To
amend the Consumer Credit Protection Act to prohibit abusive
practices by debt collectors.
Be
it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the
Consumer Credit Protection Act (15 U.S.C. 1601 et seq.) is amended
by adding at the end thereof the following new title:
TITLE
VIII - DEBT COLLECTION PRACTICES [Fair Debt Collection
Practices Act]
Sec.
801. Short Title
802. Congressional findings and declaration
of purpose
803. Definitions
804. Acquisition of location information
805. Communication in connection with
debt collection
806. Harassment or abuse
807. False or misleading representations
808. Unfair practice
809. Validation of debts
810. Multiple debts
811. Legal actions by debt collectors
812. Furnishing certain deceptive forms
813. Civil liability
814. Administrative enforcement
815. Reports to Congress by the Commission
816. Relation to State laws
817. Exemption for State regulation
818. Effective date
§
801. Short Title [15 USC 1601 note]
This
title may be cited as the "Fair Debt Collection Practices
Act."
§
802. Congressional findings and declarations of purpose
[15 USC 1692]
(a)
There is abundant evidence of the use of abusive, deceptive,
and unfair debt collection practices by many debt collectors.
Abusive debt collection practices contribute to the number of
personal bankruptcies, to marital instability, to the loss of
jobs, and to invasions of individual privacy.
(b)
Existing laws and procedures for redressing these injuries are
inadequate to protect consumers.
(c)
Means other than misrepresentation or other abusive debt collection
practices are available for the effective collection of debts.
(d)
Abusive debt collection practices are carried on to a substantial
extent in interstate commerce and through means and instrumentalities
of such commerce. Even where abusive debt collection practices
are purely intrastate in character, they nevertheless directly
affect interstate commerce.
(e)
It is the purpose of this title to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors
who refrain from using abusive debt collection practices are
not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.
§
803. Definitions [15 USC 1692a]
As
used in this title --
(1)
The term "Commission" means the Federal Trade Commission.
(2)
The term "communication" means the conveying of
information regarding a debt directly or indirectly to any
person through any medium.
(3)
The term "consumer" means any natural person obligated
or allegedly obligated to pay any debt.
(4)
The term "creditor" means any person who offers
or extends credit creating a debt or to whom a debt is owed,
but such term does not include any person to the extent that
he receives an assignment or transfer of a debt in default
solely for the purpose of facilitating collection of such
debt for another.
(5)
The term "debt" means any obligation or alleged
obligation of a consumer to pay money arising out of a transaction
in which the money, property, insurance or services which
are the subject of the transaction are primarily for personal,
family, or household purposes, whether or not such obligation
has been reduced to judgment.
(6)
The term "debt collector" means any person who uses
any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due another. Notwithstanding the exclusion provided
by clause (F) of the last sentence of this paragraph, the
term includes any creditor who, in the process of collecting
his own debts, uses any name other than his own which would
indicate that a third person is collecting or attempting to
collect such debts. For the purpose of section 808(6), such
term also includes any person who uses any instrumentality
of interstate commerce or the mails in any business the principal
purpose of which is the enforcement of security interests.
The term does not include --
(A)
any officer or employee of a creditor while, in the name
of the creditor, collecting debts for such creditor;
(B)
any person while acting as a debt collector for another
person, both of whom are related by common ownership or
affiliated by corporate control, if the person acting as
a debt collector does so only for persons to whom it is
so related or affiliated and if the principal business of
such person is not the collection of debts;
(C)
any officer or employee of the United States or any State
to the extent that collecting or attempting to collect any
debt is in the performance of his official duties;
(D)
any person while serving or attempting to serve legal process
on any other person in connection with the judicial enforcement
of any debt;
(E)
any nonprofit organization which, at the request of consumers,
performs bona fide consumer credit counseling and assists
consumers in the liquidation of their debts by receiving
payments from such consumers and distributing such amounts
to creditors; and
(F)
any person collecting or attempting to collect any debt
owed or due or asserted to be owed or due another to the
extent such activity (i) is incidental to a bona fide fiduciary
obligation or a bona fide escrow arrangement; (ii) concerns
a debt which was originated by such person; (iii) concerns
a debt which was not in default at the time it was obtained
by such person; or (iv) concerns a debt obtained by such
person as a secured party in a commercial credit transaction
involving the creditor.
(7)
The term "location information" means a consumer's
place of abode and his telephone number at such place, or
his place of employment.
(8)
The term "State" means any State, territory, or
possession of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, or any political subdivision
of any of the foregoing.
