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Using Scripting to Prevent Potential Law Violations

  • Written by Debra J. Ciskey

ciskey debra jThe CFPB Supervision and Examination Manual is a 1,697-page tome containing examination procedures and templates for the use of CFPB supervisory examiners. It is organized into sections related to each type of entity for which the Bureau has supervisory authority. Available on the bureaus website ( https://files.consumerfinance.gov/f/ documents/cfpb_supervision-and-examination-manual.pdf ) anyone can download the entire manual or only the sections applicable to their entity.

In the FDCPA section, examiners are directed to obtain and review scripts for employee use. While it doesn’t specify which sections of the manual might require scripting for debt collectors, scripts provide expectations for consistent presentation of offers which can reduce the potential for discriminatory practices on the part of individuals when making discount offers, for example. Having scripts for required and desired disclosures can provide evidence that shows that any violation in regulated practices was not intentional and was the result of a bona fide error that arose despite procedures reasonably designed to avoid such errors.

A walk through the FDCPA section of the examination manual reveals many opportunities to provide scripting for collection staff. Equally important is a policy requiring that any script must be provided verbatim, focused and specific training related to the use of the scripts, a process for evaluating the delivery of the scripts, either through manual evaluation of phone calls or recordings, or the use of a speech analytics tool, and formal feedback to staff related to their success or failure with proper use of the scripts. Technology based job aids, either incorporated into your account management system or accessed on demand by staff when a script is needed, will be key supports to the implementation of scripting.

While we aspire to hire and train people that can use their best judgment about how to convey information properly to consumers, people also have the capacity to make mistakes. Communication is affected by emotion, memory lapses, attitude, lack of understanding and sometimes just plain laziness. Providing scripting related to key areas of compliance may help combat the human frailties of staff. Following is my list of conversation points that can be more closely controlled with proper scripting.

1. Disclosing the debt collector’s identity and the purpose/ nature of the communication when:

  1. Leaving a live message, an answering machine/ voice mail message, or when speaking directly with a consumer.
  2. Seeking permission or acknowledging permission to call a cell phone, at a place of employment, or at an unusual time or place.
  3. Acknowledging or receiving instructions not to call at any specific time or place.

2. Clarify the character, amount or legal status of a debt, such as when asked by a consumer:

  1. If I can’t pay this will my wages be garnished?
  2. Are you going to sue me? Have you sued me?
  3. Is this going on my credit report?

3. Assist staff in responding to angry or abusive consumers.

4. Seek and obtain location information for a consumer from a third party, and, in that conversation:

  1. Identify the company name to a third party who requests to know it, without indicating that the consumer owes a debt.
  2. Follow up script to handle inquisitive requests.

5. Convey discount offers, along with when such scripts should be used.

6. Request attorney’s name and address upon being informed that the consumer is represented by an attorney.

7. To obtain permission to speak with a third party.

8. To clarify for consumers the nature of the summons and complaint without providing legal advice.

9. To solicit post-dated checks and/or recurring EFT payments, and confirm the payment schedule.

10. Confirm Payment by credit card/debit card.

11. Solicit instructions from consumer for application of payment when multiple accounts exist.

12. Just as you have your collection letters reviewed by counsel, have your scripts and the policies and procedures underlying them reviewed by counsel as well.


Debra is the Executive Vice President at The Collections Coach, LLC. She began her nearly 40 year career in the collection industry in 1980 at ACA International in the federal affairs department, then leading the association’s Education initiatives as Director of Education. As an ACA instructor since 1983, Debra has taught nearly 200 ACA Seminars, and she served on ACA’s Board of Directors for 2 terms spanning 2012 to 2018. In 2000, Debra was inducted into ACA’s International Fellowship of Certified Collection Executives, and was named ACA’s Instructor of the Year in 2005.

CFPB Report Reveals Telling Statistics

  • Written by Debra J. Ciskey

ciskey debra jThe CFPB issued its Semi-Annual Report of the Bureau of Consumer Financial Protection (Report) on February 12, 2019. This 42-page report provides a comprehensive summary of the Bureau’s activities between April 1, 2018 and September 30, 2018, including rulemaking completed, plans for upcoming rules, complaint analysis, summaries of enforcement actions taken during the period, reporting on its Fair Lending initiatives, and its efforts to increase workforce diversity at the CFPB. In depth analysis of a consent agreement described briefly in the report should speak volumes to the collection industry.

