CFPB Argues Incorrect Debt Amount to Lawyer Violates FDCPA

In a recent amicus curiae brief to the U.S. Court of Appeals for the Eighth Circuit, the Consumer Financial Protection Bureau (CFPB) took the position that a debt collector violates the Fair Debt Collection Practices Act (FDCPA) when it incorrectly represents the amount of debt it is attempting to collect, regardless of whether the debt collector is communicating with a consumer or the consumer’s attorney. The CFPB’s position and the Eighth Circuit’s ruling could have far-reaching implications for the financial services industry.

The CFPB amicus brief followed a ruling by the District Court for Minnesota, which held that because the debt collector’s alleged misrepresentation was sent to the consumer’s attorney, the higher “competent attorney” standard – and not the lower “unsophisticated consumer” standard – would apply. Accordingly, the District Court reasoned, the consumer’s attorney would look into the amount of debt and make an appropriate challenge if the amount were incorrect, making the alleged misrepresentation not actionable under the FDCPA (15 U.S.C. § 1692 et seq.). On appeal, the CFPB argued that the District Court couldn’t have gotten the opinion more wrong.

Case Background

The facts of the case center around Appellant Brianna Johnson’s (Johnson) past unpaid credit card debt with Wells Fargo Bank, N.A. According to the CFPB brief, Wells Fargo stopped adding interest and charged off Johnson’s debt in 2010, allegedly waiving the right to collect interest under the Card Agreement. At that point, Johnson’s account had accrued $4,953.47 in debt.

Appellee Admiral Investments, LLC (Admiral) eventually acquired Johnson’s debt and sent her a collection letter in 2012, seeking almost $7,500 to account for interest, late and other charges. Johnson subsequently retained counsel. Admiral sent Johnson’s counsel a letter in 2015, alleging that the debt had swelled to almost $11,000. Admiral subsequently filed suit against Johnson in Minnesota state court in 2016, seeking to collect the original debt amount of $4,953.47.

On February 23, 2016, Johnson filed suit against Admiral in federal court, alleging violations of the FDCPA. Specifically, Johnson contended that the letters sent from Admiral constituted a false representation of the character, amount or legal status of her debt. Admiral subsequently filed a motion to dismiss, arguing that the claims were time-barred, that Johnson lacked standing and that her Complaint had failed to state a claim under Rule 12(b)(6).

After finding that Johnson’s claims regarding the second letter were not timebarred, the District Court held that the second letter, sent to Johnson’s attorney, was not actionable under the FDCPA because the competent lawyer standard required Johnson’s counsel to look into whether the amount asserted was correct and take action if the amount was incorrect. Because the alleged misrepresentation was “based on a legal interpretation and contained in a letter” to Johnson’s counsel, the competent attorney standard shielded Admiral from violating the FDCPA. The District Court subsequently granted the motion to dismiss; Johnson then appealed to the Eighth Circuit.

CFPB Brief

In its brief, the CFPB argues that the difference between the “unsophisticated consumer” and “competent attorney” standards has zero impact on an alleged misrepresentation regarding the amount of debt by a debt collector. As argued by the CFPB, the FDCPA has “no exception for misrepresentations” made to competent lawyers and a debt collector “cannot avoid its statutory responsibility to represent accurately the amount of a debt by shifting the burden to a consumer’s counsel to uncover the falsehood.” In other words, a misrepresentation regarding an amount of debt is still a misrepresentation, regardless of the recipient.

In support of its argument, the CFPB cited decisions in the Seventh, Tenth and Eleventh Circuits, all of which have declined to extend the “competent attorney” standard to shield debt collectors from facially false statements to consumers’ counsel. Essentially, the CFPB argued, regardless of whether the District Court applied the “competent attorney” standard or “unsophisticated consumer” standard, it reached the wrong conclusion in dismissing Johnson’s claim for violations of the FDCPA.

Impact

Because the unforgiving FDCPA is akin to strict liability, debt collectors and other creditors seeking to recover past due accounts need to take extra caution in calculating the proper amount of debt owed. Debt collectors would be wise to implement safeguards or engage counsel to ensure the amounts sought are not prohibited by the laws of the consumers’ respective states – i.e., interest on interest in certain states.

According to the CFPB, debt collectors and other entities should be held liable for incorrectly representing the amount in communications to both consumers and their respective counsel.

The CFPB’s position, if upheld by the Eighth Circuit (and potentially other courts), thus puts all debt collectors on notice to be cautious when dealing with a debtor’s counsel. Accidentally providing an incorrect amount to the debtor’s counsel will result in an FDCPA violation, probable litigation and a potentially heavy fine.

Sye T. Hickey, an attorney in Baker Donelson’s Nashville office, concentrates his practice in complex commercial litigation and frequently works with individual and corporate clients in disputes across multiple areas. He can be reached at shickey@bakerdonelson.com.

Predictive Dialer Software Roundtable

A drop in a bucket may not be much but a multitude of drops certainly adds up. So is the case with predictive dialer statistics. A constant outflow of communication with consumers can provide collection professionals vast amounts of data. As represented in the thoughts of the following predictive dialer software experts, this data can provide information on the communication habits of consumers and the effectiveness of a collector’s interaction. These experts also provide ways to avoid common mistakes they have witnessed collection professionals make.

Mckay Bird CMO of TCN

What is the key to developing an effective dialer campaign?
The primary key to developing an effective campaign starts with several key elements including: audience, scripting, automation and an omni-channel approach (email, SMS and voicemail delivery). All four need to be used wisely and in concert with each other. By having a greater corporate strategy these elements will only elevate your call center with increased contact rates and customer satisfaction.

