Understanding the Fair Debt Collection Practices Act and the Rosenthal Act

All debtors in the United States have rights under the Fair Debt Collection Practices Act (FDCPA). This federal law regulates how debt collectors can communicate with debtors and attempt to compel them to pay what they owe. The Rosenthal Act is the California version of the FDCPA and provides additional protection.

It is important to understand that the FDCPA’s rules only apply to debt collectors and do not apply to “original creditors.” The Rosenthal Act, conversely, does cover original creditors.

An original creditor is the originator of the loan. For example, if you have medical debt, the hospital where you received care is most likely the original creditor. An original creditor may eventually sell your debt to a collection agency if they have trouble collecting what they are owed themselves. The hospital – acting as the original creditor – is not regulated by the FDCPA, but if they are located in California, they must honor the rules of the Rosenthal Act.

The FDCPA and Rosenthal Act are designed to protect debtors from various forms of creditor harassment, including:

• Abusive Language. A debt collector cannot use inflammatory or obscene language when communicating with you. They also cannot threaten to harm you, someone you know, your reputation, or another person’s reputation.
• Excessive or Deliberately Inconvenient Phone Calls. Some creditors may call you repeatedly or call at inopportune hours of the day in an effort to annoy or intimidate you. The FDCPA and Rosenthal Act require that creditors only call after 8 AM and before 9 PM unless you give them special permission to call outside these hours. While there is no strict limit on how many times a creditor can call, they cannot do so repeatedly with the intention of bothering you. Debt collectors also cannot call you at work if you tell them that you cannot take personal calls.
• Misrepresentation. A debt collector cannot pretend to be someone they are not. For example, a debt collector cannot claim they are an attorney if they are not licensed to practice law. They also cannot falsely claim to be acting on behalf of the government or a law enforcement agency. Debt collectors cannot misrepresent the amount that you owe or come after you for a debt that you do not owe at all.
• Baseless Threats. Collection agencies will sometimes claim you are placing yourself in legal jeopardy by not paying a debt. While debt collectors can potentially sue you for failing to pay a debt, they cannot threaten legal action that cannot actually be taken. For example, a debt collector cannot threaten to sue you for a debt that they do not own or a debt that has passed the statute of limitations.
• Inappropriate Solicitation or Advertisement of Debts. Collection agencies are not allowed to tell third parties about your debt. They can contact your place of employment, neighbors, or family members and request information on how to get in touch with you. However, they cannot reveal that they are seeking to contact you about a debt or that you owe a debt. Debt collectors also cannot threaten to publish information about your debt or tell others that you owe a debt.

When a debt collector first contacts you, they must explicitly reveal that they are attempting to collect a debt. They must also send you a debt validation notice, in writing, within five days of the initial communication. You should always request a validation of the debt to confirm that the collection agency owns the debt and has the legal right to collect it.

Under the FDCPA and Rosenthal Act, you can ask a debt collector to stop contacting you. Our West Los Angeles creditor harassment attorneys can communicate with creditors on your behalf and request that the ceaseless phone calls and mailings come to an immediate end.

As of November 30, 2021, the FDCPA will also encompass other forms of electronic communication. This includes text messages, emails, and other digital communication methods. Like with phone calls, you can ask a debt collector to stop contacting you via email, text, or instant messenger. 

Enforcing Your Rights and Suing a Debt Collector 

In some cases, asking a debt collector to stop contacting you may not be enough. Some collection agencies will knowingly violate the FDCPA and Rosenthal Act in the hopes that you do not understand the extent of your rights. This could lead to situations where a debt collector continues to harass you well after you ordered them to cease all contact.

When your rights under the FDCPA and/or Rosenthal Act have been violated, you have the option to sue the offending debt collector and recover damages. Any type of violation can potentially warrant a lawsuit. You can sue a collection agency or debt collector under the FDCPA or the Rosenthal Act. You can only sue original creditors under the Rosenthal Act.

Keep in mind that winning a lawsuit against a creditor does not result in the erasure of the underlying debt. The threat of one or more lawsuits can compel a creditor or collection agency to consider a debt settlement, however. Our team can help you explore all of your legal options when your rights have been violated.