ARE YOU RECEIVING ROBO CALLS ON YOUR CELL PHONE ASKING TO SPEAK TO A FRIEND, RELATIVE, OR SOMEONE ELSE WHO YOU KNOW (OTHER THAN YOUR SPOUSE OR MINOR CHILDREN)? IS THE CALLER ATTEMPTING TO COLLECT A DEBT?
IS A CREDITOR OR DEBT COLLECTOR CALLING YOU ABOUT A FRIEND, RELATIVE, OR OTHER PERSON WHO YOU KNOW?
If a company is robo calling you about a member of your family (other than your spouse or a minor child), a friend, or coworker, the call may be from a creditor’s collection department or a third party debt collector especially if the caller refuses to tell you why they are calling. So this article will discuss the interplay between the Telephone Consumer Protection Act (“TCPA”) and the Fair Debt Collection Practices Act (“FDCPA”) in combating unwelcome calls.
Even if caller complies with the FDCPA (or the FDCPA does not apply to them because they are an original creditor, or any other reason), the caller must still comply with the TCPA or face substantial liability.
Debt collection calls concerning a debt allegedly owed by someone other than the called party (or the called party’s spouse) are another form of “wrong person” case but the situation is distinguishable from the situation where the called party does not even know the person that the creditor or debt collector is attempting to call.
When debt collectors or creditors continue to call a cell phone user who explains that they are not the person who the caller is asking for, the called party can refuse to provide any information concerning the alleged debtor.
If the caller is calling a cell phone, the called party should identify themselves, remind the caller “You’re calling my cell phone”, and tell them to “Stop Calling.” Document these calls!
If you are receiving calls on your cell phone asking to speak to someone else who is a member of your family, the call could concern any number of reasons. If the caller will not identify their company or the purpose of their call, the call is probably from a debt collector or an original creditor. (Medical calls concerning adults would at least identify the caller).
Debt collectors should not disclose the correct person’s financial information so they often refuse to disclose “why” they are calling. Despite these privacy protections, other debt collectors often describe the account that they are calling about. If a debt collector discusses a debt with anyone other than the debtor’s spouse, the debt collector probably violated consumer debtor’s rights under the FDCPA.
Callers are liable for TCPA violations ($ 500 to up to $ 1,500 per call) for violations of the Act regardless of whether they comply with the FDCPA or similar state collection practices acts. But, let’s explore the FDCPA in order to understand where the debt collector may be.
Debt collectors are prohibited from calling persons other than the debtor (or the debtor’s spouse) if they already have “location information” — either the debtor’s (1) home address and phone number; or (2) place of employment. Many debt collectors routinely violate this provision of the FDCPA because they know that calling third parties embarrasses debtors in an attempt to coerce them into paying a debt. Sometimes, the debt was recently reassigned to a new collection agency and the debt collector may be attempting to update the debtor’s contact information. If the debtor has already spoken with the debt collector and has received a letter from the debt collector addressed to the debtor’s present address, the debt collector’s excuse for calling is probably slim. If the debtor has moved fairly recently or hasn’t answered any calls from the collector in several months or even years, the calls seeking “location information” will probably continue. But, the caller’s lack of “location information” does not provide them a defense to a TCPA lawsuit alleging that they robo-dialed someone else’s cell phone!
Regardless of the debtor’s conduct, the collection agency or even an original creditor should not be robo dialing a cell phone assigned to someone who does not owe the debt and was not an authorized user of the account.
HOW DID THE CALLER OBTAIN YOUR CELL PHONE NUMBER ?
Cell phone users who are receiving calls about someone often ask me “how did they get my number?” If the caller attempting to collect a debt : (1) the borrower may have listed you as a credit reference and even included your cell phone number in their credit application. Obviously, someone else providing a cell phone number without the cell phone user’s express permission, does not provide the caller “prior express consent” to call cell phone numbers belonging to the people the borrower named as “references” or “alternate contacts”. Another way a relative’s cell phone number makes it into the collector’s information is by running a “skip trace” on the borrower. For example, if the borrower is now an adult child living at a different address, the skip trace database will list former addresses, next of kin, and will include the relatives’ telephone numbers including cell phone numbers. Any decent data base will also flag cell phone numbers as “probable cell phone number” (or similar description) but disreputable debt collectors unleash their robo dialers on the cell phones of the borrower’s relatives. Such callers risk substantial liability under the TCPA.
Persuading callers — especially debt collectors and many telemarketers — to “stop calling” is often surprisingly difficult. Many debt collectors often ignore instructions to “stop calling” even when the person they are calling never owed the debt. Debt collectors are accustomed to calling people and, if they refuse to pay the debt, bullying them into paying it. Unfortunately, debt collectors often decide to hold the relative and the relative’s cell phone “hostage” in an attempt to coerce the borrower into paying the debt so that the borrower’s relative’s cell phone will no longer be “burning up” with collection calls. This conduct usually violates the TCPA and is growing less frequent as consumers become aware of their rights and pursue TCPA lawsuits.
The TCPA provides that callers who violate the TCPA are liable in the amount of $ 500 per call. If the violation is willful, the court may award an additional amount of up to $ 1,000 per call. That’s a total of up to $ 1,500 per call.
If a creditor, debt collector, and most other companies continue to call a cell phone after the user tells them that they are calling the wrong person, further calls may be willful violations. If the cell phone user tells them twice, then the caller can not blame their failure on an isolated mistake to attempt to mitigate the willful nature of their conduct.
If the caller disregards ample warning that they are calling the wrong person, they risk paying up to $ 1,500 per call.
DOCUMENT YOUR CASE
If you are receiving calls on your cell phone concerning people you do not even know, Mr. Petersen encourages you to read “Proving Your TCPA Case” for instructions how to preserve the evidence we will need to prove your TCPA case or call Mr. Petersen at 407 – 648 – 9050 for a free consultation.
CALLS TO “WRONG PERSONS’ ” LANDLINES
Landline subscribers have very limited rights compared to “wrong persons” who receive calls from debt collectors on their cell phones. The TCPA would not apply to a business call (such as a collection call) to a landline.
If a debt collector is calling a “wrong person” repetitively on a landline and the called party informs them that they are calling the wrong person, the called party probably may have a case against the caller if the debt collector. If the caller is not a debt collector but is an original creditor instead and is calling a landline, some state collection practices acts would protect the hapless landline owner from a “harassing” volume of calls. Recovery under the collection practices statutes — both the Fair Debt Collection Practices Act (“FDCPA”) and the Florida Consumer Collection Practices Act (“FCCPA”) — are usually limited to $ 1,000 per case plus reasonable attorney’s fees and costs. Many states’ collection practices acts do not apply to original creditors. Landline owners who are being harassed about a debt allegedly owed by a person who they do not even know should consult with a local attorney who is licensed to practice in their state.
GET STARTED TODAY
Hopefully, the information in this site assures you that you do NOT have to continue to tolerate unwelcome telephone calls which you are receiving. Mr. Petersen looks forward to learning more about your potential case and discussing how he can help you enforce your rights.
To get started towards enjoying your privacy again, call or contact Don Petersen today.
CALL DONALD E. PETERSEN AT
407 – 648 – 9050
Or, provide a brief description of you potential case and along with your contact information for a free case evaluation.
(C) Donald E. Petersen 2017