The Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. §§ 1692 and following) is a federal law that governs how debt collectors may try to get you to pay a debt. Among other things, the FDCPA:
The FDCPA applies to agencies collecting debts for someone else and sometimes to debt buyers. So, the FDCPA wouldn't apply to a credit card company when it collects on an overdue account. But it would apply if the credit card company hired a collection agency to collect on its behalf.
Those living in California are also protected by the Rosenthal Fair Debt Collection Practices Act (Cal. Civ. Code §§ 1788 to 1788.33), which covers more types of collectors and offers additional protections to consumers. If you're a California resident and a collector violates the Rosenthal Act, you could file a complaint with various governmental entities, file a lawsuit against the collector in court, or use violations of the law as leverage in settling your debt.
While the federal FDCPA applies to debt collectors and sometimes debt buyers—but not original creditors—California law extends the protection to creditors and others.
Under the Rosenthal Act, the term "debt collector" includes:
The Rosenthal Act also requires that original creditors comply with most parts of the federal FDCPA. (Cal. Civ. Code § 1788.17). So, in California, original creditors have to comply with both the Rosenthal Act and the FDCPA. If, for instance, a credit card company contacts you about an overdue bill, it must follow both the FDCPA and the Rosenthal Act.
The Rosenthal Act contains two significant exceptions for when a creditor doesn't have to comply with the FDCPA: creditors don't have to provide consumers with a "mini-Miranda" notice, and they don't have to send consumers a debt validation notice.
The federal FDCPA mandates that the collector disclose in the initial communication that he or she is attempting to collect a debt and that any information obtained will be used for that purpose. These disclosures often called the "mini-Miranda." The disclosures must also be included in subsequent communications. (15 U.S.C. § 1692e(11)).
Under a Consumer Financial Protection Bureau rule, effective in late 2021, debt collectors must make the mini-Miranda disclosures in the same language or languages used for the rest of the communication in which the disclosures are conveyed. Collectors don't, however, have to identify which consumers can't communicate in English, nor provide translations in multiple languages. (12 C.F.R. § 1006.18(e)(4)).
The Rosenthal Act doesn't apply to every person trying to collect a debt in California, nor does it apply to all kinds of debt.
Occasional debt collectors don't have to comply. The Rosenthal Act applies only when people and companies ordinarily and regularly collect consumer debts. For example, say you're contacting an acquaintance who owes you money, but you don't regularly collect money. You don't have to comply with the Rosenthal Act. (Cal. Civ. Code § 1788.2).
The law applies to consumer credit transactions only. The Rosenthal Act applies to debt collectors attempting to collect on debts that people incur by borrowing money, buying property, or obtaining services for personal, family, or household needs. (Cal. Civ. Code § 1788.2). So, it probably doesn't protect you from those collecting debts you incurred while operating your business. Likewise, you don't need to comply if you're collecting debts owed to you by other businesses.
The Rosenthal Act contains a lengthy list of regulations that apply to debt collection activities, like the following.
Under California law, a debt collector can't make any of the following threats.
Debt collectors are limited in what they may say, as well as the methods they may use, to contact you—especially on the telephone.
The Rosenthal Act requires a debt collector to inform you if the statute of limitations for a particular debt has passed. The collector has to include the notice in the first written communication it sends you after the statute of limitations expires. (Cal. Civ. Code § 1788.14).
The law also bans collectors from filing a lawsuit or initiating arbitration or any other legal proceeding to collect a time-barred debt. (Cal. Civ. Proc. Code § 337).
The Rosenthal Act contains a number of regulations requiring debt collectors to protect your privacy.
Collectors also can't do any of the following.
If your lawyer agreed to talk to creditors on your behalf and sent written notice to them, then debt collectors can't contact you. But if the lawyer fails to answer the collector's correspondence, return telephone calls, or discuss the obligation in question, then the collector may contact you. (Cal. Civ. Code § 1788.14).
While everyone should respect judicial proceedings, California law imposes some specific additional requirements for debt collectors.
If you think a debt collector is harassing you in violation of California law, you can submit a complaint to the California Attorney General, the Federal Trade Commission, and the Consumer Financial Protection Bureau.
If you believe a debt collector violated the Rosenthal Act, you may file a complaint with the California Attorney General's office. Although the Attorney General won't sue on your behalf, it uses complaints to learn about misconduct.
The Attorney General's office also provides helpful information about debt collectors for the public.
You may also file a complaint with the Federal Trade Commission (FTC).
You may also register a complaint with the Consumer Financial Protection Bureau (CFPB). The CFPB will forward your complaint to the collector and work to get you a response.
You may sue the collector in court. If you win, you can recover any actual damages you incurred because the debt collector violated the law. Also, under California law, if the debt collector acted "willfully and knowingly," a court can award you an additional $100 to $1,000. Finally, you can get an award of attorneys' fees. (Cal. Civ. Code § 1788.30).
Your claim is subject to a one-year statute of limitations. (Cal. Civ. Code § 1788.30). Also, sometimes, a court will reduce the amount it awards you by the amount you owe to the creditor.
In most cases, you'll need a lawyer's help to file and win a lawsuit; but if you're confident in your knowledge of the law and legal procedures, you may file a suit in small claims court on your own. Also, be aware that a debt collector isn't liable for a violation of the law if, within 15 days either after discovering a violation that can be cured, or after receiving a written notice about the violation, the debt collector notifies you of the violation, and corrects it. (Cal. Civ. Code § 1788.30). Though, if you have actual damages, it's unlikely that the debt collector can correct the violation.
If you're trying to settle a debt and the collector violates the Rosenthal Act, you can use the violation as leverage in your negotiations. Collectors know that a lawsuit can be costly to defend and might result in a judgment against them.
Just how much leverage you'll get from the threat of a lawsuit depends on the strength of your case. If you have strong facts proving a violation—such as many instances of harassing phone calls or the testimony of coworkers who received threatening phone calls—you'll have much more leverage in your debt settlement negotiations.
This article provides details on collection laws in California, with citations to statutes so you can learn more. Statutes change, so checking them is always a good idea. To learn how to find state statutes, visit Nolo's Legal Research Center. How courts and agencies interpret and apply the law can also change. And some rules can even vary within a state. These are just some of the reasons to consider consulting an attorney.
If you think a debt collector or creditor violated the law when trying to collect a debt from you, consider talking to an attorney who can analyze your situation and advise you about your rights and options under the law. An attorney might also be able to help you to negotiate a debt settlement.