What Debt Collectors Are Not Allowed To Do
The Fair Debt Collection Practices Act prohibits debt collectors from attempting to collect debts -- valid or not -- in various unfair, deceptive, and ornery ways. The FTC's website answers questions about your rights.
Chris Morran, over at The Consumerist helpfully has boiled it down to the "23 things debt collectors are not allowed to do."
You Have Been Sued
If you have been served with a Summons and Complaint, and no judgment has been entered, you need to file an Answer or other responsive pleading. Go to Civil Forms on the Civil Law Self-Help Center website and click on the needed pleading for the proper court.
If you have been sued, Judgment has been entered, and your wages have been or are about to be garnished, and you believe your wages are exempt, then visit our Attachment and Garnishment section.
If you have been sued and a Default and Default Judgment have been entered against you because you did not file an Answer (and, as a result, you have been or are about to be garnished and can't claim a legitimate exemption from garnishment), then the following forms may assist you...
If you did not file an Answer because you never received the Summons and Complaint, then see:
If you did not file an Answer due to mistake, inadvertance, surprise or excusable neglect, then see:
Attachment and Garnishment
IF I LOSE A LAWSUIT, CAN THE PLAINTFF MAKE ME PAY THE JUDGMENT?
If you lose a lawsuit the plaintiff becomes a judgment creditor. You can either voluntarily pay the judgment or the plaintiff can attempt to "execute" on the judgment against you. To execute means to take steps to get your wages or your property to pay off the judgment. To most common methods of attempting to execute on a judgment are called garnishment and attachment.
WHAT ARE ATTACHMENT AND GARNISHMENT?
Attachment allows the creditors, with the help of the sheriff or constable, to take personal property such as a car from you and sell it.
Garnishment allows the creditors to take something of yours in the hands of another person or institution; for example, your employer or your bank.
WHEN CAN YOU CLAIM YOUR EXPEMPTION RIGHTS?
Just because you find your property listed as exempt, do not assume your property is safe. You must take action to protect your exempt property or income. The judgment creditors will not look out for your best interests. You must do that.
Before garnishment or attachment you may:
- Homestead" your home or mobile home if you own it and live in it. To learn more about this, check this WebSite.
- If you have income that is exempt, such as Social Security benefits, it is best to notify the judgment creditor in writing of the fact that your bank account, for example, only has Social Security benefits in it. Keep a copy of that written notice for your records.
After garnishment or attachment see Contesting the Collection of a Judgment on the Clark County Courts' Civil Law Self-Help Center website. The site will answer questions including:
- What types of money and property cannot be taken to collect a judgment?
- How does the Debtor claim an exemption?
- What happens after the Debtor files his affidavit claiming exemption?
- When is a hearing on the property exemption to be scheduled?
- What you can do if the creditor requests a hearing?
- If the judge denies my exemption claim, do I have any appeal rights?
- Can exempt property ever be taken?
- What can I do if I have property or wages which are not exempt from execution?
WHAT CAN A BILL COLLECTOR DO TO ME IF I FALL BEHIND ON A DEBT?
If you fall behind on your payments for a purchase or to repay a loan, your bill collector may:
- Contact you in writing, by phone or otherwise to demand payment, accept partial payment, re-negotiate the terms of payment, threaten legal actions, etc.;
- Turn your account over to a collection agency;
- Repossess the goods which you are purchasing or other goods in your possession which you pledged as collateral, if the creditor has a "security interest" in the goods; or
- Bring a lawsuit against you seeking the amount owed plus the costs of the suit, usually including attorney fees.
WHAT ARE MY RIGHTS IF I AM CONTACTED BY A COLLECTION AGENCY ATTEMPTING TO COLLECT A DEBT?
If you are contacted by collection agencies and/or persons collecting on behalf of the debtor, the federal Fair Debt Collection Practices Act (FDCPA, 15 U.S.C. ' 1692) provides you with several rights. (The FDCPA does not apply to the debtor when collecting on his own behalf.) These rights include:
- Your right to advise the collection agency that the debt is in dispute and request verification of the debt. You must make your request within (30) days of the date you received notice. All requests should be dated and in writing (see sample below). The collection agency must then obtain verification of the debt and provide you with copies of that verification.
