OVERVIEW OF THE FAIR DEBT COLLECTIONS PRACTICES ACT

The Act does not apply to the original makers of a loan. The Act applies to third
party debt collectors. Third party debt collectors includes lawyers and law firms who are
attempting to collect any alleged debt including mortgage foreclosures. George W.
Heintz v. Darlene Jenkins, 514 U.S. 291, 115 S.Ct. 1489. When a third party debt
collector contacts an alleged debtor, the collector must in the first communication or
within five (5) days thereafter furnish the alleged debtor with a “dunning letter.” The
dunning letter must inform the alleged debtor that the collector is attempting to collect a
debt and inform the alleged debtor that they have thirty (30) days to dispute the debt. 15
USC 1692g, 1692g(a)(3). The alleged debtor has thirty (30) days to dispute the debt
requiring the collectors to furnish validation of the debt. 15 USC 1692G(b). Validation of
the debt can either be a signed judgment order or an accounting which is signed and dated
by the person responsible for maintaining the account general ledger. See Spears v.
Brennan, Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE
Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks
v. Norwich Housing Authority 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of
Brookfield v. Candlewood Shores Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986). See
also Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890, 516 N. E.2d 1045 (3Dist.
1987). Debt collection activity must cease if the debt is disputed. Failure to notice the
alleged debtor of their due process rights subjects the collector to suit for violation of the
Act and any action to collect without informing the alleged debtor of their due process
rights or failure to cease collection activity until timely validation subjects the collector to
suit for damages under the Act and voids any legal proceedings including mortgage
foreclosures. The Act also allows damages when the collector makes false statements
regarding the character or amount of the alleged debt. An aggrieved party has one year
from the violation of the Act to sue or one year from the taking of property by the
collector. An aggrieved party under the Act is entitled to one thousand dollars ($1,000.00)
in statutory damages plus unlimited damages for intentional infliction of emotional
anguish. Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1267, 833 P.2d 545 (1992),
and Fletcher v. Security Pacific National Bank, 23 Cal.3d 442, 451, 591 P.2d 51 (1979).
In addition, without time limitation, judgments including judgments which have been

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collected and mortgage foreclosures are void by reason of deprivation of due process
rights deprives the court of subject matter jurisdiction. It is possible to recover full
damages under both strategies or double recovery. Award of statutory damages does not
require proof of actual damages, Woolfolk v. Van Ru Credit Corp., D.Conn.1990, 783
F.Supp. 724. Consumer need not produce evidence of actual damages, Crawford v.
Credit Collection Services D.S.D. 1995, 898 F.Supp.699. Actual damages not capped at
$1,000 Smith v. Law Offices of Mitchell N. Kay, D. Del. 1991, 124 B.R. 182. Court may
consider sum necessary to amend bad behavior. Bank of the West v. Superior Court, 2
Cal. 4th 1254, 1267, 10 Cal Rptr. 2d 538, 833 P.2d 545 (1992) and Fletcher v. Security
Pacific National Bank, 23 Ca.3d 442, 451, 153 Cal.Rptr. 28, 591 P.2d 51 (1979). Debtor
need not show intentional conduct on part of collector. Russell v. Equifax A.R.S. 74 F.3d
30, 33 (2nd Cir. 1996), Bently v. Great Lakes Collection Bureau, 6 F.3d 60, 63 (2nd Cir.
1993). The FDCPA allows recovery for costs. If a debtor notifies a debt collector within
30 days after receiving notice of an alleged debt, that the debt, or any portion thereof, is
disputed, the debt collector shall cease collection activity until the debt collector obtains
and sends verification of the debt to the debtor. 15 USC 1692g(b). A copy of the
consumer credit contract is not sufficient to validate the debt. Validation requires
presentment of the account and general ledger statement signed and dated by the party
responsible for maintaining the account. Pacific Concrete F.C.U. V. Kauanoe, 62 Haw.
334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii
32, (Hawaii App 2001), Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371,
(Conn. Super.2000), and Town of Brookfield v. Candlewood Shores Estates, Inc. 513 A.2d
1218, 201 Conn.1 (1986). and Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890,
516 N. E.2d 1045 (3Dist. 1987). The debt collector must actually review the file. 15 USC
1692e(g). Claims under the Fair Debt Collections Practices Act adhere to the
unsophisticated consumer standard. See Gammon v. GC Services Ltd. Partnership, C.A.7
(Ill.) 1994, 27 F.3d 1254, on remand 162 F.R.D. 313.
SPECIAL NOTE: There is a one year from the date of the infraction STATUTE OF
LIMITATIONS on FDCPA suits.