Cease and Desist FAQ - United States
From LawDepot Law Library
General
What is a Cease and Desist Letter?
A Cease and Desist Letter is a letter that requests that an individual or organization stop a specified action and refrain from doing it in the future, with a threat of legal action if the recipient fails to comply. Anyone can send a Cease and Desist Letter.
A Cease and Desist Letter is different than a Cease and Desist Order, which is an order given by a judge to stop an illegal activity.
What is the “Debt Collection” letter used for?
The Debt Collection letter is used to stop Debt Collectors from inappropriately harassing you.
What is the “Copyright Infringement” letter used for?
The Copyright Infringement letter is used to demand that an individual or organization cease infringing on intellectual rights of your copyrighted work.
What is the “General” letter used for?
The General letter is used to demand that an individual or organization ceases an action or behavior. The General letter can be used to demand the cessation of the following:
- Harassment
- Stalking
- Libel
- Slander
- Property, boundary and neighborhood disputes.
The General letter can also be used for cases of debt collection or copyright infringement. However, the Copyright Infringement and Debt Collection letters are more specifically suited for those purposes.
Should I keep a copy of the letter for my own records?
Yes, you should retain a copy of the Cease and Desist Letter in case further legal action is required and the recipient of the letter attempts to deny having received it.
What method of delivery should I use?
To ensure that the Cease and Desist Letter is received, you should use certified or registered mail where possible. Where speed of delivery is more important than cost and the party is in the same geographical area, you can also use a process server (they will provide an affidavit of service or its equivalent upon delivery).
Debt Collection
What is the Fair Debt Collection Practices Act?
The Fair Debt Collection Practices Act (FDCPA) is a national act that was designed to protect consumers from unnecessary harassment from Debt Collectors and Collection Agencies. It provides guidelines for Debt Collectors and Collection Agencies while providing protection for consumers.
Many states also have broader laws that offer more protection for consumers than the FDCPA.
What Debt Collectors are covered by the FDCPA?
The FDCPA does not normally apply to in-house Debt Collectors. For example, if you owe a debt to a car dealership and the dealership directly contacts you, the FDCPA does not apply. However, if that same dealership uses an outside Debt Collector to contact you, that agency is restricted by the FDCPA.
Many states have broader laws that offer more protection to consumers and may place restrictions on the conduct of in-house debt collectors.
What debts are covered by the FDCPA?
Household, personal, and family debts are covered by the FDCPA. This includes credit card debts, mortgages, vehicle payments, medical costs and retail financing.
Debts are covered by the act whether they are disputed (you don’t agree that you owe the specified amount) or undisputed (you agree that you owe the specified amount.) This means that Debt Collectors have to follow the rules of the FDCPA whether you agree to owing the debt(s) or not.
What FDCPA rules do Debt Collectors have to follow?
Debt Collectors cannot:
- Contact you repeatedly between the hours of 9:00 PM and 8:00 AM (your time) unless you have given them permission to do so.
- Contact a third party (relative, employer, etc.) who does not owe the debt.
- Call you at work or any other inconvenient place once you have told them not to.
- Threaten to take an action that they do not intend to take. For example, a Debt Collector cannot threaten to sue you unless they actually plan to sue you.
- Use obscenities, racial slurs or insults.
- Use false claims in an attempt to collect information from a debtor.
- Seek collection fees or interest above and beyond what are allowed by state law or what are permitted in your contract.
- Continue to contact you once you have requested them to communicate with your attorney.
- Use false names, claim to be a lawyer, or send letters that are designed to look like court documents in an effort to collect the debt.
- Threaten you with arrest.
Debt Collectors can:
- Contact your spouse or any co-signer to the debt(s).
- Contact you repeatedly during appropriate hours (between 8:00 AM and 9:00PM) unless you have provided them with a Cease and Desist letter.
- Contact you at work, unless you have told them not to do so.
- Threaten to take any action that they do intend to take in an attempt to collect money. For example, if they plan to report you to a credit agency, they can threaten to do so.
What information am I entitled to regarding my debt or alleged debt?
The Debt Collector must send you a written notice with the following information within five days of their initial contact with you:
- A warning that the communication is from a debt collector.
- The name of the creditor.
- The amount owed.
- A notice to inform you:
- That you have 30 days to dispute the debt (or a portion of the debt) before the Debt Collector assumes that the debt is valid.
- That if you dispute the debt within 30 days the Debt Collector will mail you verification of the debt.
- That you have 30 days to request the name and address of the original creditor if different from the current creditor.
Can I send a Cease and Desist Letter to a Debt Collector if the Debt Collector isn’t breaking the law?
Yes. You can send a Cease and Desist Letter to a Debt Collector at any time if you wish for them to stop contacting you. It is important to note that sending a Cease and Desist letter does not eliminate the debt; it merely serves as notice that you no longer wish to be contacted by the Debt Collector.
After the agency receives a Cease and Desist letter, they are permitted to contact you only one more time: to inform you of a specific action that the Debt Collector or creditor intends to take (i.e. if they intend to sue you, etc.)
Who should I send the “Debt Collection” Cease and Desist Letter to?
You should send a copy of the “Debt Collection” Cease and Desist Letter to:
- The Debt Collector
- The original creditor (the person to whom you are or allegedly are indebted to.)
- Your attorney.
Copyright Infringement
What is copyright infringement?
Copyright infringement is a violation of the rights granted to the holder of a copyright.
A copyright holder has the following exclusive rights:
- To produce and sell copies of the original work.
- To create derivative works (works based on the original).
- To display or perform the work publicly.
- To sell or assign the above rights to others.
When individuals or organizations do any of the above without the permission of the copyright holder, they are committing copyright infringement.
What are fair use and unfair use?
Fair use refers to the Fair use doctrine, which allows individuals or organizations to use limited amounts of a copyrighted work without first seeking permission from the rights holder(s). There is no science behind determining fair or unfair use. However, the following are guidelines:
- The more directly the new work copies from the original, the more likely it is to be considered unfair use.
- The more artistic or creative the original was, the more likely it is to be considered unfair use.
- If the original was a factual account, the less likely it is to be considered unfair use.
- The more the original is used in the new work, the more likely it is to be considered unfair use.
- The less the original is changed in the new work, the more likely it is to be considered unfair use.
- If the new work is intended for commercial purposes, as opposed to educational or nonprofit purposes, it is more likely to be considered unfair use.
- If the new work could hurt the financial viability of the original, it is more likely to be considered unfair use.
Who should I send a Copyright Infringement Cease and Desist Letter to?
You should send a copy of your Copyright Infringement Cease and Desist Letter to the person or organization that is using your copyrighted material and your attorney, if you have one. And don’t forget to keep a copy (or several) of your Cease and Desist Letter for yourself.
