LAWDOG Fair Debt Collection Practices
Act
MORE DETAIL: Summary
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A Portion of Section 805......
Communication in connection with debt collection...
(b) Communication with third parties
Except as provided in section 804 of this title,
without the prior consent of the consumer given directly to the debt collector,
or the express permission of a court of competent jurisdiction, or as reasonably
necessary to effectuate a postjudgment judicial remedy, a debt collector
may not communicate, in connection with the collection of any debt, with
any person other than the consumer, his attorney, a consumer reporting
agency if otherwise permitted by law, the creditor, the attorney of the
creditor, or the attorney of the debt collector.
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(d) "Consumer"
defined
For the purpose of this section, the term "consumer"
includes the consumer's spouse, parent (if the consumer is a minor), guardian,
executor, or administrator.
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![[FTC Staff Commentary]](oftc5.gif)
Section 805(b)--Communication with third parties.
Unless the consumer consents, or a court order or section 804 permits,
"or as reasonably necessary to effectuate a postjudgment judicial
remedy," a debt collector "may not communicate, in connection
with the collection of any debt, with any person other than the consumer,
his attorney, a consumer reporting agency if otherwise permitted by law,
the creditor, the attorney of the creditor, or the attorney of the debt
collector."
1. Consumer consent to the third party contact.
The consumer's consent need not be in writing. For example, if a third
party volunteers that a consumer has authorized him to pay the consumer's
account, the debt collector may normally presume the consumer's consent,
and may accept the payment and provide a receipt to the party that makes
the payment. However, consent may not be inferred only from a consumer's
inaction when the debt collector requests such consent.
2. Location information. Although a debt
collector's search for information concerning the consumer's location (provided
in 804) is expressly excepted from the ban on third party contacts, a debt
collector may not call third parties under the pretense of gaining information
already in his possession.
3. Incidental contacts with telephone operator
or telegraph clerk. A debt collector may contact an employee of a telephone
or telegraph company in order to contact the consumer, without violating
the prohibition on communication to third parties, if the only information
given is that necessary to enable the collector to transmit the message
to, or make the contact with, the consumer.
4. Accessibility by third party. A debt
collector may not send a written message that is easily accessible to third
parties. For example, he may not use a computerized billing statement that
can be seen on the envelope itself.
A debt collector may use an "in care of"
letter only if the consumer lives at, or accepts mail at, the other party's
address.
A debt collector does not violate this provision
when an eavesdropper overhears a conversation with the consumer, unless
the debt collector has reason to anticipate the conversation will be overhead.
5. Non-excepted parties. A debt collector
may discuss the debt only with the parties specified in this section (consumer,
creditor, a party's attorney, or credit bureau). For example, unless the
consumer has authorized the communication, a collector may not discuss
the debt (such as dishonored check) with a bank, or make a report on a
consumer to a non-profit counseling service.
6. Judicial remedy. The words "as
reasonably necessary to effectuate a postjudgment judicial remedy"
mean a communication necessary for execution or enforcement of the remedy.
A debt collector may not send a copy of the judgment to an employer, except
as part of a formal service of papers to achieve a garnishment or other
remedy.
7. Audits or inquiries. A debt collector
may disclose his files to a government official or an auditor, to respond
to an inquiry or conduct an audit, because the disclosure would not be
"in connection with the collection of any debt."
8. Communications by attorney debt collectors.
An attorney who represents either a creditor or debt collector that has
previously tried to collect an account may communicate his efforts to collect
the account to the debt collector. Because the section permits a debt collector
to communicate with "the attorney of the creditor, or the attorney
of the debt collector", communications between these parties (even
if the attorney is also a debt collector) are not forbidden.
An attorney may communicate with a potential
witness in connection with a lawsuit he has filed (e.g., in order to establish
the existence of a debt), because the section was not intended to prohibit
communications by attorneys that are necessary to conduct lawsuits on behalf
of their clients. ...
Section 805(d)--"consumer" definition.
For section 805 purposes, the term "consumer" includes the "consumer's
spouse, parent (if the consumer is a minor), guardian, executor, or administrator."
1. Broad "consumer" definition.
Because of the broad statutory definition of "consumer" for the
purposes of this section, many of its protections extend to parties close
to the consumer. For example, the debt collector may not call the consumer's
spouse at a time or place known to be inconvenient to the spouse. Conversely,
he may call the spouse (guardian, executor, etc.) At any time or place
that would be in accord with the limitations of section 805(a).
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