Payday Loan and the FDCPA

Bill's Answer: Bills.com Resident Expert

In general, do not believe legal advice given by creditors or collection agencies, even if they call themselves lawyers. The information is usually wrong or incomplete, and is always self-serving.

First, I will answer your question assuming the person who contacted you works for a collection agency or law firm. Second, I will answer your question assuming the person who contacted you works for the original creditor -- the payday loan company.

Payday Loan Collected by a Collection Agency

The person you spoke to on the telephone said they were not covered by the Fair Debt Collection Practices Act (FDCPA). Let us take a look at who is covered by the FDCPA. Section 802(e) of the FDCPA reads, "It is the purpose of this title to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses."

As we see, the FDCPA covers the behavior of debt collectors, as the name of the act would imply.

Section 803(1) defines a debt collector. "The term 'debt collector' means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another."

Later in this section, Congress excluded employees of the creditor, which we will discuss later. But getting back to 803(1) the definition of a debt collector is broad and inclusive. If the person who called you was attempting to collect debt owed to another, then that person is a debt collector. There is no exclusion for law firms or payday loan organizations.

Therefore, if the person who called you works for someone other than the original creditor, they are subject to the FDCPA. If the caller harasses you or continues to misrepresent themselves or the law, you may have a cause of action against the creditor. ("Cause of action" is lawyer-speak meaning you have a darned good basis for a lawsuit.) Consult with an attorney in your state to discuss this possibility. To learn more about the FDCPA and your rights as a consumer, visit the Bills.com FDCPA page.

Let us go a step further and assume you were speaking to an employee of a law firm. If the person you spoke to was calling on an attorney's behalf, then that person creates liability for that attorney if he or she violates any laws or rules of conduct. If the attorney told his or her employee to lie to you, then that attorney may be in violation of his or her state's professional responsibility rules.

If the attorney's state follows the ABA Model Rules of Professional Conduct, he or she may have violated Rule 8.4(c), which prohibits engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. I would argue an attorney violates ABA Rule 8.4(c) when the caller stated that FDCPA does not apply to them.

Violating professional responsibility rules do not create a cause of action for you, but giving a detailed and factual report of a rules violation to an attorney's state bar usually creates an investigation, which may cause that attorney to modify his or her behavior.

The next time the person who is says he or she is calling from a law office, ask for the caller's full name, the name of the law firm, the state where he or she is licensed to practice law, and his or her bar number. You are free to report the attorney to his or her state bar association with the facts you gather.

Payday Loan Collected by the Original Creditor

Under the FDCPA section 803(6)(A) and (B), employees of the original creditor are exempt from its provisions unless they collect the debt under a different name. For example, if the original creditor is ABC, and ABC's collection division uses the name XYZ when attempting to collect ABC's debts, then XYZ must comply with the FDCPA.

Here, if the person who called you is an employee of the payday loan company, then if they said they were calling from some organization other than the payday loan company, then they are subject to the FDCPA.

However, if the caller was an employee of the payday loan company, and in the name of the payday loan company was collecting the debt, then they are not subject to the rules in the FDCPA.

Florida Statutes

In many areas of law, the states are free to create tougher laws than Congress has written. You mentioned you are in Florida. Under Florida 559.72(10), a debt collector may not "Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not".

I do not know if "issuing an order" is a legal process for handling bad checks in Florida. But to step back further, I don't know if defaulting on a payday loan in Florida is handled by the same code or law that covers writing bad checks.

Under Florida 559.72(12), a debt collector may not "Orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney".

If the person you spoke to is not working for a lawyer, then he is in violation of Florida's law. Again, as mentioned above, the next time this collector calls, attempt to learn all you can about his employer.

If the person is lying about working for an attorney, then you may have a cause of action under Florida law.

Negotiation

Negotiating with a creditor is a skill you can learn. Read Debt Negotiation and Settlement Advice to understand the techniques and tactics that will make you a more effective debt negotiator.

Payday loans

Finally, I hope you never have to walk this road again with another payday loan. Read All About Payday Loan Default to learn more about freeing yourself from the payday loan trap.

Bills.com also offers more information on the Payday Loan Information page, and has answered reader questions about payday loans in California, Florida, Illinois, Massachusetts, Missouri, Texas, and Virginia.

If you do not repay a payday loan, the payday loan company has several legal remedies, including wage garnishment, levy, and lien. See the Bills.com resource Collections Advice to learn more about the rights of creditors and debtors.

I hope this information helps you Find. Learn & Save.

Best,

Bill

Bills.com

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