The Fair Debt Collection Practices Act: Legal Framework

The Fair Debt Collection Practices Act: Legal Framework

June 10, 2019
The Fair Debt Collection Practices Act: Legal Framework
Overview
collector may not use profane language or threaten
Congress enacted the Fair Debt Collection Practices Act
to use violence when attempting to collect a debt.
(FDCPA) in 1977 to “eliminate abusive debt collection
practices by debt collectors” by rendering particular types
 Regulates when, where, how, and under what
of collection activities unlawful. This In Focus provides an
circumstances debt collectors may
overview of some of the FDCPA’s most salient provisions
communicate with consumers and third parties.
and identifies pertinent legal considerations for Congress.
For example, a debt collector generally may not
contact a consumer at an “unusual time or place”
To Whom—and to Which Debts—Does the
that would be “inconvenient to the consumer.”
FDCPA Apply?
With limited exceptions, the FDCPA applies only to entities
 Requires debt collectors to provide consumers
that qualify as “debt collectors.” The statute’s definition of
with a written notice that discloses certain
“debt collector” is intricate and excludes various entities
information and allows the consumer to dispute
from its scope. For example, a creditor seeking to collect
the debt’s validity. Among other things, this
debts on its own behalf and under its own name ordinarily
notice includes the amount of the debt and the
does not qualify as a “debt collector.” Federal employees
creditor’s identity.
who collect debts pursuant to their official governmental
duties seldom qualify as “debt collectors” either.
 Restricts the forums in which a debt collector
Additionally, Congress amended the FDCPA’s definition of
may pursue legal actions against a debtor. A
“debt collector” in 2006 to exclude certain private entities
debt collector may not, for instance, force a
that operate bad check enforcement programs on behalf of a
consumer to defend himself against a lawsuit in an
state or district attorney.
inconvenient or geographically distant court.
Along with only covering certain entities, the FDCPA also
Who Enforces the FDCPA, and How?
applies only to certain debts. The FDCPA defines “debt” to
The FDCPA authorizes several federal agencies—including
include only obligations incurred “primarily for personal,
the Federal Trade Commission (FTC) and the Consumer
family, or household purposes” such as credit card debt and
Financial Protection Bureau (CFPB)—to pursue
medical bills. As a result, business debts ordinarily fall
enforcement actions against debt collectors in particular
outside the FDCPA’s scope.
contexts. Congress has also authorized the CFPB to
promulgate rules and regulations to implement the FDCPA.
What Does the FDCPA Prohibit?
For instance, the CFPB recently invited public comment on
The FDCPA bars debt collectors from taking various
a proposed regulation that would aim to, among other
actions when seeking to collect debts from consumers.
things, “clarify how debt collectors may employ . . . newer
Among other things, the FDCPA:
communication technologies in compliance with the
FDCPA” and provide interpretive guidance regarding the
 Forbids debt collectors from using any “false,
FDCPA’s consumer disclosure requirements.
deceptive, or misleading representation or
means in connection with the collection of any
Besides authorizing these agencies to initiate administrative
debt.” For example, a debt collector may not
enforcement actions, the FDCPA also empowers consumers
misrepresent “the character, amount, or legal status
to enforce the statute by bringing private lawsuits. Subject
of any debt.”
to certain conditions and limitations, if a debt collector
violates the FDCPA, the person subjected to those
 Prohibits debt collectors from using “unfair or
violations may obtain an award of monetary damages and
unconscionable means to collect or attempt to
attorney’s fees from that debt collector. Many courts have
collect any debt.” For instance, a debt collector
concluded, however, that the FDCPA does not authorize
may not attempt to collect any money—such as a
awards of punitive damages.
fee or expense—not “expressly authorized by the
agreement creating the debt” or otherwise
A court may not hold a debt collector liable under the
permitted by applicable law.
FDCPA if it can prove that (1) the violation resulted from
an unintentional good-faith error, and (2) the collector
 Bars debt collectors from engaging in
maintained “procedures reasonably adapted to avoid any
harassment or abuse. To illustrate, a debt
such error.” Nor will a debt collector be liable for “any act
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The Fair Debt Collection Practices Act: Legal Framework
done or omitted in good faith in conformity with any
would have similarly expanded the FDCPA’s definition of
advisory opinion” issued by the CFPB.
“debt” to include debts “owed to a State.”
How Does the FDCPA Interact With State Law?
Other recent bills have likewise proposed to modify the
The FDCPA does not foreclose states from enacting and
FDCPA’s protections and remedies. The Military Lending
enforcing their own debt collection laws. The FDCPA
Improvement Act of 2018 (S. 3334, 115th Cong.), for
expressly does not preempt state laws regulating debt
instance, proposed to expand the list of actions that qualify
collection practices “except to the extent that those laws are
as unlawful communications or misleading representations
inconsistent with” the FDCPA, “and then only to the extent
under the FDCPA, which, in turn, could have exposed debt
of the inconsistency.” As a result, the FDCPA expressly
collectors to increased liability. Taking a different route, the
does not displace any state law that affords consumers
DCPHA would have expanded the remedies available to
greater protections than those guaranteed by the FDCPA.
FDCPA plaintiffs by (1) adjusting the monetary damages
available under the FDCPA to account for inflation, and
Legal Considerations for Congress
(2) authorizing courts to issue injunctive relief against
The U.S. Supreme Court has decided several cases
entities that violate the statute.
interpreting the FDCPA within the past few years. In many
of these cases, the Court has interpreted the statute narrowly
As an alternative to amending the FDCPA’s substantive
to limit defendants’ potential exposure. For instance, in
requirements, some recent legislative proposals would
Henson v. Santander Consumer USA Inc. and Obduskey v.
modify the statute’s procedural provisions. For example,
McCarthy & Holthus LLP, the Court interpreted the term
the Medical Debt Relief Act of 2019 (S. 1581, 116th Cong.)
“debt collector” to exclude particular types of entities such
would, among other things, amend the FDCPA’s disclosure
as debt buyers and businesses engaged in nonjudicial
requirements to bar entities from reporting medical debt to
foreclosure proceedings. Additionally, in Midland Funding,
a consumer reporting agency without first giving the
LLC v. Johnson, the Court ruled that filing a claim in a
consumer one year’s notice.
debtor’s bankruptcy case that the applicable statute of
limitations bars does not qualify as “false, deceptive, or
Separate from the question of how broadly the FDCPA
misleading” behavior or as “unfair” or “unconscionable”
should apply is which entity (or entities) should be
under the FDCPA. The Justices have explicitly emphasized
authorized to enforce it. The Repeal CFPB Act (S. 1335,
that Congress, if it believes the Court has interpreted the
116th Cong.), for instance, would eliminate the CFPB’s
FDCPA incorrectly, is free to override the Court’s
current authority to pursue administrative enforcement
interpretations by amending the statute. To that end, several
actions under the FDCPA by abolishing the CFPB entirely.
Members of the 115th and 116th Congresses have
introduced legislation proposing to amend the FDCPA in

