A debt collector keeps calling me very late at night—usually after 10:00 p.m. Sometimes the collector calls several times in one night. Is that legal? I have to get up early for work and I’m normally asleep when they call.
Most likely, no. A federal law—the Fair Debt Collections Practices Act (FDCPA)—limits the time of day and different ways that a debt collector can communicate with you.
Under the FDCPA, a debt collector isn’t allowed to contact you at any “unusual time” or at a time that it knows (or should know) is inconvenient for you. Unless you tell the collector otherwise, the FDCPA says that a collector should assume that it’s inconvenient to call you before 8:00 in the morning or after 9:00 at night, local time. (Learn more about what debt collectors can and can't do under the FDCPA.)
The FDCPA also prohibits debt collectors from harassing you. If a debt collector calls you over and over, multiple times each day—or calls you intending to annoy, abuse, or harass you—then the collector is violating the FDCPA. (Learn what you can do if a debt collector violates the FDCPA.)
Under the FDCPA, if you don’t want a debt collector to contact you, you can stop all communications by sending a written request—commonly called a "cease and desist letter"—to the collector.
If you send a cease and desist letter to a debt collector, the debt collector has to stop contacting you except to tell you that:
(Be aware that it’s not always a good idea to tell a debt collector to stop contacting you. Learn when it might not make sense to tell a debt collector to stop contacting you.)
Keep in mind that the FDCPA applies to debt collectors. Creditors, on the other hand, don't have to comply with FDCPA requirements. (Learn the difference between creditors and debt collectors for the purposes of the FDCPA.)
If the party who's calling you to try to collect is a debt buyer, it might—or might not—have to comply with the FDCPA. (A debt buyer is a person or business that regularly buys debts from creditors and tries to collect on them). Whether a debt buyer falls into the FDCPA’s definition of “debt collector” had long been a matter of contention, and the U.S. Supreme Court addressed this issue in 2017.
In the case of Henson et al. v. Santander Consumer USA Inc., 137 S.Ct. 1718 (2017), the United States Supreme Court held that a particular debt buyer was not subject to the FDCPA because it didn't meet the legal definition of a debt collector.
Background of Henson et al. v. Santander Consumer USA Inc. In this case, the petitioner had defaulted on a car loan owed to CitiFinancial Auto, which later sold the debt to Santander. Santander then attempted to collect on the debt. The petitioner claimed that Santander violated the FDCPA with its collection methods.
The Supreme Court’s ruling. The FDCPA defines a “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” Ultimately, the Supreme Court applied a straightforward interpretation of the FDCPA and decided that businesses like Santander—that buy (and therefore own) the debt they’re trying to collect—aren’t attempting to collect “debts owed or due…another.” So, companies like Santander who attempt to collect debts owed to themselves aren’t debt collectors under the FDCPA.
When the FDCPA covers debt buyers. Notwithstanding the Henson case, if a debt buyer is harassing you, it could potentially be violating the FDCPA. Under the FDCPA, a debt buyer could fall under the FDCPA's definition of a debt collector if their “principal purpose...is the collection of any debts.” In Henson, Santander convincingly argued its principal purpose was loan origination, which is different from debt buyers that primarily or exclusively buy and collect defaulted debts. (To get more information about the Henson case, see The Fair Debt Collection Practices Act Doesn’t Apply to a Debt Owner.)
In light of the Henson case, the United States Court of Appeals for the Third Circuit addressed the "principal purpose" definition under the FDCPA. (This was the first appellate court to issue a precedential decision tackling the matter.) In August 2018, the Third Circuit held in Tepper v. Amos Financial, LLC, 898 F.3d 364 (3d Cir. 2018), that an entity whose principal purpose of business is the collection of any debts is a debt collector for purposes of the FDCPA and it must comply with the requirements of the law—regardless of whether the entity owns the debts it collects.
Besides the FDCPA, various states have enacted consumer protection laws that regulate debt collection practices, which could cover creditors and/or debt buyers. Also, if a creditor calls you late at night, the call might be considered an “unfair or deceptive act or practice” under the Fair Trade Commission Act (FTCA).
If you’re receiving harassing calls from a debt collector, creditor, or debt buyer, consider talking to an attorney to find out what you should do in your particular circumstances.