Can They Really Call Me This Much?
In my experience, many of my clients are plagued by collection calls. Many of these calls violate a bankrupcty discharge, or are made once the debt collector knows that my client is represented.
In those cases, I would argue that the Fair Debt Collection Practices Act has been violated. Additionally, the FDCPA prohibits certain types of calling practices, such as calling before 8 AM and after 9 PM. The FDCPA also prohibits calling a consumer when it is inconvenient for the consumer. Some courts have found that excessive daily phone calls can trigger this liability.
In some cases, a technicality may mean that the FDCPA does not apply. For example, the party calling might be an original creditor and not a debt collector. Regardless of whether the FDCPA applies, I look to the Telephone Consumer Protection Act to determine whether there is an additional federal cause of action.
Under the TCPA, it is unlawful for calls to be placed to your home or cellular phone under specific circumstances.
For example, under the TCPA, it is unlawful for a company to call your
home phone using a pre-recorded voice or computer-generated voice without
your permission. This means that collection calls that start with a recording
violate the law. A call may sound like this: "This is an important
phone call for STEVE JOHNSON. If you are not STEVE JOHNSON, then please
hang up now. If you are STEVE JOHNSON, then remain on the line..."
That call is absolutely made with a pre-recorded voice. It violates the TCPA unless the company placing the call has your prior consent. I'll discuss consent more later in this post.
Another type of prohibited phone call is when a company calls your cellular phone using an automated dialing system. As a general rule, if the phone call involves a pre-recorded message like the previous example, then the call wsa likely made with an automated dialing system. Another way to tell is if there are a few seconds of dead air from the time you pick up to the time a human being starts speaking. This is a general indicator that the debt collector called several phones at once, and was put through to you because you answered the phone call. The lag time is the system connecting the collector to you. Again, the debt collector must have your consent to make these types of calls.
Both of these types of TCPA violations are worth $500 per phone call in damages. If the violation is a knowing violation, then a judge may triple this amount, making each violation worth $1500.
You may be wondering, "How does someone consent to these types of calls?" In general, when you open a credit card or receive services like medical services, you are agreeing to being contacted. This consent extends to debt collectors. Consent can be revoked in several ways. The most effective methods put the revocation in writing. Sending a letter to a debt collector requesting calls to stop is a good way to do this. Moreover, if you send a "stop calling me" letter and the collector persists, you may have an FDCPA violation on your hands.
Another means of revoking consent is filing a bankruptcy. While this isn't as strong as a letter revoking consent, severing personal liability on a debt is a pretty clear message that you don't want to be called any more. So is the discharge injunction. The discharge injunction tells creditors to leave you alone--I would argue that it's all you need to do to revoke consent.
At the end of the day, both the FDCPA and the TCPA protect consumers from unwanted phone calls. However, the TCPA has a broader reach. Under the TCPA, it doesn't matter whether the caller is a debt collector. Under the FDCPA, it does matter.