Five Signs That a Debtor is Trying to Entrap You Into an FDCPA Lawsuit

An army of Debtors – fully equipped with scripts drafted by consumer attorneys and recording devices – are using their telephones as weapons to wage war on unsuspecting Debt Collectors across our nation. The Debtors use the scripts to bait Debt Collectors into making statements during collection calls that technically violate the FDCPA. Consumer attorneys use the recordings of those technical violations to force the Debt Collectors into paying substantial settlements in subsequent lawsuits.

Each of the scripted Debtor lines discussed below invite the Debt Collector to speculate about what could or may happen. Collectors should be admonished to never speculate during a collection call, especially when a Debtor is inquiring about credit bureau reporting, further collection efforts or legal remedies.

1. A majority of the cases involving suspected scripted Debtor calls and recordings arise in New York or Colorado. While Moss & Barnett has defended cases involving suspected scripted Debtor calls in other states, Debt Collectors should be on special alert when speaking with Debtors in the states noted.

2. Most Debt Collectors fall prey to Debtor scripting (especially in Colorado) where the Debtor asks questions about credit bureau reporting. Common questions in the script include:

• “Is this account being reported to the credit bureau?”
• “How will this affect my credit?”
• “How long will this be on my credit?”
• “When will this come off of my credit report?”
• “Will this come off of my credit report if I pay the debt?”

The best response that a Debt Collector can give to these questions is: “I don’t know.” If the Debt Collector is indeed reporting the debt to the credit reporting agencies, the Debt Collector may disclose that fact. However, questions about how it will affect the Debtor’s credit, how long it will be on the credit report and how it will be reported if paid are best answered with “I don’t know.” If the Debtor persists with those questions, he or she can be directed to inquire with the credit reporting agencies for answers.

3. Many Debt Collectors are tripped up by the following question: “What will you do if I don’t pay?” The best response to this question is that collection efforts may continue. If the Debtor persists, the Debt Collector can state that collection efforts may consist of phone calls and letters.

4. The inevitable corollary to question 3, above, is: “Will you take a judgment/garnish my wages/place a lien on my house?” If the Debtor asks specific questions such as these, the Debt Collector should state that he or she is not an attorney and cannot give legal advice. The Debt Collector should be clear to avoid stating that such consequences “may” or “might” arise, because in many instances this is not true.

5. A question we have seen in New York recently is: “Why is the balance so high?” In some instances, the Debt Collector will have a breakdown of principal and interest available. If not, the Debt Collector should not speculate with the Debtor as to how the balance was calculated or how the balance may increase in the future.

Please contact John Rossman at RossmanJ@moss-barnett.com if you believe your company has been the victim of a Debtor scripted, recorded collection call.

John K. Rossman is a shareholder and Chair of the Creditors’ Remedies Practice Group at Moss & Barnett, P.A. Mr. Rossman is a nationally acclaimed authority on the Fair Debt Collection Practices Act and the labyrinth of laws that impact the debt industry. He is a counselor and advisor to national and international companies and noted for his intelligent, creative and successful representation of collection agencies, debt buyers, creditors and fellow attorneys in cases across the country.

This publication is provided only as a general discussion of legal principles and ideas. Every situation is unique and must be reviewed by a licensed attorney to determine the appropriate application of the law to any particular fact scenario. If you have a legal question, consult with an attorney. The reader of this publication will not rely upon anything herein as legal advice and will not substitute anything contained herein for obtaining legal advice from an attorney. No attorney-client relationship is formed by the publication or reading of this document. Moss & Barnett, A Professional Association, assumes no liability for typographical or other errors contained herein or for changes in the law affecting anything discussed herein.