various respects. These legislative proposals implicate
Relevant Statutes
several legal considerations.
15 U.S.C. §§ 1692-1692p—the Fair Debt Collection Practices
For example, several of these bills propose to redefine key
Act.
legal terms in the FDCPA in a way that could either enlarge
or contract the FDCPA’s scope. The Stop Debt Collection
Proposed Regulations
Abuse Act of 2017 (H.R. 864 and S. 575, 115th Cong.)
Debt Collection Practices (Regulation F), 84 Fed. Reg. 23274
(SDCAA), for instance, would have broadened the
FDCPA’s scope by expanding the term “debt collector” to
(proposed May 21, 2019).
include, among other things, certain entities that purchase
debts and then attempt to collect them. By contrast, the
Other Resources
Practice of Law Technical Clarification Act of 2018 (H.R.
Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019).
5082, 115th Cong.) would have narrowed the FDCPA’s
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718
applicability by exempting attorneys from the FDCPA’s
(2017).
definition of “debt collector” under specified
Midland Funding, LLC v. Johnson, 137 S. Ct. 1407 (2017).
circumstances.
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559
Bills proposing to modify the FDCPA’s definition of “debt”
U.S. 573 (2010).
would similarly alter the statute’s coverage by broadening
or narrowing the universe of obligations to which the

FDCPA applies. For example, the SDCAA would have
enlarged the FDCPA’s coverage by extending the statutory
Kevin M. Lewis, Legislative Attorney
definition of “debt” to include specified types of obligations
owed to a federal agency. The Debt Collection Practices
IF11247
Harmonization Act (H.R. 1521, 115th Cong.) (DCPHA)

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The Fair Debt Collection Practices Act: Legal Framework

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