Legal information is not legal advice.
I think most of us have found ourselves in a collection situation sooner or later, either by accident of billing or by a reversal of fortune in life. Once an account becomes delinquent, things quickly escalate. It starts with threatening letters in the mail and then the annoying phone calls start: one or two at first, followed by dozens at all hours of the day or night. Debt collectors don’t want you to know that with one simple letter you can make it all go away.
What Does “Cease and Desist” Mean?
A cease and desist letter is a letter that any consumer can write to a debt collector to make them stop all contact (cease) and not make any further collection attempts (desist) by phone, by mail, or the like. While this might sound like a “fix all,” it’s not. There are some very good reasons to write cease and desist letters, but, used improperly, they can do more harm than good.
Who Can Write A Cease And Desist Letter And Do I Need A Lawyer?
Strictly speaking, anyone can write a cease and desist letter. The Fair Debt Collection Practices Act requires that a debt collector obey a consumer’s written request to break contact:
If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt…
— Fair Debt Collection Practices Act, § 805(c).
As you can see, the law specifies that a consumer may contact a debt collector with a cease and desist letter. There are times where it is advantageous to have an attorney write one for you, especially if a previous cease and desist letter went unheeded. This option costs money, of course, but sometimes it is your best option.
What Are The Implications Of Sending A Cease and Desist Letter To A Collection Agency?
Sending a case and desist letter is a bit of a double-edged sword. On the one hand, sending a general cease and desist letter will make collection calls and letter stop; however, there is some possibility of blow-back.
Sending a cease and desist letter will not make you “not owe” the debt any longer, and it won’t help your credit report either. This is a very persistent myth in some circles for some reason. You still owe the debt and you’re still liable for the account, the debt collector just can’t contact you about it.
You break off any avenue of communication with the debt collector. Sure, that’s the point of a cease and desist letter, but you also prevent the debt collector from negotiating the debt amount in the process. Debt, like so many other things in life, is often negotiable. They won’t tell you this, of course, but many debt collectors will negotiate 60% or more off of the original debt amount — some even more than that!
They can still sue you, and then you’re really in hot water. Because, absent proof to the contrary, you still owe the debt, the collection agency can still sue you to recover the debt amount, and there isn’t much you can do about it. It is an overstatement to say that sending a blanket cease and desist letter will result in a debt collector “going legal,” but the likelihood is increased, because you removed all other options.
They can say “screw it” and sell the debt off to another debt collector, called a debt buyer. “Debt buyers” are the last stop on the debt collection train. When a debt buyer purchases delinquent accounts, they typically pay 4–6% of the debt amount because of the age of the debt and other factors. If the collection agency you sent a cease and desist letter to can’t communicate with you and isn’t inclined to sue you, they can simply sell off your account. The next debt collector isn’t bound by the cease and desist letter you sent the first collection agency and can call and write you as though you never sent one in the first place.
How to Write a Cease and Desist Letter That Won’t Get You Sued As Soon As The Ink Is Dry?
With the increased risk of the collection agency simply “going legal” and suing you, some people advocate not sending a cease and desist letter at all, but that is simply wrong headed. A cease and desist letter can also be selective and require a debt collector only communicate with you at certain times or in certain ways.
I Work Third Shift, Call In The Evening Only
It stinks working third shift. Your life runs exactly the opposite to everyone else’s when you’re on third shift. When you’re away, they’re asleep. When everyone else is home, you’re either getting ready to leave for work or at work already.
You can specifically direct a collection agency only call you after 7 or 8 PM, when you’re up and awake to take their call. Their standard assumption is that 8 AM — 9 PM is “fair game” to contact you. But, due to the hours you keep, most of that time they’re calling, you’re trying to sleep.
Don’t Call Me At Work
Debt collectors love to call you at work. It creates added stress on you to make a deal quickly to get them to go away. In their minds, you’re more likely to pay them and pay more than if you had the time to rationally think through the conversation without fear that your boss will be rounding the corner any minute wondering why you’re on a personal call on company time.
You can specifically direct a collection agency not to call you at your work number. When you do this, you must, of course, specify what your work number is, because they’re not psychic; 99 times out of 100, it’s a computer-driven predictive dialer making the call, and they need to know exactly what telephone numbers to black list.
Stop Calling! Only Communicate in Writing by Mail
This is the classic “I’ll negotiate with you when I’m good and ready” approach. For many people who want to negotiate their delinquent accounts without the added psychological pressure of being harassed by commission based collection agents in the process.
This has the benefit of of making the harassing telephone calls stop and creating a paper trail that forces the collection agency to actually be honest. Admittedly, this approach slows down the process, because the rate at which you and the collection agency correspond moves at a 7–10 day crawl between replies. Before you ask, no, they’re not going to agree to contact you via email, due to increased liability on their part if they do.
What Happens Next?
When you send a cease and desist letter, you really **must do so by certified mail.*** This gives you tangible proof that someone actually signed for the letter, and therefore the collection agency received it. Period, end. Once they have the cease and desist letter in hand, there are a few possible outcomes.
One Last Contact, Typically
When a collection agency receives a cease and desist letter, they have to stop contacting you, or they’re in violation of the FDCPA. But they are allowed one final contact to confirm receipt of the cease and desist letter.
If you get a written response, it usually contains language that affirms they’ll no longer contact you, makes one final “sales pitch” to get you to pay, and often speaks vaguely of “seeking other remedies” to satisfy the account — which is basically a subtle hint that they may sue you.
When Do The Calls Stop?
