Even in Debt…

You have rights too…

Last week I received a telephone call from Jessie, a 31-year-old, single mother of three. She was sobbing hysterically because a debt collector had told her he was going to garnish her wages. Jessie was afraid that if he garnished her wages and thereby deprived her of rent money she might be thrown out on the street with her kids. After several minutes I managed to reassure her that the debt collector, calling on behalf of a finance company, could not garnish her wages.

At least, not without having obtained a judgment first.

In other words, the collector had to take her to court before he could do anything. If a debt collector threatens to sue you – this is not the end of the world! It may well be the best news yet – if you are sued, a court may be able to assist you with finding a resolution to the problem and assure your rights are protected.

Collector misrepresentation

A collector may not call you and say they are calling from the “legal department” unless the agency has a lawyer on staff and the collector is acting under the instructions of the lawyer. It is a serious offense for someone who is not a lawyer in good standing with a bar association to give the impression that he or she is a lawyer. If you have a complaint of this nature – call the Law Society in your province. The Law Society views these complaints very seriously.

Collection agency owners and employees, which includes skip tracers, must not at any time pretend to be the representative of a government agency, crown corporation, or public body in order to locate or secure payment from a debtor. The use of profanity or any other form of verbal abuse – to locate a debtor or to collect a debt is strictly prohibited.

Harassment of a debtor

A collector must initially accept in good faith a debtor’s representation that his/her only source of income is government assistance or that his/her income includes a “top-up” of income assistance.

• The debtor must then be allowed up to 2 weeks to provide evidence of their current financial situation.
• It is sufficient for the debtor to provide a copy of the income assistance cheque stub for the previous month.
• If this is the case, demand for payment of a debt is an unreasonable collection practice.
• The debtor’s status can be reconfirmed with the debtor at regular intervals of not less than 30 days.

Once a debtor objects to telephone calls, no further telephone contact can be made with a debtor at his place of employment. I recommend your objection be done in writing.

• A collector must refrain from making contact with a debtor while the debtor is engaged in a period of extreme duress, family crisis, special celebration, or similar extraordinary event.
• A collector must NOT mail a letter to the debtor’s place of employment in an envelope indicating the name of the collection agency and which is not clearly marked “personal & confidential”.
• All collection activity apart from legal action is prohibited after a debtor or debtor’s representative advises the collector or creditor, in writing, that a claim is disputed.
• All collection activity apart from legal action is prohibited after the creditor or his agent refuses to accept a payment schedule offered by the debtor if the schedule is represented by the debtor as the maximum amount and shortest repayment period that the debtor can afford.

Contact with friends, employer, etc.

Spouses, relatives, friends, neighbours, and co-workers of a debtor are under no obligation to cooperate with a collector and are protected from unreasonable collection practices by the Debt Collection Act. Refusal to cooperate or provide information by any of these persons must be courteously accepted and the collector is to end contact with that person.

The use of fax, voicemail, or e-mail in a manner that is calculated to embarrass, humiliate or alarm a debtor is considered an objectionable practice.

The use of profanity or other verbal abuse to locate a debtor or to collect a debt is strictly prohibited.

Threats and intimidation

• Threats of incarceration or of police involvement for non-payment of debt are prohibited. Where there is a judgment, a creditor may advise the debtor of permitted legal remedies, such as seizure or garnishment, but an exaggeration of the potential consequences is prohibited.
• A threat to immediately garnish wages of a debtor or seize the debtor’s assets where a judgment has not been obtained is prohibited.
• Offering to remove a collection notation from a debtor’s credit report upon payment of the debt, without the prior written permission of both the creditor and reporting agency(s) involved is not permitted.
• Threatening to place a collection notation on the debtor’s file if the debt is not paid immediately is also not permitted unless the debt is overdue for more than 120 days.

Legal

Filing small claims actions other than in the location of where the cause of action arose or where the defendant resides is contrary to the Debt Collection Act.

Advising debtors, they will be responsible for substantial legal costs if they are sued where:
– the debt is less than the small claims allowance and,
– the debtor would actually only be responsible for filing and service fees is an unreasonable collection practice.

Legislation regulating collection agencies

The Criminal Code of Canada prohibits indecent, threatening, or harassing telephone calls. This applies to all collection persons; therefore if you are being harassed:

• Report the calls to the Consumer Protection Branch of your provincial government.
• Track the date, time, name of the person calling, and what was said – contact your phone company and ask if there is a way to trace the calls, in case you need proof.
• Consider calling your telephone company to report the abusive calls and if you are feeling threatened consider calling your local police department to report the caller.

No one has the right to abuse you – no matter what the circumstances. If you are in debt you are not alone there is help – At Solutions™ we can help!