Compliance and Operations

Operations folks should be most interested in practices that resulted in enforcement actions, and in particular, the action filed on July 13, 2018 in the matter of National Credit Adjusters, which concluded in a consent order. Collection agencies working on NCA’s behalf to collect purchased debt inflated the amount actually owed on accounts, threatened consumers and family members with legal actions including lawsuits and arrest when there was no intent nor legal authority to do so, among other things. Members of NCA’s compliance team recommended terminating the agencies because of the illegal acts and practices they observed in audits, but NCA continued to place accounts with the agencies and refused to implement corrective recommendations made by NCA compliance personnel.

This action demonstrates the true partnership that needs to exist between any collection agency’s compliance team, the operations team and executive management. The compliance team identified problems and communicated those to the appropriate parties, yet the recommendations went unheeded. This demonstrates to the regulator that the continued relationship with the agencies was deliberate and that their potentially illegal processes were sanctioned. In my experience with such investigations, it is assumed that industry members seek to subjugate the law for their own financial benefit. Ignoring the advice of one’s compliance team related to the collection practices of a vendor provides the evidence. I recommend a full reading of the action.

- Click here for the referenced Action (Collection Advisor Professional Network Members Only) -

The Concentration of Complaints

The industry is always interested in the CFPB’s reporting on complaints it receives related to debt collection. In fiscal year 2017-2018 (October 1, 2017, through September 30, 2018), according to the report, “the Bureau received approximately 329,000 consumer complaints.” Not surprising to anyone who responds to consumer complaints, the CFPB reports that “consumers submitted approximately 82% of these complaints through the Bureau’s website.” Another 5% were submitted via telephone calls and referrals from other state and federal agencies accounted for 8% of complaints. Companies responded to approximately 93% of complaints that the CFPB sent to them for response during the period, and only 2% of responses were considered untimely, which means responses were submitted after the 15-day deadline, after the extended 60-day deadline if the complaint was placed “in progress” by the complaint recipient.

Debt collection complaints do not sit at the top of the complaint categories during the reporting time period, a fact that is at least notable, and even laudable. The CFPB reports that 25% of complaints during the period were related to debt collection, while the top spot on the list belongs to complaints related to credit or consumer reporting, at 37% of complaints. With 13 categories on the list, the remaining 38% of complaints are spread rather thinly.

My own latest analysis of the debt collection complaints in the public database showed that the debt collector with the most complaints had nearly 9,500 on record since the inception of the database in July 2011. On the other hand, 1,850 companies had 9 or fewer complaints, with a whopping 651 companies garnering a single complaint since 2011. 3,374 distinct companies with debt collection complaints are listed, and many of these are first party creditors collecting their own debts—names you would recognize. My purpose here is not to call anyone out, but merely to point out that the numbers tell a story.

The report mentions the work of the CFPB on the Debt Collection Rule. We have been awaiting the Rule since the inception of the CFPB. The Report affirms that “The Bureau will work towards releasing a proposed rule concerning FDCPA collectors’ communications practices and consumer disclosures.” (p. 16). No further specifics are provided, but this brief description confirms the narrow focus that CFPB-watchers have expected, based upon work previously published by the CFPB. Most recently, the CFPB has expressed its intention to reissue a consumer survey to provide more data about contacts by debt collectors, which some have thought would delay the publication of the Rule. No doubt we will all need to adjust our consumer contact schemes once the rule is published.


Debra J. Ciskey is an ACA International Certified Instructor. She is a former member of the board of directors and a certified instructor for ACA International.

There are Always Bad Guys

  • Written by Debra J. Ciskey
 Recorded Message
“This message is intended for Diana Martinez. I received a fax order regarding a complaint that was filed against you. I have been retained to serve these documents at either your residence or place of business. If you have any questions or concerns about this complaint or wish to rectify the matter you can hit any key on your phone to speak to our office directly or call us at the following number 410-306-5975. When calling please reference file number CQY1237. You have officially been notified.”

 

ciskey debra jI received the recorded message above along with two others within three days of each other. No, I am not Diana Martinez — never have been — and I have had my same cell phone number for more years than I can remember. Of course, these calls are from scammers — unscrupulous types posing as debt collectors, if one can believe the posts that come up when Googling the number. These are the worst of the worst who threaten arrest, lawsuits and wage garnishments and apparently making random phone calls in some instances to do it. Unbelievably, some people do call them back, and an “account” is located. From the reports I have seen, when there is an actual debt it has been discharged in bankruptcy or paid off long ago. All appear to be out of statute.

