The Fair Debt Collection Practices Act (“FDCPA”) provides a powerful shield against aggressive debt collection tactics. The Act sets out requirements for debt collectors when attempting to collect a debt, and violating these requirements may give rise to a claim under the FDCPA. The FDCPA also provides protection in certain foreclosure matters and can play a critical role in safeguarding homeowners facing foreclosure.
What is Foreclosure?
Foreclosure is a legal process where a lender seeks to recover the balance of a mortgage from a borrower who has stopped making payments. Once this happens, the borrower “defaults” on their mortgage, and the lender will take action to repossess the property. The foreclosure process proceeds if no resolution between the borrower and the lender is made. When the loan defaults, it may be taken over by a new loan servicer to handle the foreclosure process. Foreclosures must be conducted within the bounds of the law, and homeowners have rights that protect them from unfair practices.
What is the FDCPA?
The Fair Debt Collection Practices Act is a federal statute that protects consumers from abusive debt collection practices. While it is often associated with traditional debt collection scenarios, it can also play a crucial role in the context of mortgage foreclosure. By enforcing transparency and fair conduct, the FDCPA aims to ensure that individuals facing financial challenges are treated with respect and dignity throughout the debt collection process. This can extend to homeowners facing foreclosure and can be helpful in your foreclosure defense.
The FDCPA’s Role in Foreclosure Matters
The FDCPA prohibits many types of deceptive and abusive conduct by debt collectors, including harassing conduct, making false or misleading representations, and engaging in deceptive practices. One notable provision of the FDCPA, 1692(c)(a)(2), prohibits debt collectors from contacting a represented party directly, which includes mail and telephone. In the context of mortgage foreclosure, this becomes relevant when a new servicer takes over after default and a foreclosure action is initiated. When a homeowner’s attorney appears in the foreclosure action and the new loan servicer continues to contact the homeowner directly, despite legal representation, it constitutes a violation under the FDCPA.
Another crucial aspect of the FDCPA in the foreclosure context is related to penalty fees imposed after the account has been “accelerated.” Acceleration occurs when the lender claims that the loan has gone into default and demands full payment of the outstanding balance immediately. Charging fees after acceleration is a violation of the FDCPA, and unfortunately, this practice is not uncommon. Homeowners should recognize their rights and challenge such actions to ensure fair treatment.
Remedies Under the FDCPA
The FDCPA provides powerful remedies for homeowners facing violations in the foreclosure process. Homeowners who successfully prove FDCPA violations may be entitled to $1,000 in statutory damages, in addition to fees, costs, and any provable actual damages. Additionally, FDCPA violations may sometimes be used as a defense in a foreclosure matter. These remedies give homeowners a strategic advantage in their foreclosure defense and hold violators accountable for their actions.
The Fair Debt Collection Practices Act serves as a powerful safeguard for homeowners facing foreclosure, offering protection against deceptive and unfair practices by debt collectors and loan servicers. The FDCPA not only acts as a shield against unfair collection practices but also provides homeowners with the means to pursue legal action and defend their rights effectively. If you are facing foreclosure, it is important to learn how unfair practices of loan servicers may violate your rights under the FDCPA and other state collection laws. The foreclosure defense attorneys at Johnston Tomei Lenczycki & Goldberg LLC can help you determine if your rights under the FDCPA have been violated, or whether a state law may provide an alternative solution. Call today to speak with one of our foreclosure defense attorneys at (847) 549-0600 for a consultation.
Phone Number: (847) 549-0600
Fax Number: (847) 589-2263
350 N. Milwaukee Ave., Ste. 202
Libertyville, IL 60048
2100 Manchester Road, Suite 920
Wheaton, IL 60187