By Attorney Kevin Trost
With the inflation rate soaring to a 40-year high, more Americans are falling behind on their debt payments because they cannot make the required payments on their credit cards, car loans, and/or home mortgage.
When payments are missed the creditor will usually first attempt to contact the debtor to resolve their past due balance. However, if those attempts are unsuccessful, the creditor may then utilize the services of a professional debt collection company. Federal and state laws regulate the activities of professional debt collectors.
Laws Regulate Debt Collection Practices
The Federal Debt Collection Practices Act (FDCPA) specifies how a debt collector may communicate with a consumer. A debt collector is required to send a written initial validation notice within five days of first making contact with the consumer. This notice contains basic information about the consumer’s debt, including the name of the original creditor, the account number, and the amount due. The notice must also include ways the consumer can dispute their debt.
The FDCPA and the Wisconsin Consumer Act restricts when and how often a debt collector may contact a consumer:
- Calls must be made between 8 a.m. and 9 p.m. in Wisconsin. If a consumer is at work when a debt collector calls, they may tell the collector not to call them during their work hours. The collector must respect this request.
- A debt collector may not contact a consumer more than seven times over the course of seven days without their prior consent. Also, unless the collector has permission, the collector may not re-contact the consumer within seven days of their last conversation.
- Debt collectors may not use obscene or harassing language and may not threaten the consumer with criminal prosecution.
The Special Case of Vehicle Debts
If the debtor has defaulted on a vehicle loan, the lender may try to repossess the vehicle. If successful, the lender can then sell the vehicle. Any money from the sale is first applied to the costs of repossession and the outstanding loan balance.
Under Wisconsin law, a lender may try to repossess a vehicle one of two ways. One option is that the lender may file a lawsuit and seek a judgment awarding the lender possession of the vehicle.
Alternatively, a lender may try self-help repossession to repossess the vehicle on their own. To do this a lender must first send the debtor specific notices of the intent to self-help repossess. The debtor then has the right to object to the lender taking this action. An objection would require the lender to instead seek a judgment of possession from the court.
If a lender proceeds with self-help repossession, its agent may not “breach the peace” when attempting to recover the vehicle. That is, the lender’s agent may not enter the debtor’s garage uninvited to retrieve the vehicle and may not ignore any verbal protests from the debtor when attempting to take the vehicle.
In sum, knowing the laws surrounding debt collection can demystify the process and help ensure that issues surrounding outstanding debt are resolved in a legal manner.
Kevin Trost is the founding attorney of Trost, LLC and as part of his legal practice he advises creditors and debt collectors on proper collection procedures. He is a member of the State Bar of Wisconsin Lawyer Referral and Information Service, which connects Wisconsin residents with lawyers throughout the state. Learn more at wislaw.org.