du Tout)

He loved the basterds... Ross Bigley (that's him in the hat) is an old friend, a brilliant filmmaker, and someone I always mean to call back but never do. He might forgive me if you go to his Facebook page and find out more about him. (Ross Bigley's Facebook)

Speaking of Ross, he showed me this:



But this is better:



Have you read my book yet?

How to stop debt collectors in their tracks!

Day Six of 30 days of debt and, as promised, I'm going to tell you how to stop debt collectors, even without a lawyer. At least for a while, that is. They don't have to stop entirely, but they do have to stop most things.

If you have a lawyer, and you tell a debt collector you have a lawyer, the Fair Debt Collection Practices Act (FDCPA) makes that debt collector stop calling you and start calling your lawyer, which is both good and bad. It's bad because you'll probably have to pay your lawyer to take those calls -- all lawyers have to sell, as I and Abe Lincoln say, is time and skill, and if you're using one or both, we have to charge you -- but it's good because the collectors stop calling you.

If, though, you're not at the point where you want to hire a lawyer, you can stop debt collectors, mostly through writing them a letter and telling them to stop. It's really that easy.

The FDCPA says:

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.

What that means is that you have to sit down and write to the debt collector, and you have to say this, or something like this: I refuse to pay this debt and you should not contact me anymore.

After that, they can't contact you except, weirdly, to say they won't contact you anymore, and/or to tell you that they may do something like sue you. But they shouldn't keep contacting you. So you can force them to stop calling and harassing you, and to put their money where their mouth is and sue you, if that's what they threaten to do.

Remember, this only applies to debt collectors, and it might just stop the phone calls and start the lawsuits, so be careful (and consult a lawyer, of course!).

But the nice thing about this is if the debt collector does contact you again, and it's not for one of the three reasons the law allows, you can sue them, and get money from them. So keep a copy of that letter, and in fact, I recommend sending two letters, on two different days. That way, debt collectors have a harder time claiming they didn't get it, since it's extremely unlikely that the post office would mess up on delivering to the same address twice on two different days.

So there you go: A lawyer told you something you can do, without incurring any legal fees. How about that? Let's have a hand for me.

Why is this picture in here?
Because if you Google "Abraham Lincoln" images,
you'll find a picture of the Abraham Lincoln Tomato.
So I included it.

So, what else do debt collectors have to do?

Day 5 of 30 days of debt collection, and we're talking "validation of debts."

Yeah, this one doesn't seem exciting, either.

Remember, yesterday, when I said that debt collectors had to do some stuff, right away, upon contacting you? Well, one of those things is that they have to offer you a chance to verify and validate the debt. That takes place in a couple of steps.

First, the first time a debt collector talks to you or writes to you, he or she has to provide you with a "validation notice." That's a notice that you get in writing that says how much you owe and who the money is owed to. If the first time you hear from a debt collector is orally (on the phone), you have to get that information in writing within five days of the date of that first communication.

So if you just got a call from ABC Collection company, and that's the first time you hear from them, you better get a letter within five days, or they've violated the FDCPA. (This doesn't apply if you just pay the debt, so keep that in mind.)

The other information required to be in that notice is a statement that gives you 30 days to "dispute" the debt, and that's important, but not for the reasons you think.

If you don't dispute the debt, the debt collector will assume the debt is valid, but that doesn't matter, really, since all that means is that the debt collector will continue to contact you. It's not like you lose in court or that's binding or anything.

Disputing the debt is important, instead, because it provides you some information and stops the debt collector, at least for a brief period of time. If you dispute the debt -- something you should do only if you're not sure the amount owed is correct or that the person you owe it to is correct -- then the debt collector has to stop trying to collect from you while he or she gets "verification" of the debt.

A dispute, by the way, has to be in writing. You have to tell the debt collector, in writing, that you dispute the debt (or that you want the name of the original creditor.) And you should do that, because once you do that, not only do you stop the collection until they verify the debt, but you'll get information from the debt collector, like the amount of the debt and the creditor's name, and that information can be very helpful to deciding if you really have to pay and how much.

These days, debts get traded around a lot and can hang out there a long time. Meanwhile, you're getting divorced or filing bankruptcy or paying off credit cards, and it's not always clear, a couple of years down the road, whether or not you actually owe that money. You may have paid it off. It might have been your ex-wife's credit card. It might have been identity theft. Maybe the interest rate is wrong. And you never had an "NCO" card, did you?

