Fighting Back Against Creditor Harassment?
By Attorney Nemia L. SchulteQUESTION: A creditor keeps calling me at work, demanding that I make payment, even though I have often asked him to stop calling me. He is now threatening to garnish my wages with my employer. What can I do to stop him from bothering me at work?
ANSWER: Under both the Federal and State Fair Debt Collection Practices Act (the "Act"), a creditor is only allowed to do certain types of "harassment." As you may already have experienced, sometimes a creditor can be very aggressive when attempting to collect payment on the debt. The creditor may call you every day at home or at work, and he may even contact your neighbors and family members to harass them about your whereabouts.
What can you do to stop him? If you owe the creditor money, you cannot stop him from pursuing his legal rights against you, such as filing a lawsuit. However, under the Act, you can stop him from further harassing you, your neighbors and family members. Under the Act, if you, the debtor, request that a creditor stop calling you at home or at work, and you make such request in writing, then the creditor must comply. However, if a creditor files a lawsuit against you for the money you owe him, then he is under a legal obligation to provide you notices of all court documents he has filed with the court.
In addition, a creditor cannot threaten to garnish your wages unless he is in the process or is about to file a lawsuit against you at the time he made the garnishment threat. He cannot threaten to garnish your wages simply because some day he may file a lawsuit against you.
These are just some examples how a creditor can violate the Act. Other violations include:
(1) If the debtor tells the creditor that he has retained an attorney, and provides the name and phone number of the attorney, the creditor must now stop calling the debtor and may now only contact the attorney. If the creditor continues to call the debtor, this is in violation of the Act;
(2) The creditor cannot make illegal threats, such as bodily injury to the debtor or his family;
(3) The creditor can only call a debtor during reasonable hours at home, which usually means from 8:00 a.m. to 9:00 p.m., Monday through Saturday;
(4) When a creditor writes to a debtor to demand payment, there must be certain warning in that letter. For example, the writing must contain a statement that :
(a) the debtor has 30 days to dispute the amount or any portion thereof or the debt will be assumed to be valid;
(b) the amount of the debt;
(c) the name of the creditor to whom the debt is owed; and
(d) that any statement made by the debtor may be used against him, to name only a few.
What are your remedies if the creditor violates the Act? You can file a lawsuit against this creditor in either Federal or State court. Under the Act, the most you can collect is $1,000.00. Most judges will award this even if there is a technical violation of the Act. This $1,000.00 award may not sound like much, but to many, it is a form of pure vindication against the harassing creditor. More importantly, you will be allowed to collect your attorneys' fees and costs in the event that you prevail. Most of the time, the fees and costs are greater than the $1,000.00 award. Accordingly, most attorneys who are familiar with the Act take these types of cases on a contingency fee. Even if you do not personally collect the award for attorneys' fees, most debtors are happy with the result because the creditor must pay for his actions, and again, this is another form of vindication for the debtor.
Remember, your filing an action against the creditor under the Act will not stop him from suing you for the money you originally owed him. But wouldn't it be ironic if you were to pay him back with the same money he had to pay you as a result of his menacing actions?
Attorney Nemia L. Schulte practices in Pompano Beach, Fla. Visit her Web site at 123Law.com.