If you get sued by a creditor looking to collect a debt, you’ll be notified of the lawsuit with a summons and complaint. It’s best to respond to the summons or you can lose the case by default. Responding to the summons also allows you to list your defenses and any counterclaims you may have. You can answer the complaint in person or in writing.
Written by Attorney Curtis Lee.
Updated March 10, 2022
If a third-party debt collector contacts you and tries to collect a debt, there’s a good chance they’re subject to the Fair Debt Collection Practices Act (FDCPA). This is a federal law that regulates debt collectors’ actions when they try to collect a debt from a consumer credit transaction. For example, the FDCPA limits when a debt collector can make phone calls to you to discuss your debt.
Since the FDCPA is a federal law, it applies no matter where you live in the United States. But states are free to enact their own consumer debt collection laws that provide protections beyond the FDCPA. And New York has done just that. We created this guide to explain New York’s version of the Fair Debt Collection Practices Act and how it works.
What Is the New York Fair Debt Collection Practices Act?
New York’s version of the FDCPA (sometimes referred to as the New York Debt Collection Procedures Act) is similar to the federal FDCPA. Congress passed the FDCPA back in 1978 to stop abusive debt collection practices used by certain debt collectors. New York’s debt collection law aims to do the same thing. It applies to consumer debts and has many provisions that parallel the FDCPA’s requirements and restrictions on debt collectors.
There’s one big difference between New York’s debt collection law and the FDCPA: There’s nothing in New York’s version that allows the victims of illegal debt collection activities to sue collectors that violate the law. Instead, they must rely on the New York attorney general to file a lawsuit and enforce the law’s requirements.
Residents of New York City have additional legal protections under the New York City Consumer Protection Law. This law requires certain debt collectors trying to collect a debt within the city to obtain a special license from the NYC Department of Consumer and Worker Protection (formerly known as the NYC Department of Consumer Affairs). Debt collectors must also comply with other regulations. For example, they can only make up to two debt collection telephone calls to a particular consumer each week.
But just as the New York state version of the FDCPA doesn’t let consumers bring their own lawsuits against violators, neither does the New York City Consumer Protection Law. Victims again have to rely on the New York attorney general to bring a lawsuit to enforce the city law.
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How Does the Federal FDCPA Protect Consumers?
The FDCPA regulates and restricts a wide range of debt collection actions. Debt collectors are limited in how they can communicate with consumers. They also can’t harass you or mislead you.
The FDCPA Limits Debt Collector Communication
The FDCPA limits debt collectors’ communications. For instance, under the FDCPA, a debt collector can’t:
Call you during an unreasonable time, such as the middle of the night.
Call you at a location that’s inconvenient for you. This includes your workplace, but only if you tell the debt collector to stop calling you at work.
Discuss a consumer’s debt with most third parties.
Communicate with you concerning a debt collection matter if the debt collector knows you’re represented by an attorney. One caveat to this requirement is that the debt collector must also have the lawyer’s contact information or have a reasonable method of finding the lawyer’s contact information.
The FDCPA also outlaws debt collectors from harassing or intimidating consumers, which includes:
Using foul language when communicating with you.
Threatening you with violence or other unlawful conduct.
Repeatedly calling you in an attempt to annoy or harass you.
The FDCPA Prohibits Debt Collectors From Misleading Consumers or Engaging in Unfair Practices To Collect a Debt
Debt collectors can’t lie, trick, or mislead consumers when trying to collect a debt. This includes falsely claiming that if the consumer doesn’t pay their debt, they could be arrested or go to jail. Debt collectors also can’t deceive consumers by pretending to be someone they’re not. They can’t pretend to be an attorney, a consumer reporting agency, or a government-affiliated entity.
The following unfair practices are also illegal under the FDCPA:
Using a postcard to contact the consumer about a debt.
Collecting interest, fees, or expenses related to the debt. One exception is if the increase in the debt amount was authorized. This could happen under the terms of the debt agreement between the original creditor and the consumer or a law that specifically allows for it.
Accepting a postdated check, then depositing or threatening to deposit the check before the date on the check.
The FDCPA Prohibits Debt Collectors From Suing on Time-Barred Debt
Besides lying about their identity, debt collectors sometimes lie to consumers about debt details. This is also prohibited by the FDCPA. One of the most common tricks collectors use is threatening to bring a lawsuit. Debt collectors aren’t allowed to threaten to sue if they don’t actually intend to do so, and under a new rule, they can’t sue or threaten to sue on a debt that’s past its statute of limitations. This is also called a time-barred debt. In New York, the statute of limitations to collect a debt is three years. This “clock” normally begins when the consumer defaults on the debt.
The bottom line is that under the FDCPA it’s illegal for a debt collector to lie to the consumer to trick them into paying the debt.
Are All Debt Collectors Subject to the FDCPA?
The FDCPA provides some fairly broad protections for consumers. But they don’t apply to all individuals or organizations that are trying to collect a debt from a consumer. The FDCPA only applies to third-party debt collectors and some debt buyers. As a general rule, the FDCPA doesn’t apply to original creditors.
An original creditor is the person or organization that originally entered into a loan or debt agreement with the consumer. For example, imagine a consumer has an unpaid credit card debt. If the bank that issued the credit card to the consumer tries to collect the debt, then the FDCPA’s protections won’t apply. One exception to this is when the original creditor uses a different name to collect the debt or implies it’s a third party collecting the debt and not the original creditor.
New York's FDCPA Expands on Its Federal Namesake
In 2015, New York Governor Cuomo and the New York Department of Financial Services amended the New York Fair Debt Collection Practices Act to provide more consumer debt protections. New York’s version of the FDCPA prohibits unfair and misleading debt collection actions, such as:
Communicating about the debt with third parties
Harassing consumers by calling at unreasonable times or locations
Using unclear or deceptive letters to confuse consumers
Increasing the debt with unauthorized debt collection fees
Another New York law that further expands on the FDCPA is the Consumer Credit Fairness Act (CCFA). This is a new law that was signed by New York Governor Kathy Hochul in November 2021 and provides a variety of extra consumer rights to New Yorkers, like:
Lowering the debt collection statute of limitations from six to three years.
Making it harder for a debt collector to get a default judgment against the consumer if they don’t respond to the debt collection lawsuit.
Requiring the court to send notice of the debt collection lawsuit to the consumer.
No longer allowing a consumer to inadvertently restart the three-year statute of limitations clock when they make a partial payment on the debt.
Requiring debt collectors to provide more information about the debt in their court documents when they sue consumers.
Congress enacted the FDCPA in 1978. For the past few decades, it has regulated how third-party debt collectors can collect consumer debts from individuals. The FDCPA makes it illegal for certain debt collection agencies to use abusive, unfair, and deceptive debt collection methods. The FDCPA isn’t the only law that protects consumers. States such as New York have enacted their own debt collection laws
The New York Fair Debt Collection Practices Act closely follows the FDCPA. But it has a few differences. Some of these expand the protections available to consumers, but others don’t. One notable example is that only the state attorney general can file a lawsuit to enforce the state law.
If you think a debt collector, debt buyer, or creditor has violated the FDCPA or New York’s debt collection laws, you have can:
File a complaint with the New York attorney general.
Contact an attorney for legal advice. If your creditor or debt collector violated the FDCPA, you may have the right to bring suit and recover monetary damages. Depending on the violation, you could receive up to $1,000 plus attorney’s fees and court costs.