So you get information, and a little time to breathe, by writing to the debt collector and saying I dispute this debt. It doesn't take more than that: A one-line letter mailed to the debt collector, and you'll get some more information to determine if you should be bothered anymore, and how much you might actually owe.

That's the good news. The bad news? "Verification" doesn't appear to actually mean all that much. Oftentimes, you'll simply get a letter back reiterating what was in the first letter, making the verification process somewhat pointless -- except that it slows things down, and except that you can get some information that's helpful, and except that it doesn't cost anything, anyway.

A debt collector has an obligation to tell you how to dispute the debt, and to respond to that dispute when you write to them. Don't just assume you owe the money: make the debt collector comply with the law and get the information you're entitled to.

Tomorrow, though, I'll tell you something even better. I'll tell you how to get debt collectors to (mostly) leave you alone, without even hiring a lawyer.

What are debt collectors required to do?

Day 4 of 30 days of Debt Collection.

We've looked at who's a debt collector, and what a debt is, so let's get down to the fun stuff: the things debt collectors have to do, and the things they can't do.

Okay. That's not the fun stuff. The fun stuff is how you might get money out of things debt collectors do that violate the FDCPA, but I'm not up to that part yet, so we have to get some more boring junk out of the way.

We'll focus first on some things that debt collectors have to do, beginning with something that seems obvious: Debt collectors have to tell you they're debt collectors.

And not just once. They have to do it every time they talk to you.

The Fair Debt Collection Practices Act (FDCPA) was set up to help protect debtors from "abusive" debt collection practices (among other reasons.) One way it does that is by making sure that you know, each and every time they call, that you are talking to a debt collector. The law requires a debt collector to identify him- or herself as that each time they communicate with you, and requires it in a number of different ways.

First, the FDCPA makes it illegal for a debt collector to call you "without meaningful disclosure of the caller's identity," which means that when they call you, they have to tell you who's calling. None of this "I'm not at liberty to say" or leaving a message that says "This is Todd, call us back, it's important." They have to make a meaningful disclosure of the caller's identity. That may mean that even using a fake name violates the FDCPA.

Second, the FDCPA requires that debt collectors tell you the very first time they talk or write you that they are a debt collector, and that they are attempting to collect a debt, and that any information you give them will be used to do that. (This requirement doesn't apply if the first time a debt collector communicates with you is via a lawsuit.)

Third, the FDCPA requires that after that first time, the debt collector STILL must identify him or herself as a debt collector, even if you already know they're a debt collector.

Here's a neat wrinkle, too -- if the communication is in writing, but it's sent to your lawyer, instead of you, the debt collector STILL has to include all that required information.

That all seems, as I said, obvious, but it's not. You'd be surprised how many debt collectors mess it up. And there's a reason for the requirement, too. Debtors shouldn't be tricked into taking calls, or returning calls, without knowing who they're talking to. Suppose you were left a message from someone saying "Hey, this is Jenny, give me a call back, would you?" and you called and talked to Jenny and Jenny said she was taking a survey, and in that survey asked you where you were working and you told her, and the next thing you know, you're getting calls from a debt collector at work?

Wouldn't you have wanted to know that Jenny was trying to collect a debt? Of course you would, and the law requires just that, to avoid tricking you into giving up information you may not want, or need, to provide. Plus, requiring that the debt collector say who they are and what they want will help you take action if they do violate the law -- so requiring disclosure like this helps you (and your lawyer) enforce a federal law against the bad guys!

So if you're getting calls from a debt collector, what can you do? Save the messages -- any lawyer will want to hear those. And write down the name and number of the person you talk to. And listen for them to say something like: This is a debt collector and any information obtained will be used to attempt to collect a debt.

And, as always, call a lawyer.

A lot of lawyers are afraid to use the adjective "Bam-o!" Not me, though.

I've caved and started following things on Twitter. But I didn't give in because of Ashton Kutcher or that one cat that Twitters or all the media pressure. No, I gave in for the same reason I do everything: free money.

That's free money as in I can win $1,000 simply by following Tweets from @creditloan and reposting them. (Re-tweeting them? I guess I'm supposed to say that.)

