Collectors posing as a lawyer, the police or a court
A debt collector may not pretend to be a lawyer, a police officer, a court or any government agency, and it may not send papers that look like they came from a court when they did not. Each of these is a separate false representation under the FDCPA. A letter signed by a lawyer who never actually reviewed your file can also be a false attorney communication.
Borrowed authority is a common collection tactic. The caller is a "legal department" or a "fraud investigator." The letter has a seal, a case number and the word "summons" in large type. The voicemail says a "process server" is on the way. The FDCPA treats each of these disguises as a false representation, and each one can support a claim.
The rule also covers real lawyers. A collection letter signed by an attorney implies that a lawyer actually looked at your account. If no lawyer did, the letter can be misleading.
What it looks like
- The fake officer. A caller who claims to be from a police department, a sheriff's office, the district attorney or a "state fraud unit."
- Fake court papers. A document styled as a summons, a "notice of pending lawsuit" or a "legal process" form that was never filed in any court.
- The phantom attorney. A caller who says "I am an attorney" or "this is the legal department" when no lawyer is involved.
- Robo-signed lawyer letters. Mass-mailed letters on law firm letterhead where no lawyer reviewed your file.
- The process server voicemail. "We are attempting to serve you at your home or work," with a demand to call a number to "resolve the matter."
- Government lookalikes. Letters with seals, eagles or agency-style names suggesting a government connection.
The law
Section 1692e of the FDCPA forbids false, deceptive or misleading representations in collecting a debt. It names these disguises specifically:
- § 1692e(1): falsely representing or implying that the collector is vouched for, bonded by or affiliated with the United States or any state, including the use of any badge, uniform or facsimile;
- § 1692e(3): falsely representing or implying that any individual is an attorney or that any communication is from an attorney;
- § 1692e(9): using a written communication that simulates, or is falsely represented to be, a document authorized, issued or approved by a court, official or agency, or that creates a false impression about its source;
- § 1692e(14): using any name other than the true name of the collector's business;
- § 1692e(11): failing to disclose that the communication is from a debt collector.
For letters signed by lawyers, the leading case in New York's federal courts is Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993). The Second Circuit held that an attorney's signature on a collection letter implies the attorney directly controlled or supervised the process through which the letter was sent. Mass-mailed letters bearing a lawyer's signature, where the lawyer had not reviewed the individual files, violated § 1692e(3). The court read the letters as the least sophisticated consumer would.
Lawyers who regularly collect consumer debts are themselves debt collectors under the FDCPA (Heintz v. Jenkins, 514 U.S. 291 (1995)), so a real law firm can be liable for the same false statements an agency makes.
What you have to show
That a debt collector, collecting a consumer debt, made the false representation. The letter, envelope, voicemail or your notes of the call are the proof. For a lawyer-signed letter, how much the lawyer actually reviewed is often learned in discovery.
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.
In Florida the FCCPA provides actual damages, statutory damages up to $1,000 and punitive damages in the court's discretion (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 or knowing violation. This site does not estimate what a case is worth.
What to do now
- Keep the document and the envelope. The look of the paper, the seal, the return address and the postmark are all evidence.
- Save the voicemail. A recording of a caller claiming to be an officer or attorney is strong proof.
- Check for a real case. Search the court's online records by your name, or call the clerk of the court named on the paper.
- Do not call the number on a suspicious "legal" notice to pay. Ask for the collector's name and mailing address and a written validation notice instead.
- If there is a real lawsuit, answer it. Do not ignore genuine court papers. The answer deadline is short. See sued by a debt collector.
The clock
| Claim | Time to sue | Authority |
|---|---|---|
| FDCPA | 1 year from the communication | 15 U.S.C. § 1692k(d) |
| 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. GBL 601(1) bars simulating a law enforcement officer or a representative of a government agency, and 601(9) bars communications that simulate legal or judicial process. 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 applies in full. See the New Jersey page.
Florida. The FCCPA bars communications that simulate legal or judicial process or appear to be authorized by a government, an agency or an attorney when they are not (Fla. Stat. § 559.72(10)); communicating under the guise of an attorney (§ 559.72(11)); and orally giving the false impression of being, or being associated with, an attorney (§ 559.72(12)). These rules reach 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
A letter came on law firm letterhead. Does that mean I am being sued?
No. A letter from a law firm is a collection letter unless it comes with a summons and complaint filed in a court. Law firms that regularly collect debts are debt collectors under the FDCPA and must follow it. If the letter implies a lawyer reviewed your case when none did, that can be a violation.
How do I tell a real court paper from a fake one?
Real court papers usually name a specific court, carry an index or case number, and are delivered by a process server or sheriff according to state rules. Check the court's online records, or call the clerk. A document designed to look like court process when it is not violates 15 U.S.C. 1692e(9).
The caller said he was a 'fraud investigator.' Is that allowed?
A collector may not falsely imply it is affiliated with the government or law enforcement, and it may not use any name other than its true business name. Titles that suggest police or government authority, used to scare you, can violate 15 U.S.C. 1692e(1) and (14).
What if the real lawyer is a debt collector?
A lawyer who regularly collects consumer debts is covered by the FDCPA, including in litigation, under Heintz v. Jenkins. That lawyer may not make false threats or misstate the debt any more than an agency can.
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.