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Reasons Not to Send a Cease and Desist Letter

by Damion Findley (2024-01-04)

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692c(c), provides for a writing to send "the debt collector to cease further communications with the consumer." Some people refer to this as a Cease and Desist Letter, but the word "desist" does not appear in this section of the FDCPA. People send this to stop a debt collector from contacting them, but I have found it may get the consumer sued in state court on the debt. There are other problems.

The most common misunderstanding occurs when that consumers send suing a debt collector for harassment "cease and desist letter" to the original creditor or they send such letter concerning a debt that is not subject to the FDCPA. Except in rare instances, creditors are not subject to the FDCPA. There are also several types of debts that are not subject to the FDCPA. A debt subject to the FDCPA must have resulted from a transaction intended primarily for personal, family, or household purposes. Courts have stated that the collection of taxes, fines, child support, civil shoplifting claims, and torts are not subject to the FDCPA, because there was no consensual transaction involved. Perhaps Congress or some courts will change these more narrow interpretations, but that is the dominant view.

If the consumer sends a "cease communications" letter to the debt collector on a debt that is subject to the FDCPA, the collector must cease communicating on the debt. Thus, they may either sell the debt to another debt collector, which starts the process all over again, or file in court a credit card lawsuit against the consumer. Perhaps the consumer would prefer that the collector not file a debt collection lawsuit, as perhaps the collector may delay filing legal action beyond the statute of limitations period. In California, if a written contract has been in default more than four years since the date of last payment, the debt is barred by the statute of limitations, and the California courts will not enforce it. The deadline may be even shorter, if the account was not based on a written contract or another state's statute of limitations law applies. Indeed, the FDCPA prohibits a debt collector from filing or threatening to file a lawsuit on a time-barred debt. This may require careful analysis, though, as payments or written promises to pay the debt may revive the four-year period.

The better approach, in my opinion, is to promptly (within 30 days of receiving the initial notice from the collector) dispute the debt or, if there is no valid dispute available, to send the debt collector a written request to validate the debt. So, mark your calendar and the envelope (which you should save in a file) to record when you received the letter by mail. If the c