- Your right not to be communicated with at any unusual time or place. The law assumes that it is inconvenient to be called before 8:00 a.m. and/or after 9:00 p.m.
- Your right to notify the collection agency that you wish for them to stop all communication with you. The agency may, however notify you as to the status of your account (i.e., that the collection efforts are being terminated or of what action they intend to take).
- Your right to stop all communication with you at your place of employment if your employer prohibits contact from a collection agency at your job.
- Your right to be free from other forms of harassment. For example, a collection agency cannot:
- Send you postcards or use envelopes which identify it as a collection agency.
- Send or threaten to send false credit information to others.
- Talk to or send letters to other people about you or your debt (There are some exceptions).
- Use obscene or profane language.
- Use or threaten to use violence against you, your property or reputation.
- Advertise your debts to anyone.
- Repeatedly phone you for the purpose of annoying you.
- Harass your employer.
- Harass you
- Make false statements about the debt or use deceptive means to collect the debt or to obtain information about you.
- Accept or request checks post-dated by more than five days, or deposit or threaten to deposit post-dated checks early.
- Make false or misleading statements such as:
- Suggest the collector is:
- an attorney,
- operating a consumer agency,
- working with the government, or
- someone other than the agency trying to collect the debt.
- Suggest that papers are formal legal papers if they are not or suggest that papers are not formal legal papers if they are.
- Suggest you committed a crime.
- Suggest that non-payment will result in arrest, imprisonment or other action unless the debt collector actually intends to take such action.
MODEL LETTER TO DEBT COLLECTOR
In regard to the above-entitled matter, with this letter I request the following:
- That you cease communication with the exception of notification as to the status of my account; i.e., that the collection efforts are being terminated or of what action you intend to take.
- That you cease all communication with me at my place of employment.
- That you cease third-person communication; that is, communication with anyone other than myself or my attorney.
- I am represented by an attorney. Please direct all future communication to.
- I am disputing all or part of this debt. Please provide me with written verification of the debt. This should include the name and address of the creditor, all contracts, correspondence, billings, notices, etc. As required by NRS 649.332, obtain or attempt to obtain any document that is not in your possession and is reasonably responsive to this dispute and mail the document to me.
Consumer (Your Name)
N.R.S. 649.075 requires that all collection agencies must be licensed by the Nevada Commissioner of Financial Institutions. The 2001 Legislature amended N.R.S. Chapter 649 to allow consumers to report unlicensed collection agencies to the Commissioner's office at 702-486-4120 (in Las Vegas). The Commissioner may then stop the agency from conducting business until a license is obtained, seek fines or charge responsible agents with misdemeanors.
Moreover, doing business without a required license is a "Deceptive Trade Practice" under N.R.S. 598.0923. If you are victimized by an unlicensed collection agency, you also have the option of filing a lawsuit for money damages plus attorney fees. N.R.S. 41.600(2)(c). If the collection agency is guilty of fraud you may seek punitive damages in addition to actual damages. N.R.S. 42.005. Legal Aid Center of Southern Nevada has a class "Representing Yourself in Small Claims Court." Please see the class schedule to the right for more informaion.
WHAT ADDITIONAL DISCLOSURES MUST A COLLECTOIN AGENCY MAKE IF IT IS SEEKING TO COLLECT A DEBT FROM A HOSPITAL?
The 2007 Legislature passed NRS 649.332 stating that when collecting a debt on behalf of a hospital, within 5 days after the first communication with you, a collection agency must send a written notice to you warning that if you pay or agree to pay any portion of the debt, that your action may be construed as (1) an agreement that you owe it; and (2) that you waive any statute of limitations that may otherwise preclude collection. The notice should aslo state that if you do not understand or have questions concerning your rights or obligations, that you should seek legal advice.
The Affordable Care Act places some restrictions on what some hospitals can and cannot do to collect medical debt. For more information, see Community Catalyst.
