Author: Kelly Knepper-Stephens

Debunked! Four Compliance Myths and Misconceptions for Collections

By on September 16th, 2022 in Compliance, Industry Insights

Trying to keep up with regulations in debt collection can feel overwhelming especially with new cases and federal guidance coming out regularly interpreting the law and states actively amending or creating new laws that impact debt collectors, original creditors, and current creditors.

Here are four common compliance myths and misconceptions for collections debunked (no detective work needed)!

Myth #1: Under Regulation F consumers are not protected from harassment

False! The Fair Debt Collection Practices Act (FDCPA) absolutely prohibits harassment of consumers see 15 USC 1692d. No matter how a debt collector reaches out to a consumer, by phone call, email, SMS, voicemail, even social media—a debt collector cannot harass a consumer through one channel or through a combination of channels. Regulation F made clear that harassment is the totality of the circumstances, “the cumulative effect of all [communications – calls, emails, text messages] may constitute a violation of the harassment provision.”

Email and cell phone providers offer additional built in protections for their customers to help with rogue actors who fail to abide by the harassment provisions in the FDCPA. These service providers have their own rules and will prevent or block companies who try to harass consumers. In fact, collectors or marketers who use emails to harass will experience a less than 5% chance of their email reaching the consumer’s inbox (“inboxing rate”) essentially barring them from using email to reach consumers. Consumers have the power to not only unsubscribe (as required in Regulation F from these digital channels) but also have the power to mark inbound messages as spam which will impact the inboxing rate essentially barring abusers from the ability to deliver messages at all.

As a result, digital channels offer consumers significantly better protection from unwanted or harassing communications. Digital communications allow consumers to quickly register their preferences by clicking on an unsubscribe link or replying stop to opt out. Digital communications also offer search and archiving options, automatically creating a paper trail of communications between the consumer and the collector. There is no unsubscribe or reply stop option for calls or letters.

Myth #2: Debt collection requirements are only governed by federal laws

False! Individual states and even cities or municipalities have been implementing their own more restrictive laws governing debt collection. For example, New York law requires a debt collector to obtain consent to email a consumer about their debt, a requirement that does not exist in the federal FDCPA or Regulation F. Washington, DC just revamped their debt collection rules with new restrictions on calls, emails, texts and social media including communication caps for each of these methods that take effect on January 1, 2023 when the temporary ban on collections (implemented during the pandemic) end.

In addition to state and local debt collection rules, other regulations can apply as well, even if they aren’t specific to the industry. Some of the most anticipated regulations rolling out state-by-state focus on information security and data privacy, which greatly affect debt collection information security practices despite not being named outright.

Even if debt collection regulations are followed meticulously, businesses can still fail to meet compliance requirements if they don’t perform due diligence on other laws applicable to their operations.

Myth #3: Business must send the initial communication by letter

False! The FDCPA spells out that a debt collector must provide the validation notice in the initial communication or in writing within 5 days of that initial communication see 15 USC 1692g(a). This means that when the full validation notice is provided over the phone in the initial conversation or in the initial communication by email (as confirmed in Regulation F), a debt collector satisfied their obligation. The requirement to send the disclosure in writing is only triggered if the disclosure is not provided in the initial communication.

Fortunately, the CFPB provided a model disclosure notice in Regulation F that can be adopted to send by email and permits the use of hyperlinks. The ability to use hyperlinks in the model debt validation notice allows for consumers to communicate their preferences immediately and more effectively than when using the disclosure by US mail. For example, a consumer can use the dispute flow links in the email to explain why they are disputing the debt while looking at the additional details about the account that are visible in an online portal whereas the check boxes on the model validation letter do not allow for this flow of information and must be mailed back to the debt collector for processing. This is another example of the advantages of digital communications over letters and calls.

Myth #4: Meeting compliance obligations is more difficult for digital debt collection practices

False! As long as you have a solid team of legal compliance advisors and a mature compliance management system, digital communications actually make it easier to comply. Digital is faster (making it easier for consumers to respond or opt-out by just replying to an email or text. Digital provides a written history of communications between the consumer and the collector that can be archived automatically through existing features in email cell phone services. Digital communications are easily controlled by consumer and more tightly managed by providers, with built in mechanisms to discourage and blacklist harassers.

Plus, there are a growing number of federal court cases highlighting best-practices in digital compliance:

The Future of Collections & Compliance

Compliance can get complex quickly, especially for debt collectors and any lender trying to recover delinquent funds—and that complexity will only continue to grow over time as technology and consumer preferences evolve. How can your business keep up today and tomorrow?

