Understanding Your Mini-Miranda Rights When Dealing with Debt Collectors
Beware If you have recently heard something like “This communication is from a debt collector attempting to collect a debt. Any information obtained from you will be used for that purpose.” This statement is known as Mini- Miranda warnings and it exists to protect you.
What is the Mini-Miranda?
The name may be familiar to you. In criminal cases, the police must read the Miranda Rights prior to questioning the suspect who is under arrest. In contrast, under federal law debt collectors must say the Mini Miranda warnings when dealing with debtors. The Mini-Miranda warnings are created to protect debtors from debt collectors’ deceptive practices when attempting to collect a debt. The Fair Debt Collection Practices Act (“FDCPA”) imposes debt collectors to disclose certain information when communicating with a debtor. In fact, under the FDCPA, all debt collectors must say the Mini Miranda disclosures during their first initial contact with a debtor, whether it is a phone call, voicemail message, letter, email, text message, or mail. This protection applies even if you contact the debt collector first. Thus, in any first communication, debt collectors must disclose that:
1. They are debt collectors,
2. The communication is to attempt to collect a debt, and
3. Any information will be used for their collection practices.
The FDCPA requires that in all communication with a debtor, collectors must identify themselves as a debt collector, however, they are only required to give you the Mini Miranda warnings during their first communication.
Who must say the Mini-Miranda warnings?
The Mini Miranda disclosures only apply to debt collectors. For this purpose, it is important to know the difference between a creditor and a debt collector.
Under Section 803(6) of the FDCPA, https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text – 803, a debt collector is “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another”. Thus, in other words, a debt collector is a third party engaged in attempting to collect a debt owed to a different party such as debt collection agencies, collection attorneys, or debt buyers. In contrast, a “creditor” is the party or entity that extended you the credit in the first place. For example, your credit card company. Thus, all debt collectors that fit under the above definition must say the Mini-Miranda warnings. There is an exception to the general rule which states that in order to be exempt from telling a debtor the Mini-Miranda disclosures, a creditor has to clearly identify themselves as your original creditor. However, if your original creditor when contacting you use a different name, then, the Mini Miranda warnings apply.
How to protect yourself?
As a consumer with debt-related issues, you have rights. In fact, the FDCPA is a federal law that sets protections and rights for debtors.
You have different options if a debt collector or creditor does not follow the requirements imposed under the FDCPA, you have two different options. For example, one option involves filing a lawsuit against the debt collection agency or the collection company. Another option available is to report the violation of the debt collector’s lack of disclosure of the Mini-Miranda warnings to the Consumer Financial Protection Bureau (“CFPB”). In the case that you decide to file a lawsuit against the debt collection agency or debt collector, remember that you have one year in federal court from the day that the violation occurred. For more information visit https://www.consumerfinance.gov/complaint/
Mathew Higbee who is an experienced attorney dealing with consumers highlights that “a debtor will have to show enough evidence proving that (1) it was their initial communication with the debt collector, and (2) that they failed to make the Miranda disclosures in relation to the debt”. He continues to say that “if the court rules in your favor, you could obtain a monetary judgment against the debt collector or agency. You have options within the legal context for your specific circumstances”.
In fact, according to the FDCPA 15 U.S. Code § 1692k https://www.govinfo.gov/content/pkg/USCODE-2015-title15/pdf/USCODE-2015-title15-chap41-subchapV-sec1692k.pdf, a debtor could recover damages such as monetary damages and attorney’s fees and costs. Even if you are not able to prove actual damages, you may be able to obtain statutory damages that could be up to $1,000 per violation. For said reason, it is important to get legal advice.
If you think that someone has violated your rights under the FDCPA, the best thing to do is to contact an attorney to protect your rights and guide you on how to deal with debt-related matters. Here, at Advantage Law our dedicated team of experienced attorneys will be happy to assist you and study your case to give you an evaluation of your best options.