@Creditloan is having a Twitter contest, one that just started, and it couldn't be easier to enter and try to become one of the ten winners. Here's what you do:

Follow CreditLoan on Twitter.

On your own account, Tweet this: "Just entered the CreditLoan $10,000 Dollar Giveaway. You can win by following @creditloan and retweeting. http://creditloan.com/twcontest"

And Bam-O! You're entered and can win one of 10 $1,000 Visa Cash Gift Cards.

CreditLoan will give out one of those cards everytime they reach another 1,000 followers. As they hit 2,000, 3,000, and more, you can win, and you can win each time, just for your one entry. 10 chances to win, one tweet, $1,000 Gift card: I like that math.

That's what drew me to check out Twitter, and you should go, too. In 15 seconds you can be up for winning a cool grand. (Note: Multiple entries not allowed, but that's good, because nobody can stuff the ballot box.)

Click here to find the official contest rules, and then head on over to Twitter to Follow, Tweet, & Win!

What's a debt?

Day 3 of 30 Days of Debt Collection!

Today's topic may seem pretty easy, too -- but like yesterday's question about who is or is not a debt collector, when it comes to the law, we know nothing's too obvious.

The Fair Debt Collection Practices Act (FDCPA) puts rules on debt collectors, and part of the definition of who is or is not a "debt collector" depends on what the person is trying to collect. If a person contacting you is not trying to collect a debt, that person isn't a debt collector, so the FDCPA doesn't apply.

And remember, you want the FDCPA to apply, because if the FDCPA applies, then the debt collector must do some things, and must not do others, and violating the law can cost that debt collector money -- money you can get.

So, what's a "debt?" The answer to that question isn't as easy as you'd think. I begin, as always, with generalities:

A "Debt" under the FDCPA is money that you owe for personal, family, or household purposes.

As usual, lawyers have to complicate it up, so let's look at some exceptions and see what we can draw from those.

"Child support," and "Taxes" are not debts. So when your ex-wife's lawyer calls you and says you're going to jail unless you pay support, that's not covered by the FDCPA. So let's add another element to the rule:

A "Debt" under the FDCPA is consensual, meaning you agreed to pay it rather than having it imposed on you. (And, don't email and say I agreed with my ex-wife to pay support when we got divorced, so that's a debt, right? It's not: child support is an obligation imposed on you by law, just like taxes. Agreeing to abide by your obligation isn't the same thing as agreeing to pay a debt.)

Here's something that looks like it's not a debt but it is:

Money you don't actually owe is still a debt. That is, if the person calling you believes you owe the money, but you don't, that alleged debt is still a debt. So we can add:

A "debt" can be an alleged debt, too -- the fact that you don't owe it doesn't mean the debt collector is off the hook. In fact, trying to collect money from you that you don't owe almost certainly violates the FDCPA (if the money would be a debt.)

Here's something else that doesn't look like a debt that is:

An eviction action or car repossession can be a "debt."

That's because eviction actions or car repos are the first step in trying to get money from you; after they get you out of the apartment, the evicter will likely want rent from you. After they take your car, they'll want the rest of the money you owe, too. So:

Each stage of collecting a debt is a "debt" under the FDCPA.

Finally, for today, most farm debt isn't a "debt" at all under the FDCPA. (I've noticed that farmers are rarely protected under consumer laws. I don't know why that is, but it is. Sorry, farmers.) So:

Agricultural debts aren't debts under the FDCPA.

Let's put that all together and see what we've got:


A "debt" under the FDCPA is money you agreed to pay that was owed, or alleged to be owed, for personal family or household purposes, but not agricultural purposes, and the word "debt" can include each stage of collecting a debt if the ultimate result of that attempt is to get money from you.

Boy, lawyers can sure make things complicated, can't they? But it's important stuff again. If someone is calling you two, three, four times a day, or saying you could go to jail, or telling your mom you owe money, or calling you at work, you want to know if you can make them stop, and you want to know if you can make them pay money if they don't stop, right?

You know what I'm going to say now, right? Say it with me: These aren't all the rules and all the examples, and things can change, so when in doubt: call a lawyer and ask her whether it's a debt.


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Who's a debt collector?

