by Jeff Sovern
Back in 2008, Fred Williams, a reporter for the Buffalo News who had written stories about debt collectors, worked as a debt collector for an upstate New York debt collection firm. Williams was not exactly undercover–he disclosed that he had written the stories–but it sounds as if he was treated as any other employee: he went through training and later had to prove himself to advance to a permanent position. In 2011, Williams published a book about the experience. Though the title of the book makes it sound like a primer for consumers being pursued by debt collectors–Fight Back Against Unfair Debt Collection Practices–and the book does include advice for consumers, what makes the book special is Williams's account of his experiences. I read the book to learn more about the industry for the debt collection materials to appear in the next edition of our casebook, and I thought I would say a bit about it here as well.
While some have portrayed debt collectors who cross legal lines as sadists who enjoy abusing others (see, e.g., the testimony of Richard Bell in the third edition of our casebook), Williams offers a different take. Williams reports that he met few collectors who enjoyed threatening consumers but nevertheless describes numerous interactions in which collectors approached or stepped over the line demarcating improper behavior. According to Williams, debt collectors face incentives to employ inappropriate tactics because of the need to collect enough debts to retain their jobs and earn the approval of other debt collectors. Williams argued that collectors employed illegal tactics because they work. He also claimes that collectors are hardened by frequent interactions with dishonest consumers who leave the collectors jaded and cynical.
As for the rules imposed on collectors by the federal Fair Debt Collection Practices Act, Williams's experiences are not always consistent. The agency where he worked seemingly followed some of the FDCPA's strictures faithfully; for example, collectors were not permitted to call consumers more than once a day. But other rules seemed to go by the wayside. Collectors largely omit the so-called "Miranda warning of FDCPA § 1692e(11). Alternatively, he reports that some collectors leaving messages for consumers hang up in the middle of the Miranda warning: “I am legally required to inform you that this is an attempt [click]” and then claim that the call was cut off. Some collectors claim that they are calling from the fraud department, a false statement which violates § 1692e. Still another collector creates the impression that a collection matter will end up in litigation by asking for the consumer's lawyer's phone number. If the consumer denies having a lawyer, the collector replies "Don't you think you're going to need one.?" Though the agency had a compliance department, Williams reports that collectors are told when Compliance is monitoring their calls so they know when to avoid violating the FDCPA. The result, according to Williams, was that the compliance department was a sham. So why are some rules followed slavishly and others ignored? My speculation is that excessive calling can be proved by obtaining phone records while the proving the contents of unrecorded phone conversations devolves into a credibility contest.
Williams's book reads fast and is entertaining. For those who want a better understanding of the debt collection industry, it is a must-read.