Once the collection agency has the letter, they should stop calling you the same business day they receive it. But, for entirely valid reasons, it may take an extra day for collection attempts to come to a full and complete stop,
What if They Ignore The Letter?
It really is rare, but every so often a collection agency simply ignores a cease and desist letter. This violates the FDCPA on its face — there is no excuse for this.
First off, **you have recourse if a collection agency ignores your cease and desist letter!*** Don’t be discouraged. But you do have to get all your ducks in a row:
Keep the evidence, it’s worth money! Seriously, I’m not joking. Failing to honor a cease and desist letter is a violation of the Fair Debt Collection Practices Act. Violations of the act entitle the consumer (that’s you) to damages (legal speak for money) out to a maximum of $1,000 per violation
If you’re in this situation, keep everything…
- The “return receipt” from the certified letter you sent.
- A copy of the cease and desist letter.
- Document every phone call you get from the debt collector after the cease and desist letter arrives: names, dates, times, the number they called from, etc.
- Keep every letter the collection agency sends you, including the envelopes.
Contact a Consumer Protection Attorney, If It Comes To It
If it becomes clear that you need legal help, reach out to a consumer protection attorney in your area. Most consumer protection attorneys work on contingency; they don’t get paid unless they win your case. Of course, a good consumer protection attorney will likely only take your case in the first place if they feel you have a good chance of winning. How do you up your chances of wining? You up your chances of winning a lawsuit against a debt collector if you keep everything they send and can show a pattern of FDCPA violation.
Don’t ever take a debt collection agency’s crap lying down.
How to Write a Cease and Desist Letter Effectively
This may sound silly, but any business that deals with the public gets a letter from an angry consumer sooner or later. It’s important to stay calm, cool, and collected as you write to a collection agency. Otherwise you risk doing yourself more harm than good.
This sounds basic, because it is basic. I don’t mean to be condescending: You’d be surprised at the number of angry calls and angry letters collection agencies get with no identifying information. Collection agencies aren’t psychic; if you write them and tell them to stop and don’t uniquely identify yourself with your name and address, they’re going to keep on contacting you.
When writing, please remember to follow long standing business practice and place your name and mailing address at the top of the letter, followed by the date, followed by the recipient’s address. If you don’t do this, the collection agency representative will get confused, and there is every chance they won’t be able to comply with your request due to the simple lack of information.
“This Is Not A Refusal To Pay”
It’s rarely a good idea to tell a debt collector that you refuse to pay a debt, it’s an even worse idea to tell it to them in writing. Unless the collection agency has the wrong person or the statute of limitations has expired on the debt, practically the first words on the page should be “this is not a refusal to pay.”
It’s important to state “this is not a refusal to pay” — even if you don’t actually end up paying the debt — because makes it that much harder for a collection agency to take your communication out of context. Debt validation letters usually have this language as well.
The FDCPA Violations, If Any
If a collection agency has, in your view, violated the Fair Debt Collection Practices Act (FDCPA) it’s a good idea to document those violations in your cease and desist letter. Don’t get carried away, but a quick summary of the essence of the violations and perhaps a specific date or two can only help you.
Optics matter. If you can show a pattern of collection agency abuses while communicating with the collection agency in a professional manner, you look a lot more sympathetic to any outside observer than if you rant and rave.
Cease And Desist What?
You have to spell out exactly what you want the collection agency to stop doing. It won’t do to say, “stop calling me at work.” Their predictive dialer software may just have your work number listed as an alternate telephone number and nothing more. It’s much better to be as specific as possible and write “cease and desist contacting me at work, specifically at (XXX) XXX-XXXX.”
What Else Should You Know?
If you write a collection agency a cease and desist letter, the collection agency may just sell your account to a different collector. There isn’t much, if anything, you can do about this.
It’s at least worth attempting heading the collector off at the pass by writing “you must cease and desist contacting me and not resell this account.” This may or may not be effective, but it’s better than nothing.
What Not To Say…
You’re Not “The Customer”
When dealing with a debt collector, it’s easy to go into “the customer is always right mode” when a dispute arises. There is just one problem: you’re not “the customer” – the original creditor is!
Don’t think like a customer: the debt collector isn’t going to become apologetic just because you’re offended or perceive wrongdoing. The job of a debt collector is that of salesman: it’s his job to cram the idea of paying off a debt down your throat and get you to say yes.
There is no need to go on and on about things that a debt collector did that made you angry. Even if the debt collector did something to anger you that was an FDCPA violation, keep your tone civil and be clear and to the point.
Don’t Pretend To Be A Lawyer, Even Indirectly
I assume you didn’t go to law school. Unfortunately, it’s rather easy to string together bits of sample form letters from the Internet in a way that come off lawyer-ish and come off like you’re pretending to be a lawyer — and pretending rather badly at that.
The problem is, when “hacking together” a form letter from different sources and complex legal citations, it’s easy to lose track of one important thing: what are you demanding the debt collector do and why? Okay, write that down in reasonably plain English. If you must reference a specific law, do so, but ensure you’re doing it more or less correctly and in a manner that does not distract from the core message of your letter.
Don’t Swear or Use Threatening Language
I realize if you’ve gotten to the point of writing a cease and desist letter to a collection agency, it’s a pretty fair bet you’re angry at them about something. Swearing in a demand letter just makes you look childish, and making threats can get you in serious legal trouble. It won’t help your case.
One Last Thing…
I know dealing with a debt collector is a frustrating process, especially if they behave less than honorably. Remember: whatever happens, keep your head. If you keep a level head, you’ll be better able to gather evidence to use against a debt collector who gets out of line… and FDCPA violations are worth money.