One True Holding Company writes to the CFPB

By Noelle Robillard on March 24th, 2020 in Company News

The Consumer Financial Protection Bureau’s Notice of Proposed Rulemaking (NPRM) is set to help shape massive changes to the debt collection industry. In an effort to continue our mission to protect consumers from predatory and aggressive collections experiences, the co-founder of TrueAccord, Ohad Samet, recently drafted a letter to the CFPB’s Director Kathleen Kraninger.

In the midst of major economic uncertainty, we understand that we must be compassionate when many consumers are struggling financially. Offering consumers in debt flexibility by supporting and expanding the industry’s digital infrastructure enables us to extend self-service options to those that need it most and limit their exposure to collections efforts that are intrusive and harassing.

Some states are considering freezing collections efforts, but we continue to believe in consumers’ ability to manage their finances for themselves. Access to online portals and self-service payment plan adjustments can help them manage their overdue accounts at their own pace, even in times of financial instability. A complete suspension of their ability to pay, if and when they can afford it, can make matters worse.

Passing the NPRM into law can help to restructure collections to protect consumers today.

You can read our letter to Director Kraninger below:

Our letter to the Consumer Financial Protection Bureau

Dear Director Kraninger,

I am the CEO of One True Holding Company, a technology company providing business- and consumer-facing solutions in the debt collection space. Our subsidiary TrueAccord Corp. offers machine learning-based, digital- and mobile-first servicing for debt in collections and recoveries. Our subsidiary True Life Solutions offers consumers a SaaS platform that consumers can use to contact collectors and creditors digitally.

We service millions of consumers on a monthly basis, sending more than 18 million emails a month. As a technology startup at the forefront of debt collection efforts, we have both quantitative and qualitative views of the state of the economy and debt collection within it.

Times like these require swift action, and technology allows us to empower consumers while reacting to changing circumstances without having to re-train a large workforce. Since the crisis began, we have been able to seamlessly launch features allowing consumers to modify their payment plans on their own and set up longer and more flexible payment arrangements. We are launching tools for clients to offer automated digital relief programs. Consumers still interact often with the emails we send as they try to stay abreast of their finances and remain informed. ¹

Our pandemic response page, offering tools and perspectives about finances in this time, sees more than 1,200 daily visits. Technology offers better service, a sense of empowerment and agency, and keeps our users informed through complicated circumstances. As a consumer-focused company, we carefully track our customer satisfaction (CSAT) scores, and those have remained high (at 68.45% for the month of March). Consumers appreciate our approach, as these reviews also show:

Consumer review from 3/19/20

You were patient. All emails were kind even from the beginning of my debt. You motivated me to repay my debts and monitor my credit. You appreciated me and I felt the extraordinary customer service from the day I first took the loan. I am grateful and even during this pandemic [emphasis added] I felt my loyalty to complete my payment of this loan over any other bill. Thank you again!

Consumer review from 3/18/20

Settled in a manner that facilitated affordable payments on a schedule that fit my life. I wish all collection agencies were this caring and flexable [sic]. Hopefully, I’ll never have another collections account, but if I do, I pray it’s with this agency.
As a single father making minimum wage, finding money to pay bills that aren’t crucial to keeping my kids healthy and happy is a real struggle, and my credit score had taken the hit in the past. I am really, truly grateful this is one acct that gets crossed off my list. Thanks!

I write today to ask the CFPB to accelerate its NPRM and swiftly push the industry to rely predominantly on digital communications for the purpose of debt collection. We need to continue to communicate with consumers through their channel of choice, in a non-intrusive manner, allowing them to easily manage their finances while controlling who they want to interact with. We need to continue to allow them to access their accounts and make adjustments to fit their personal circumstances.

Through this last week consumers have continued to set up customized payment plans on a daily basis, at a rate comparable to pre-tax season behavior. These are consumers acting on their own, responding to our low-frequency digital contact efforts. Finances aren’t one-size-fits-all, and a digitally native collection service supports this variety even in these trying times.

Thank you for your consideration and leadership in these trying times. We are eager to share as much data and qualitative observations as possible to support your policy-making and continue this conversation with a focus on consumer protection, choice, and experience

Citations

1. More than 20% open rate per each individual email broadcast as of 3/21, comparable with and exceeding eCommerce benchmarks

How to Ensure Your Safe Harbor Language is Actually Safe

By Noelle Robillard on October 24th, 2019 in Compliance

It has been nineteen years since the Seventh Circuit held that a debt collector must include a notice to consumers if the balance in a collection communication would change from day to day due to interest, fees, or other changes accruing on a debt.

However, we still see balance-related issues today under the Fair Debt Collection Practices Act as some debt collectors struggle to provide consumers with the amount of debt owed in a simple, clear manner.

Since Miller, other courts agree that a consumer must be told if the balance will increase adopting Miller’s safe harbor language. In September 2019, a court in the Eastern District of New York dismissed a case, finding the collection letter adequately set forth the amount owed because the letter included the safe harbor language.

“Additionally, debt collectors should not put the safe harbor language on an account where the balance will not increase.”

In Paracha v. MRS BPO, the fact that the balance on a second letter (mailed six months after the first letter) increased by thousands of dollars did not make the original letter deceptive or inaccurate. This decision was made because the first letter advised the consumer, through the safe harbor language, that the balance may increase over time.

Using (and not using) the right language

Debt collectors must be careful with the safe harbor language and cannot simply add it to a communication when a balance on a collection letter will increase. The safe harbor language must be accurate for the particular account in question. The safe harbor language will only be safe to the extent that it states what may cause the balance to change.

For example, according to Boucher v. Finance System of Green Bay, Inc., if the debt will increase due to interest—not due to fees or other charges—then the safe harbor language should only advise that the balance may increase from day to day due to interest and not mention fees or other charges.

