The CFPB published two notices in today’s Federal Register seeking OMB approval for two surveys, one dealing with debt collection and the other with household balance sheets.

Debt collection.  The request described in the notice is a resubmission of a previously published request to OMB seeking approval to conduct an online survey of 8,000 individuals as part of its research on debt collection disclosures.  The Bureau withdrew the request in December 2017.  (We surmised that the withdrawal reflected the 30-day regulatory freeze imposed by former Acting Director Mick Mulvaney.)  Comments on the resubmitted request are due on or before March 6, 2019.

In its Fall 2018 rulemaking agenda, the CFPB estimated that a notice of proposed rulemaking regarding debt collection would be issued in March 2019.  The agenda indicated that the NPRM would address “such issues as communication practices and consumer disclosures.”  Since the notice references the CFPB’s “consumer protection rule writing” authority and its reliance on “empirical evidence and rigorous research to improve its understanding of consumer financing markets for regulatory purpose,” the CFPB presumably intends to use the survey results in connection with its debt collection rulemaking.  Accordingly, the survey’s timing would seem to make it unlikely that the Bureau will issue an NPRM in March.

Household balance sheets. The Bureau is seeking OMB approval for a survey entitled “Making Ends Meet” to solicit information on consumers’ experiences “related to household financial shocks and how households respond to those shocks, including the use of credit products that do and do not appear in the [Consumer Credit Panel].”  (The CCP is a proprietary sample dataset from one of the national credit reporting agencies.)  The survey is intended to support the Bureau’s “household balance sheets” research agenda, which the CFPB describes as research that seeks “to monitor developments in consumers’ financial situations, related changes in their use of financial products, and the effects that these decisions have on their balance sheets.”  The CFPB states that the research “will be for general, formative, and informational research on consumer financial markets and consumers’ use of financial products and will not directly provide the basis for specific policymaking at the Bureau.”  Comments are due on or before March 6, 2019.

 

 

On December 28, 2018, New York Governor Cuomo signed into law amendments to the state’s General Business Law (GBL) that address the collection of family member debts.  The amendments made by Senate Bill 3491A become effective March 29, 2019.

While the legislative history indicates that the amendments are intended to address the collection of a deceased family member’s debts, they are drafted more broadly to prohibit “principal creditors and debt collection agencies” from: (a) making any representation that a person is required to pay the debt of a family member in a way that contravenes the FDCPA; and (b) making any misrepresentation about the family member’s obligation to pay such debts.

The GBL defines a “principal creditor” as “any person, firm, corporation or organization to whom a consumer claim is owed, due or asserted to be due or owed, or any assignee for value of said person, firm, corporation or organization.”  The amendments define a “debt collection agency” as “a person, firm or corporation engaged in business, the principal purpose of which is to regularly collect or attempt to collect debts: (A) owed or due or asserted to be owed or due to another; or (B) obtained by, or assigned to, such person, firm or corporation, that are in default when obtained or acquired by such person, firm or corporation.” 

In 2011, the FTC issued its final Statement of Policy Regarding Communications in Connection With the Collection of Decedents’ Debts to provide guidance on how it would enforce the FDCPA and Section 5 of the FTC Act in connection with the collection of debts of deceased debtors.  The policy statement provides that the FTC will not initiate an enforcement action under the FDCPA against a debt collector who (1) communicates for the purpose of collecting a decedent’s debts with a person who has authority to pay such debts from the assets of the decedent’s estate even if that person does not fall within the FDCPA’s definition of “consumer,” or (2) includes in location communications a statement that it is seeking to identify a person with authority to pay the decedent’s “outstanding bills” from the decedent’s estate.  It also contains a caution that, depending on the circumstances, contacting survivors about a debt too soon after the debtor’s death may violate the FDCPA prohibition against contacting consumers at an “unusual time” or at a time “inconvenient to the consumer.”

 

 

Seventy-four organizations that describe themselves as “consumer, community, civil rights, faith, labor and legal services groups” have sent a letter to CFPB Director Kathy Kraninger to “reiterate our concerns about widespread debt collection abuses that we have raised in the past and the ongoing need for better protection against these abuses.”

In the letter, the groups make recommendations regarding the following:

  • Preventing telephone harassment and increasing consumer privacy.  The groups seek to limit collectors to one live call per week and up to three attempted calls, require collectors to honor a consumer’s verbal request to stop calls, allow text and email communications from collectors only if the consumer has agreed to electronic communications, prohibit collection calls and emails to the consumer’s work phone number and email unless in response to the consumer’s request, and make all collector contacts, including “limited content” calls or messages requesting a call back, subject to the FDCPA.
  • Prohibiting collection of time-barred debt.  The groups seek to entirely prohibit collectors from attempting to collect time-barred debt.  Alternatively, if the Bureau allows collectors to communicate regarding time-barred debts, the groups urge the Bureau to require that such communications be in writing and that a disclosure be provided to inform the consumer he or she cannot be sued on the debt.
  • Improving accuracy and clarity of debt collection notices.  The groups want the CFPB to create a model validation notice and statement of rights.

