I recently heard from a potential client who thought we could make a ton of money. He heard that Under the Fair Debt Collection Practices Act (FDCPA), any time a debt collector violates any provision of it, the debtor could sue and get $1,000 plus attorney’s fees. He figured his doctor’s office violates this act frequently, and we could make a killing!
Here’s my answer: It’s not as easy as it sounds. And in this situation, it’s not going to work. The (FDCPA) does not penalize original creditors, it penalizes third party debt collectors who were hired for the purposes of debt collection or who purchased the debt from the creditor. If the people calling are the original creditors, we won’t get the penalty. My potential client’s theory was that the billing manager at his doctor’s office who is making the calls, so he considered that to be a third party debt collector. Unfortunately, he was wrong. The definition of a third party debt collector is clear in a different section of the statute, and it specifically excludes employees of the original creditor.
This is the danger of reading a piece of a statute, and thinking you know how to proceed. It takes someone who has worked closely with statutes and regulations to understand them. In this case, it was not so difficult. Lawyers hear this one all the time. It’s a definition that many people get hung up on the first time they hear about the FDCPA, and there are lots of non-lawyers out there putting their ideas into blogs and forums. It’s kind of exciting, as a consumer, to hear that debt collectors aren’t allowed to do this and that, and they can get fined $1,000 per time for violating the FDCPA… people talking about the FDCPA and thinking, “I’ve got an idea”… and telling each other all about it… Lawyers hear this all the time, this particular idea, and it’s the same answer every time.
No one should feel bad about getting sucked into believing something like this. It’s an easy mistake. That’s why you consult a lawyer before taking action. This problem is easy to resolve by reviewing definitions. Most attorneys, even those who do not usually work with this statute, should know to review the definitions section of the statute before proceeding. However, not all statutory questions are easily resolved by reviewing a “definitions” section. Most statutes and regulations are drafted in a way that requires the reader to flip the pages back & forth to find the proper process. It’s not as easy as reading a procedure from item one to item ten, and finding a ten step process that’s easy to follow. It often requires reading through to item 10, then flipping to item 15 then back to item 4B, then 3D(15)a. iii. After a while, you wonder if you’re missing something. You’ve got a thousand little flags on the pages of your book. So you have to go through it 3 or 4 times before you can be sure.
And once you’re sure, you talk to someone else who asks whether you took at look at the section before the one you’re looking at, because they think it applies and you’ve been chasing down a procedure meant for a different circumstance. So you’re back to square 1.
I remember getting a copy of the Internal Revenue Code in law school, and being certain that I’d never find my way around it. It consisted of several thick paperback volumes in small print on very thin paper, practically tissue paper, so that it could be small enough to fit on a single shelf of a bookshelf. A large backpack was barely big enough to use to tote the stupid thing around. I hated it. After working with it for a while, though, all of us students in the class developed two things… an appreciation for the complexity of the concepts, and an appreciation for the roadmap needed to negotiate around the code. After a while, you may not have all the answers, but at least you know where to look to find them.
After three years of similar experiences, law students go out into the world and make a living by following an interpreting statutes and regulations, and we spend our lives looking for new clauses and exceptions and negotiating our way around them. It’s our idea of fun (an odd idea, but after you’ve lugged around the Internal Revenue Code for a semester, anything that does not require carrying it on your back as you walk back & forth to class, sounds like fun). If we litigate for a living, you’ll find us arguing over it. If we draft contracts for a living, you’ll find us putting little tabs in our books over it, and if we legislate for a living, LOOK OUT, you’ll find us CHANGING the rules and looking for even more complex ways of doing it.
This is why the smart layperson seeks the help of a lawyer whenever a statute is involved in something they want to do. If the thing is worth doing, then it’s worth paying for an attorney to do a little research to find out if it’s viable under the statute. I did not charge for the consultation on this one. The issue was too easy and I’d dealt with it too often. I told my potential client to keep thinking, though. I don’t mind potential clients who have ideas and come to me for a review and analysis of their idea about whether a statute can help them, as long as they don’t mind paying for my time in reviewing it. Next time he comes for help, I suggested he bring me something challenging enough to interest me… the FAR, for example, now THERE is a fun and challenging set of rules to navigate around.
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