What are the penalties?
So what happens if a collector or agency breaks one or more of the rules in Regulation F? It’s important for you to understand both the procedures and the penalties for failing to comply with them so that you can mitigate risk and establish best practices in your business.
Penalties for failure to comply vary based on the degree and type of violation. If a savvy consumer, aware of her or his rights, feels threatened or bothered, they might decide to sue. Unwanted ramifications can include anything from fines, lawsuits and associated costs, or, in the worst case, having your license suspended or revoked.
What are common violations?
Common violations can stem from a misunderstanding of some of the clarifications that Regulation F makes.
This can include:
- Misunderstanding seven calls in seven days (which means seven calls total — no matter How many numbers are used — during a rolling seven-day period, not seven calendar days).
- Accidentally surpassing the seven call limit, due to oversight.
- Calling before 8 a.m. or after 9 p.m., due to a time zone mix-up.
- Failing to include the required information in a limited content message.
- Accidental disclosures to parties who should not have access to confidential consumer information.
- Forgetting to renew permission for SMS text communications every 60 days.
- Accidentally calling a ported number due to lack of database access or revision.
- Failing to adhere to the model validation notice.
- Failing to select the most suitable itemization date for a particular case.
These are all examples of mistakes that can be easily avoided with the right training and the right tools.
Staying Compliant with Limited Content Messages
Under the CFPB’s rules, a “Limited Content Message” is a voicemail message that must include certain essential information and may include several additional details, but must not include any other information. The Limited Content Message is not subject to Regulation F or FDCPA restrictions on communications so long as the obligatory information is included.
Required Limited Content Information
As taken directly from Regulation F, this list shows what a voicemail must include in order to qualify as a Limited Content Message:
- A business name for the debt collector that does not indicate the debt collector is in the debt collection business;
- A request that the consumer reply to the message;
- The name(s) of natural persons whom the consumer can contact to reply to the debt collector; and
- The telephone number(s) that the consumer can use to reply to the debt collector.
Optional Limited Content Information
As taken directly from Regulation F, this list shows what additional information a voicemail may include while still being considered a Limited Content Message:
- A salutation;
- The date and time of the message;
- Suggested dates and times for the consumer to reply to the message; and
- A statement that if the consumer replies, the consumer may speak to any of the company’s representatives or associates.
A few other points to keep in mind:
- A Limited Content Message must be a voicemail (not a letter, email, or text message).
- A Limited Content Message may not be knowingly left for a third party — it must be left for the consumer.
- Under Reg F, a Limited Content Message qualifies as an attempt to communicate but does not qualify as a communication.
Reg F specifies that “a voicemail message that includes a statement that the message is from a debt collector and a request to speak to a particular consumer” is not a Limited Content Message because it included additional information that is not found with the defining terms.
The purpose behind adopting the definition of a Limited Content Message is to allow debt collectors to rely on fewer repeated telephone calls (avoiding an over-contact violation) while also minimizing the risk of third-party disclosure (one reason that the person leaving the message must not disclose that he or she is in the business of collecting debts).
Retaining Compliance Records
It’s imperative to keep in mind that you and your team must not only ensure compliance but, you must also retain records showing compliance (or non-compliance) with the FDCPA, beginning on the date that collection activity begins and continuing until three years after the debt collector’s last collection activity on the debt. Debt collectors can also choose to retain records for a longer period of time, three years being the minimum.
Note that telephone calls made for the purposes of debt collection are also subject to record retention. The collector must keep a recording of each such telephone call for three years after the date of the call. The separate recordkeeping requirement for telephone recordings is based on the “unique burdens” associated with retaining telephone recordings.
The records should be copies of any documents or written communications delivered to the consumer and call logs that are created in the ordinary course of its business. There’s no need to create additional records or logs outside the normal course of one’s work — for example, showing all of the times the debt collector refrained from calling during an inconvenient time.
According to the CFPB, records may be kept in any manner that accurately reproduces the communication with the consumer and is easily accessible; this includes computer programs where digital copies of records can be stored. This record-keeping is vital, especially in the face of any kind of audit or inspection your business might receive from the CFPB as a result of complaints.
Ceasing Communication
Debt collectors are not permitted to continue communication with a consumer — regarding that particular debt — after the consumer has sent notice, in writing (including through electronic forms of communication), that the consumer either refuses to pay the debt or desires to discontinue communication.
It will be important for members of your team to clarify with the consumer which forms of communication the consumer prefers through attentive inquiry. An oral request to discontinue communication doesn’t necessarily mean that the consumer wishes to discontinue all modalities of communications, and this should be clarified.
There are also some exceptions to the cease communication rule. A debt collector, after receiving a written communication from a consumer requesting to cease correspondence, may attempt to contact the consumer in order to:
- advise the consumer that the collector will stop any further collection efforts;
- notify the consumer that the debt collector may invoke a specified remedy, and, where applicable;
- to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
An additional exception includes a mortgage servicer who is subject to the FDCPA with respect to a mortgage loan and is not liable under the FDCPA for complying with certain servicing rule provisions, including requirements to provide a consumer with certain disclosures. See Comment 6(c)(1)-2.
Informing the Consumer
Debt collectors cannot collect a particular debt until they have sent the name and address of the original creditor to the consumer.
This is a legally binding suspension of activity on the part of the debt collector that is triggered by receipt of a written request from the consumer for the original creditor’s name and address. That information cannot be withheld from the consumer, but keep in mind that the consumer’s written request for this information must be made within 30 days of the consumer’s receipt of written notice of debt from the debt collector.
Disclosure of Future Communications
Debt collectors are required to disclose that the communication is from a debt collector, and disclosures must be made in the same language used for the rest of the communication.
A debt collector who sends disclosures also needs to do so in a manner that provides actual notice within reason, and in a form that the consumer can keep and access later.
The relevant factors for determining “actual notice within reason” include the following:
- Identifying the purpose of the communication by including, in the subject line of an electronic communication, the name of the creditor to whom the debt currently is owed or allegedly is owed and one additional piece of information identifying the debt, other than the amount, such as a truncated account number; the name of the original creditor; the name of any store brand associated with the debt; the date of sale of a product or service giving rise to the debt; the physical address of service; and the billing or mailing address on the account;
- Monitoring notifications for deliverability or undeliverability from communications providers, un-deliverability meaning that a reasonable expectation of actual notice for that delivery attempt has not been obtained; and
- Identifying yourself as the sender of the communication by including a business name that the consumer would be likely to recognize, such as the name included in the notice described in § 1006.6(d)(4)(ii)(C), or the name that you have used in a prior limited-content message left for the consumer or in an email message sent to the consumer.