The issues raised by the groups are likely to be addressed by the Bureau in its anticipated debt collection rulemaking for debt collectors subject to the FDCPA.  In its Fall 2018 rulemaking agenda, the Bureau stated that it “expects to issue [a NPRM] addressing such issues as communication practices and consumer disclosures by spring 2019” and estimated the issuance of a NPRM in March 2019.

 

 

 

The Attorneys General of 42 states and the District of Columbia (collectively, the States) have entered into an Assurance of Voluntary Compliance/Assurance of Discontinuance  (Agreement) with Encore Capital Group, Inc. and its subsidiaries, Midland Funding, LLC and Midland Credit Management, Inc., (collectively, Midland) to settle allegations relating to Midland’s debt collection practices.  According to a press release from the Illinois AG, which describes Midland as one of the nation’s largest debt buyers, Midland engaged in a “pattern of signing and filing affidavits in state courts against consumers in large volumes without verifying the information printed in them – a practice commonly called robosigning.”

The Agreement requires Midland to pay $6 million to the States which, at the sole discretion of their AGs, shall “be used for reimbursement of attorney’s fees and/or investigative costs, used for future public protection purposes, placed in or applied to the consumer protection enforcement fund, consumer education, litigation, or local consumer aid fund or revolving fund, or similar fund [for consumer protection purposes].”  Midland must also internally set aside $25,000 per State for restitution to consumers and provide a credit of up to $1,850 to the outstanding balance of certain judgments it obtained involving disputed debts.

The Agreement contains various requirements for Midland’s collection practices, including the following:

  • Midland cannot collect or attempt to collect a debt unless it has in its possession the information specified in the Agreement
  • In the circumstances specified in the Agreement (which include the consumer’s dispute of the debt, the debt’s purchase through a purchase agreement without meaningful representations and warranties as to the debt’s accuracy or validity or without meaningful commitments to provide original account-level documentation or in a portfolio known by Midland to contain unsupportable or materially inaccurate information of the debt), Midland cannot represent that a consumer owes a debt or its amount without reviewing certain account-level information
  • For accounts as to which Midland has not yet begun collection activity, Midland cannot begin such activity without determining whether the debt has a special status (i.e., a bankruptcy, a deceased consumer, or a consumer who is an active duty service member) and if the debt is determined to have such a status, Midland must satisfy certain conditions to collect the debt
  • Until September 2020, Midland can only resell debts to anyone other than an entity described in the Agreement  (such as an entity that initially sold the debt to Midland)
  • Midland may not initiate a collection lawsuit unless it has specified documentation in its possession and has provided specified information to the consumer and must provide certain instructions to all of the attorneys it uses to conduct collection litigation on its behalf
  • Midland’s affiants may not sign an affidavit in connection with collection litigation unless the facts stated in the affidavit are based upon the affiant’s review of pertinent records in Midland’s possession and any personal knowledge “gained by those records actually reviewed by and relied upon by the affiant.”
  • Midland may not pay incentives to employees or third-party providers based solely on the volume of affidavits prepared, verified, executed, or notarized.
  • Midland’s procedures for the generation and use of affidavits in collection litigation must require those employees who review and sign affidavits to perform certain tasks, such as confirming that all of the data points in the affidavit accurately reflect Midland’s records prior to executing the affidavit
  • Midland may not knowingly pursue or threaten to pursue collection litigation on any time-barred debts and any communications with consumers about time-barred debts must include specified disclosures

Other provisions require Midland to comply with the FDCPA, the FCRA, and applicable state laws pertaining to its debt collection activities, appropriately staff teams that resolve disputes and address consumer questions, maintain a mandatory training program for its employees, and conduct call monitoring.

In a press release about the settlement, Midland stated that “[t]he issues that were the genesis of the settlement have not been the company’s practice for nearly 10 years” and that while it believes its practices were in accordance with relevant laws, it “chose to agree to a settlement, so we can all move ahead.”  The press release also stated that nearly all of the Agreement’s operational requirements are already part of Midland’s current practice and most requirements were implemented during or prior to Midland’s negotiations with the AGs.

 

The CFPB has filed an amicus brief in the U.S. Supreme Court in support of the respondent/law firm defendant in Obduskey v. McCarthy & Holthus LLP, et al., a Tenth Circuit decision that held that a law firm hired to pursue a non-judicial foreclosure under Colorado law was not a debt collector as defined under the Fair Debt Collection Practices Act.  The Supreme Court granted certiorari in June 2018 to review the Tenth Circuit’s decision and resolve a circuit split on whether the FDCPA applies to non-judicial foreclosure proceedings.  Because the Supreme Court’s decision in Obduskey will determine whether the FDCPA’s protections apply in countless non-judicial foreclosure actions, it could have a significant financial impact on the mortgage industry.