Day 2 of 30 Days of Debt: Let's take a look at who is or is not a debt collector. Remember, I touched on this (in a more complicated way) not long ago when I reviewed a court case that seemed to say that whether you're a "debt collector" depends on whether you think you're a debt collector.

That's a little too mind-bending, for now, so I'd like to begin with the basics. The federal law we're discussing, the Fair Debt Collection Practices Act, (FDCPA) is the law that we're concerned with here -- it's a federal law and applies to all fifty states, so it's easy to discuss on an insanely popular blog like this one - -and the FDCPA has some basic rules for who's a debt collector and who's not.

This isn't, remember, intended to be a discussion of every possible person who could ever possibly be considered possibly a debt collector. Instead, it's an overview. It's entirely possible that people I don't mention here are, or are not, debt collectors. But with that said, let's consider a few basic rules for who is, or is not a debt collector.

Here's the most basic rule, one that applies nearly all the time: You probably ARE a debt collector if you are collecting money that was at one time or another owed to someone besides you or your company.

"Debt collectors" under the FDCPA are people collecting money owed to someone else. So if someone calls you about your credit card account, and it's not the credit card company, you're probably dealing with a "debt collector."

There's a wrinkle, though, as there always is: If you originally owed the money to someone else, and they "sold" or "assigned" your debt, the new person is not necessarily a debt collector. That's important to note, what with all the companies merging and being bought out these days. For example, Bank of America just bought Countrywide -- so if you owed money to Countrywide, you now owe money to Bank of America, so Bank of America is probably not a debt collector.

There's a wrinkle to the wrinkle, though, and this is it: If the new person got your debt after it was in default, then they probably are a debt collector. So if you owed money to Credit Card Company, and defaulted, and Collection Company bought the debt, then Collection Company is a "debt collector."

With me so far? There's a wrinkle to the wrinkle to the wrinkle, too -- and here's that one: In some cases, the person collecting money for the other person isn't a debt collector. That can happen in some business arrangements, like when there's a "servicer" for a "mortgage lender." If the mortgage lender loans you money, and then hires the "servicer" to collect that money for them, before you default, then the servicer is not a debt collector.

But, if you default (breach the contract, usually through not paying) and then the lender changes servicers, that new servicer might be a debt collector.

Still with me? It's dizzying, isn't it? But it's important stuff, as we'll see over the next 28 days, because if someone is a debt collector then that person has a lot of do's and don't's, and violating those do's and don't's can cause big problems, for them, and get you some money.

So let me lay it out again, as simply as I can with this rule for determining whether or not someone is probably a debt collector: A debt collector is a person collecting a debt owed to another, or a person collecting a debt that was in default when the person got that debt.

And, to simplify that even further, let me give you an even better way of determining if someone is or is not a debt collector: Call a lawyer and ask.

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Can a lawyer's mistake let a debt collector harass you? (30 days of Debt Collectors, day 1)

Welcome to 30 days of debt collection, where, as it sounds like, I'll try to (more or less) post each day something on the topic of debt collection -- a topic that weighs heavily on the minds of almost everyone at one time or another.

Day One poses the question, as the headline noted: Can a lawyer's mistake let a debt collector harass you? The answer is not as clear-cut as you might think.

The "Fair Debt Collection Practices Act" (I've mentioned it before) or "FDCPA" governs debt collectors. "Debt c0llectors" are not necessarily who you think they are; not everyone who collects a debt is a "debt collector." Complicated, right? I'll try to explain in the future who is or is not a "debt collector" as far as the FDCPA is concerned.

But for today, I'm focusing not on who is a debt collector, but mistakes debt collectors make, and whether you can sue them for those mistakes.

See, the FDCPA sets out a variety of things that debt collectors can't do. They can't, for example, harass you. They can't make threats to have you locked up in jail. And they can't "falsely represent" the amount of a debt. (Those are only 3 examples of what debt collectors can't do; there's lots of others.)

When a debt collector violates the FDCPA, a debtor can sue that debt collector, and can collect any "actual damages" caused -- that's actual money losses or emotional distress-- plus up to $1,000 even if the violation didn't cause any harm. (Plus attorney's fees. I like that part, as you'd imagine.)