WHAT ARE MY RIGHTS IF REPOSSESSION OF MY PROPERTY IS THREATENED?
You do not have to consent to the repossession. A creditor can repossess when you are in arrears without a court order, but cannot breach the peace. N.R.S. 104.9609. A creditor may repossess a motor vehicle or any other property (like furniture) which you are buying on installments.
By refusing to consent to the repossession, you force the creditor to sue. This may expose you to additional court costs and attorney fees.You may be able to negotiate a voluntary repossession, whereby the creditor agrees that in exchange for surrender of the vehicle, they will not sue you for more money (a "deficiency". However, the creditor is not obligated to waive the right to sue for a deficiency balance.
Following repossession you have the right to redeem the vehicle by paying the full amount due, plus reasonable repossession costs (i.e. towing and storage charges). N.R.S. 104.9623. For motor vehicles the creditor must give you written notice of your right to redemption and notice of the intent to sell the vehicle within sixty (60) days after repossession.
N.R.S. 482.516 sets out specific requirements of a notice of sale of a repossessed vehicle. You may wish to consult with an attorney to determine whether or not the notice you receive meets those requirements and what your rights are in the event it does not. If you do not redeem the vehicle within ten (10) days of receipt of the notice, the creditor may proceed with the sale.
After resale the creditor may attempt to collect from you the "deficiency balance". A "deficiency balance" is the difference between the outstanding debt at the time of resale and what was obtained through the sale. However, in order to collect a deficiency, the sale must be "reasonable". If you did not receive written notice of the sale and/or it does not appear that the sale was reasonable, you should consult an attorney You may be able to sue for double your actual damages under NRS 482.5163 and/or $500 in statutory damages for each violation of the law under NRS 104.9625.
WHERE MAY I TURN FOR ADVICE?
For expert assistance in deciding the option which is best for you when dealing with debts you may wish to contact the Financial Guidance Center, 2650 S. Jones Blvd. Las Vegas, Nevada, (702) 364-0344. This non-profit organization offers counseling, education, debt management (looking at all of your income, expenses and debts) and specialized counseling (student loans, tax repayment, establishing credit, etc.). The agency will also help you understand the pros and cons of bankruptcy.
WHAT IF I AM SUED?
If you are sued you may wish to contact a lawyer to see if you may have a "defense" (a legal excuse not to pay). If not, a payment plan may often be arranged or you may be "judgment proof" (do not have any property which can be attached or wages which can be garnished). If you cannot afford an attorney, contact your local legal services program listed below.
For general information visit You Have Been Sued on our website.
Once a judgment is taken a creditor may seek to obtain a garnishment of your wages or an execution on your property. A judgment remains in effect in Nevada for six years. You may be able to protect yourself against garnishment or execution. See Attachment and Garnishment on this website.
The following web sites may provide additional information or assistance regarding consumer law:
How to Claim an Exemption
The Civil Law Self-Help Center also has valuable information on How to File a Claim of Exemption.
Were You Sued to Collect a Credit Card Debt?
It can be difficult to remember what credit cards you have been issued, what you may owe, whether the time limit to be sued (statute of limitations) has passed, etc. Credit card debt is usually purchased by someone other than the original lender who issued you the card. How can you defend a law suit from someone trying to collect a credit card debt without this information?
WHAT INFORMATION MUST BE INCLUDED IN THE COMPLAINT FILED AGAINST ME?
If you are sued by the original issuer of the credit card or by a financial institution like a bank, there are no specific requirements.However, if you are sued by a person, other than a financial institution, that purchases any outstanding credit card debt, the complaint must include at least:
- The name of the issuer;
- The last four digits of the account number originally assigned by the issuer;
- All subsequent account numbers assigned to the credit card debt by all assignees of the credit card debt; and
- The date of the default on the credit card debt.
WHAT CAN I DO IF THE REQUIRED INFORMATION IS NOT INCLUDED IN THE COMPLAINT?