§
804. Acquisition of location information [15
USC 1692b]
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 the communication from the debt collector.
§
805. Communication in connection with debt collection
[15 USC 1692c]
(a)
COMMUNICATION WITH THE CONSUMER GENERALLY. Without the
prior consent of the consumer given directly to the debt collector
or the express permission of a court of competent jurisdiction,
a debt collector may not communicate with a consumer in connection
with the collection of any debt --
(1)
at any unusual time or place or a time or place known or which
should be known to be inconvenient to the consumer. In the
absence of knowledge of circumstances to the contrary, a debt
collector shall assume that the convenient time for communicating
with a consumer is after 8 o'clock antimeridian and before
9 o'clock postmeridian, local time at the consumer's location;
(2)
if the debt collector knows the consumer is represented by
an attorney with respect to such debt and has knowledge of,
or can readily ascertain, such attorney's name and address,
unless the attorney fails to respond within a reasonable period
of time to a communication from the debt collector or unless
the attorney consents to direct communication with the consumer;
or
(3)
at the consumer's place of employment if the debt collector
knows or has reason to know that the consumer's employer prohibits
the consumer from receiving such communication.
(b)
COMMUNICATION WITH THIRD PARTIES. Except as provided in
section 804, without the prior consent of the consumer given
directly to the debt collector, or the express permission of
a court of competent jurisdiction, or as reasonably necessary
to effectuate a postjudgment judicial remedy, a debt collector
may not communicate, in connection with the collection of any
debt, with any person other than a consumer, his attorney, a
consumer reporting agency if otherwise permitted by law, the
creditor, the attorney of the creditor, or the attorney of the
debt collector.
(c)
CEASING COMMUNICATION. 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.
If
such notice from the consumer is made by mail, notification
shall be complete upon receipt.
(d)
For the purpose of this section, the term "consumer"
includes the consumer's spouse, parent (if the consumer is a
minor), guardian, executor, or administrator.
§
806. Harassment or abuse [15 USC 1692d]
A
debt collector may not engage in any conduct the natural consequence
of which is to harass, oppress, or abuse any person in connection
with the collection of a debt. Without limiting the general
application of the foregoing, the following conduct is a violation
of this section:
(1)
The use or threat of use of violence or other criminal means
to harm the physical person, reputation, or property of any
person.
(2)
The use of obscene or profane language or language the natural
consequence of which is to abuse the hearer or reader.
(3)
The publication of a list of consumers who allegedly refuse
to pay debts, except to a consumer reporting agency or to
persons meeting the requirements of section 603(f) or 604(3)1
of this Act.
(4)
The advertisement for sale of any debt to coerce payment of
the debt.
(5)
Causing a telephone to ring or engaging any person in telephone
conversation repeatedly or continuously with intent to annoy,
abuse, or harass any person at the called number.
(6)
Except as provided in section 804, the placement of telephone
calls without meaningful disclosure of the caller's identity.
§
807. False or misleading representations [15
USC 1962e]
A
debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of
any debt. Without limiting the general application of the foregoing,
the following conduct is a violation of this section:
(1)
The false representation or implication that the debt collector
is vouched for, bonded by, or affiliated with the United States
or any State, including the use of any badge, uniform, or
facsimile thereof.
(2)
The false representation of --
(A)
the character, amount, or legal status of any debt; or
(B)
any services rendered or compensation which may be lawfully
received by any debt collector for the collection of a debt.
(3)
The false representation or implication that any individual
is an attorney or that any communication is from an attorney.
(4)
The representation or implication that nonpayment of any debt
will result in the arrest or imprisonment of any person or
the seizure, garnishment, attachment, or sale of any property
or wages of any person unless such action is lawful and the
debt collector or creditor intends to take such action.
(5)
The threat to take any action that cannot legally be taken
or that is not intended to be taken.
(6)
The false representation or implication that a sale, referral,
or other transfer of any interest in a debt shall cause the
consumer to --
(A)
lose any claim or defense to payment of the debt; or
(B)
become subject to any practice prohibited by this title.
(7)
The false representation or implication that the consumer
committed any crime or other conduct in order to disgrace
the consumer.
(8)
Communicating or threatening to communicate to any person
credit information which is known or which should be known
to be false, including the failure to communicate that a disputed
debt is disputed.
(9)
The use or distribution of any written communication which
simulates or is falsely represented to be a document authorized,
issued, or approved by any court, official, or agency of the
United States or any State, or which creates a false impression
as to its source, authorization, or approval.
(10)
The use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information
concerning a consumer.