To make things even easier, the FDCPA is what's called a "strict liability" law -- meaning that if you violate it, you violated it and you're liable. It doesn't matter why you violated it, you broke the law. It's like a speed limit -- if you drive to fast, you're speeding, and it doesn't matter how late you were, you were speeding and you'll pay a fine.

Sounds simple so far, doesn't it? But this law was written by Congress, and then rewritten, and revised, and then interpreted over the years by courts, so you know it can't be simple anymore. If it were to stay simple, we wouldn't need lawyers, and I shudder to contemplate a world where I have to get a real job.

The main complication that comes in is through what's called a "bona fide error." A "bona fide error" is a mistake that a debt collector makes unintentionally, and a mistake that's made even though the debt collector had a system in place to prevent that error.

That is, if a debt collector makes a mistake because his or her system broke down, he or she is not liable for violating the FDCPA.

That's complicated, too, so let me give you an example. Suppose a debt collector calls your mom's house looking for you, and you've moved out, and the debt collector gets your new phone number from your mom. Suppose the debt collector then, instead of calling you at your new phone number, calls your mom again the next day. Well, that's a violation of the FDCPA, which says debt collectors can't contact your relatives except to obtain location information (and there's limits on that type of call).

So you can sue. But suppose the debt collector had a rule that the callers are to note when a debtor's residence has changed, and enter that information on a computer, and delete the old phone number. And suppose that on the first day they called your mom, the computer was down so that they couldn't note the information, and then on day two a new caller called your mom... accidentally.

That might be a bona fide error, because the debt collector didn't intentionally try to violate the FDCPA by contacting your mom the second time, and they had a system in place to try to avoid doing just that.

A hot issue these days in FDCPA circles is whether a "mistake of law" can be a "bona fide error." This boils down to, more or less, If a debt collector was wrong about the law, can they be sued for violating the FDCPA, and it's an important question in states like Wisconsin, which have the "Wisconsin Consumer Act" that applies some pretty strict standards to consumer debt collection. The FDCPA makes it illegal for debt collectors to threaten to take an action that cannot legally be taken. There are lots of actions, under the "Wisconsin Consumer Act," that cannot legally be taken.

If a debt collector from New York, say, violates a Wisconsin law collecting against a Wisconsin resident, should that debtor be able to sue the debt collector under the FDCPA, and should the debt collector be able to avoid being liable if he can prove that he was simply wrong about the law even though he tried to know what the law was?

That's a question the U.S. Supreme Court is going to answer next term. The Court, at the end of June, decided that next term it will hear and decide whether a legal mistake can save a debt collector from violating the law.

The case the Supremes will consider is that of JERMAN, v. CARLISLE, McNELLIE, RINI, KRAMER & UL-RICH LPA, a case in which the debt collector (a law firm) told the debtor she had to dispute a debt "in writing." When a debt collector first contacts a debtor, the debtor has a right to "dispute" the debt and make the debt collector provide some proof that the debt is real. The Carlisle firm told Jerman that her dispute had to be "in writing," but the FDCPA doesn't require that.

So Jerman sued, and the Carlisle firm said Wait... that's just a mistake we made about the law even though we tried to be informed about the law. Two courts -- the district court and the 6th Circuit Court of Appeals -- then reviewed and decided that the Carlisle firm had made an effort to know and understand the law, and had simply been mistaken, and therefore because their mistake was unintentional and despite... etc etc, they were not liable under the FDCPA.

Now the U.S. Supreme Court is going to hear the case, and will decide if being wrong about the law, even though one tried to understand it, immunizes a debt collector from liability.

It's important to note one thing, though: Nobody is saying just being wrong keeps a debt collector from being sued. The debt collector has to make an effort not to make a mistake; he or she has to try to know the law and keep up with it and otherwise avoid making mistakes.

So the answer to our question, Can a lawyer's mistake let a debt collector harass you? is: Maybe. We'll see.

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Great Fictional Lawyers, Number One

Any lawyer can be inspired to start practicing law by the great lawyers of history, lawyers like Clarence Darrow or Thurgood Marshall or... um... other great lawyers.

But those were all real people. What about the inspiration to be drawn from fictional lawyers, lawyers who maybe didn't quite reach for the stars, but who stuck in my mind anyway?