You can ask the court to dismiss the complaint by filing an ANSWER asserting the failure to include the information as an “affirmative defense”.You can find ANSWERS for both Justice Court and District Court under the topic Civil Forms on the Civil Law Self-Help Center website and click on the combined answer (debt or loan)for the proper court.
IF I DO FILE AN ANSWER, WHAT HAPPENS?
The court will hold a hearing where the Plaintiff must prove that you owe money (are liable) and how much you owe.
AT THE HEARING, HOW CAN THE PLAINTIFF PROVE THAT I OWE MONEY?
By submitting either: the written application for a credit card account that you submitted to the issuer or evidence that you incurred charges on the account and made payments thereon.
AT THE HEARING, HOW CAN THE PLAINTIFF PROVE HOW MUCH MONEY I OWE?
By submitting by photocopies of either:The periodic billing statements provided by the issuer; or Information stored by the issuer on a computer, microfilm, microfiche or optical disc which indicate the amount of the debt owed.
AT THE HEARING, HOW CAN THE PLAINTIFF PROVE THAT ITS RECORDS ARE AUTHENTIC (GENUINE)?
By submitting either: a copy of the record which is authenticated by a custodian of the records of a banking or financial institution in a signed affidavit under the procedures set forth in NRS 52.450 to 52.480, a written affidavit sufficient to establish: (1) The affiant as the custodian of the written records offered as evidence; (2) That the written records offered as evidence were made in the ordinary course of the issuer’s business; and (3) That the written records are true and correct copies of the records retained by the issuer.
AT THE HEARING, HOW CAN I PROVE THAT THE CHARGES WERE MADE BY ANOTHER PERSON?
You can prove liability of a person other than the cardholder for the amount of any debt owed to an issuer may be established by evidence indicating that the person caused the charge to be incurred on the credit card account.
HOW LONG MUST AN ISSUER OR A PURCHASER OF CREDIT CARD DEBT KEEP RECORDS OF THE CHARGES?
For at least 24 months.
IF I DO NOT FILE AN ANSWER, WHAT HAPPENS?
The issuer of the card or purchaser of credit card debt may seek a default judgment against you.
WHAT MUST AN ISSUER OR A PURCHASER OF CREDIT CARD DEBT SHOW IN ORDER TO GET A DEFAULT JUDGMENT?
To get a default judgment against you:a purchaser of credit card debt must first show the court that the complaint contains the information described above name of the issuer; last four digits of the account number, etc.), both issuers and purchasers of credit card debt must submit the same authenticated records showing that you owe the money and how much which are described above.
WHAT IF THE PLAINTIFF GETS A DEFAULT JUDGMENT WITHOUT THE NECESSARY PROOF?
If you were never served with a summons and complaint you may discover that a default judgment was entered against you for the first time when your wages or bank accounts are garnished. To stop the garnishment and seek to have your day in court, you can file a Motion to Vacate. This form is availalbe at the Civil Law Self-Help Center website under Forms.
You can find one on this website under Motion to Vacate (never served) Read the instructions Part I and Part II carefully. Where the Motion asks you to state a defense, state: Defendant has the following meritorious defense(s):Plaintiff is a purchaser of credit card debt and the complaint fails to contain the below checked information required by NRS Chapter 97A as amended by AB 472 (effective 7-1-09) and/or Plaintiff failed to satisfy the standards of proof in subsections 1 and 2 of NRS 97A.160.
If you were served with a summons and complaint you may discover that a default judgment was entered against you for the first time when your wages or bank accounts are garnished. To stop the garnishment and seek to have your day in court, you can file a Motion to Vacate. You can find one on this website under Motion to Vacate (got served). Read the instructions Part I and Part II carefully. When filling out the motion insert languate such as: Plaintiff is a purchaser of credit card debt and the complaint fails to contain the below checked information required by NRS Chapter 97A as amended by AB 472 (effective 7-1-09) and/or Plaintiff failed to satisfy the standards of proof in subsections 1 and 2 of NRS 97A.160.
The following web sites may provide additional information or assistance regarding consumer law: