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posted on 2015-03-18 by Nick Jarman
Over the past 25 years, the way individuals communicate with each
other has changed dramatically. From telephone calls and faxes to emails
and text messages, advancements in technology have made it much easier
for individuals to get in touch with one another. Today, individuals
communicate through text messages and emails more than they do through
telephone calls. Businesses have also adapted to new communication
preferences and developed strategies that allow consumers to be
contacted through their preferred choice. However, when it comes to debt
collection, debt collectors still operate under a set of laws from 1978 that
haven’t caught up with the technological advancements of the last
couple decades, making communicating with consumers through email not
nearly as easy as it should be.
The reality of today is that consumers who have an account in collections want
two things: to communicate with debt collectors through the method of
their choosing, and to communicate with debt collectors at a time that
is convenient for them. Because of the laws debt collectors are
regulated under, some debt collectors will not communicate with
consumers via email while some will. At the end of the day, whether or
not a debt collector communicates with consumers via email is determined
by their business and the risk decision the organization makes. There
is no clear right or wrong answer in regards to debt collectors
communicating with consumers through email, but there are certain
aspects of the process that a consumer should consider when doing so.
1. You Should Make First Contact
Most debt collectors will not initiate the first contact with consumers through email. Therefore, if you want to communicate with a debt collector through email it is important for you to send the first email to start the chain.
There are times when the first contact may be by telephone and during
that conversation the consumer may express their desire to be contacted
by email. Nowadays, most debt collectors record all phone calls so they
retain that authorization through recordings, but it is also not
uncommon for the debt collector to request the consumer send that
initial email anyway so they know for certain who they are replying to.
This process also ensures the debt collector has taken proper procedures
to communicate with only the consumer of record.
2. You Must Identify Yourself
It is important that consumers clearly identify themselves in the
email by providing the debt collector with their full name, address, and
either date of birth of last four digits of the Social Security number.
The reason why these identification measures should be taken is because
before the debt collector engages with a consumer, they are required to take appropriate steps to
ensure they are speaking with the right person. Until they confirm they
are speaking with the right person, it is highly unlikely the debt
collector will engage in resolution of the debt by email or phone. Keep
in mind that sending sensitive personal information via email carries
its own security risks, which you should seriously consider before
sending information digitally.
3. You Shouldn’t Expect Many Details
While some debt collectors have become more comfortable over the
years communicating with consumers through email, all debt collectors
still have reservations about doing so because there is no clear cut
rule or law governing electronic communications in an attempt to collect
a debt. Therefore, some debt collectors will utilize email to respond
to and provide direct and clear requests, but don’t expect them to
engage in any back and forth conversation like they would in a phone
call.
If the exchanges become more complex or if there are more than a
couple of emails back and forth, it is not uncommon for debt collectors
to let consumers know they will cease emails and request to be called at
the office to complete the resolution of the account .
4. You Should Avoid Emailing From a Work Account
Most companies have safeguards and policies in place requiring work
email accounts to be used for work-related purposes only, and that they
may be monitored and reviewed by the company at any time. So be careful
if you decide to contact a debt collector through your work email
because your personal business matters may get uncovered during routine
work email account audits. Furthermore, some debt collectors will not
communicate with consumers through the consumer’s work email account in
order to protect the consumer’s privacy.
In the end, the number one goal for debt collectors is to help consumers resolve their account .
So it is important to debt collectors that they communicate with
consumers in the method that the consumer chooses and at a time that is
most convenient for them as well. However, because of dated regulations,
debt collectors are generally still leery about fully embracing email
to handle the entire debt collection process — and those who do may
ultimately be conservative in their approach.
More From Credit.com:
5 Tips for Consolidating Credit Card Debt
Understanding Your Debt Collection Rights
The Best Way to Loan Money to Friends & Family
Nick Jarman is President & Chief Operating Officer at Delta
Outsource Group, Inc. located in the metropolitan St. Louis, Mo., area.
He currently serves on the Board of Directors for ACA International and
also serves as the 2014-2015 Missouri Collectors Association President.
He is adamant that the collection process is done the right way and that
collectors always remain professional, respectful and compliant. He
also uses analytics to develop proprietary scorecards that evaluate
collector, client and overall company performance. He believes in
management through open communication, creating a positive work culture
and establishing clear expectations with accountability.
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posted on 2015-02-23 by Gerri Detweiler
If you're like many of us, you need your
car to get to work or school, carpool kids or grandkids, or to do your
shopping. But what happens if you are getting calls
from debt collectors who you can't pay? Can a debt
collector take your car?
Our reader, Marbella, who lives in
California, says a collection agency told her she must appear in court over a
debt of $1,200 that she defaulted on a while back:
I'm not working right now and I
don't think I am until about a year. Now the thing is that I have a car under
my name but my (boyfriend) also appears on the title. Could they go after the
vehicle?
"Like many life situations,
there's the formal, legal answer, and then there's the practical answer,"
says Northern California bankruptcy attorney Cathy Moran, who blogs at
BankruptcyInBrief.com. "Legally, a creditor with a judgment could reach
the share of a co-owned asset that its debtor owns. If there is a loan attached
to the car, there has to be enough value in the car to pay off the debt from
your share of the car before a creditor could have the sheriff tow the car and
sell it. They'd have to give the co-owner his share of the sale price."
But practically speaking, there are
a few hurdles. The first is the fact that some personal property is off-limits
to creditors. In our reader's case, the California exemption protects $2,900 in
equity in a vehicle. (In each state, specific property is "exempt" or
safe from creditors. Types and amounts of exemptions vary by state.) "So
the car would have to have enough value to pay the sheriff's fees to tow and
sell it and the exemption to which you are entitled before the creditor
gets anything from the sale," says Moran.
In fact, Moran says that in 37 years
of law practice, the only creditor she's seen try to seize and sell a car is
the Internal Revenue Service. (Note: the IRS has greater powers than other
creditors when it comes to seizing property.)
And there's another hurdle: Before a
creditor can go after an asset like a car they must first get a judgment in
court. And to do that they must sue the consumer and win — and again, only then
could they try to seize and sell the car.
"Going this route is expensive
for the judgment creditor and risky in that any procedural error could open the
judgment creditor to one or more federal or state consumer
protection law claims," says Atlanta bankruptcy attorney
Jonathan Ginsberg. "Since you are only part owner of the vehicle, the
seizure option is even less attractive, especially since the total debt is only
$1,200," he says. He agrees with Moran that the IRS is the only creditor
that would likely go after personal property like a car.
But that doesn't mean
Marbella — or you, if you find yourself in a similar situation —
should just ignore collectors. If you are sued for a debt and fail to show up in court, the
plaintiff (the collector or creditor who sues you), will get a judgment against
you which may open the door for them to go after property that is easier for
them to get, such as your wages or money in a bank account. Exactly what they
can do to collect a judgment debt depends on state law. A consumer law attorney
can tell you what's at risk and may be able to help you negotiate a settlement
or raise a defense to the lawsuit in court. "You can also talk to your
lawyer about possibly filing bankruptcy," Ginsberg says,
"which could make the problem go away entirely."
Also worth noting is the fact that
if a creditor already has a judgment against you, some property may be at
risk already. Credit.com commenters often tell us that they didn't even
realize there was a judgment against them until they got their credit reports
or credit scores (you can check your credit scores for free every month on Credit.com) —
or until they discovered their bank account had been emptied by a judgment
creditor. Here's how to get
your free annual credit reports to find out if a judgment is listed
there. If you find one, make an appointment with a consumer bankruptcy attorney
right away to discuss your options.
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posted on 2015-01-15 by Nick Jarman
The most difficult part of a
debt collector's job has been, and always will be, establishing
communication with the consumer they are collecting from. Debt
collectors go to great lengths to establish contact with consumers
primarily through telephone calls and letters. In my experience, once
contact is eventually established with the consumer, one of their
biggest complaints is the claim they have never been notified about their debt being in collection.
This would always come as a surprise because we would send consumers
what is known in the debt collection industry as a "validation notice"
once we received the account. The validation notice outlines the
consumer's rights to validate their debt if they are unsure of it. So if
a debt collector is sending validation letters – and it's my experience
that the majority of debt collectors do — why aren't consumers
receiving them? The answer
most likely is consumers are receiving them, but because the envelopes
from debt collectors are often vague and inconspicuous, they aren't
getting opened. These letters are often confused with solicitation from
marketing companies who keep the return address and envelope nondescript
in order to get the recipient to open the piece of mail. However, a lot
of recipients won't open mail if they do not know where the letter is
from or who sent it. The problem with that practice is if you are in
debt and a debt collector is contacting you, the last thing you are
likely to see on the envelope is anything related to a debt, most notably the name of the creditor or debt collection agency trying to collect from you. Why the Secrecy? So why doesn't a debt collector at least put their company name on the return address? Because that practice could be in violation of the Fair Debt Collection Practices Act.
The FDCPA clearly states a debt collector may "not use any language or
symbol on any envelope or in the contents of any communication effected
by the mails or telegram that indicates that the debt collector is in
the debt collection business or that the communication relates to the
collection of a debt." Therefore, in order to remain compliant with this
section of the law, debt collectors are prohibited from placing any
information on the envelope, including their business name that would
indicate they are a debt collector or that they are attempting to
collect a debt. But while the
outside of the envelope may be vague and inconspicuous, the contents
inside the envelope are more descriptive and important. Debt collection
notices are often personal, confidential and time-sensitive in nature.
These letters provide information the consumer needs to know as it
relates to their debt, including the status of the debt and what might happen if the debt isn't resolved
soon. Debt collection letters also contain specific disclosures that
provide information about how consumers can dispute their debt along
with other state-specific disclosures the consumer should be aware of.
In addition, when consumers postdate payments with debt collectors, debt
collectors may be required to send payment reminders which would also
be sent within these envelopes as well. Letters
are one of the biggest expenses for debt collectors, so they want to
make sure the letters are being delivered to the right consumer — and
being opened by that consumer, as well. However, debt collectors must
stay in compliance with the FDCPA and ultimately must hope consumers who
receive the letters are going to first open the envelope, read the
letter and establish communication with the debt collector
so the debt can be resolved. With more consumers preferring to
communicate with debt collectors non-verbally, letters will continue to
play an integral part of the debt collection and resolution process. So
the next time you get a piece of mail that you may not want to open
because you don't recognize the return address, be sure to at least take
the time to open the envelope to see whether it contains personal,
confidential and time-sensitive information such as a debt collection
notice.
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posted on 2014-12-16 by Christine DiGangi
Debt collectors are legally prohibited from misrepresenting
themselves as police or lawyers when communicating with consumers. Of
course, that hasn’t stopped some collectors from breaking the rules, and
there are plenty of debtors who can tell stories of precisely that.
The question of what exactly qualifies as misrepresentation is at the
center of a lawsuit filed Dec. 1 in U.S. District Court in San
Francisco. The suit alleges that debt collection company
CorrectiveSolutions violated the Fair Debt Collection Practices Act (FDCPA)
after using letterhead of various prosecutors’ offices when contacting
debtors. The complaint calls into question the process surrounding
CorrectiveSolutions’ alleged practice of representing themselves as law
enforcement to consumers and threatening legal action for failing to pay
the debt. The tricky part of this case, however, lies in the fact that
CorrectiveSolutions is under contract with several California’s district
attorney offices for the expressed purposes of interceding on the
government agency’s behalf. The legal dispute focuses on the way they
intervened.
It’s all tied to California’s Bad Check Restitution Program. The program allows people who bounce checks and
the businesses who received the checks to settle the case out of
court through what’s known as a diversion program. In this
diversion program, an offender can avoid prosecution by paying the
amount the bad check was written for, plus fees, in addition to taking
an 8-hour bad-check-offender class at the offender’s own expense.
Through this program, people and businesses who receive bad checks can
submit a complaint, along with evidence, to the mailing address listed
on the DA’s website.
Under California Penal Code 1001.60,
the DA is permitted to contract private companies, like
CorrectiveSolutions, to help execute this program. However, district
attorneys may refer cases to the program only if the check writer
is believed to have violated state laws, like intentionally defrauding
the recipient. A lawyer with the DA’s office is required to review the
cases to ensure they meet various criteria. For example, if a business
wants a bad-check writer pursued for violating the law, they must first
make attempts to contact the debtor three times before the case
qualifies for the program, according to Teresa Drenick, assistant
district attorney in Alameda County.
The lawsuit contends that prosecutors have allowed debt collectors to
use DA letterhead without first vetting the claim that the debtor
violated the law. The American Bar Association recently condemned the
general practice of allowing debt collectors to use prosecutors’
letterhead, as it makes the prosecutor “party to deception” and violates
Bar Association rules, the association’s Committee on Ethics and
Professional Responsibility wrote in an opinion issued Nov. 12. The opinion does not specifically reference California or the district attorneys’ offices mentioned in the lawsuit.
Credit.com reached out to the district attorneys’ offices in the five
counties mentioned in the lawsuit (Alameda, Calaveras, El Dorado, Glenn
and Orange counties), but only two responded. Joe D’Agostino, assistant
district attorney in Orange County, said they’re studying the Bar
Association’s opinion.
“The program is run in a method that matches what the statute is,”
D’Agostino said, referencing California Penal Code Section 1001.60,
which describes the district attorney’s ability to contract the bad
check diversion program to a private party. “The Bar Association’s
opinion came down fairly recently, so we’re studying it. We always want
to follow the rules and follow the procedure.”
Drenick, the assistant DA in Alameda County, wrote in a email
statement to Credit.com that CorrectiveSolutions sends the DA’s office a
list of cases each month, which is reviewed by the office to ensure the
debt is legitimate and would meet legal requirements for pursuing a
criminal case. Then, CorrectiveSolutions is given approval to contact
the debtor using the DA’s letterhead. She did not specify whether or not
an attorney reviews the bad check diversion cases, as the statute
requires, and she did not respond to a request for clarification.
“If we agree to allow the case to go by way of diversion, we
authorize CorrectiveSolutions to send the check writer a letter on
behalf of our DA Bad Check program advising that their check was
returned for insufficient funds and offering them the option of
participating in the diversion program to avoid criminal prosecution,”
Drenick wrote. “It is a well thought-out diversion program. Last year
(2013) our program returned $69,132.01 to local businesses as payment on
dishonored checks through the Bad Check program. … There is no ‘rental’
of our letterhead; rather, a statutorily-authorized diversion program
that helps local businesses collect on bad checks while giving the check
writers an opportunity to avoid a criminal conviction/record.” The future of this practice seems to depend on prosecutors’ reactions
to the Bar Association’s opinion and the outcome of this litigation in
California. Meanwhile, consumers may remain subject to
the debt-collection tactic that the lawsuit is calling into question.
CorrectiveSolutions did not respond to multiple requests for comment
from Credit.com.
If your state doesn’t have a diversion program like California’s,
writing a bad check can still come back to haunt you. If you bounce a
check, the recipient may sue you over the unpaid sum, which may result
in a judgment on your credit report — a credit score killer. (You’re entitled to free credit reports once a year under federal law and you can get a free credit report summary at Credit.com.) Debt
collection can be confusing and intimidating for consumers, even when
collectors follow the guidelines in the FDCPA. If you’re dealing with a
debt collector, make sure you know your consumer debt collection rights, and form an action plan for paying off your debt.
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posted on 2014-11-22 by H. Scott Kelly, Nick R. Klaiber, Paige S. Fitzgerald and Alan D. Wingfield
An $8 million settlement announced November 19, 2014, between the
Consumer Financial Protection Bureau (CFPB) and the nation’s largest
“buy here pay here” auto dealer represents yet another warning coming
out of Washington, D.C. that:
1. Compliance with the requirements of the Fair Credit Reporting Act
(FCRA) when businesses furnish credit information to consumer reporting
agencies (CRAs) is a top federal regulatory priority; and
2. The CFPB is creating and enforcing its own debt collection rules
applicable to any creditor modeled after those specified for debt
collectors under the federal Fair Debt Collection Practices Act (FDCPA).
While this enforcement action is in the context of a “buy-here
pay-here” car dealer operation – DriveTime Automotive Group, Inc.
(“DriveTime”) – the issues raised apply to any business that reports
information to the CRAs or collects consumer debts. Moreover, this
enforcement action comes hard on the heels of a $2.75 million settlement
of alleged FCRA violations by an auto lender; other settlements against
creditors for abusive collection activities; and bulletins issued by
the CFPB reminding businesses of their obligations under the FCRA. In
particular, the CFPB’s $2.75 million settlement in August 2014 with
First Investors Financial Services Group, Inc. involved the alleged
distortion of consumer credit records via flaws in the auto lender’s
computer system that resulted in the inaccurate furnishing of
information to the CRAs. The CFPB-First Investors consent order can be
found here.
Here, DriveTime and its finance company affiliate not only agreed to
pay an $8 million civil penalty, but also agreed to follow a
comprehensive set of compliance requirements for its debt collection and
credit reporting operations. In toto, the settlement subjects
DriveTime’s debt collection and credit reporting operations to the close
supervision of the CFPB for five years.
DriveTime’s specific practices deemed in violation of the FCRA include:
- Having inadequate written policies governing DriveTime’s furnishing
information to the CRAs. Even though written policies are required by
Regulation V promulgated under the FCRA, DriveTime’s policies were only
one and a half pages long, had not been updated for three years, and
omitted any discussion of how to handle consumer disputes of credit
information;
- Reporting inaccurate current balance information on charged off
accounts, the timing of repossessions, and the date of first
delinquency. At least some of these problems were known to DriveTime and
caused by problems converting data from DriveTime’s computer systems to
that of a vendor engaged to handle credit reporting to the CRAs; and
- Failing to properly respond to consumer disputes by investigating
the disputes and correcting errors that were detected. DriveTime
receives 22,000 disputes a year, which are handled by two employees.
In the settlement, DriveTime agreed to revamp its FCRA compliance
procedures and policies in conjunction with a CFPB-approved consultant,
to provide a comprehensive plan to the CFPB for improvements, and to
report on implementation.
DriveTime’s specific debt-collection practices deemed by the CFPB to
constitute unfair harassment of debtors focused on DriveTime’s failure
to record and respect “do not call” or DNC requests, including:
- Calling debtors at their workplace after receiving “do not call” or DNC requests from the debtors;
- Repeatedly calling third-party references provided by debtors with
their credit application, even after the references requested the calls
to stop, and discussing the consumer’s debt with the references; and
- Obtaining telephone numbers from third-party vendors, and
repetitively dialing those numbers – even when the numbers were not
associated with the debtor – resulting in complete strangers receiving
multiple debt-collection calls from DriveTime.
In the settlement, DriveTime agreed to abide by DNC requests, and to
take steps to avoid making repetitive calls to third-party references or
disclosing the debt to the references. DriveTime also agreed to provide
customers with information on how to make requests to limit calls to
debtors and to improve its systems to prevent unwanted calls. These
conduct agreements are analogous to requirements under the FDCPA that
require debt collectors to respect DNC requests and to avoid disclosing
to third parties the existence and status of a consumer’s debt. In other
words, by way of this settlement, DriveTime is bring required to abide
by standards of conduct – in collecting its own debts – analogous to
those imposed on third-party debt collectors under the FDCPA, even
though DriveTime is not directly subject to the FDCPA. DriveTime also
agreed to revamp its debt-collection procedures, to hire a CFPB-approved
consultant, to provide a comprehensive plan to the CFPB for
improvements, and to report on implementation of this plan.
One other aspect of the settlement is notable. The CFPB has no
specific direct supervisory authority over DriveTime, as opposed to
large banks and mortgage lenders, among others. Nevertheless, even when
the CFPB lacks supervisory authority, the CFPB has jurisdiction to
enforce the Dodd-Frank Act’s general Unfair, Deceptive, or Abusive Acts
or Practices (UDAAP) protections against essentially any financial
services company. Moreover, as part of the settlement, DriveTime agreed
to subject itself to the supervisory authority of the CFPB, meaning that
the CFPB will have the power to conduct on-site examinations at will.
Finally, we also note that the CFPB has included “buy-here pay-here”
auto dealers in its September proposal for regulating larger
participants in the nonbank auto finance market. The proposal can be
found here.
In sum, businesses that think that they are beyond the reach of the
CFPB because they are not within its supervisory authority are mistaken
and must gauge their compliance efforts accordingly.
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