(11)
The failure to disclose in the initial written communication
with the consumer and, in addition, if the initial communication
with the consumer is oral, in that initial oral communication,
that the debt collector is attempting to collect a debt and
that any information obtained will be used for that purpose,
and the failure to disclose in subsequent communications that
the communication is from a debt collector, except that this
paragraph shall not apply to a formal pleading made in connection
with a legal action.
(12)
The false representation or implication that accounts have
been turned over to innocent purchasers for value.
(13)
The false representation or implication that documents are
legal process.
(14)
The use of any business, company, or organization name other
than the true name of the debt collector's business, company,
or organization.
(15)
The false representation or implication that documents are
not legal process forms or do not require action by the consumer.
(16)
The false representation or implication that a debt collector
operates or is employed by a consumer reporting agency as
defined by section 603(f) of this Act.
§
808. Unfair practices [15 USC 1692f]
A
debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt. Without limiting the
general application of the foregoing, the following conduct
is a violation of this section:
(1)
The collection of any amount (including any interest, fee,
charge, or expense incidental to the principal obligation)
unless such amount is expressly authorized by the agreement
creating the debt or permitted by law.
(2)
The acceptance by a debt collector from any person of a check
or other payment instrument postdated by more than five days
unless such person is notified in writing of the debt collector's
intent to deposit such check or instrument not more than ten
nor less than three business days prior to such deposit.
(3)
The solicitation by a debt collector of any postdated check
or other postdated payment instrument for the purpose of threatening
or instituting criminal prosecution.
(4)
Depositing or threatening to deposit any postdated check or
other postdated payment instrument prior to the date on such
check or instrument.
(5)
Causing charges to be made to any person for communications
by concealment of the true propose of the communication. Such
charges include, but are not limited to, collect telephone
calls and telegram fees.
(6)
Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if --
(A)
there is no present right to possession of the property
claimed as collateral through an enforceable security interest;
(B)
there is no present intention to take possession of the
property; or
(C)
the property is exempt by law from such dispossession or
disablement.
(7)
Communicating with a consumer regarding a debt by post card.
(8)
Using any language or symbol, other than the debt collector's
address, on any envelope when communicating with a consumer
by use of the mails or by telegram, except that a debt collector
may use his business name if such name does not indicate that
he is in the debt collection business.
§
809. Validation of debts [15 USC 1692g]
(a)
Within five days after the initial communication with a consumer
in connection with the collection of any debt, a debt collector
shall, unless the following information is contained in the
initial communication or the consumer has paid the debt, send
the consumer a written notice containing --
(1)
the amount of the debt;
(2)
the name of the creditor to whom the debt is owed;
(3)
a statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt,
or any portion thereof, the debt will be assumed to be valid
by the debt collector;
(4)
a statement that if the consumer notifies the debt collector
in writing within the thirty-day period that the debt, or
any portion thereof, is disputed, the debt collector will
obtain verification of the debt or a copy of a judgment against
the consumer and a copy of such verification or judgment will
be mailed to the consumer by the debt collector; and
(5)
a statement that, upon the consumer's written request within
the thirty-day period, the debt collector will provide the
consumer with the name and address of the original creditor,
if different from the current creditor.
(b)
If the consumer notifies the debt collector in writing within
the thirty-day period described in subsection (a) that the debt,
or any portion thereof, is disputed, or that the consumer requests
the name and address of the original creditor, the debt collector
shall cease collection of the debt, or any disputed portion
thereof, until the debt collector obtains verification of the
debt or any copy of a judgment, or the name and address of the
original creditor, and a copy of such verification or judgment,
or name and address of the original creditor, is mailed to the
consumer by the debt collector.
(c)
The failure of a consumer to dispute the validity of a debt
under this section may not be construed by any court as an admission
of liability by the consumer.
§
810. Multiple debts [15 USC 1692h]
If
any consumer owes multiple debts and makes any single payment
to any debt collector with respect to such debts, such debt
collector may not apply such payment to any debt which is disputed
by the consumer and, where applicable, shall apply such payment
in accordance with the consumer's directions.
§
811. Legal actions by debt collectors [15
USC 1692i]
(a)
Any debt collector who brings any legal action on a debt against
any consumer shall --
(1)
in the case of an action to enforce an interest in real property
securing the consumer's obligation, bring such action only
in a judicial district or similar legal entity in which such
real property is located; or
(2)
in the case of an action not described in paragraph (1), bring
such action only in the judicial district or similar legal
entity --
(A)
in which such consumer signed the contract sued upon; or
(B)
in which such consumer resides at the commencement of the
action.
