Closed Rule

Consumer Debt Collection Practices (ANPRM)

Summary

The Consumer Financial Protection Bureau (CFPB) might propose new federal rules on how creditors and debt collectors can act to get consumers to pay overdue credit card, medical, student loan, auto or other loans. This decision matters to you if you

  • had an experience with debt collection (good or bad)
  • counsel consumers with overdue debts
  • have a business where you do your own account collection or
  • work in the debt collection industry

Here, you can learn what CFPB is thinking and what it needs to know. You can share information and experiences and discuss ideas with others. At the end of the discussion, CFPB will get a detailed summary and your input will help it decide what to do next. (This phase is for gathering information and brainstorming. The next phase would be where CFPB comes up with specific proposals and asks people to comment again before it decides whether to adopt those proposals as new regulations.)

Consumers and business both have a stake in effective, responsible debt collection practices. Don't be a bystander. Help CFPB make the right decisions about new consumer debt collection regulations. Share what you know and encourage family, friends and coworkers to do the same.

Discussion Questions about email, texting & social media in debt collection - 39

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Subtopics

1|Communications that must be "in writing" - 22

Agency Proposal

When the Fair Debt Collection Practices Act was passed in 1977, debt collectors could contact consumers by telephone, regular mail, and telegram. Now, people commonly use email for business as well as personal communications. Use of text messaging and social networking sites (and other social media) is also becoming more widespread. These new communication methods can be more efficient for consumers and collectors, but they also raise some concerns. CFPB is trying to figure out how they should be used in the debt collection process.

One big question is what to do about many important steps in the collection process that the Fair Debt Collection Practices Act talks about as happening "in writing" or being "mailed":

  1. the "validation notice" collectors must send consumers at the beginning, with basic information about the debt. (FDCPA § 809). (See The "validation notice" sent to consumers)
  2. consumer's request for name and address of the original creditor, to help recognize the debt (FDCPA § 809(a)((5))
  3. the notice that the consumer disputes the debt (FDCPA § 809(a)(4)). (See When consumers dispute a debt)
  4. the collector's verification of the debt (FDCPA § 809(a)(5)). (See When consumers dispute a debt--How should collectors investigate & verify the debt)
  5. the consumer's request that the collector limit or cease all communications (FDCPA § 805(c)). (See Questions about phones & mobile phones in debt collection--Limiting collector communications)

How should a new federal rule treat using email, texting and other electronic means for these communications?

  • Do collectors now send validation notices by email, text or other social media? In what format (PDF, plain text, HTML)?
  • Are consumers using email, texts or other social media to request information, dispute the debt, or tell the collector to limit contact? Do collectors now treat such communications like they would treat a written message?
  • What are the pluses, and minuses, from the perspective of the consumer and the collector of allowing communication by emails, or texts, or other social media for some or all of the list above?

The E-Sign Act sets a procedure for companies to get the consumer's consent to provide disclosures and other documents electronically. Is this the way to handle using email or other electronic format to send the validation notice or verification of the debt? If the consumer gives E-Sign consent on the account before it goes to collection, should that be enough -- or should every collector who gets involved with collecting a debt have to get a new E-Sign consent?

Read what CFPB said in the ANPRM about Electronic Delivery of the Validation Notice, Consumers' Use of Electronic Means to Fulfill Writing Requirements for Exercising Rights Described in the Validation Notice, and Advances in Communication Technologies.

Comments22

Commenting is now closed.

Having been in collections since 1964, my concern of establishing rules may cause more problems for the consumer. I have seen advocates on both sides suggesting changes to the 1977 law and I agree somewhat with both sides. It is time the law must change and have clarification to the reality that technology has changed, the consumer has changed and collection has changed. It is certain that neither side is going to agree with all of the changes but isn't it time to at least move both to the middle that really serves the consumer? Rules are made on conditions and conditions change, and therefore so must the rule of law. Today we have an outdated law and are seeing state laws change as well and compliance to each is not working.

RBell, thank you for sharing you experience. You mention that these laws are outdated. Could the use of newer technologies such as email and texting improve communications between collectors and consumers? How should a new rule treat these new technologies?