I am not about to call them back. Luckily, my iPhone makes it incredibly easy to block a number and stop the calls. But I am one of the lucky ones, I know this is a scam and I know better than to call back. When I think about the potential impact of this scam on elderly relatives who would be utterly convinced and intimidated by the caller, I get angry. Bad guys ruin it for everyone. They do things just because they can.

Calls From the Past

Think back to 1991 and the couple of years preceding that fateful year that gave us the Telephone Consumer Protection Act (TCPA). Calls from people selling light bulbs. Calls from the telephone companies themselves offering cheaper long distance rates than the one that called me the night before. For younger readers, let’s remember that long distance wasn’t always free like it is today on our cell phones. We thought 10 cents a minute was a pretty good rate until someone else offered us 8 cents, and then 5 cents. I think I changed long distance providers three times in just as many months because of the deals. Then I got sick of the calls and told people to stop calling me. Heck, I had little kids back then and the phone calls routinely interrupted dinner, bath or bedtime. This was also before caller ID was free, and you had to rent a box to hook up to your phone to see the caller ID message. Those were the days!

This trip down memory lane is merely to illustrate that there are always bad guys. Enterprises or people use new or old and reimagined technology to such a degree that it starts to cause harm, or at least perceived harm, until somebody finally says, “there oughta be a law.” Telemarketing calls were labeled as “invasion of privacy” and the TCPA was conceived. After the genetic modification that we call the legislative process took its toll, the law was born. Today we are still fighting the battle so that our informational calls to consumers can be made using technology, legally and effectively. We know the arguments in favor—consumers need to hear from us to prevent potentially harmful consequences, nobody opens their mail anymore, etc. But it is bad guys, like the one who left me messages for poor Diana Martinez, that undermine our efforts to use technology for its intended purpose.

Make Change

In the meantime, we must remain active in our efforts to influence those in power at the Federal Communications Commission to give us rules or a resolution, because we aren’t the bad guys.

- Click here for FCC Contacts and Organizational Structure (Collection Advisor Professional Network Members Only) -


Debra Ciskey is the Chief Compliance Officer at Wakefield & Associates. Inc. She is a member of the board of directors and a certified instructor for ACA International.

What the CFPB Has to Say About Your Production Incentives

  • Written by Debra J. Ciskey

ciskey debra jCollectors are the beating heart of a collection agency. Over the years I have heard described any number of tactics collection management has used to make collectors happy in an effort to prevent them from jumping ship, including giving the best collectors the most desirable parking spaces, providing food nearly daily, providing cushy chairs and treadmill desks, using flexible scheduling, providing a special, private lounge for the top dogs, and providing creative and lucrative commission and bonus plans.

“Collectors will leave for a dime an hour increase.”

As much as management may do to create a comfortable, even festive work environment, I have heard it said that for collectors, it all comes down to the paycheck. I would propose that for nearly all workers, except maybe members of Saint Teresa of Calcutta’s Order of the Sisters of Charity, this would be a true statement. Management tries to come up with the most lucrative commission and/or bonus plan so that the hourly wage can remain low while top performers are well compensated.

CFPB’s Opinion

What does the regulator say? The Consumer Financial Protection Bureau shared its position on production incentives in a compliance bulletin in 2016 (CFPB Compliance Bulletin 2016-03). It feels that production incentives may pose risks to consumers that are “significant, and both the intended and unintended effects of incentives can be complex. . .” However, the CFPB acknowledges the value of production incentives and says they can be beneficial: “When properly implemented and monitored, reasonable incentives can benefit all stakeholders and the financial marketplace as a whole.” They acknowledge that incentive programs can assist with retention of high performing employees, and can benefit consumers by leading to improved customer service or introduction to services that may benefit them. The CFPB fears programs that result in overly aggressive collection tactics, for example, and outright violations of consumer financial protection laws.

The CFPB is very clear related to its expectations regarding incentive programs: “The CFPB expects supervised entities that choose to utilize incentives to institute effective controls for the risks these programs may pose to consumers, including oversight of both employees and service providers involved in these programs.” The compliance management system should include board and management oversight of incentive programs, policies and procedures governing incentive programs, training which includes standards of ethical behavior, monitoring, and corrective action, as well as complaint monitoring and compliance audits to oversee the application of the incentive program.

In Writing or Else

Incentive programs must be well framed, well documented, and considered from the point of view of management (how will this increase production?), collectors (how much can I realistically make under this plan?), consumers (does this guy hear what I am saying? It seems like he only wants his money) and the compliance officer (can’t we just pay everyone straight salary? No, okay, let me write a policy). The CFPB is concerned about unintended consequences that can occur when incentive programs are too lucrative—think about the Wells Fargo debacle. The compliance team will want to build controls intended to prevent occurrences of consumer harm caused by overzealous attempts to make bonus.