(b)
Nothing in this title shall be construed to authorize the bringing
of legal actions by debt collectors.
§
812. Furnishing certain deceptive forms [15
USC 1692j]
(a)
It is unlawful to design, compile, and furnish any form knowing
that such form would be used to create the false belief in a
consumer that a person other than the creditor of such consumer
is participating in the collection of or in an attempt to collect
a debt such consumer allegedly owes such creditor, when in fact
such person is not so participating.
(b)
Any person who violates this section shall be liable to the
same extent and in the same manner as a debt collector is liable
under section 813 for failure to comply with a provision of
this title.
§
813. Civil liability [15 USC 1692k]
(a)
Except as otherwise provided by this section, any debt collector
who fails to comply with any provision of this title with respect
to any person is liable to such person in an amount equal to
the sum of --
(1)
any actual damage sustained by such person as a result of
such failure;
(2)
(A) in the case of any action by an individual, such additional
damages as the court may allow, but not exceeding $1,000;
or
(B)
in the case of a class action, (i) such amount for each
named plaintiff as could be recovered under subparagraph
(A), and (ii) such amount as the court may allow for all
other class members, without regard to a minimum individual
recovery, not to exceed the lesser of $500,000 or 1 per
centum of the net worth of the debt collector; and
(3)
in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable
attorney's fee as determined by the court. On a finding by
the court that an action under this section was brought in
bad faith and for the purpose of harassment, the court may
award to the defendant attorney's fees reasonable in relation
to the work expended and costs.
(b)
In determining the amount of liability in any action under subsection
(a), the court shall consider, among other relevant factors
--
(1)
in any individual action under subsection (a)(2)(A), the frequency
and persistence of noncompliance by the debt collector, the
nature of such noncompliance, and the extent to which such
noncompliance was intentional; or
(2)
in any class action under subsection (a)(2)(B), the frequency
and persistence of noncompliance by the debt collector, the
nature of such noncompliance, the resources of the debt collector,
the number of persons adversely affected, and the extent to
which the debt collector's noncompliance was intentional.
(c)
A debt collector may not be held liable in any action brought
under this title if the debt collector shows by a preponderance
of evidence that the violation was not intentional and resulted
from a bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.
(d)
An action to enforce any liability created by this title may
be brought in any appropriate United States district court without
regard to the amount in controversy, or in any other court of
competent jurisdiction, within one year from the date on which
the violation occurs.
(e)
No provision of this section imposing any liability shall apply
to any act done or omitted in good faith in conformity with
any advisory opinion of the Commission, notwithstanding that
after such act or omission has occurred, such opinion is amended,
rescinded, or determined by judicial or other authority to be
invalid for any reason.
§
814. Administrative enforcement [15
USC 1692l]
(a)
Compliance with this title shall be enforced by the Commission,
except to the extend that enforcement of the requirements imposed
under this title is specifically committed to another agency
under subsection (b). For purpose of the exercise by the Commission
of its functions and powers under the Federal Trade Commission
Act, a violation of this title shall be deemed an unfair or
deceptive act or practice in violation of that Act. All of the
functions and powers of the Commission under the Federal Trade
Commission Act are available to the Commission to enforce compliance
by any person with this title, irrespective of whether that
person is engaged in commerce or meets any other jurisdictional
tests in the Federal Trade Commission Act, including the power
to enforce the provisions of this title in the same manner as
if the violation had been a violation of a Federal Trade Commission
trade regulation rule.
(b)
Compliance with any requirements imposed under this title shall
be enforced under --
(1)
section 8 of the Federal Deposit Insurance Act, in the case
of --
(A)
national banks, by the Comptroller of the Currency;
(B)
member banks of the Federal Reserve System (other than national
banks), by the Federal Reserve Board; and
(C)
banks the deposits or accounts of which are insured by the
Federal Deposit Insurance Corporation (other than members
of the Federal Reserve System), by the Board of Directors
of the Federal Deposit Insurance Corporation;
(2)
section 5(d) of the Home Owners Loan Act of 1933, section
407 of the National Housing Act, and sections 6(i) and 17
of the Federal Home Loan Bank Act, by the Federal Home Loan
Bank Board (acting directing or through the Federal Savings
and Loan Insurance Corporation), in the case of any institution
subject to any of those provisions;
(3)
the Federal Credit Union Act, by the Administrator of the
National Credit Union Administration with respect to any Federal
credit union;
(4)
subtitle IV of Title 49, by the Interstate Commerce Commission
with respect to any common carrier subject to such subtitle;
(5)
the Federal Aviation Act of 1958, by the Secretary of Transportation
with respect to any air carrier or any foreign air carrier
subject to that Act; and
(6)
the Packers and Stockyards Act, 1921 (except as provided in
section 406 of that Act), by the Secretary of Agriculture
with respect to any activities subject to that Act.
