Your Rights as a Debtor

No one wants to get a call from a debt collector. But if you do, it’s common to either act hastily out of fear, or do nothing out of embarrassment. Consumer protection attorneys instead urge debtors to stay calm, ask questions, document everything, and know there are laws designed to protect you.

“A lot of people, when they fall behind on debt, believe that they might be helpless, but it’s important for them to know that they have rights,” says Anthony Gonzalez, a Plantation attorney who defends clients being sued over debts. He also files cases under the federal Fair Debt Collection Practices Act and Florida Consumer Collection Practices Act, created to protect consumers from abusive debt-collection practices. Violations of the act can result in up to $1,000 in statutory damages, plus attorney’s fees and actual damages.

While the federal law outlines all the things a third-party debt collector may not do—make threats, misrepresent the amount owed, tell employers about debts, call before 8 a.m. or after 9 p.m., etc.—the Florida law applies those rules even to the party originally owed the money.

“This is an issue that is so bad here in South Florida,” says Weston attorney Jon Benjamin. “It’s one of the big reasons I got into consumer debt-collection defense—because there are a lot of improper collection attempts.”

Under Florida law, Benjamin says no one trying to collect on a debt may harass you on the phone, use foul language, pretend to be law enforcement or an attorney, threaten jail time, or contact your friends, family or co-workers. They also may not record your phone calls without consent, and they’re not allowed to contact you if you send a cease-and-desist letter.

“Sadly, these are all things that happen a lot,” Benjamin says.

Gonzalez recommends saving voicemails, taking screenshots of incoming calls and making a call log.

“Depending on how persistent they are, that activity may be harassing and oppressing,” he says.

“You can dispute the debt and request that they demand proof.” — Jon Benjamin

Likewise, he advises saving all mail attempting to collect a debt, including the envelopes, because if the postmark differs from the date on the letter, that might prove an attempt was misleading or outside an applicable timeframe.

“A lot of people throw away the correspondence, and that’s one of the biggest mistakes that we find,” Gonzalez says. The correspondence might indicate a statute of limitations, alerting the consumer that the age of the debt means they will not be sued for failing to pay it. Correspondence can help with proving damages, too, Benjamin says, not only for improper debt collection but if, for example, a mistake on your credit report affects your ability to get a mortgage.

Even in lawsuits over credit card debt, Gonzalez notes, defenses may be available, such as when late fees or interest don’t align with the original agreement—which can get the whole case dismissed. In some situations, there’s a governing law provision of a different state, and sometimes those states are more favorable than Florida.

“You’ll be surprised to know it’s often the case where things are not accurate, which can lead to a dismissal of the lawsuit over a credit card debt. If the debt is then eliminated, you can potentially be looking at six-figure damages if the illegitimate debt is then reported to your credit report,” Benjamin says. “I’ve had clients where they’ve been so shaken up that they had to seek therapy and medical attention, and you can document that. So whatever it may be, write it down, reach out to counsel, and see if it’s worth filing the suit.”

On the phone, consumers should always be wary of scammers. And even if the debt is legitimate, Gonzalez says, consumers should never agree to anything, provide information or make fear-based decisions over the phone, as they might be inadvertently acknowledging a debt or restarting a statute of limitations.

“It would be most beneficial for the consumer to request that the debt collector provide them more information in writing,” he suggests.

Under the FDCPA, Benjamin says, the consumer has 30 days to request written proof of the debt, which stops the collection attempt in the meantime.

“This is important especially if you don’t recall the debt,” Benjamin says. “Maybe it’s 10, 15 years old, and so now you’re wondering, ‘What is this debt? Is it actually my debt? Is it valid?’ So you can dispute the debt and request that they demand proof. Often these are debts that are outside the statute of limitations. When that occurs, a collector can still try to collect this debt, but they cannot sue or threaten to sue.”

Benjamin says it’s also good to know what debt collectors are allowed to do.

“They can contact you and attempt to collect a valid debt,” he says. “They are allowed to report to the credit bureaus, and they can file cases that are within the statute of limitations. In Florida, on a breach of contract, you have five years to collect a debt.”

If you are summoned to court over a debt, whatever you do, don’t ignore it.

“Contact an attorney immediately if you’re being sued,” Gonzalez says, explaining that failure to respond to a lawsuit can result in a default, which is like an admission and often leads to a judgment against you. Your wages might be garnished and accounts frozen, and there’s less an attorney can do to help then.

He says consumer law firms like his often take cases on full contingency when the law has been violated, and in any case, they’ll usually offer a free initial consultation.

“We always recommend: Reach out to an attorney and evaluate what legal options you have.”

Avoid a Scammer

If you get a debt-collection call, ask all the important questions: Who is this? Who do you represent? Are you collecting an account on behalf of your own company or a third party? What is the amount you’re seeking and the account number and the address and website of the debt collector?

“Scammers will call,” Gonzalez says, “and try to get somebody to give their sensitive information over very quickly, and try to make it seem as if there’s some sort of urgency. But when asking those very basic questions, a lot of times you’ll find that the scammers tend to not be very happy with providing some of this basic information, such as their address, the name of their company, where they are located or a website, which any legitimate debt collector generally would have no problem providing. That’s a good way to find the red flags.”