The mini-Miranda warning is a statement that debt collectors are required by the Fair Debt Collection Practices Act to use when initiating contact with a debtor for the first time. A debtor is an individual who owes a debt. The debt collector is either the creditor or an agency working for the creditor to collect a past-due debt.
The mini-Miranda warning requires that the debt collector state that:
1. They are a debt collector.
2. They are attempting to collect a debt.
3. Anything you say and any information you give them will be used for that purpose.
The debt collector is required to begin the initial contact with this mini-Miranda warning whether that contact is by phone or mail.
Miranda rights are the offspring of Miranda v. Arizona, a well-known U.S. Supreme Court case. When you are in police custody and an officer wishes to interrogate you, the officer is required by the 5th Amendment of the Constitution to read you your rights. This is also known as a Miranda warning.
The warning generally includes:
The right to remain silent
Anything you say can be used against you in court
The right to consult with an attorney
The right to be appointed an attorney if you cannot afford one
The right to cease answering questions at any time and request an attorney
Mini-Miranda warnings are not officially labeled as such in the Fair Debt Collection Practices Act. However, lawyers, politicians, debt collectors, and financial analysts began referring to the debt collector warnings as mini-Miranda warnings because they are similar to the warnings required by Miranda v. Arizona. Just as a police officer must warn a suspect of his or her rights before beginning interrogations, a debt collector must warn a debtor of his her rights under the Fair Debt Collection Practices Act.
Not beginning the initial contact with the mini-Miranda warning is an automatic violation of the Fair Debt Collection Practices Act. Each violation could result in the debt collector being fined $1,000. If the debt collector sues the debtor in court for past-due debt, the debtor can counter-claim with each violation. In addition, the debtor can lodge a formal complaint with the Federal Trade Commission about the violation.
When a debtor is in bankruptcy, the debtor receives an automatic stay. Automatic stays are court orders requiring creditors to cease all collection efforts against the debtor. However, creditors can still file bankruptcy claims with the bankruptcy court and the debtor.
There is currently a circuit split over whether creditors have to provide a mini-Miranda warning when the debtor is in bankruptcy. The 2nd and 9th Circuit Courts have ruled that the Fair Debt Collection Practices Act and its mini-Miranda Rulings do not apply if the debtor is in bankruptcy. However, the 3rd and 7th Circuits have ruled that the Fair Debt Collection Practices Act is still enforceable even when the debtor is in bankruptcy.
If you are struggling to pay your bills and have begun to receive harassing phone calls and letters from debt collectors, you have options. An experienced bankruptcy attorney can educate you on your various options, guide you through a Chapter 7 or Chapter 13 filing, and assist you with communicating with aggressive debt collectors.