Can A Debt Collector Call You If You Have An Attorney?
As a Consumer Protection Attorney, I get asked this question quite often, and the answer is always a qualified Yes and No. Let me explain: The first inquiry we have to make is who is the creditor and who is trying to collect the debt. Once, we determine who the creditor is: Let's say it's Visa Card. A typical unsecured creditor.
Then we have to determine who is attempting to collect the debt. Is Visa Card attempting to collect their own debt or did they hire out the debt collection process to a third party debt collector?
This is very important because if Visa Card is attempting to collect their own debts, then we are playing by one set of rules, and if they hired a third party debt collector to collect on the debt, we are playing by another set of rules.
In Florida, we have the Florida Consumer Collection Practices Act (FCCPA). The FCCPA applies to both Visa Card when they attempt to collect their own debts and when Visa Card hires a third party debt collector. So under the Florida State Statute, we see:
Florid Statute 559.72Prohibited practices generally.—In collecting consumer debts, no person shall:
(18)Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.
Notice the qualifications in the statute.
What if Visa Card hired a third party debt collector to collect it's debts? The third party debt collector would be bound by an additional statute: The Federal Fair Debt Collection Practices Act (FDCPA). The FDCPA applies only to third party debt collectors. The FDCPA states:
§ 805. Communication in connection with debt collection
(a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—
(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer
This post was submitted by Carmen Dellutri, Esq., founder of The Dellutri Law Group, P.A. Currently, the firm has offices in Port Charlotte, Fort Myers, Naples and Sarasota. Mr. Dellutri also sits on the Board of American Board of Certification. Mr. Dellutri is also one of the founders of the Bankruptcy Law Network, Debt Law Network, Credit Law Network, and Mortgage Law Network. Mr. Dellutri also writes for the firm's bankruptcy blog, mortgage modification blog, www.floridainjuryandaccidentlawyerblog.com and www.fairdebtcollectionpracticesactblog.com.