Focused call monitoring will be necessary to ensure the controls are effective. Training and retraining related to ethical conduct and negative consequences for displays of improper conduct, offsetting any potential gain from such conduct are necessary components of a compliance focused production incentive program.

Using speech analytics can support your effort to reward collectors for the use of compliant, ethical production practices. If your plan includes, for example, a provision to make any collections that resulted from calls in which policy violations occurred ineligible for inclusion in the bonus calculation, the use of speech analytics can help by flagging calls that need to be reviewed for potential violations. Unless one has an army of call reviewers, this would be impossible to perform without such automation. Incentives with a compliance component could actually help you attract good performers without investing in creature comforts and daily pizza runs.


Debra Ciskey is the Chief Compliance Officer at Wakefield & Associates. Inc. She is a member of the board of directors and a certified instructor for ACA International.

Regulators In Colorado Stop Talking and Listen to Collectors

  • Written by Debra J. Ciskey

ciskey debra jThe interim Administrator of the Colorado Fair Debt Collection Practices Act, Jan Zavislan, conducted an open meeting on July 30, 2018 related to the administration of the Act. Zavislan is Senior Counsel for the Consumer Protection Section at the Colorado Attorney General’s office and has worked in the AG’s office since 1988. He served for 16 years as the Deputy Attorney General in charge of the Consumer Protection section with jurisdiction in the areas of consumer fraud, antitrust, public utilities, consumer credit and collection agency practice. He made it clear that he is not seeking the job of Administrator. He intended this session, which is required by the CFDCPA under the SB17-216 amendments passed in 2017, to be a “listening session,” which he underscored by not presenting a prepared statement and instead sought comments and statements from the 50 or so participants. This article briefly summarizes the statements and observations of meeting participants.

- Click Here for Hearing Transcript (Collection Advisor Professional Network Members Only) -

Rebuttals to Previous Meeting

The Associated Unit of ACA (CO, WY, NM) offered rebuttals to comments made at the consumer advocacy meeting held in January 2018, at which industry members were not allowed to speak:

• Collection agencies do not intentionally sue people on Medicaid. When patients do not inform their providers of their Medicaid coverage, collection lawsuits may occur.

• The local collection industry opposes process server licensing proposals. Licensing would increase costs to consumers.

Requests From Collectors

The group provided several requests:

• The industry would like a rulemaking hearing and would like to see amendments to the credit repair statute.

• Amendments to the CFDCPA that would specifically allow for modern forms of communication including the use of email and text messages, to meet consumer demands for electronic communication.

• Increased levels of communication between the AG’s office and industry to prevent inadvertent law violations, emphasizing that the AG’s office has failed to issue any advisory opinion since 2006.

Recommended Change

The administrator asked for further suggestions for updates to the law, or rulemaking, and was met with several:

• Streamlining the license application process. An attorney debt collector suggested that Colorado adopt NMLS for licensing, explaining the time-saving benefits to the industry and the regulator, and the benefits to consumers.

• Simplifying the licensing requirements related to the sale and transfer of a business.

• Repealing the need to either record or have a second person verify a payment made over the phone.

• Concentrating enforcement efforts on egregious violations, and communicating errors to licensees with instructions for correction, rather than pursuing enforcement actions related to potentially inadvertent law violations.

• Improvements to the complaint handling process

When asked for suggestions for the next annual meeting, participants requested better information on consumer complaints the Administrator’s office is seeing – type and varieties. More granular information about complaints should be provided. Raw data on complaints needs to be tempered with information about volumes of contacts, providing context for the data. Information related to activity of unlicensed agencies was requested, information on convenience fees was requested. To benefit more remote licensees in the state, one participant suggested Skyping the meeting next year.

Author’s commentary:
Zavislan revealed that the Administrator’s office had added a full-time equivalent to work on complaint handling. Feedback from conversations with colleagues in Colorado indicates that the Administrator’s office is already scrutinizing consumer complaints in more detail by requesting additional details related to individual complaint responses. Feedback is sometimes provided to respondents related to perceived deficiencies in the collection agency’s practices when warranted. Certainly this is preferable to an in-depth investigation or an out-of-theblue enforcement action.


Debra Ciskey is the Chief Compliance Officer at Wakefield & Associates. Inc. She is a member of the board of directors and a certified instructor for ACA International.