I believe email and texting would improve communications between both. In my experience consumers today use both more than land line phones. There will be arguments of potential abuse but creating more effective communication is a plus to both sides. In a sampling last year, I used 100 accounts to track and found that only five consumers responded to the initial notice and three of them questioned the balance and/or creditor named. Once telephonic communication began 10 accounts made repayment arrangements. This left 85 accounts or 85% "no result". However, the advice to contact via email on the company web site included in the second notice found 17% contacted via email. While the sampling is very small, it suggested that consumers use email versus verbal contact. I have seen different arguments that suggest a consumer must provide written authorization to be contacted via cell or email but possibly the option to contact via email rather than by phone may help improve communication and possibly reduce lawsuits against the consumer. Clarification is important for each but when one thinks that no contact by the consumer can and usually means another option by the creditor to file a lawsuit is increased, so the reality of today is how consumers communicate and the answer is using cell and emails.

Any form of written communication should count as a notice in writing. If a debt collector receives a notice via email of contact they should be required to follow it.

Look, its 2013! Ignoring phone calls is annoying and constantly seeing missed calls is aggrivating. Why are bill collectors stuck in ancient times? Text me!! Email me!! Those phone calls are not going to be answered because I work and have kids. Communicati g with them would be so much easier if I could text and email these people. Seriously this is not 1950 we live in!!

I generally prefer e-mail to telephone communication, but you can't be sure the e-mail has reached the person. I would suggest a notice that says, "If you don't acknowledge receipt of this e-mail, we'll start phoning you."

I do not believe that use of social media should be allowed to initiate or to conduct any legal or other sensitive arrangements or communications to and from debt collectors. There are a couple of things that I’ve noticed about social media: social media is a fad, and an outlet. People use social media as an outlet for the narcissistic/public/storybook/memorable moments side of their lives. And recent evidence shows that fewer teens and young adults are using facebook and twitter. And I am most certain that no social media user would like for their private life to become public life by dealing with a debt collector on facebook. Nobody likes to be in debt and have bill collectors chasing them, so why would anybody want to have bill collectors shaming them or otherwise communicating with them on public platforms such as social media – even if these communications are done in private messages. “In writing” to me, means a letter delivered in the mail. I would also accept an interpretation to mean delivered by email but only on official company letterhead documents. And only if first requested by the debtor and not first initiated by the collector. But I can not accept “in writing” to mean messages and communication sent via social media.
I think that E-Sign consent should only be valid for the original creditor. And any and every collector who then gets involved must get the debtor to consent E-Sign with them. The reason is because there are some things that I, as a consumer, am comfortable with dealing online or through email with my original creditors, but there are things that I know I would not feel comfortable dealing with online/email with a debt collector. So E-Sign should not be blanket consent for anyone and everyone.

Text messages, which are illegal and should remain illegal are cost effective for collectors but at the expense of the debtor/alleged debtor and therefore should not be used.

this is not necessarily true. There are services that text and the sender pays for the text.

The FDCPA needs to be brought into current times. It is more efficient and effective for collectors for sure. It is the preferred method of communication for consumers without a doubt. Most would certainly rather get an email or text, rather than a phone call. Regular mail is inefficient and becoming more expensive every year and often ignored. It benefits everyone to update to allow using modern technology to communicate with each other.

Social networking is can should be used for locating only. I don't believe that communications through social networking is in the best interest for any of the parties involved.

Thank you Millertime, and welcome to Regulation Room. It sounds like you want debt collectors to embrace some new technologies, but not others. Why don't you believe social networking is in the best interests of the parties involved?

Email communication is a huge advantage for all involved parties.

Emails provide consumers with much better tools to control how they are being contacted. First, if treating emails as "in writing" (as they should), disputing a debt or demanding that collectors cease communication is much easier.

Second, setting rules to hide collection notices is a powerful tool not available in any other communication medium. 3rd party disclosure is therefore a lesser concern.

Third, email delivery is fast, and facilitates an efficient process, where less communications can be made to reach a settlement. Everything is in writing.

Fourth, email is significantly less confrontational than phone calls and causes much less stress to recipients.

