The Fair Debt Collection Practices Act (FDCPA) is a federal law that regulates the conduct of debt collectors and provides consumers with specific rights and remedies.

When a debt collector violates the FDCPA – whether through abusive communication practices, deceptive documentation, or improper litigation conduct – those violations can be raised as counterclaims in a collection lawsuit, potentially offsetting or eliminating the debt the collector is trying to collect.

What the FDCPA Is

The Fair Debt Collection Practices Act, codified at 15 U.S.C. § 1692 et seq., was enacted in 1977 and is enforced by the Federal Trade Commission and the Consumer Financial Protection Bureau. It applies to “debt collectors” – defined as persons who regularly collect debts owed to another party – and governs the collection of consumer debts (debts incurred for personal, family, or household purposes).

The FDCPA does not apply to original creditors collecting their own debts. Banks and credit card issuers collecting on their own accounts are not governed by the FDCPA, though they may be subject to other state and federal regulations. Third-party collection agencies and debt buyers are subject to the FDCPA.

The Act creates a private right of action – consumers can sue collectors who violate it in federal or state court. It also provides for attorney’s fees when the consumer prevails, which is why consumer law attorneys are often willing to represent FDCPA plaintiffs on contingency.

Common FDCPA Violations

Harassment and Abuse

The FDCPA prohibits debt collectors from engaging in harassing, oppressive, or abusive conduct in connection with the collection of a debt. Specific prohibited conduct includes:

• Repeated phone calls intended to annoy, abuse, or harass
• Use of obscene, profane, or abusive language
• Threats of violence or criminal prosecution
• Publishing lists of consumers who allegedly refuse to pay (other than to a credit bureau)

False or Misleading Representations

The FDCPA broadly prohibits any false, misleading, or deceptive representation in connection with debt collection. Common violations in this category include:

• Misrepresenting the character, amount, or legal status of the debt
• Falsely representing that the collector is an attorney or government agency
• Threatening legal action that the collector does not actually intend to take or cannot legally take
• Using documents that falsely imply they come from a court or government agency
• Misrepresenting the consequences of non-payment (such as claiming arrest is possible for a civil debt)
• Filing a lawsuit on a time-barred debt while misrepresenting the consumer’s legal exposure

Unfair Practices

The FDCPA prohibits unfair or unconscionable means to collect a debt, including:

• Collecting amounts not authorized by the original agreement or permitted by law
• Depositing post-dated checks before the date on the check
• Communicating with the consumer by postcard (which would expose the debt to public view)
• Taking or threatening to take property the collector has no legal right to seize

Communication Violations

The FDCPA sets specific rules for how and when collectors may communicate with consumers:

• Contacting a consumer before 8 a.m. or after 9 p.m. in the consumer’s local time
• Contacting a consumer who is represented by an attorney (communications must go to the attorney)
• Continuing to contact a consumer after receiving a written cease-communication request
• Contacting the consumer directly after the consumer has invoked their validation rights, before providing adequate verification

Validation Violations

Collectors must send a validation notice within five days of first contact, and if the consumer disputes the debt within 30 days, the collector must cease collection activity until it provides verification. Failures in this process include:

• Not sending the required validation notice
• Continuing collection activity after receiving a timely validation request but before providing verification
• Providing inadequate or false verification in response to a dispute

Litigation-Based FDCPA Violations

The FDCPA applies to litigation activity by debt collectors. Specific violations in the court context include:

• Filing a lawsuit in a jurisdiction other than where the consumer lives or where the contract was signed
• Filing a lawsuit on a debt the collector knows to be time-barred
• Using false affidavits or unverifiable account records in court proceedings
• Serving process in a manner designed to prevent the consumer from responding (sometimes called “sewer service”)

Evidence Needed to Prove FDCPA Violations

Establishing an FDCPA violation requires specific, documented evidence of the prohibited conduct. Useful evidence types include:

• Collection letters and notices: Keep all written communications from the collector, including envelopes with postmark dates
• Phone records: Caller ID logs, phone bills showing call times, or voicemail recordings can document illegal calling practices
• Certified mail records: Delivery confirmations for any cease-communication or validation request letters
• Your written requests: Copies of any dispute or cease-communication letters you sent
• The lawsuit itself: Court documents filed by the collector are evidence of litigation conduct
• Affidavit from the plaintiff’s employees: If false statements were made in affidavits filed with the court, those documents are themselves evidence of a violation

Legal Remedies Under the FDCPA

The FDCPA provides three categories of recoverable damages for a prevailing consumer:

• Statutory damages: Up to $1,000 per lawsuit (not per violation), available without proving any actual harm
• Actual damages: Compensation for actual losses caused by the violation, including emotional distress, lost wages, and financial harm
• Attorney’s fees and costs: If the consumer prevails, the court awards reasonable attorney’s fees and litigation costs to be paid by the collector

Court Procedure for Raising FDCPA Violations

FDCPA violations are most effectively raised as counterclaims in the collector’s existing lawsuit against you. File the counterclaim as part of your answer. The counterclaim must:

• Identify the FDCPA provisions violated, by specific section (e.g., 15 U.S.C. § 1692e for false representations, § 1692g for validation failures, § 1692i for venue violations)
• State the specific factual conduct that constituted the violation, with dates and details
• Identify the damages sought (statutory damages, actual damages, attorney’s fees)
• Be served on the opposing party along with your answer

FDCPA claims may also be filed as an independent lawsuit in federal district court within one year of the violation, regardless of whether the collector has filed a collection lawsuit against you. For guidance on the counterclaim process, see: counterclaim against debt collector. For an overview of defenses available in debt lawsuits, see: debt lawsuit defenses.

The Bona Fide Error Defense

Debt collectors may raise a “bona fide error” defense to an FDCPA claim, asserting that the violation was unintentional and resulted from a good-faith error despite the maintenance of procedures to avoid such errors. This defense is narrow and requires the collector to demonstrate both that the error was unintentional and that they had in place reasonable policies to prevent it. It does not eliminate liability for intentional violations or systematic errors.