I live in Illinois and my step-sister lives in North Carolina. She keeps getting calls from a attorney that says he's going to sue me for a JC Penney account that was charged off in 2004. What should I do since I have no money to settle this debt? Also they keep harassing her and got her name and phone number off the Internet. I never put her name on anything.
This behavior is both a clear violation of the Fair Debt Collections Practices Act (FDCPA), and, if the person calling your sister is really an attorney, may be in violation of his or her state's professional responsibility rules.
Let us talk about the FDCPA violation first. The FDCPA is a federal law that regulates the activity of collection agencies. For example, the FDCPA prohibits harassment and intimidation by collection agencies in the course of their collection activities. You have the obligation to request the collector to "cease and desist" future communication with your sister. Find a sample cease communication letter at Debt Self-Help Center that you can copy, modify, and send to the person harassing your sister.
Ask your sister to keep notes of when the creditor/attorney calls her. If they continue the harassment after you send the cease and desist 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 Fair Debt Collection Practices Act page.
Regarding the potential professional responsibility rules violation, this depends on the state where the attorney is licensed. If the attorney's state follows the ABA Model Rules of Professional Conduct, he or she may have violated ABA Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; and Rule 8.4(c), which prohibits engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
I would argue that an attorney is in violation of ABA 8.4(b) when he violates the FDCPA by repeatedly contacting a person who is not responsible for your debt. Furthermore, I would argue an attorney violates ABA Rule 8.4(c) when he states he will file a lawsuit against you when it seems clear that doing so would be a fruitless effort, and because court proceedings are expensive, extremely unlikely (more on this later).
Violating professional responsibility rules do not necessarily create a cause of action for you or your sister, 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. You can also seek a consultation with an attorney who specializes in FDCPA violations. This kind of attorney usually charges no advance fee. It only takes a case if he or she thinks it is a winning case and collects its fees from the other party.
The next time the person who is calling himself or herself an attorney calls your sister, ask her to get the caller's full name, the state where he or she is licensed to practice law, and his or her bar number. Your sister is free to report the attorney to his or her state bar association with the facts she gathered.
One last thing: It is likely that the statute of limitations has run on the debt. See Collection Laws and Statute of Limitations for information about your state. This means that should this matter ever appear in court, the court will bar any collection if you raise the Statute of Limitations defense. Keep in mind this does not mean the creditor is barred from attempting to collect the debt from you. It cannot, however, annoy your sister!
I hope this information helps you Find. Learn & Save.