The Telephone Consumer Protection Act (“TCPA”) is a vital litigation tool against debt collection and mortgage foreclosure actions. The Act has not gained much popularity amongst consumer protection attorneys and is rarely used for the benefit of consumers. Violations of TCPA are rampant in the debt collection industry and frequently go unpunished. The provision most often violated by debt collectors is 47 USC § 227 (b)(1) which disallows usage of automated dialing systems to call cell phones. However, said calls can be authorized and deemed in compliance with TCPA with an express consent from the debtor. The debtor may authorize the calls via an express consent if the only number provided to the creditor was the debtor’s cell phone contact. The issue is frequently raised by defense attorneys and hence it is always prudent to send a cease and desist letter to the creditor via certified mail. Following the receipt of this letter, any calls made via an automated dialing system to the debtor’s cell phone will be in violation of TCPA.
TCPA violations can be of significant help and consequence in loan modification negotiations and other debt collection litigations because the statute allows for recovery of $500 per violation. It is not uncommon for creditors to continually violate the provisions of this statute and expose themselves to thousands of dollars in statutory damages. The statute is not limited in its scope to debt collectors and is applicable to all creditors using automated dialing systems. Also note that when a debt collector is involved, a TCPA violation is often accompanied by an FDCPA claim (FDCPA claims, unlike TCPA claims, allow for recovery of attorneys’ fees).
The law has numerous safeguards and deterrents in place to protect consumers from harassment by debt collectors and creditors. If you feel that you have been a victim of such harassment please call our office for a free consultation.