The Fair Debt Collection Practices Act was designed to control debt collectors in the process of debt collection. Foreclosures exist in order to force the debtor, one way or another, to pay a debt, and in recent years it would be hard to find a more abused area of collection law. The FDCPA should, therefore, apply. Not all courts agree. This article and video discuss how the issues may apply to you.
The Fair Debt Collection Practices Act (FDCPA) is a law that, primarily, applies to “debt collectors” who are “collecting debts” (as those terms are defined by the statute. Foreclosure and all the actions leading to it are clearly attempts to collect a debt. Whether the FDCPA will be applied to them, on the other hand, is not so clear. Currently, it appears that a majority of the district courts that have ruled on the question have found that the FDCPA does not apply. Most of the circuit courts of appeal addressing the question, on the other hand, have held that it does. Eventually the law will probably catch up with common sense and the broad remedial purpose of the FDCPA, but for now whether the Act will apply to foreclosure may depend on where you live – and what court you file your suit in.
In this essay we will first discuss the arguments in favor of applying the FDCPA to foreclosure, then the arguments against it, and finally will compare the relative merits of the arguments. The good news for anyone seeking to apply the FDCPA to foreclosure is that even the jurisdictions that have held it does not apply have exceptions that open the door to a considerable extent. In whatever jurisdiction you use, you will need to know all the arguments.