Fifth, email is better than recording in keeping record of communication, making it even harder for collectors to hide acts of non compliance.

Email should be allowed, while keeping the sensitive parts of the message (disclosures, personal details etc) hidden - as an attachment or as a link that is part of an email.

Yes, email is more cost efficient to collectors - which is why using email should be conditional on collectors not charging the debtors any fees for their payments. The added profitability should be shares with the consumer.

I have a lot of concerns with emails. Email clients have privacy/security settings that do not allow the sender to know if/when an email has been or was received. The problem is that even with these privacy/security settings, senders are able to get around these settings. This is widely used by spammers and hackers. All of the spam experts all say not to open emails that are spam or potential spam, because the spammers are so good at manipulating and getting around the privacy/security settings and force the recipients email client to inform the sender of when/if an email was opened. Also, I do not like the idea that collectors can insert links in emails. The more unscrupulous collectors and unscrupulous employees can insert links that are harmful to the security of the user’s computers and offensive to the recipients (like pornographic material). Just think about how many collectors still (even after all of the lawsuits) use offensive and abusive language over the telephone, just think about what kind of harm these bad apples would be able to do with emails. I also I do not like the emails because of the ease with which collection companies can sell the email lists to marketers. Many decades ago, one of my neighbors was a debt collector. She would tell me that if they couldn’t get money out of the debtors then we make money off of them by selling your address and personal information to marketing companies. I have huge concerns for allowing collectors from using emails. Any rules that allow collectors to use email should come with deliberate care and attention to the privacy/security, materials and content, and the restriction of selling email lists. I also worry about true and accurate identification of emails. Spammers/hackers are able to manipulate how emails are presented and the name of the email address that they send with. Haven’t you ever gotten a spam email that was sent by “you”? Just like I worry about the phone call numbers being spoofed there should also be rules restricting collectors are manipulating and spoofing their email addresses.

E mail is good alternative but majority of the time it will go to junk or spam mail and the purpose not served.
Regular mail with follow up on e mail be better

Owing to the inherently non-private nature of the internet, NOTHING should be sent electronically. There is absolutely nothing wrong with continuing the use of the US Mail. However, the consumer should be free to allow the use of specific electronic communications, if they deem it proper. However, that should be specific; so that a collector cannot use Facebook, twitter, etc; only the specified means.

Additionally, collectors should not be allow, under ANY circumstance, to use any method which would cost the conusmer money. For example, cellphones and texting should be banned completely from calls from collectors.

I am dealing with a debt collection company who is also a mortgage company. They are having issues separating the two types of services. They are also having an incredible amount of IT (web) problems. Their website is down, or only their staff can see it, or they cannot upload my account information, etc. Other IT issues include their System, which "tells them" it has mailed me documents, but apparently does not really do it. My point is, I am able to capture a lot of this using ScreenShots and electronic communication, providing a very detailed log. I have sent my screenshots of the errors I saw on my account screen to their IT staff, and it may have helped resolve their website issues a few weeks later. I would highly recommend the use of electronic media as a formal way to communicate on both ends.

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My experience has been that people younger than I (a boomer) prefer to communicate electronically (emails, texts & chats). I know that when I was deeply in debt, I would have preferred not to have to speak to a real person.

There is a legitimate concern about unencrypted email or the potential for consumers not to consider that others may have access to their email. However, in general, we should encourage communication, however that happens - especially if it is in a form preferred by a particular consumer.

I believe that emails, chats & texts should all be considered writings. I don't know how you include all disclosures unless you direct someone to a place where they can read them in plain english.

1 - Email: Yes so long as it is not a "blind" email attempt at reaching an individual as it may reach the incorrect party (first.lastname@company.com when it should be first.lastname1@company.com)

The down side to this is the inevitable fishing attacks by scammers. Email should therefore be limited to times when the consumer initiates it or formally lists their email with the 3 major reporting agencies as a method of initial contact.

2 - Texts: No, text messaging and cell phones should be prohibited as there is not a viable means for the consumer to record the text and bring it into court as documentation if needed.

