A debt you do not owe
A debt collector may not misrepresent the character, amount or legal status of a debt, and trying to collect a debt that is not yours, was already paid, or was discharged in bankruptcy can do exactly that. If an identity thief opened the account, federal credit reporting law adds a way to block it from your credit report. In each case, a written dispute is the first step and the paper trail is the case.
Collectors chase the wrong people all the time. Debts are bought and sold in bulk, and the files that travel with them can be thin: a name, a last known address, a balance. The result is calls to someone with a similar name, demands on debts that were paid or settled, and collection of debts wiped out in bankruptcy. Identity theft adds accounts the consumer never opened.
Whatever the reason, a collector that insists you owe a debt you do not owe can be misrepresenting the debt's character, amount or legal status, and that is a violation.
What it looks like
- Wrong person. The debt belongs to someone with a similar name, a relative, or a former occupant of your address.
- Already paid or settled. You paid in full, or settled for less and have the settlement letter, and a new collector wants the old balance.
- Discharged in bankruptcy. The debt was listed and discharged, and a debt buyer bought it anyway and is calling.
- Identity theft. An account opened by someone else using your information, now in collection and on your credit report.
- A deceased relative's debt. A collector implies you personally must pay a parent's or spouse's debt when you never signed for it.
The law
The FDCPA
A collector may not falsely represent "the character, amount, or legal status of any debt" (15 U.S.C. § 1692e(2)(A)), and may not collect any amount not expressly authorized by the agreement creating the debt or permitted by law (§ 1692f(1)). Demanding payment from the wrong person, or on a paid or discharged debt, can violate both. If you dispute in writing within the validation period, the collector must stop collecting until it mails you verification of the debt (§ 1692g(b)). And a collector that reports the debt to a credit bureau after your dispute must say it is disputed (§ 1692e(8)).
Bankruptcy
A discharge "operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset" a discharged debt as a personal liability of the debtor (11 U.S.C. § 524(a)(2)). The bankruptcy court can enforce that injunction, and a collector's demand on a discharged debt can also support an FDCPA claim for misstating its legal status.
Identity theft and your credit report
Under the Fair Credit Reporting Act, a credit bureau must block information resulting from identity theft within 4 business days after receiving proof of your identity, an identity theft report and your statement identifying the information (15 U.S.C. § 1681c-2(a)). When a bureau forwards your dispute to the company that reported the account, that company must investigate and report the results (§ 1681s-2(b)). The identity theft page explains the process.
What you have to show
That a debt collector represented that you owed a debt you did not owe, or collected an amount not owed, plus your proof: the settlement letter, the payment record, the discharge order, the police or identity theft report, or simply that the account is in someone else's name.
What you can recover
Under 15 U.S.C. § 1692k(a), a collector that violates the FDCPA is liable for your actual damages plus additional statutory damages of up to $1,000 per lawsuit. The FDCPA requires a company found liable to pay the consumer's reasonable attorney's fees and costs.
Under the FCRA, a willful violation carries actual damages or statutory damages of $100 to $1,000, plus punitive damages (15 U.S.C. § 1681n(a)); a negligent violation carries actual damages (§ 1681o(a)). The FCRA requires a company found liable to pay the consumer's reasonable attorney's fees and costs. In Florida the FCCPA provides statutory damages up to $1,000, actual damages and possible punitive damages (Fla. Stat. § 559.77(2)); in New York, GBL 349 provides actual damages or $50, whichever is greater, increased up to three times actual damages capped at $1,000 for a willful violation. This site does not estimate what a case is worth.
What to do now
- Dispute in writing. Say the debt is not yours, was paid, or was discharged, and ask for verification. Send it within the validation period if you can, and keep a copy and proof of mailing. See ignored dispute.
- Send copies, never originals. Settlement letters, payment records, the discharge order.
- Do not confirm personal details to callers. Ask for everything in writing.
- Pull your credit reports. See whether the account appears, and dispute it with each bureau that shows it. See how to dispute your credit report.
- For identity theft, file a report. An identity theft report supports the FCRA block.
Sued on a debt that is not yours?
Do not ignore the papers. The answer deadline is short, and a default judgment can be entered against you even on a debt you never owed. See sued by a debt collector.
The clock
| Claim | Time to sue | Authority |
|---|---|---|
| FDCPA | 1 year from the violation | 15 U.S.C. § 1692k(d) |
| FCRA | Earlier of 2 years after you discover the violation or 5 years after it occurs | 15 U.S.C. § 1681p |
| Florida FCCPA | 2 years from the violation | Fla. Stat. § 559.77(4) |
| New York GBL 349 | 3 years | N.Y. CPLR 214(2) |
In New York, New Jersey and Florida
New York. DFS rule 23 NYCRR 1 requires collectors it covers to substantiate a debt when you dispute it in writing, and GBL 601(8) bars threatening to enforce a right the collector knows or has reason to know does not exist. Consumers usually sue through GBL 349, which lets the court award a prevailing consumer reasonable attorney's fees. See the New York page.
New Jersey. The FDCPA and FCRA apply in full. See the New Jersey page.
Florida. The FCCPA bars claiming, attempting or threatening to enforce a debt when the person knows the debt is not legitimate (Fla. Stat. § 559.72(9)). It reaches original creditors too, and the FCCPA requires a company found liable to pay the consumer's reasonable attorney's fees and costs. See the Florida page.
Common questions
The collector says the debt is mine because the name matches. What do I do?
Send a written dispute within the validation period saying the debt is not yours and asking for verification. The collector must stop collecting until it mails verification. Do not confirm your Social Security number or other details to a caller just because it asks.
I paid this debt years ago. Can they still collect it?
Not a debt that was paid. Representing that you still owe it misstates the legal status of the debt. Send a written dispute with a copy, never the original, of your proof of payment or settlement letter, and keep every document.
My debt was discharged in bankruptcy and a collector is calling. Is that allowed?
A bankruptcy discharge operates as an injunction against acts to collect a discharged debt as a personal liability of the debtor, under 11 U.S.C. 524(a)(2). A collector that demands payment of a discharged debt may also misstate its legal status under the FDCPA. Send the collector a copy of the discharge order and talk to a lawyer; the bankruptcy court can enforce its own discharge.
Someone opened an account in my name. What law helps?
The FDCPA governs how collectors pursue the account, and the Fair Credit Reporting Act governs your credit report. Under the FCRA a credit bureau must block information resulting from identity theft once you provide proof of identity, an identity theft report and your statement, and furnishers must investigate disputes the bureaus send them. See the identity theft credit report page.
Tell us what they did.
One conversation with an attorney, in your language. We tell you which laws the collector or the credit bureau broke, which deadline runs first, and what to save this week. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510The FDCPA and the FCRA require a company found liable to pay the consumer’s reasonable attorney’s fees and costs. Our fee arrangement is confirmed in a written retainer before we begin. English, Russian and Spanish in-house; an interpreter for any other language.