The Debt Collection Law
The Fair Debt Collection Practices Act (FDCPA) is the federal law that defines what third party debt collectors can and cannot do when they’re collecting a debt from a consumer. The law, passed in 1977, doesn’t address many forms of modern communication. Text messaging, for example, wasn’t introduced until 1992, 15 years after the FDCPA was passed, and the law hasn’t been updated to address collection activity via text message or other modern communication mediums. As of 2020, the FDCPA had not been updated to reflect modern systems. The Telephone Consumer Protection Act of 1991 may provide some protection. It limits (and sometimes prohibits) the use of auto-dialing and unsolicited phone communications without “prior express consent” which means you’ve indicated that you can be contacted that way. Debt collectors have argued that listing a cell phone number on your credit card or loan application is essentially giving consent to be contacted at that number for issues involving your account – an argument that’s been accepted in courts, at least from companies sending telemarketing messages.
Litigation Involving Collection Text Messages
In the civil suit Gutierrez v. Barclays Group (2011), a case between a cardholder and the original credit card issuer, the Court determined that the text messages from Barclays to Gutierrez were legal up to the point that Gutierrez replied with a message to “stop sending text messages.” The court determined that the defendant, Barclay’s, could not pursue a trial against the Gutierezz family based on consumers who have given consent to receive phone calls can retract that consent via oral or written communications, or through a third party–for automated or prerecorded systems only. This ruling does not apply to businesses or collectors who dial your number to discuss collections. In September 2013, the Federal Trade Commission agreed on a $1 million settlement with debt collector charged for FDCPA violations involving text messaging, but not directly because of the text messages. In this particular lawsuit, the company was fined for failing to identify themselves as debt collectors rather than for the text messages themselves. The FTC did not directly address text messaging as a form of communication, which may indicate that it’s an acceptable method for contacting debtors as long as FDCPA rules are followed.
Debt Collector Communication
There’s no specific rule about debt collectors and text messages, but there are rules that dictate how debt collectors can communicate, regardless of the medium:
Collectors can only contact you between 8 a.m. and 9 p.m. in your local time. They have to identify themselves as debt collectors and they can’t reveal your debts to any third party except your spouse or attorney. They cannot repeatedly call you (or, in this case, send repeated text messages) to annoy or harass you. They can’t contact you directly if they know you have an attorney. They can’t use abusive or profane language. They can’t threaten you or threaten any legal action they can’t or don’t intend to take. They have to stop communicating with you, by text messaging and any other way, if you send a written letter saying you no longer want to be contacted by them.
Know your rights with debt collectors. If you’re contacted via text messaging–or any other means–and you no longer want to be contacted that way, send a cease and desist letter by mail. Complaints can be directed to the Consumer Financial Protection Bureau and your state’s Attorney General if a collector ignores your cease and desist letter or violates your rights in any other way.
