FDCPA Violations
When debt collectors use abusive, deceptive, or unfair practices in foreclosure — the Fair Debt Collection Practices Act provides damages and defenses.
Overview
The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., prohibits debt collectors from using abusive, deceptive, or unfair practices to collect debts. In the foreclosure context, the FDCPA applies to: third-party foreclosure attorneys (who are 'debt collectors' under the Act), foreclosure trustees (in some circuits), and third-party servicers collecting on defaulted loans. The FDCPA prohibits: false representations about the debt (amount, character, legal status), threats of action that cannot legally be taken (threatening foreclosure without the legal right), contacting the debtor at inconvenient times/places, communicating with third parties about the debt, and failing to provide validation of the debt upon request. FDCPA violations support a counterclaim for damages (up to $1,000 statutory damages plus actual damages) and attorney fees, and may support a defense to foreclosure.
Legal Definition
Under the FDCPA, a 'debt collector' is any person who regularly collects debts owed to another. This includes foreclosure attorneys and firms (in most circuits) but typically does NOT include the original creditor or the servicer collecting its own debt (unless the servicer acquired the debt after default). Prohibited practices include: § 1692e (false or misleading representations), § 1692f (unfair practices), § 1692g (failure to validate debt within 5 days of initial communication), and § 1692d (harassment or abuse).
When This Defense Applies
Asserted when the foreclosing attorney or debt collector: misstates the amount owed (inflated with improper fees), threatens foreclosure without having the legal right (lack of standing), contacts the borrower after being told the borrower is represented by an attorney, fails to provide a debt validation notice within 5 days of the initial communication, or makes false statements in court documents or correspondence.
Common Foreclosure Scenarios
The foreclosure attorney sends a letter demanding payment of $15,000 in arrears when the actual arrears (per the payment history) are $10,500 — an inflated amount violates § 1692e
The debt collector calls the borrower at 6:00 AM (before 8:00 AM) or 10:00 PM (after 9:00 PM) — violates time-of-contact restrictions
The borrower sends a written dispute within 30 days of the initial collection letter — the debt collector continues collection without verifying the debt
The foreclosure attorney represents that the foreclosure sale 'will definitely occur on [date]' when no Notice of Sale has been recorded — a false threat of action that cannot legally be taken
Burden of Proof
The BORROWER must prove: (1) the defendant is a 'debt collector' under the FDCPA (collecting a debt owed to another), (2) the defendant engaged in a prohibited practice, and (3) the violation caused damages. The FDCPA is a strict liability statute — no intent to violate is required (though a bona fide error defense exists under § 1692k(c)). Statutory damages of up to $1,000 are available even without actual damages. Attorney fees are mandatory for a prevailing plaintiff.
Court Considerations
Key issues: whether foreclosure is 'debt collection' under the FDCPA (most courts say yes, but some distinguish judicial foreclosure (debt collection) from non-judicial foreclosure (enforcement of a security interest)), whether foreclosure attorneys are 'debt collectors' (yes, in most circuits), whether MERS and foreclosure trustees are debt collectors (courts are split), and whether the FDCPA applies to enforcement of a security interest (the Supreme Court in Obduskey v. McCarthy (2019) held that non-judicial foreclosure is NOT debt collection for FDCPA purposes in the specific context of § 1692g, but this is narrow).
Homeowner Strategies
Save every letter, voicemail, and note from every phone call — create a detailed log of every contact (date, time, who called, what was said)
Send a written dispute and request for debt validation within 30 days of the initial collection communication — if they continue without validating, it's an FDCPA violation
If you're represented by an attorney, instruct the debt collector in writing to communicate only with your attorney — continued calls/letters to you violate the FDCPA
Compare the arrears and fees in the collection letter against the payment history — discrepancies support an FDCPA false representation claim
Assert FDCPA violations as counterclaims — they bring the collector to the table and shift the dynamics
Related Court Documents
Related Court Procedures
Frequently Asked Questions
Does the FDCPA apply to the original lender?+
No, with some exceptions. The FDCPA applies to 'debt collectors' — third parties collecting debts on behalf of others, not the original creditor. However, if the loan was in default when the current servicer acquired it, the servicer may be a 'debt collector.' And if the original lender uses a name other than its own to collect (a 'flat-rating' scheme), it may be covered. Many FDCPA claims fail because the defendant is the original creditor, not a debt collector.
Both FDCPA and RESPA — which should I use?+
RESPA applies to servicers and provides remedies for servicing errors (fee disputes, QWR non-response, dual tracking). FDCPA applies to debt collectors (foreclosure attorneys, third-party collectors) and covers abusive collection conduct. They overlap but are not interchangeable. In a typical foreclosure, you may have RESPA claims against the servicer AND FDCPA claims against the foreclosure attorney. Assert both where applicable.
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