The amicus brief represents the second CFPB amicus brief filed under Acting Director Mulvaney’s leadership (the first was filed in the Seventh Circuit) and the first CFPB amicus brief filed in the Supreme Court under his leadership.  Most significantly, the amicus brief appears to be the first amicus brief filed by the CFPB in which it has supported the industry position.

In its amicus brief, the CFPB points to FDCPA Section 1692a(6) which defines the term “debt collector” to include, for purposes of Section 1692f(6), someone whose business is principally the “enforcement of security interests.”  Section 1692f(6) provides that it is an unfair or unconscionable collection practice to take or threaten to take nonjudicial action to effect dispossession of property under specified circumstances.  The CFPB argues that it follows from this ‘limited-purpose definition of debt collector” that, except for purposes of Section 1692f(6), enforcing a security interest, is not, by itself debt collection and to read the provision differently would render the “limited-purpose definition…superfluous.”

Based on these provisions, the CFPB contends that because enforcement of a security interest by itself is generally not debt collection under the FDCPA, a person cannot violate the FDCPA by taking actions that are legally required to enforce a security interest.  According to the CFPB, “[t]hat is dispositive here because the initiation of a Colorado nonjudicial-foreclosure proceeding undisputedly was a required step in enforcing a security interest.”  (The CFPB observes in a footnote that, although not implicated in Obduskey, actions clearly incidental to the enforcement of a security interest, even if not strictly required by state law, also would not constitute debt collection.)  The CFPB asserts that deeming the initiation of a non-judicial foreclosure proceeding to be debt collection “could bring the FDCPA into conflict with state law and effectively preclude compliance with state foreclosure procedures.  No sound basis exists to assume Congress intended that result.”

 

 

It has been reported that, without announcement or warning, the regulations applicable to third-party debt collectors in Massachusetts may have changed.  While the state’s Division of Banks (DOB) and the state’s Attorney General (AG) have traditionally regulated, respectively, third-party debt collectors and first-party creditors, the AG is reported to have changed its website recently to include third-party debt collectors as entities that it regulates.

Such a change could have significant implications because the AG’s rules differ from the DOB’s rules.  For example, the verification requirements under the AG’s rules contain more procedures than the DOB’s rules.  We expect industry trade groups to seek clarification from the DOB and AG.

 

 

 

 

Debt collection continues to be one of the most active areas in consumer finance law.  In this week’s podcast, Ballard Spahr attorneys will discuss the challenges facing the debt collection industry in private litigation and how to address them.  We’ll talk about how new technology is changing the industry, assess the effect of the CFPB’s new leadership on debt collection enforcement, and offer thoughts on whether the Bureau’s expected rulemaking will provide relief from current legal uncertainties.

To listen and subscribe to the podcast, click here.

 

New York has enacted legislation that requires creditors to provide new disclosures when using devices to remotely disable vehicles, commonly referred to as “kill switches.”  The new law took effect immediately upon its signing by Governor Cuomo on October 2, 2018.

First, the law amended New York’s Uniform Commercial Code to add a definition for a “payment assurance device.”  The term is defined as “any device installed in a vehicle that can be used to remotely disable the vehicle.”

Second, the law amended the provisions of New York’s General Business Law dealing with debt collection procedures.  The law amends the list of prohibited practices to add that “no principal creditor” or its agent shall remotely disable a vehicle using a “payment assurance device” to repossess a vehicle “without first having given written notice of the possible remote disabling of a vehicle in the method and timetable agreed upon by the consumer and the creditor in the initial contract for services.”  A “principal creditor” is defined as “any person, firm, corporation or organization to whom a consumer claim is owed, due or asserted to be due or owed, or any assignee for value of said person, firm, corporation or organization.”

The written notice required to be sent before using a “payment assurance device” must:

  • Be mailed by registered or certified mail “to the address at which the debtor will be residing on the expected date of the remote disabling of the vehicle”
  • Be postmarked no later than 10 days “prior to the date on which the principal creditor or his agent obtains the right to remotely disable the vehicle”

Violations of the debt collection prohibitions in New York’s General Business Law are deemed a misdemeanor and the NY Attorney General or the district attorney  of  any county can bring an action to enjoin violations.