(c)
For the purpose of the exercise by any agency referred to in
subsection (b) of its powers under any Act referred to in that
subsection, a violation of any requirement imposed under this
title shall be deemed to be a violation of a requirement imposed
under that Act. In addition to its powers under any provision
of law specifically referred to in subsection (b), each of the
agencies referred to in that subsection may exercise, for the
purpose of enforcing compliance with any requirement imposed
under this title any other authority conferred on it by law,
except as provided in subsection (d).
(d)
Neither the Commission nor any other agency referred to in subsection
(b) may promulgate trade regulation rules or other regulations
with respect to the collection of debts by debt collectors as
defined in this title.
§
815. Reports to Congress by the Commission [15
USC 1692m]
(a)
Not later than one year after the effective date of this title
and at one-year intervals thereafter, the Commission shall make
reports to the Congress concerning the administration of its
functions under this title, including such recommendations as
the Commission deems necessary or appropriate. In addition,
each report of the Commission shall include its assessment of
the extent to which compliance with this title is being achieved
and a summary of the enforcement actions taken by the Commission
under section 814 of this title.
(b)
In the exercise of its functions under this title, the Commission
may obtain upon request the views of any other Federal agency
which exercises enforcement functions under section 814 of this
title.
§
816. Relation to State laws [15 USC 1692n]
This
title does not annul, alter, or affect, or exempt any person
subject to the provisions of this title from complying with
the laws of any State with respect to debt collection practices,
except to the extent that those laws are inconsistent with any
provision of this title, and then only to the extent of the
inconsistency. For purposes of this section, a State law is
not inconsistent with this title if the protection such law
affords any consumer is greater than the protection provided
by this title.
§
817. Exemption for State regulation [15
USC 1692o]
The
Commission shall by regulation exempt from the requirements
of this title any class of debt collection practices within
any State if the Commission determines that under the law of
that State that class of debt collection practices is subject
to requirements substantially similar to those imposed by this
title, and that there is adequate provision for enforcement.
§
818. Effective date [15 USC 1692 note]
This
title takes effect upon the expiration of six months after the
date of its enactment, but section 809 shall apply only with
respect to debts for which the initial attempt to collect occurs
after such effective date.
Approved
September 20, 1977
ENDNOTES
1.
So in original; however, should read "604(a)(3)."
LEGISLATIVE
HISTORY:
Public
Law 95-109 [H.R. 5294]
HOUSE
REPORT No. 95-131 (Comm. on Banking, Finance, and Urban Affairs).
SENATE
REPORT No. 95-382 (Comm. on Banking, Housing, and Urban Affairs).
CONGRESSIONAL
RECORD, Vol. 123 (1977):
Apr.
4, considered and passed House.
Aug.
5, considered and passed Senate, amended.
Sept.
8, House agreed to Senate amendment.
WEEKLY
COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 13, No. 39:
Sept.
20, Presidential statement.
AMENDMENTS:
SECTION
621, SUBSECTIONS (b)(3), (b)(4) and (b)(5) were amended to transfer
certain administrative enforcement responsibilities, pursuant
to Pub. L. 95-473, § 3(b), Oct. 17, 1978. 92
Stat. 166; Pub. L. 95-630, Title V. § 501, November
10, 1978, 92 Stat. 3680; Pub. L. 98-443, § 9(h),
Oct. 4, 1984, 98 Stat. 708.
SECTION
803, SUBSECTION (6), defining "debt collector," was
amended to repeal the attorney at law exemption at former Section
(6)(F) and to redesignate Section 803(6)(G) pursuant to Pub.
L. 99-361, July 9, 1986, 100 Stat. 768. For legislative history,
see H.R. 237, HOUSE REPORT No. 99-405 (Comm. on Banking,
Finance and Urban Affairs). CONGRESSIONAL RECORD: Vol. 131 (1985):
Dec. 2, considered and passed House. Vol. 132 (1986): June 26,
considered and passed Senate.
SECTION
807, SUBSECTION (11), was amended to affect when debt collectors
must state (a) that they are attempting to collect a debt and
(b) that information obtained will be used for that purpose,
pursuant to Pub. L. 104-208 § 2305, 110 Stat. 3009 (Sept.
30, 1996).