All the issues raised about collectors calling the wrong individual or family members would be 100x worse with texting.

3 - Social Media: While the courts have made the rare exception for use of social media as a means of giving notice, not everyone is on every social media platform. I am very internet savy yet I am not on foursquare, pinterest and several others. On FB, Twitter and others there are several thousand people with my name who may get incorrectly notified.

2|"Receiving" a communications; Inconvenient times & places - 5

Agency Proposal

Email, texting and social media can be very convenient because they let people choose when to look at messages. But that difference from, for example, phone calls, can create some questions that new federal rules should probably settle.

“Receiving” a communication. Some consumer rights (such as being able to dispute a debt and have the collector stop collection until the debt is verified) have time periods that start when the message is “received.” Is an email, text, etc. received when it’s delivered to the consumer’s account – or when the consumer opens or looks at it?

Inconvenient or unusual times. Collectors aren't allowed to contact consumers at inconvenient or unusual times. (FDCPA § 805(a)). For phone calls, the rule is no calls before 8 AM or after 9 PM. Would applying this rule to sending emails, texts, etc. make sense, given that people can decide when to look at them?

  • How many consumers set up alerts for when they get an email, text, or social media post?
  • Are alerts as disturbing as phone calls during the night – or do most people disable alerts when they don’t want to be disturbed?
  • Should it matter whether the consumer is the one who starts communicating by email, text, etc?
Read what CFPB said in the ANPRM about Newer Communications Technologies (Email and Text Messages).

Comments5

Commenting is now closed.

Ummm you want to know a annoying way to find out I was in collections... how about 12 voicemails saying they are bill collectors. Finding time to call you is not easy. Many of you work from 9 to 6. Thats when im at work. Some of you are different timezones. Why cant I text or email you and haveyou text or email me back??? So stone age!

Email rules allows hiding emails and routing them in ways that surpass any other communication method. In addition, since email "sender ID" is easier to demand and maintain, debtors will have an easier time managing what communication they receive, and when. As a result, there is no necessity for forcing specific times of email delivery.

If emails are allowed, they should not be allowed to be sent outside of what is the acceptable time for phone calls. I would like to restrict the time to inside normal business hours for the locale of the debtor, because no business email should ever be sent from the office outside normal business hours. This is basic and normal business etiquette for emails. But a compromise could be made for what is accepted for phone calls. However, I would like to see no emails sent on Sundays. The USPS does not operate on Sundays and neither should emails of a business nature.

If consumers can receive phone calls on Sundays, there's no reason for them to not accept emails. Controlling which messages you get and how they are routed and presented to you, including what alerts or sounds they make when received, is only possible with email. Email is far superior to any other communication medium.

Texting should follow all rules regarding phone calls. Email should follow rules set in place regarding written, mailed, letters.

3|Privacy concerns - 12

Agency Proposal

Privacy concerns are a real issue with these new communication technologies for several reasons:

  • It's easy for other people to see what's on the consumer's computer or mobile phone screen
  • Other people may share access to the consumer's email account, cell phone, etc.
  • Email, cellphone, and internet service are provided by companies that usually have the legal right to access messages using their services
  • When consumers use work computers or mobile devices, their employer may retain the right to access their messages

All of these increase the risk that people other than the consumer may realize he/she has debts in collection, or may see sensitive information such as account numbers, etc.

General concerns. How can new federal rules balance the convenience of email, text message and other new communication forms with the privacy and security risks they pose? For example, should collectors be required to try to figure out whether an email address is a workplace account? How hard would that be? If the collector knows or should know that an employer reserves the right to access messages on work computers or mobile devices, should the collector be prohibited from contacting the consumer through workplace email or mobile accounts?

