Are you in debt and being harassed by creditors? Creditor harassment comes in many forms. Perhaps the most annoying (and therefore a very effective) form of creditor harassment is persistent calls to your home or cell phone.
Large creditors and collection agencies commonly use auto dialers to place telephone calls to debtors. Once the call is answered, it is transferred to a collection agent. This saves time and money during the collection process.
Fortunately for consumers, Congress passed a little known law in 1991: the federal Telephone Consumer Protection Act, or TCPA. Under the TCPA, a debt collector (or any other person) using an auto dialer is forbidden from certain practices, including:
During a telephone call, the caller must provide their name, the name of the person or entity on behalf the call is being made, and a telephone number or address at which that person or entity may be contacted. The TCPA applies equally to calls placed by third party collectors and attorneys during debt collection.
A violation of the TCPA carries a substantial penalty of $500 per call, which may be increased up to $1,500 per call for willful violations.
The TCPA creates a private cause of action for the victim which may be pursued in state court. In other words, if a debt collector is harassing your cell phone, you may be able to sue the collector in your local small claims court and obtain a judgment of $500 or more for each phone call.
The TCPA is a “strict liability” offense, which means that it does not require that the collector knows that it is calling a cell phone number. However, if the collector knows or should have known that it is calling a cell phone, the court may find a willful violation and assess a penalty of up to $1,500 per offense, or actual damages caused by the violation, whichever is greater.
Before you file your lawsuit there are a few important things to consider. First, the debt collector may claim that you have given “express consent” to receiving calls on your cell phone. The Federal Communications Commission considers “express consent” given when a person provides a cell phone number to a creditor, for example, as part of a credit application.
Most credit applications now include a request for a cell phone number. Courts have found that a person can give express consent to a creditor in other ways including verbal, in writing, or by a spouse.
While express consent may be easy to find, revoking this consent is more problematic. Courts differ on when express consent is revoked. A few courts have allowed that revocation of consent is effective when given orally; all courts find that revocation can be made in writing; but some courts find that revocation can only be made in writing. The safest and most effective way to stop harassing calls to your cell phone is to send a written “cease and desist” notice to the collector.
Be aware that revocation of consent under the TCPA does not stop all debt collection calls, only those collection calls made to your cell phone by an auto dialing system.
Most of the debt collection industry uses auto dialers to place collection calls. You can generally identify an auto dialed call if there is a short delay between answering the phone and speaking with a person.
There is often an audible “click” as the call is routed to a collection agent. In some cases, the auto dialer will have a pre-recorded message asking you to call the collection agency or to wait on the line for an agent.
If you are receiving auto dialer collection calls on your cell phone, there are a few steps to take to document your case:
By knowing your rights under the Telephone Consumer Protection Act, you can reduce or stop debt collection harassment to your cell phone.
The TCPA is just one consumer protection under state and federal laws that can stop debt collectors cold, including time limitation statutes (“statutes of limitations”), bankruptcy laws, the Fair Debt Collections Practices Act, and a host of others.