Additionally, debt collectors should not put the safe harbor language on an account where the balance will not increase. Doing so could create a false sense of urgency, and a consumer may think that they need to pay the balance immediately or it will increase when in fact it will not increase. Debt collectors are not required to tell a consumer that a balance will not increase.

Courts have made clear that a debt collector has no obligation to state that the balance will not increase when the balance on a collection communication is static. But, even when a debt is static, a debt collection agency must choose their words carefully when describing the amount of the debt owed.

In Koehn v. Delta Outsource Group, Inc., a consumer sued a debt collector, arguing that the words “current balance” materially mislead and confused the consumer into thinking that the balance would change from day to day. The Seventh Circuit found that the phrase was “common and innocuous” and not a violation of the FDCPA.

Itemizing debt

Debt collectors should be wary of itemizing a debt when the debt collector does not have the right to add interest and fees. The CFPB’s proposed rulemaking does include debt itemization; however, until the rule becomes final, cases like Virden v. Client Services, Inc., suggest that listing “zero dollars” for interest and fees could mislead a consumer into thinking that interest or fees may increase. This deception would, in fact, be in violation of the FDCPA. In Virden the agency included the following itemization:

Balance Due at Charge-Off	$1,658.91
Interest	$0.00
Other Charges:	$0.00
Payments Made:	$0.00
Current Balance:	$1,658.91

The court found that the least sophisticated consumer could misinterpret the “$0.00” listed for interest and other charges and that one plausible misinterpretation could be that interest and other changes would begin to accrue if the debt was not paid. Since interest and other charges would not accrue on this debt, the court ruled that the information was deceptive.

Agencies need to be careful in choosing what words they use describing the balance owed on a debt. In this context, less is more. Do not add itemizations when not required and only use safe harbor language tailored specifically to the account.

For more discussion of current balance issues, listen to the most recent episode of Two DEBTicated Attorneys.

Lavallee v. Med-1 Solutions Confirms Common Sense Email Principles

By Noelle Robillard on August 26th, 2019 in Industry Insights, Compliance

On August 8, 2019, the Seventh Circuit Court of Appeals (7th Cir.) released its long-awaited verdict in the case of Lavallee v. Med-1 Solutions, LLC, 17-3244 (7th Cir. Aug. 8, 2019). The court ruled that Med-1 Solutions, LLC did not properly provide the validation notice as required by the Fair Debt Collection Practices Act.

Additionally, the court held that the first email Med-1 Solutions, LLC sent did not constitute a debt collection communication. Despite the unsuccessful method by which Med-1 attempted to email the initial communication, it is possible to do so in a compliant manner consistent with the current interpretation of the FDCPA.

The court’s decision

The Court held that Med-1 Solutions, LLC did not properly deliver the validation notice to the consumer. Med-1 sent the Plaintiff an email, but the email did not contain the text of the validation notice.

Instead, the email contained a hyperlink to a page where the Plaintiff would have had to enter personal information, and then take four additional steps in order to open a PDF containing the full initial demand letter with the required validation notice language.

The Court reasoned that Med-1’s email did not constitute a communication because the email did not have any content relating to a debt. The Seventh Circuit reasoned that the “email conveyed three pieces of information:

The sender’s name (Med-1 Solutions, LLC)
Its email address
The fact that it ‘has sent … a secure message.’ ”

The email did not convey any information about the debt so it did not constitute a communication.

The FDCPA requires debt collectors to provide the validation notice in the initial communication or within 5 days of the initial communication in writing. Since the email did not constitute an initial communication, the Court found the initial communication happened over the phone. Med-1 Solutions, LLC, however, did not provide the validation notice during that call or in writing within 5 days because the company believed that their email satisfied the requirement.

How to provide a validation notice in initial communication via email

When sending an initial communication by email, the content in the body of that email must contain all the validation notice requirements (15 USC § 1692g). It should:

Identify current creditor
State the amount owed
Provide the validation statement explaining the customer’s dispute rights

With the right information provided in the initial communication customer’s are more likely to recognize the account and trust that the email is from a legitimate debt collector. It should contain information on:

How to unsubscribe from future emails
Telephone contact information
The business’ hours of operation

Beyond that, it should comply with any other state, federal, or local obligations such as whether or not to provide a disclosure or other information. These are some of the principals embraced in the CFPB’s proposed debt collection rule. Had Med-1’s email contained this information in the body of the email, the result in the case would have been different.

Limited content emails

The Seventh Circuit’s decision also highlights a concern with sending limited content communications via email. This case reinforces the importance of developing an email strategy and fully understanding deliverability requirements. This can ensure emails are delivered and not identified as spam and filtered away from a recipient’s view.

A full deliverability strategy may consider several factors including, but not limited to ISP reputation, providing relevant content in the body of the email, and more technical aspects of email such as throttling, bounces, and bulking. These elements can greatly affect an email’s ability to reach its intended recipient and ultimately convey its message.

Med-1 Solutions, LLC did not have a prior relationship with the Plaintiff, they did not remember receiving the email, and they did not click on the hyperlink provided in the email. As the lower court noted in its decision, the Department of Homeland Security warns consumers from clicking on links received in emails from unknown senders. The Seventh Circuit decision showcases the ineffectiveness of using a limited content message to reach and engage a consumer.

TrueAccord and the future of digital debt collection

We work to create a digital environment that places customer experience at the forefront of our collections strategy. This means ensuring not only personalized content delivered through our machine learning technology, flexible payment options, and digital access for customers to manage their debts. We do all of this via software that guarantees compliance.

Tag: legal

One True Holding Company writes to the CFPB