California Fair Debt Collection Practices Act
Debt collectors are heavily regulated by federal and California state laws.
The California Fair Debt Collection Practices Act (California Civil Code Section 1788.30, also known as the Rosenthal Act) mirrors the federal Fair Debt Collection Practices Act (15 U.S.C.A. Section 1692k). Such strict governance is required to control a field where threats and offensive language are known to be very effective tactics to extract payments from debtors.
Creditors (the actual parties owed money) and debt collectors (agents hired by creditors to collect money owed to those creditors) have always had to deal with debtors (the parties who owe money) who can’t or won’t pay their debts. It should come as no surprise that sweet talk is much less effective than threats, personal insults, and relentless harassment when attempting to collect money. However, both federal and California law prevents such actions, and the financial penalties for violations of these laws are severe.
As an example of behavior that is prohibited, a debt collector may not use or threaten to use violence or any other criminal means against anyone's physical person, reputation or property. (See 15 USC Section 1692d(1)). The Federal Trade Commission has noted that even the statement, “We're not playing around here – we can play tough” is prohibited. In addition, using obscene or profane language is prohibited. (15 USC Section 1692d(2)). Some specific examples cited in court reports include a creditor asking a creditor if she was “old and senile” and accusing her of “just sitting on [her] behind doing nothing, collecting a social security check.” Likewise, a debt collector may not call the debtor a “liar” or “deadbeat.” Using religious slurs or racial/sexual epithets is similarly prohibited.
Debt collectors may not call debtors between the hours of 9:00 p.m. and 8:00 a.m. (15 USC § 1692c(a)(1)). Though a specific number is not given, debt collectors may not call debtors so many times in one day that the calls become harassing in and of themselves. Debt collectors may not call a debtor’s family, friends, or employer to embarrass the debtor into paying.
The penalties for violations can range from a statutory award of one hundred dollars ($100.00) to one thousand dollars ($1,000.00) per violation, plus actual damages (including emotional distress damages), punitive damages, and all costs of suit including attorneys’ fees. Though damages for emotional distress and punitive awards are not usually awarded, courts are quick to award the maximum statutory penalties and attorneys’ fees. Thus, bringing a law suit against an abusive creditor or debt collector can be an effective means to stop the abuse.
Do not let creditors push you around. If you feel you are the victim of abuse or harassment by creditors or debt collectors, consult an attorney to learn about your rights. You will likely discover that you have many more protections and rights than you thought you did.
ABOUT THE AUTHOR: Paul J. Molinaro, M.D., J.D.
Having been an active real estate investor and broker, Paul experienced first-hand, the good, bad, and the ugly of the real estate world. In his law practice, Paul sees the tricks employed by unscrupulous brokers and agents. He sees buyers and sellers play fast and loose with the disclosure laws regarding home sales and rentals. He sees borrowers who were promised affordable loans only to get loans they can't pay, buyers who bought homes with undisclosed defects, sellers try to back out of sales contracts without good cause, escrow companies who absconded with funds, and other illegal activities. Paul takes pride in representing people and small businesses who have been victimized during real estate transactions.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.