Most common violations of the FDCPA

One of the most common violations of the FDCPA that we encounter is excessive phone calls. We see some of the larger debt collectors such as Allied Interstate, NCO Financial Systems and Portfolio Recovery routinely engage in excessive calling of consumers in attempting to collect on debts. However, these can also be the most difficult cases to prove because there is no rule as to how often a debt collector can call you before violating the FDCPA. Whether a debt collector has violated the law by calling excessively is what courts describe as “an issue of fact”, which simply means that whether a number of calls is in violation of the FDCPA is determined by the facts of each case. Factors in determining whether a debt collector violates the law by calling excessively includes not just the volume of calls but the frequency of the calls. For example, it might not be a violation if a debt collector called once daily for a week but it is likely a violation if the debt collector called once daily for a month. Alte
atively, it could be a violation if the debt collector called for only one week if during that week the debt collector called multiple times each day with the calls being placed only a few minutes apart.

Consequently, it is crucial to have as much evidence as possible documenting the calls from the debt collector so the frequency and volume of the calls can be determined as precisely as possible. We have found that you cannot rely on obtaining records from your phone carrier to document the calls as some inbound calls will not be documented if the call was terminated prior to connection or if the call was from a toll free number. Also, some phone carriers will not provide phone records in the absence of a court order or subpoena.

Also, though the debt collectors should maintain records of outgoing calls, these records may not be reliable for a variety of reasons, not the least of which is the debt collector may not be inclined to document its illegal conduct.

Therefore, if you are receiving phone calls from a debt collector, don’t wait until it is annoying before you document the calls. A call log can be typed or handwritten and need only contain the number that is calling and the date and time of the call. All of this information can be obtained from the caller identification, standard on most phones today. If there is a conversation as a result of any of these calls, be sure to document the substance of the conversation and the name of the person to whom you spoke. If a voicemail message is left, be sure to save it.

It is our experience that call log can be a persuasive piece of evidence to support allegations of excessive calls if traditional records cannot be obtained or are incomplete or unreliable and can persuade a debt collector to quickly settle a claim of violating the FDCPA.