Balancing truthful communication and privacy. As the post on Questions about phones & mobile phones in debt collection explains, federal law strictly limits what debt collectors can tell other people about a consumer’s debt (FDCPA § 805(b)). But it also requires collectors to identify themselves and warn consumers they are trying to collect a debt (mini-Miranda warnings) when they communicate with consumers (FDCPA § 807(11)). Just as with voicemails and answering machine messages and Caller ID, there are some hard questions:

  • With regular mail, the rule is that the envelope can’t contain any debt-collection-related language or symbol (FDCPA § 804(5)). Should the same rule be applied to the message line of an email? and the sender’s address line of an email?
  • For text messages, there are now “custom Sender ID” services that let a business replace its phone number with its name or logo when it sends a text. Should that be prohibited?
  • The mini-Miranda warnings take up space. Maybe this isn't a problem in an email message, but it definitely is an issue with text messages and some other social media. Could the mini-Miranda warning be shortened enough to make sense in a text? Should federal law allow the creditor to send a text that contains a link to the full warning on its website? Should creditors be able to ask consumers to consent that the warning not be included in text messages?

Any other ideas for the best way to balance truthful disclosure and privacy in these new communication forms?

See what CFPB said in the ANPRM about Newer Technologies, Communication Technologies, and Advances in Communications Technologies.

Comments12

Commenting is now closed.

See my prior comment in number one.

That voicemail which I just read is called FOTI. So ridiculous. Why would you do that? So when I play your voicemail someone hears it and I get embarased and call you?? What a ridiculous message.

Email isn't easier to access or view off the debtor's screen than a call (a call's content is actually harder to hide if you receive it among other people), text message or SMS.

The way regulation should handle sensitive information is by mandating that some information be an attachment, or in a link provided in the email, rather than the body of an email. If the attachment is encrypted or details are stored on a secured web page, no one will be able to access them. In fact, they will be much better protected than any other information relayed to the debtor.

Work emails should be handled differently, much like calls to a work place, which can also be accessed by the employer.

Hi Osamet, welcome to RegulationRoom and thank you for your detailed comments. How should work e-mails be handled differently? And do you think that texting and social media could be used in a similar way to your suggestions with e-mail?

Work email can be handled in a foti-compliant manner, where the email body doesn't disclose the debt but includes content in a link, that is part of the email but isn't available for viewing by the administrator. Social media and text messages can be handled the same way.

I have a problem with the security of email clients from everyday hackers. Remember the recent Yahoo email accounts that were compromised by hackers? This was a huge concern for many of Yahoo’s email users. Imagine the kind of materials and personal information that hackers would have if SSN’s and/or other sensitive and PII that were included in the emails of debt collectors. I further worry about the uptick in fake collection companies that have been capitalizing of the economic down turn and calling people who may have suffered a loss during this down turn. These downturn victims have been turning money over left and right to fake collection companies who were pretending to be collecting on legitimate debts. Now imagine email accounts getting hacked into and the hackers having access to all of the debt collection information at a debtor might have had setting in their inbox, and then comes along a new fake debt collection company…aka..the hackers..who then try to collect on a debt. These sorts of things worry me if use of emails could be used.

Aren't fake collection companies using letters and phone calls very successfully already?

I think that privacy concerns regarding account information are valid. Others knowing about collections should not weigh nearly as much as good-faith efforts of collectors to notify and collect outstanding debt.

Welcome to RegulationRoom, paythefiddler. Do you have experience with using new technologies to contact consumers? CFPB is concerned about balancing consumers' privacy rights with collectors' need to contact consumers efficiently. How can collectors use new technologies to contact consumers while protecting their privacy? What would be the line between good faith and bad practices?

A collector contacting a consumer via email, voice mail, or text message should identify themselves and say what they are calling about (e.g. overdue ABC account) without details of amount, account #, etc. So what if a third party might possibly conclude this person has debt? Without details they still don't know anything. I personally never return any calls about "an important business matter": if you don't tell me who you are or what you are calling about, I consider it spam.
If you call in good faith to clear up an outstanding balance for ABC company, then you should say so. It's the ones that are trying to scam consumers that give as little detail as possible in hope that someone panics and fills in the blanks for them.

Collection email should not be sent to a consumers work place email address. As I stated earlier, email communication should be consumer initiated at this time unless the consumer specifically opts to list an email address of record with the 3 major credit reporting agencies.

Email correspondences from a company or collection agency should list the state they are registered in and the registration number for consumer validation purposes. There is way to many scam emails to possibly think an email from a collector would be valid.

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