Getting calls from debt collectors is never fun, but when they keep calling you on your cellphone, it can really send you over the edge. After all, you probably carry your cellphone with you virtually everywhere, and getting those calls when you’re in a meeting at work, at the supermarket or watching your kid’s soccer game can be annoying, to say the least.
To help consumers understand their rights I spoke with attorneys Jeffrey S. Hyslip, managing member and Mark T. Lavery, senior litigation associate with Hyslip & Taylor LLC LPA. They explained that there are two laws that can apply to these types of calls on cellphones: the Telephone Consumer Protection Act (TCPA) and the Fair Debt Collection Practices Act (FDCPA).
The TCPA is a federal law that restricts telemarketing calls, and also limits the use of automatic dialing systems to situations where a consumer has given express prior consent.
The Federal Communications Commission, which writes the rules that implement the law, has said that collection calls by debt collectors using automated dialing systems are permitted if the calls comply with the TCPA, But many judges have held that certain debt collectors have violated the TCPA when calling debtors. “Many judges in various courts have strictly applied the TCPA to debt collectors,” says Hyslip.
There are typically two tests that most legal experts are looking at when deciding whether one of these calls may be illegal: Was it made using an “automated dialing system,” and did the consumer give his or her express consent to receive that type of call on their cellphone? If the answer to the first question is “yes” and the answer to the second is “no,” then the call may have been in violation of the TCPA.
Of course, you may not know the answers to these questions, which is why you may need to consult with a consumer law attorney. Some attorneys, like Hyslip and Lavery, argue that any phone that even has a “redial” button can qualify as an automatic dialing system, and many courts have agreed with a broad definition. From there, some attorneys have argued that even if a consumer gave a creditor their cellphone number when filling out an application, that doesn’t mean the third-party bill collector also has permission to call it. Again, some judges have agreed.
The FDCPA does not specifically say what debt collectors can and cannot do with regard to cellphone calls; the first law was passed in the 1970s, well before these types of calls were an issue. But there are other provisions that apply. One is that a collector cannot contact a debtor “at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.” It goes on to say, “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.”
Obviously it can get tricky with a cellphone number that may follow you when you move across the country and across time zones. A collector may think they are calling you at 7 p.m. Pacific time, but you’ve since moved to the East Coast where it is 10 p.m. instead.
The issues surrounding collection calls to cellphones are by no means crystal clear. In many cases, they are being decided in court cases brought by consumers and their attorneys, and judges across the country are interpreting the laws differently in various situations. The Consumer Financial Protection Bureau will no doubt weigh in at some point with rules to help clarify these issues under the FDCPA. But in the meantime, it shouldn’t be that hard for consumers to legitimately stop these calls.
The Simple Solution
So what’s the simple way to stop collection calls on your cellphone?
Just ask. Under the FDCPA, you can tell the collector that it’s not convenient for you to take these calls on your cell and you want them to stop. And under the TCPA, you should be able to state that you don’t want to be contacted on that number using an automated dialing system. Some courts have held that this latter revocation must be in writing, however, so it’s a good idea to follow up in writing and send your letter with proof of delivery.
“If they don’t want to get calls on their cellphone — say, ‘I don’t want to be called with an automated dialing system, or “stop calling me on my cellphone”.’ Or say, ‘I want to be called only once a week, or during certain hours etc,’” Hyslip says. “The FDCPA and TCPA in conjunction with each other empowers consumers to tell debt collectors how the consumers want to be communicated with.”
But just because you want to stop these calls, that doesn’t mean you should.
Why not? If the bill collector has no other way to reach you, you may leave them with no other option than to reach out to others (friends, relatives, for example) to attempt to locate you. Or they might realize the only way to get you to try to collect is to file a lawsuit. If the collector already has your correct address, or your landline number, this may not be much of an issue. But if their only contact is that number you don’t want them to use, it could be a problem.
Nevertheless, there are times when it is easy to decide to put a halt to these calls. Some examples include:
- You don’t believe you owe the debt;
- The debt is too old (outside statute of limitations);
- You are getting collection calls for someone else;
- You are getting harassing calls — many per day, for example.
If you find yourself in a situation where the caller won’t stop despite your requests, or you feel they are stepping over the line into harassment, talk with a consumer law attorney — or at least file a complaint with the Consumer Financial Protection Bureau. Violations of the TCPA can result in damages of $500 to $1,500 per call, while violations of the FDCPA may result in statutory damages of $1,000 and attorney’s fees. Actual damages are a possibility as well.
What if you are getting legitimate calls for a debt that you know you owe? Your first step should be to make sure the agency sends you written notice of the debt as required under the FDCPA. With that in hand, you can research your options for responding, whether that’s to pay it in full, negotiate a settlement or to consult a bankruptcy attorney if your debts are overwhelming.
And of course, anytime you are dealing with collection accounts it’s a good idea to check your credit reports to see which are appearing on your credit reports, and to get a free credit score to monitor how these accounts affect your credit scores.
More on Managing Debt:
- The Credit.com Debt Management Learning Center
- How to Pay Off Credit Card Debt
- Top 10 Debt Collection Rights