What is a mistake you see collection professionals make when developing a campaign and how can it be avoided?
Most common collection mistakes range from generalized TCPA violations, double dipping on old debt and not adhering to scripting guidelines set by corporate policy. Though some of these items are more blatant, it is important to have the tools to measure and report on the above. An example would to ensure that your organization is using call recording and templated scripts. There are many other tools out there such as cell phone scrubbing and area code management that will help further a compliant call center.

Lex Patterson President of DAKCS Software Systems

What is the key to developing an effective dialer campaign?
The key to building an effective dialer campaign is to understand what kind of calling you would like to do and the associated risks involved with that type of calling. Once you have an idea of both the campaign call type and the types of accounts/contacts being called, you can then build strategies to pinpoint your custom audience. Building and defining your custom audience(s) is important to develop since different calling type campaigns are defined for varied types of business or debt, demographic variances, balances, payment history, cell phones, voicemails on home numbers, etc. By utilizing proper scripting and dialog design to deliver the most effective messages, while considering and analyzing the most effective calling times, you will improve your contact rate percentage.

What is a mistake you see collection professionals make when developing a campaign and how can it be avoided?
Dialing without specific strategies or using the “one campaign fits all” method is a mistake we’ve seen as we’ve worked to help customers improve contact results. Having the ability to analyze your data and results, and then develop strategies based upon that feedback would improve results. For example, analyzing data that pays attention to the contact rate by campaign, how many reach attempts are made to receive a call back, and what campaign provided the connection for the consumer to answer the call. Measuring the data and results analysis will tell you if there is a particular message or dialog that produces better results and connects better with the consumer. Dashboards that can provide real-time feedback are a tremendous help with this process. Another mistake we have noticed is that agencies need to establish a backup plan for all accounts that have been called. There are times, when utilizing call automation that accounts in certain scenarios could potentially “fall between the cracks.” To minimize this risk, we recommend building quality assurance right into your process to check for accounts that are no longer valid for a dialing campaign. These accounts can then be handled in another way, after exhausting efforts are made through the calling campaign.

Rick Morris President of CallEvo

What is the key to developing an effective dialer campaign?
Successful dialer strategies involve several key points. First, it is impossible to dial effectively without understanding your goals. Just like with any business strategy, you must be clear and concise about what you need to accomplish and how the dialer plays a role in that strategy. Once you have determined your overall strategy for a collections campaign, your dialer is the tool to help manage the strategy.

Many companies believe the greatest strength of a dialer is the ability to make calls quickly. While that is an important asset, it is really the metrics, statistics, and collector management tools that can bring you the greatest efficiencies and improve your performance. By focusing on what those metrics tell you and tending to your weaknesses, you stand to improve performance. Continually seek to target those analytics and use them to affect your overall dialing and campaign strategy. Don’t just make a call and expect results.

What is a mistake you see collection professionals make when developing a campaign and how can it be avoided?
Once the campaign strategy is developed and the tactical technical details to deploy the campaign have be confirmed, spend time thinking about the feedback loop and key metrics you will use to measure execution. I always like to say, “inspect what you expect.” Once you have defined metrics, determine the people in your company to measure those analytics and hold them accountable to delivering and analyzing performance. And don’t be afraid to change the analytics regularly. Remember that even well thought out measurements and analytics might be manipulated and over time, may lose effectiveness. Continuously challenge your team to find new and creative ways to measure performance and incentivize the right dialing behavior.

Michael Vesper Founder and CEO of DialConnection

What is the key to developing an effective dialer campaign?
Using real-time data and automation. Real-time access to accurate and updated consumer data is required to efficiently build and execute campaigns and achieve full compliance. Account data and business objectives can change throughout the day. Therefore, managers need the ability to easily and automatically adjust their contact strategies to meet the needs of the business and its clients without having to manually export, format and de-dupe data and upload it to their campaign management platform just to run a campaign. It’s too time consuming, cumbersome and error-prone. Instead, campaign managers need a solution that updates account data from a live data source real time and automatically pushes it to an active campaign. This approach ensures that your campaigns will always work off the latest data and exclude accounts that have become restricted during the business day.

What is a mistake you see collection professionals make when developing a campaign and how can it be avoided?
A common mistake made in developing contact strategies is not varying the way that campaigns are processed day after day. If a company imports the same data in the same order and then calls the same numbers at the same time each day, their right party contacts rate will decrease and their collection performance will falter. On a daily basis, mangers need to rotate phone number types, sort campaigns by different data elements, adjust campaign scheduled start times, and blend campaigns to optimize performance. Selecting the right contact management solution will automate many of these steps, making it easier for companies to maximize campaign performance.

Carl A. Briganti President and Founder of CSS, Inc.

What is the key to developing an effective dialer campaign?
There are several key elements in developing an effective dialer campaign, but probably the most important one is to take a more scientific, data driven approach when creating a campaign. Look at key indicators of your contact management technology. Analyze collector performance, days of the week and times of the day that yield the highest degree of penetration; that is the highest percentage of contacts on your outbound traffic compared to the number of calls made. Everything must be actionable. Focus on analytics that identify the top and bottom performing campaign strategies (not the middle), segment out bottom strategies and replicate the top performers.

What is a mistake you see collection professionals make when developing a campaign and how can it be avoided?
Currently, one of the most typical mistakes dialer managers make is to stick with simply making dialer calls while disregarding the new tools available in contact management. Nowadays, less and less people answer phone calls if they cannot identify the source.

To avoid this, new emerging technology solutions in contact management, such as ringless direct voicemail drops and compliant SMS text messaging campaigns, are available. These tools are more consumer-friendly as the recipient is not disturbed, interrupted, or charged and they are ultimately in control as to whether they want to listen, read, ignore or discard the message.