The Legal Stuff
This article is not legal advice. Opinions offered by your family, friends or Facebook group are not legal advice. To obtain a reliable legal opinion you must consult an attorney in good standing admitted to practice in the state where you live and base your business. You can find information about law firms and attorneys in your area on the Martindale-Hubbell website.
You can save yourself a lot of money in the long run by getting good advice up front. A couple hours of consultation to help you avoid mistakes is a lot less expensive than defending yourself in a lawsuit and paying statutory penalties.
This article underscores why you may want to consult an attorney by providing general information about debt collection mistakes that can get you in trouble.
Federal and State Laws
There are consumer protection laws and guidelines on a Federal level and for each state. In the United States, the Federal Trade Commission is the nation’s consumer protection agency that enforces the Fair Debt Collections Practices Act which is the Federal law that protects consumers from being abused by debt collectors. This law is often referred to as the “FDCPA”.
States have their own consumer protection laws. A state law is allowed to be more restrictive than the FDCPA, but it cannot be less strict in protecting consumers from debt collectors.
In other words, you run the risk of breaking both Federal and state laws by collecting debts before you know the rules!
You, as the freelance service provider, are not a debt collector, but you still should play by the rules.
The FDCPA defines a debt collector as anyone whose main business is collecting debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or claimed to be owed to someone else.
The rules are specific and the penalties are high when it comes to debt collectors. Before you hire a person or agency to collect debts owed to you, protect yourself by asking an attorney what your liability will be if any collection rules are broken.
Freelancers are a rapidly growing part the business world, including freelancers that provide services to other freelancers! One area of “services for freelancers” that I find very troubling are individuals who offer to collect your debts, at the same time emphasizing they are not debt collectors.
Paying someone a fee or commission to be your virtual “accounts receivable” employee for the specific purpose of contacting and collecting money from clients who have not paid you is not going to fool anyone, least of all a jury. If it walks like a duck and talks like a duck, the jury will call it a duck!
Debt Collection Mistakes
Collecting your own debt does not make you a debt collector under the FDCPA definition, but you will still want to play by the rules, including the rules for your state. These are some of the general areas that can get a bill collector in trouble.
If your client has filed bankruptcy, you cannot keep contacting them about the debt. You may file a “proof of claim” with the bankruptcy court but if the debt owed to you is unsecured (meaning no collateral) the chance that you will recover anything is slim.
Legally, you can’t talk to anyone other than your client or their attorney about the debt. In some instances under federal law you can talk to a spouse, but you better make sure the state laws allow it.
You can also talk to a parent if the person who owes the debt is under eighteen.
You can’t publish the name of anyone who owes you money, leave messages or even send postcards. Basically you have to avoid shaming or embarrassing the person who owes you money.
You will need to be careful when, where, and how often you call someone about the money they owe you. There are many rules that protect debtors from abuse or harassment by bill collectors. A few examples of things to keep in mind are:
- A bill collector cannot call a debtor over and over, even if they are not answering the phone.
- A collector cannot call the person at work the person is not allowed to get calls there.
- The debtor cannot be called before 8:00 in the morning or after 9:00 at night without permission.
- The collector cannot call the person names or use obscene language.
- No legal action may be threatened unless the collector has the right to the legal action and actually intends to go through with it.
This is just the tip of the iceberg when it comes to debt collection and does not consider various state laws.
The best way to protect your personal and business interests is to invest in reliable legal advice from an attorney with experience in consumer issues or small business law.
Consider making a proactive investment in your business and consult an attorney before you have delinquent client accounts. Do you know if your service agreements or business contracts will help or hinder you if the client doesn’t pay as agreed?
Take advantage of good legal counsel to establish statutorily compliant business practices and collection procedures to keep your business profitable!
What is your experience with clients who don’t pay? Are you interested in more legal topics for freelancers and small business owners? Please contact me or leave your comments below.