A consumer who becomes the target of a debt collector may be subject to abuses that are prohibited by federal and state law. In addition to generally-known abuses such as frequent or inconvenient telephone calls, the law prohibits collection tactics that are deceptive or unfair to the average consumer. Violations can arise from any form of communication directed at the consumer, and from false or misleading allegations made in a legal complaint.
Attorney Lisa J. Espada specializes in the litigation of cases that arise under the following federal and state laws:
Debt Collection Harassment and Abuse:
The Fair Debt Collection Practices Act (FDCPA) and
The Rosenthal Act (California Civil Code § 1788.1 to § 1788.33)
The Fair Debt Collection Practices Act regulates the behavior of “debt collectors.” That definition encompasses collection agencies, debt buyers and law firms that collect debts for clients. In California, the corresponding state law (The Rosenthal Act) also regulates original creditors such as banks and credit unions.
If you are the subject of abusive collection tactics, it is essential to keep a written record of all the contacts from the abusive debt collector, including the dates and times of phone calls and the substance of each phone conversation. If a debt collector has made inaccurate or deceptive statements in relation to a consumer debt, keep all relevant correspondence, emails, and recorded messages from the debt collector.
If a debt collector has violated the FDCPA, the consumer may be entitled to up to $1,000 in statutory damages, in addition to compensation for economic losses and emotional distress. Statutory damages are available under the Rosenthal Act for an intentional violation of that statute.
Consumers have one year to file a lawsuit for violations of the FDCPA or the Rosenthal Act. This is a relatively short timeframe, so you must act quickly if you have a potential claim.
Collections by Debt Buyers: The Fair Debt Buying Practices Act
(California Civil Code § 1788.50 to § 1788.56)
One section of the Fair Debt Buying Practices Act (Civil Code § 1788.52) requires a debt buyer to possess six (6) types of information about the debt when seeking to collect it. Additionally, when seeking to collect a time-barred debt, this section requires the debt buyer to provide a specific disclosure, stating that the consumer will not be sued to collect that debt. Debt buyers who are not based in California or familiar with this section may violate the FDBPA by not providing this disclosure to its demands for payment and other correspondence.
An action for damages under the Fair Debt Buying Practices Act must be filed within one year of the violation. Therefore, you must act quickly to protect your rights.
The firm offers free consultations to Bay Area residents who receive a collection demand from a debt buyer or have been sued by a debt buyer. The consultation typically includes an analysis of whether the debt buyer has complied with the California Fair Debt Buying Practices Act.
Collections Related to Identity Theft: The California Identity Theft Act
(CA Civil Code § 1798.92 to §1798.97)
The use of technology in credit transactions has given us a society where identity theft (use of another person’s identity to obtain credit, goods, services, money, or property) has become a commonplace crime. The penal code is concerned with punishment of the criminal and does little to help the victim. The California Identity Theft Act gives the victim a way to respond to the collection of a debt that arose from identity theft, and to protect himself from claims and court judgments that could lead to financial chaos.
Under the Act, a “claimant” is a person who pursues a claim for money or an interest in property in connection with a transaction procured through identity theft. Civil Code § 1798.93 provides a civil cause of action to the identity theft victim, which can take the form of a legal complaint against the claimant, or a cross-complaint in response to the claimant’s collection lawsuit. If the victim establishes that the debt resulted from identity theft, a victim can obtain broad relief which may include:
- A declaration that they are not obligated to the claimant on that claim.
- A declaration that any security interest or other interest the claimant had purportedly obtained in the victim’s property in connection with that claim is void and unenforceable.
- An injunction restraining the claimant from collecting or attempting to collect from the victim on that claim, from enforcing or attempting to enforce any security interest in the victim’s property in connection with that claim, or from enforcing or executing on any judgment against the victim on that claim.
- If the victim has filed a cross-complaint, the dismissal of any cause of action in the complaint filed by the claimant based on a claim which arose as a result of the identity theft.
- Actual damages, attorney’s fees, and costs, and any equitable relief that the court deems appropriate.
In the context of debt collection, defense to a claim that the debt is the result of identity theft begins with a notice to the claimant, described in Civil Code § 1798.93 (c)(6)(A). If the claimant (often a bank, credit union, or debt buyer) ignores the notice, fails to investigate, and pursues the victim for payment of the debt, this section allows the identity theft victim to seek a civil penalty of up to $30,000, in addition to actual damages, attorney’s fees and litigation costs. This section gives the claimants motivation to investigate and determine the likelihood that identity theft played a part in the credit transaction.
Under Civil Code § 1798.96, the identity theft victim must file a complaint within four years of the date he or she knew of facts that support the position that the claim arose from identity theft.
If you are the victim of identity theft, and are being pursued by one or more creditors for debts that you did not incur, contact attorney Lisa J. Espada for a free consultation to discuss your rights and options for resolving disputed claims.