# Fair Debt Collection Practices Act — Annotated for California Practice The federal **FDCPA** is codified at **15 U.S.C. §§ 1692–1692p**. The CFPB's implementing regulation, **Regulation F**, is at **12 CFR pt 1006**. This reference summarizes FDCPA sections most invoked in California debt-defense practice. For the full text, pull from uscode.house.gov; for Reg F, see `reg-f.md`. > **NOT LEGAL ADVICE.** Verify current text. ## Coverage — who is a "debt collector"? The FDCPA applies to **"debt collectors"** — third parties collecting consumer debt on behalf of someone else. Defined at 15 U.S.C. § 1692a(6): - Person whose principal business is collecting debts of another - Person who regularly collects debts of another - Includes debt buyers collecting through their own operations (whether the "regularly collects" prong applies is the key analysis — see *Henson v. Santander Consumer USA, Inc.*, 582 U.S. 79 (2017)) Excluded: - Original creditors collecting their own debt (with narrow exceptions — but note: the **Rosenthal Act covers original creditors**; FDCPA does not) - Attorneys collecting incidentally to legal practice - Government agencies - Officers of creditor companies acting in that capacity **California practice note**: When the plaintiff is the original creditor, FDCPA does not apply directly. Use the Rosenthal Act (Cal. Civ. Code, § 1788.17) and UCL (Bus. & Prof. Code, § 17200) instead. For the typical **debt-buyer plaintiff**, FDCPA generally applies if the debt buyer regularly engages in collection activity. ## Coverage — what is "consumer debt"? 15 U.S.C. § 1692a(5): - A debt - Arising from a transaction in which the money, property, insurance, or services were primarily for **personal, family, or household purposes** Commercial debt is not covered. Personal credit-card debt and personal medical bills are covered. ## Key sections ### § 1692c — Communications - (a)(1): No communication at unusual times (before 8 AM / after 9 PM local time at the consumer's location) - (a)(2): No communication if the collector knows an attorney represents the consumer - (a)(3): No communication at consumer's workplace if employer prohibits - (b): No communication with third parties (other than the consumer's attorney, a credit bureau, or the creditor) - (c): Cease-and-desist — consumer can demand the collector stop all contact; collector must then cease except to notify that it is terminating contact or taking specified legal action ### § 1692d — Harassment or abuse Prohibits any conduct whose "natural consequence" is harassment, oppression, or abuse. Specific examples: - Use of violence or threat of violence - Use of obscene or profane language - Publication of a debtor list (other than to credit bureaus) - Repeated or continuous telephone ringing with intent to annoy, abuse, or harass - Causing a telephone to ring repeatedly to annoy ### § 1692e — False or misleading representations The **workhorse provision** for California debt-defense counterclaims. Prohibits false, deceptive, or misleading representations. Specific examples: - (2): False representation of the character, amount, or legal status of the debt - (5): Threat to take any action that cannot legally be taken or is not intended to be taken - (8): Communicating known false credit information - (10): Using false representations or deceptive means to collect a debt or obtain information about the consumer - (11): Failing to identify communications as from a debt collector (mini-Miranda) In California debt-buyer cases, most-cited subsections: - **§ 1692e(2)(A)**: false representation of the amount owed - **§ 1692e(5)**: threat to sue on time-barred debt; threat to sue without proof of standing - **§ 1692e(8)**: false credit reporting - **§ 1692e(10)**: filing suit without chain-of-title documents; using false FDBPA-deficient complaint as a collection tool - **§ 1692e(11)**: failure to include mini-Miranda in collection letters ### § 1692f — Unfair practices The catch-all for unfair conduct: - (1): Collection of any amount not expressly authorized by the agreement creating the debt or permitted by law — the most-cited subsection; post-charge-off interest not in the original contract violates § 1692f(1) - (2): Demanding payment by post-dated check - (5): Communicating by post card - (6): Taking or threatening nonjudicial action when there is no present right to do so (no security interest, no right of repossession) Most cited in California: - **§ 1692f(1)**: collecting inflated post-charge-off interest or fees not authorized by the cardholder agreement ### § 1692g — Validation notice The **validation-notice** requirement. Within 5 days of the debt collector's **initial communication** with the consumer, the collector must provide a written notice containing: - The amount of the debt - The name of the creditor to whom the debt is owed - A statement that the consumer has 30 days to dispute - A statement that, if disputed within 30 days, the collector will obtain and mail verification of the debt - A statement that the collector will provide the name and address of the original creditor upon request The consumer has 30 days to dispute. Until verification is provided, the collector must cease collection activity. **Regulation F (12 CFR § 1006.34)** updates and expands the validation requirements. See `reg-f.md`. **California / Rosenthal