 

On September 21, 2018, the Attorney General for the State of Washington filed a lawsuit (see complaint) against several companies engaged in purchasing charged-off consumer debts, for operating as “collection agencies” without a license, in violation of the Washington Collection Agency Act (WCAA).  The lawsuit names EGP Investments, LLC, JPRD Investments, LLC, and The Collection Group LLC (the Debt Buyers) as defendants, along with Fair Resolutions, Inc. (FRI) – a licensed collection agency hired to collect debts on their behalf – and Brian Fair (Fair) of Wenatchee, Washington, who formed and owns/controls each company.  While all of the named entities are currently licensed “collection agencies” under Washington law, the lawsuit relates to conduct between May 2004 and September 2009, when the Debt Buyers allegedly filed thousands of collection complaints against Washington consumers without a license.  The lawsuit charges FRI and Fair with aiding and abetting the Debt Buyers’ alleged violation of the WCAA.

Notably, the Debt Buyers (like many of their peers operating in Washington State) obtained licenses prior to October 1, 2013, when the WCAA was amended to clarify that it applied to debt buyers, “whether [they] collect[]  the claims [themselves] or hire[] a third party for collection or an attorney for litigation in order to collect such claims.”  Prior to the amendment, and as relevant here, the WCAA defined a “collection agency” to include entities “directly or indirectly engaged in soliciting claims for collection, or collecting or attempting to collect claims owed or due or asserted to be owed or due another.”  (emphasis added).  Thus, prior to the amendment, many “passive debt buyers” operated under the presumption that the WCAA did not require them to be licensed – an interpretation adopted by the Washington Collection Agency Board, which regulates collection agencies within the state.

However, Washington’s Supreme Court rejected this interpretation in 2014, after the Eastern District of Washington certified the issue during a lawsuit brought by a consumer against a large national debt buyer (see opinion).  Like the Debt Buyers, the defendant in that case became licensed immediately before the 2013 amendment took effect, prior to which it allegedly violated the WCAA by operating without a license – notwithstanding the fact that it hired licensed collection agencies and/or attorneys to actively pursue collection.  While the Washington Supreme Court acknowledged that the pre-amendment definition was “ambiguous,” it found “the most reasonable interpretation [to be] that debt buyers fall within it when they solicit claims for collection[,]” regardless of whether they “outsource[d] the collection [or the filing of collection lawsuits].”  The court noted that the amendment supported this interpretation, as it served to clarify (rather than change) the statute.  Following the Supreme Court’s holding, the defendant raised a good faith defense, and argued that it should not be held liable for violating the WCAA where the statute was ambiguous, and it acted in good faith reliance on the state regulator’s interpretation of the statute. The District Court rejected this argument, however, finding that the legislature’s decision to define the violation as a “per se” unfair practice meant the defendant was liable, even if it acted in good faith.

The Washington AG’s lawsuit highlights the risk created by ambiguous laws and regulations, along with the need for a company to stay current on and consult with legal counsel about potentially applicable laws and regulations – at the federal, state, and local level – in any market in which the company does business.  This is particularly true for laws and regulations pertaining to consumer protection, which (like the WCAA) often allow for enforcement through either private litigation or government enforcement actions.

Beginning in 2019, all California “debt collectors”—including creditors collecting their own debts regularly and in the ordinary course of business—will be required to provide notice to debtors when collecting on debts that are past the statute of limitations and will be prohibited from suing on such debts. The new law is based on provisions in the 2013 California Fair Debt Buying Practices Act. However, unlike the 2013 Act, which limited the notice requirement to “debt buyers,” the new law extends the notice requirement to any collector, wherever located, that is engaged in collecting a debt from a California consumer.

The notice requirements have been added to the Rosenthal Fair Debt Collections Practices Act, which applies to “any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection.” Under the new law, collectors must deliver one form of notice if an account is reported to credit bureaus and another form if it is beyond the Fair Credit Reporting Act’s seven-year limitation period, or date for obsolescence. (There is no separate notice for a collector who has not reported, and will not report, an account to credit bureaus for any other reason.)

The notices, which are identical to those in the 2013 California debt buying law, must be “included in the first written communication provided to the debtor after the debt has become time-barred” or “after the date for obsolescence,” respectively. “First written communication” means “the first communication sent to the debtor in writing or by facsimile, email or other similar means.” We recommend that clients who email the “first written communication” ensure they receive an effective consent to receive electronic communications from debtors.

We surmise that the BCFP may be studying California’s disclosures as the BCFP formulates its notice of proposed rulemaking for third-party debt collection, which it has said it will issue next year. The 2013 advance notice of proposed rulemaking and 2016 outline of proposals issued by the Cordray-era Bureau suggested it was considering limits on the collection of time-barred debts. Therefore, California’s new law may influence any ongoing discussions and drafting by the Bureau’s current staff and leadership on this point.

The new California law also amends the statute of limitations provision in Section 337 of the California Code of Civil Procedure to prohibit any person from bringing suit or initiating an arbitration or other legal proceeding to collect certain debts after the four year limitations period has run. With this amendment, the expiration of the statute of limitations will be an outright prohibition to suit, rather than an affirmative defense that must be raised by the consumer.