Not that I model my practice after them, but they are worth noting, for one reason or another. Let's start with Great Fictional Lawyer Number One:

Lionel Hutz, the sole proprietor of the I Can't Believe It's A Law Firm, where he practiced law and did shoe repair.

Education: Harvard, Yale, MIT, Oxford, the Sorbonne and the Louvre.

Credentials: If you put his business card in water, it'll turn into a sponge and grow in size. Classy!

Notable Cases: Homer vs. The All-You-Can Eat Restaurant; Homer vs. The Devil; Marge vs. Mr. Burns for Sexual Harassment; defending Bart on a charge of Murder One.

Great Legal Quotes:

"That's why you're the judge, and I am the law ... talkin' ... guy."

"Mr. Simpson, don't you worry. I saw an episode of Matlock in a bar last night. The sound was down, but I think I got the gist of it."

"This all goes back to the Frank Wallbanger case of '78. How about that! I looked something up! These books behind me don't just make the office look good, they're filled with useful legal tidbits just like that!"

On being asked if he had any evidence to support his claims: "I have lots of hearsay and conjecture. Those are kinds of evidence."

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Weird Laws You Didn't Know You Needed.

Ever walk into a store and buy a pound of ice cream? No, you didn't, at least not in Wisconsin, where, for the past 36 years, it's been illegal to sell ice cream by the pound. Wisconsin requires that ice cream be sold by liquid measure:

98.12 Sale of ice cream and similar frozen products. Ice cream, ice milk, water ices or other frozen desserts of a similar nature packaged prior to sale shall be sold by liquid measure. This section does not apply if the products are packaged at time of sale at retail or sold in quantities of less than one-half liquid pint.


So you've got to buy a gallon of ice cream -- but that doesn't mean it still won't put the pounds on you! Ha! Ha!

I crack me up.

Other weird laws:

Leave that pigeon alone!

Don't mess with telegrams.

Why can't I bribe a chauffeur?

The DC31 is finally here!

For a couple days now, on my blogs, I've been mentioning DC31, a site that offers price comparisons on Dyson's DC31 vacuum cleaner. Now, I can give you what you want: a place to buy it. You can get the dc31 by clicking that link and purchasing it online. And you SHOULD click that link and buy it.

The DC31 is a handheld vacuum with a digital motor. Digital motors spin at up to 104,000 rpms, which provide better suction for less power. The DC31 doesn't use a filter that can clog up and interfere with the vacuum. It uses the Dyson Root Cyclone technology to spin the dirt into the bin, keeping your vacuum working at maximum efficiency.

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So the rule is: Don't read your bank contracts, but do read your receipts?

The other day, I stopped at the gas station to put a couple of bucks' worth of gas into the tank. When I was done filling up, I got my receipt from the pump and did what I always do, which is examine the receipt to see how much of my credit card number was printed on it.

I do that because I know that it's illegal for a company to print more than five digits of a credit card number on a receipt. (The law applies only to electronically printed receipts, not hand-written receipts.)

And I do that because I know not only that it's illegal, but that if a company does that -- prints more than 5 numbers -- they might face a lawsuit from me, and others like me.

The law in question is called "FACTA," and "FACTA" was an amendment to the FCRA, a bunch of alphabet soup that refers in general to a group of federal laws that govern credit in the United States. The FCRA ("Fair Credit Reporting Act") is a set of laws that relate to the Truth-In-Lending laws, the Fair Debt Collection Practices Act, and othe laws that have to do with how and when you can borrow money and how and when people can try to get you to pay that back. "FACTA" is a set of amendments to those laws that was passed a while back, and those amendments modified some of the FCRA.

(FACTA, if you must know, stands for the Fair and Accurate Credit Transactions Act of 2003), so it should really be FAACTA but it's not. It's just FACTA.)

The provision of FACTA I'm dealing with today is this one: 15 U.S.C. 1681c(g)(1). ("U.S.C." stands not for University of Southern California, as football fans would hope, but United States Code, the name of all the federal laws passed by Congress that are currently in effect.) 15 U.S.C. 1681(c)(g)(1) is the portion of all those federal laws that makes it illegal for merchants to print too much credit information on your receipt, and it provides a penalty for merchants who do that.

That simplifies it a bit, so let me clarify:

The law applies to a "person who accepts credit cards or debit cards for the transaction of business." That's the gas station, and my firm, among others.