Join us Thursday September 29th at 1pm ET for our interactive webinar, The Future of Collections & Compliance, hosted by TrueAccord Associate General Counsel Lauren Valenzuela and Director User Experience Shannon Brown.

Reserve your space now for an interactive discussion on:

  • Cutting edge digital collection compliance
  • The role of the legal team in creating a digital collection strategy
  • How compliance drives collection revenue
  • The future of digital compliance

Register now for the upcoming webinar»»

*Kelly serves as TrueAccord’s Chief Compliance Officer and General Counsel. This blog is not legal advice. Legal advice must be tailored to the particular facts and circumstances of each unique matter.

Regulators Care As Much About Consumer Preference in Debt Collection as Creditors

By on March 25th, 2021 in Industry Insights
TrueAccord Blog

Recent regulatory activity makes it clear: regulators care as much about consumer preference in debt collection as creditors. In this blog post, Kelly Knepper-Stephens, TrueAccord’s VP Legal & Compliance, highlights the recent laws and regulations designed to protect consumer preferences in debt collection.

At a time when consumers’ power to impact a lender has increased dramatically, Klarna made the decision to outsource 1,005 of its debt collection activities. Jan Hansson, Vice President Debt Collection for Klarna, recently explained the reasoning behind that decision in TrueAccord’s recent webinar, Digital Debt Collections 101.

Jan explained how Klarna manages brand image with its collection partners, using “soft value metrics” to evaluate success, such as the number of consumers who return to use Klarna after having been in debt collection on a Klarna product. The fact that consumers return to Klarna after being in debt collection demonstrates that collections can be a positive process. Jan emphasized the importance of ensuring that debt collection is aligned with your total customer journey “so that any debt collection continues to build on your positive brand image.”

Honoring a customer’s debt collection preferences is the key. As Ohad Samet, founder of TrueAccord stated in Digital Debt Collections 101, “customers want to be contacted at the time and place and channel that is convenient to them…they would like to be in control of that.”

Federal and state lawmakers, who continue to pass laws and regulations designed to protect consumer preferences in debt collection, share the same consumer preference mindset of creditors like Klarna. A quick look at the most recent federal activity showcases this fact.

The CFPB’s Debt Collection Rule
On November 30, 2020, the Consumer Financial Protection Bureau (CFPB), published Regulation F, the first attempt to refresh the Fair Debt Collection Practices Act for modern communications. Debt collectors and creditors have until November 2021 to align their processes to these new rules, which are chock-full of efforts to protect consumer preference including:
• Requirements to uphold and pass on consumer requests to stop calls, not be contacted at certain times, and not be communicated with at particular locations (home, work, etc.)
• Steps to identify a consumer’s location to ensure communications occur between 8AM – 9PM, including when a consumer’s zip code and area code suggest different time zones
• Requirements for clear and conspicuous ways to unsubscribe from text messaging, emails, and other forms of digital communications
• Frequency restrictions, not just for calls, but for the frequency of contact efforts in the entire outbound communication strategy.

Fortunately for TrueAccord, our digital debt collection strategy was built for consumer preference and already meets most of the rule’s new requirements. As Ohad mentioned in the webinar, 96% of all TrueAccord communications are automated, and the other 4% are inbound communications, which makes our Customer Engagement team a customer care center.

The TRACED Act
In response to continued consumer complaints and pressure over unwanted robocalls, Congress passed the Pallone-Thune TRACED Act in 2019 to deter and punish robocall abuse. The law required the FCC to adopt and publish regulations that “help protect a subscriber from receiving unwanted calls or text messages from a caller using an unauthenticated number,” which the agency did in late 2020. The provisions of the TRACED Act and its implementing FCC regulations ultimately aim to increase consumer choice options mostly around the ability to identify and block unwanted calls by:
• Requiring carriers to implement the call authentication framework of STIR/SHAKEN which allows the consumer to identify the identity of an inbound caller;
• Requiring carriers to implement a reassigned number database so that companies can determine, in advance of calling, whether a given phone number for a consumer has been reassigned to a different person.

We are just now beginning to see companies, including telephone carriers, announce their compliance practices to implement these FCC Orders. For example, contact center platform service provider Twilio, headquartered in San Francisco, recently announced updates to their terms of service and acceptable use policy. At least one carrier, T-Mobile, has gone as far as to ban debt collection text messages as reported by InsideARM.

As lawmakers and lenders focus on consumer preference, successful debt collection compliance programs must incorporate consumer preferences into their practices not only to meet the new regulatory requirements, but also to provide a positive customer experience that consumers expect.