layer**: Civ. Code, § 1788.17 incorporates § 1692g directly; failure to provide a compliant validation notice is both an FDCPA violation and a Rosenthal Act violation. ### § 1692j — Furnishing deceptive forms Prohibits furnishing "flat-rating" letters designed to make a third party appear to be collecting when it is not. ### § 1692k — Civil liability The remedies provision: - (a)(1): Actual damages — out-of-pocket losses, emotional distress (with supporting evidence), attorney consultation fees, lost time - (a)(2)(A): **$1,000 statutory damages** (individual action) — per action (not per violation), subject to bona-fide-error defense - (a)(2)(B): Class actions — actual damages + lesser of $500K or 1% of the debt collector's net worth - (a)(3): Reasonable attorney's fees and costs (one-way — only consumer can recover fees) The $1,000 cap on individual statutory damages is a real limitation. For high-volume violations, the Rosenthal Act's $1,000-per-violation structure and the UCL's 4-year SOL often produce better results. **Statute of limitations** (§ 1692k(d)): - **1 year** from the date of the violation - *Rotkiske v. Klemm*, 589 U.S. 8 (2019): the clock runs from the violation, not from discovery; discovery rule generally inapplicable unless equitable tolling applies - In California, the UCL's 4-year SOL (Bus. & Prof. Code, § 17208) provides a longer tail — plead UCL alongside FDCPA ## Affirmative defenses available to debt collectors - **Bona fide error** (§ 1692k(c)): must show (1) the violation was not intentional, (2) resulted from a bona fide error notwithstanding (3) procedures reasonably adapted to avoid the error - Consent of the consumer to the communication - Legal advice of counsel (limited; reliance must be reasonable) ## California-specific pairing — Rosenthal Act Always plead the Rosenthal Act alongside FDCPA in California practice: - Rosenthal covers original creditors (FDCPA does not) - Rosenthal has $100–$1,000 statutory damages **per violation** (FDCPA is $1,000 per action) - Rosenthal has the same 1-year SOL (Civ. Code, § 1788.30(f)) - UCL borrows both as "unlawful" prong violations with a 4-year SOL See `rosenthal-act.md` for Rosenthal-specific counterclaim form. ## Sample FDCPA counterclaim — California ``` SECOND CAUSE OF ACTION — Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) [Brought as counterclaim against Plaintiff/Counter-Defendant] [N]. Plaintiff/Counter-Defendant [LVNV Funding, LLC] is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6). [N+1]. The alleged debt is a "consumer debt" within the meaning of 15 U.S.C. § 1692a(5) — namely, an obligation arising from a personal credit-card account. [N+2]. Plaintiff/Counter-Defendant violated the FDCPA in the following ways: (a) By falsely representing the character, amount, and legal status of the alleged debt, in violation of 15 U.S.C. § 1692e(2); (b) By threatening to take action — filing this lawsuit — that cannot legally be taken, because Plaintiff cannot prove chain of title, in violation of 15 U.S.C. § 1692e(5); (c) By using deceptive means to collect a debt, in violation of 15 U.S.C. § 1692e(10); (d) By filing this action after the statute of limitations under CCP § 337 had expired, in violation of 15 U.S.C. § 1692e(5), § 1692f, and 12 CFR § 1006.26(b); (e) By attempting to collect amounts not authorized by the original contract, in violation of 15 U.S.C. § 1692f(1); (f) By failing to provide a validation notice complying with 15 U.S.C. § 1692g(a) and 12 CFR § 1006.34. [N+3]. As a direct and proximate result, Counter-Claimant suffered actual damages including time spent on this litigation, lost wages from court appearances, attorney consultation expenses, and emotional distress, and is entitled to $1,000 in statutory damages under 15 U.S.C. § 1692k(a)(2)(A). PRAYER (on this cause of action): Actual damages to be proven at trial; $1,000 statutory damages under 15 U.S.C. § 1692k(a)(2)(A); reasonable attorney's fees and costs under 15 U.S.C. § 1692k(a)(3). ``` ## Common California debt-defense FDCPA patterns | Pattern | Subsections | |---------|-------------| | Time-barred debt suit | §§ 1692e(2), e(5), f(1); Reg F § 1006.26 | | Inflated balance (post-charge-off interest) | §§ 1692e(2)(A), f(1) | | Failure to validate | § 1692g; Reg F § 1006.34 | | Unauthorized fees | § 1692f(1) | | False credit reporting | § 1692e(8) | | Communication after dispute | §§ 1692c, 1692g | | Suit filed without chain-of-title | §§ 1692e(5), e(10) | | Communication after attorney representation | § 1692c(a)(2) | | Failure to include mini-Miranda | § 1692e(11) | ## SOL strategy — FDCPA vs. UCL | Statute | SOL | Notes | |---------|-----|-------| | FDCPA | 1 year from violation | File counterclaim within 1 year | | Rosenthal Act | 1 year from violation | Civ. Code, § 1788.30(f) | | UCL | 4 years | Bus. & Prof. Code, § 17208; borrows FDCPA violations | Practical implication: for FDCPA violations more than 1 year old, plead the UCL "unlawful" prong instead to capture the longer limitations window. ## Cross-references - `ca-consumer-debt` SKILL — main bundle - `references/reg-f.md` — federal companion regulation - `references/rosenthal-act.md` — California state-law parallel - `references/cdcla.md` — DFPI licensing requirement - `references/fees-consumer-debt.md` — fee-shifting mechanics - USCode (canonical): https://uscode.house.gov/