It applies only to receipts "provided to the cardholder at the point of sale or transaction." So, the gas pump or cash register. Email receipts probably don't count. (Probably -- consult a lawyer, as always!)

It applies, as I mentioned, only to electronic receipts, not handwritten or imprinted receipts.

You can sue under the law if you've been harmed by the practice -- say your identity was stolen -- or if the defendant "willfully" violated the law -- and at this point, almost any violation is likely to be deemed willful (since one court, at least, has found that merely knowing about the Act, and having years to comply but not doing so, is evidence of willfulness.) Winning your case means you can have your attorney's fees reimbursed, too.

There's a wrinkle, too, regarding expiration dates. The Act prohibits printing the expiration date of a card on the receipt, but merchants may not be able to be sued, depending on when they violated. (Again, consult a lawyer. I can't say that enough.)

This has, of course, started a wave of litigation, mostly class actions, as lawyers and plaintiffs begin asserting their rights under the law and defendants (who had three years' lead time to comply with the law) complain about the harsh penalties being sought.

But what you need to know is this: It takes just a second for you to look at that receipt and count how many numbers are printed on it -- and if it's more than 5, not only is your credit rating at risk, but you might be able to do something about it.



Read Other Consumer Law Matters

Nobody knows the hazards that lawyers ACTUALLY face.

Even in a law office, there are concerns for safety that arise from time to time. Like the time a bat got into our firm and was flying around, eventually to be brought down by a mighty blow from a Whiffle bat wielded by the senior partner. (That's why they get the big bucks, I presume.)

There are other safety problems -- we move furniture from time to time, and assemble some stuff, and otherwise occasionally get our finely-manicured hands the tiniest bit dirty. That's just one of the many hazards of being a lawyer today.

But the risks faced by other workers in their workplace are far greater -- as are the safety hazards I face when I leave my cushy, Sponge-Bob-pillow-equipped office and head home to do some actual work. And it's at those times that I really need the safety equpment available from Legion Safety Products.

Legion Safety Products has as its goal, and specialty, providing protective equipment to those who need it -- whether it be something as simple as protective leather gloves to wear when you try to get that bat out of the lobby, or higher-tech stuff like respirators, or even day-glo vests so your workers can be seen by traffic.

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Cross-Pollinization

I've got some cool new ideas for upcoming posts... but here's some cool old stuff I've been writing and reading:

What I'm Writing:

1001 Ways To Fine-Tune The World: 1001 ways, 1001 days -- and the first six are really good, if I say so myself. Hey, I just did say so myself! (Thinking The Lions)

Life isn't all superheroes, you know. Sometimes, life is also lots of microwave popcorn, and wishing you could use the Terminator as a babysitter -- as I do in The Best Movie Weapons (And How I'd Use Them In My Life (The Best of Everything)

It doesn't really fit in my pocket, but an Idea Notebook is a handy thing for a would-be writer to have. I know that -- so why don't I bring it with me? (Aaaaugh!)

There's something wrong with the sun! That's what you'd be saying if you were a character in The End of Light. Luckily for you, you're not; you can just read about the magician who might accidentally end the world before 2012. (AfterDark.)

What do jelly doughnuts and motorcycles have in common? They were both on my mind the other day -- but only one could get you $3,000 for being defective. (Family and Consumer Law: The Blog)

Teresa and Bumpy are having breakfast in New York... in Las Vegas. Teresa's surprise visit finds Bumpy acting as strange as usual, but maybe that's because the last time he saw her, she was slapping him at the police station. (5 Pages)

Actual reader quote: "A Valkyrie trying to kill God? What sacrilege!" You get strong reactions when the latest installment of the World's Greatest Story About Lesbian Zombies Living In The Future features a naked Valkyrie being attacked by ray guns. (Lesbian Zombies Are Taking Over The World!)

What I'm Reading:

This guy wants to look at girls' chests -- and do it in a socially respectable way. Is that so wrong? (Modern Sophist)

I got drawn in by the Airplane screenshots -- and stayed for the people watching jokes. (Waltsense.com)

For reasons that will remain unsaid -- but not the reasons you think -- I spent a chunk of time yesterday listening to Sophie Monk's music. I don't like it, but maybe you will.



And have you seen this? 15 people have so far: