Due to the lack of formal proposed rules from the CFPB, which would provide much-needed clarity in the receivables management industry, the Receivables Management Association (formerly DBA International) is forced to look for guidance elsewhere. This must be done to provide industry participants with guidance to ensure compliance with regulators and policymakers at both the state and federal level. It is the philosophy and guiding principle of RMA to work with the entities that oversee the industry to achieve appropriate consumer protection without putting up artificial barriers to the collection of legitimate contractual obligations (debt).
This article provides guidance on documentation. At the most basic level, the purpose of documentation is to ensure that one is collecting a debt from the right consumer and for the correct amount. While there are many ways to ensure these two items, standards are both needed and desired.
To this end, developing the documentation standard for the RMA certification program included scouring state laws and regulations, CFPB consent orders, as well as guidelines from the Office of the Comptroller of the Currency (OCC) and the Federal Trade Commission (FTC) to glean their expectations. The current standard includes items that must be obtained as well as items that are desirable. The standard has gone through many changes, but today, in version 5.0, it requires:
Required Data & Documents for Receivable
When purchasing or selling receivables, a Certified Company shall obtain or provide at the time of the transaction the following account-related information:
1. The consumer’s first and last name.
2. The consumer’s Social Security number or other government issued identification number, if obtained by the creditor.
3. Consumer’s address at Charge-Off.
4. The creditor’s name at Charge-Off.
5. The creditor’s address at Charge-Off.
6. A copy of the signed contract or other account level document(s) that were transmitted to the consumer while the account was active that provides evidence of the relevant consumer’s liability for the debt in question. Other documents may include, but are not limited to, a copy of the most recent terms and conditions or a copy of the last activity statement showing a purchase transaction, service billed, payment, or balance transfer.
7. The account number at Charge-Off.
8. The unpaid balance due on the account, with a breakdown of the post- Charge-Off Balance, interest, fees, payments, and creditor/owner authorized credits or adjustments.
9. The date and amount of the consumer’s last payment, provided a payment was made.
10. Sufficient information to calculate the dates of account delinquency and Default.
11. The date of Charge-Off.
12. The balance at Charge-Off.
13. A copy of a statement that reflects the Charge-Off Balance.
14. A copy of each bill of sale or other document evidencing the transfer of ownership of the debt from the initial sale by the Charge-Off creditor to each successive owner that when reviewed in its totality provides a complete and unbroken chain of title documenting the name, address, and dates of ownership of the creditor and each subsequent owner up to and including the Certified Company.
In addition to the aforementioned required items, purchasers should use commercially reasonable efforts to obtain, if available:
1. If there was a legal change in the consumer’s name during the life of the account, the prior name(s) used on the account.
2. The consumer’s date of birth. 3. The consumer’s last known telephone number.
4. Consumer’s last known email address.
5. The store or brand name associated with the account at Charge-Off.
6. The opening date of the account.
7. Pre-Charge-Off account number(s) used by the creditor (and, if appropriate, its predecessors) to identify the consumer’s account if different than the Charge-Off account number.
8. Such other information it deems necessary to substantiate in a court of law the legal obligation, the identity of the person owing the legal obligation, and an accurate balance owed on the legal obligation.
While the standard is written for the purchase and sale of debt, it should be noted that anyone collecting on behalf of a Certified Debt Buyer needs to either be Certified or meet the standards of Certification (Vendor Management Standard) and quite frankly, it is best practice. Therefore, it is truly an industry standard that, when universally adopted, will undoubtedly go a long way to clean up the industry and provide necessary consumer protection.
Mark Naiman is President/CEO of Absolute Resolutions Corp., an active debt-buying company, and currently serves as President on the Board of Directors for Receivables Management Association.
Jan Stieger, CAE, serves as Executive Director of Receivables Management Association the trade association representing nearly 550 member organizations in the accounts receivable industry.
There is no correct way to scour the Internet for data on a consumer. The troubling thing about this is that means there isn’t exactly a defined wrong way to do it either. Does a particular website have accurate data? Does this other one charge too much for the data it supplies? Am I breaking the law by using this website for this reason? All of these are questions that need to be answered on top of the burdensome task of locating a skip. The following websites are resources a collection professional/skip tracer may want to include in its tracing efforts.
This first group of websites range from the obvious to the less-known. These are often the first stop in a tracer’s pursuit of a skip.
Social media websites are vast and continually changing pool sources. This works to both its advantage and disadvantage; there is a lot of information there but who knows how valid it still is as the skip may have moved his or her focus to another forum. The demographic for each of these websites varies so a marketing mind would be beneficial. • www.facebook.com
Several of these websites can come in handy a little further into a trace. Immigrations and Customs as well as the Bureau of Prisons give a tracer the opportunity to quickly search for a skip. Other sites listed here provide lists of government sites that could prove helpful when looking for information on domestic and international skips.
• https://locator.ice.gov/odls/homePage.do - U.S. Immigrations and Customs.
• www.bop.gov - The Federal Bureau of Prisons.
• www.pacer.gov - The Public Access to Court Electronic Records does not directly charge users of the system but does have a $0.10 per page charge as dictated by the Judicial Conference of the United States.
• The website of the skip’s respective county appraisal district can normally reveal valuable information about a skip. Different county’s websites vary in intuitiveness making this task easier or more difficult.
• Visit the website of the skip’s respective secretary of state to perform a UCC-1 (uniform commercial code) search and request a financing statement revealing if the skip has financed property, what the property is, and corresponding information about the skip. There is normally a charge but the resulting documentation can be very enlightening.
The following websites are a few more a collection professional should consider when looking for data on consumers. These sources can lead a collection professional to additional websites where they may discover additional useful sources. Some of these are free, some of them cost, and some offer a limited number of free searches.
Your company or client needs you to collect an overdue debt immediately, but wants you to get their money without souring or severing their relationship with the customer who owes. It’s delicate, but very doable. With the right actions, attitudes, policies and practices, a credit professional or collector can not only preserve, but actually strengthen the creditordebtor relationship.
Credit departments can teach customers to more reliably pay on time. Debt collectors or credit professionals can identify communication breakdowns between creditor and debtor that, once eliminated, decrease the likelihood of disputes and make way for on-time payments. Debtors impressed with the professionalism of a third-party collection agency may even become that agency’s client.
Drawing on my own experiences and conversations with my staff, IACC Past President Lee VandenHeuvel and IACC Board Members Robert Ingold and Robert Tharnish, I’ve assembled this best practices checklist.
1Use Invoices to Inform A properly constructed invoice can strengthen the customer relationship through clear communication. It should agree with the purchase order on the service or product provided, include details on service or product provided, and state the amount due, due date and how to make payment.
2Make “Collection Prevention” Part of Customer Service Before the bill is due, someone – an employee from customer service, the in-house credit department, or a thirdparty hired to handle this important role – should call the customer with questions including: “Did you receive the invoice? Do you agree with it? Are you happy with the service or product?” Record the answers.
This call is an opportunity to remedy any problems and builds good will. And if the account should become delinquent, the customer’s affirmative answers can be used to dispel some of the most common missed payment excuses.
3Develop – or Encourage your Clients to Develop – a Strong Collection Policy A written collection policy that outlines the specific, escalating steps – including the point where accounts are turned over to a third party – ensures consistency across accounts. Adherence allows the credit or collection professional to assure the debtor an action is strictly policy. A big bonus: It also teaches expectations, consequences, and the fact that meeting expectations or avoiding consequences improves the payment cycle.
4For Agencies - Customize Your Approach Reputable agencies must understand creditors’ business strategies and needs. A reputable collection agency will customize the approach to first, third, or precollection services accordingly.
Consider asking clients how they want you to handle their collection. An agency can use a very soft approach with nice kid gloves, or come at it hard with boxing gloves and use investigative techniques. Once your client states the approach they prefer, don’t escalate the treatment without their approval. But if it becomes clear that this debtor is resistant to the level of pressure you’re applying, take that information to the client immediately.
1Prepare for the Interaction • Research the customer’s payment patterns and recent changes in financial position. Know who can release a payment.
• Have all documents at hand both for your reference and to send to the debtor if necessary. If a debtor gives a reason for non-payment that your facts say is an excuse, clearly and calmly state the facts.
2Listen Carefully What you hear, and what you deduce from what you hear, is at least as important as what you say. Ask questions and record the answers – they will help you achieve resolution, and know the right means of doing so.
Your goal should be to collect the payment in full while maintaining a strong customer relationship. You want to keep as many of your company’s or your client’s customers as possible, or you wouldn’t be reading this article. But not every debtor is a true customer worth keeping, and listening helps you deduce how to proceed. In my experience, there are four categories of debtors:
• Those willing and able to pay: The best customers. Make keeping them a top priority.
• Those willing to pay, but lacking resources or cash flow: Worth keeping as their situation may change.
• Those unwilling to pay and lacking resources or cash flow: Act early and often. There is a need to be more aggressive in your approach.
• Unwilling to pay despite having the ability: These are debtors, and perhaps perpetrators of fraud, not customers. If you’re a credit department employee, turn them over for aggressive collection immediately. If you’re a collection agent, contact an attorney.
“There is a point where you realize there is no relationship here to save and the primary focus is only to get this money,” said Robert Ingold, CEO of Commercial Collection Corp. “You don’t take more than one or two broken promises for payments.”
3Defy the Collections Stereotype and Follow the Golden Rule You know the Golden Rule: Treat others as you would like others to treat you. In collections, this is important for two reasons:
• Many debtors owe multiple creditors. Kindness and respect makes them more likely to put your debt at the top of the pile.
• Talking down to debtors or harassing them can make a debtor defensive. From then on, anything said that is slightly aggressive will be perceived as a threat or harassment. Debtors know these words, and they will be quick to make a complaint to the creditor, Better Business Bureau or Attorney General, or contact their own attorney.
4Don’t Get Personal Debtors should never feel personally attacked. The collector who can make calls feel like a business meeting rather than a trip to the principal’s office, will be more successful.
5Consider Your Audience and Be Culturally Aware A credit or collection professional on a typical second-call conversation with an American debtor might firmly state, “You’ve already broken one promise for payment, and I can’t keep dealing with broken promises. I will get an attorney involved if your promise is broken again.” “That hard a line tends to backfire in Latin America and Europe,” said Robert Tharnish, a senior vice president at ABCAmega. “If you come on too strong, the result might be that the debtor immediately cuts off all communication with you. Yes, you can get a local attorney involved, but the agency (or company) makes less money if there is an attorney fee.”
6Be Empathetic and Provide Options Empathy is important. “I always let debtors know we have the same goal – to get this account settled and get them back on good credit terms with my client,” said Ingold.
Lee VandenHeuvel, president of Ross, Stuart & Dawson, gives debtors a list of options. This is not recommended for a first call, but can be very effective when communications with the debtor are stalled and will encourage the debtor to make a decision one way or the other. Options are a good way to give the debtor a sense of control and persuade them to act. Your options might resemble VandenHeuvel’s standard list:
• Immediate payment of the full balance.
• Establishment of a reasonable payment plan, with the creditor or debt collector defining what is reasonable.
• A settlement amount that both parties agree to.
• A lawsuit seeking a judgment.
Advise the debtor they will likely find the last option the most costly.
Don’t Just Collect Debt – Solve Problems
7Be the Mediator Suggest solutions that result in debt collection and a continuing relationship – including when a debtor says they need the very product or service provided by the creditor to make enough money to pay them. I’ve facilitated hybrid deals that include both a payment plan for the debt in question and a collect on delivery deal that allowed a debtor to immediately receive more goods or services from my client.
8Watch for Patterns and Make Suggestions Keep an eye and ear out for patterns in the reasons a company’s debtors give for non-payment and share them with the right people. These glitches can be as simple as a pattern of sending invoices to the wrong address. But they can also get quite complex. Once, Tharnish’s company noticed a regional surge in the number of clients a customer was referring to collections. It turned out one salesman was telling his seasonal business customers they could have six months to pay – even though the paperwork called for the standard 30 days.
"The debtors were confused as to why they were being placed for collection when according to sales, they had two more months to pay!"
Fixing such issues helps preserve the relationship with current debtors, improves customer service, and keeps more customers out of collections.
This detailed advice really boils down to this: Whether an internal or third-party collector, you represent the creditor, and your actions are perceived as the creditor’s actions. Treat the debtor with respect. Handle the account without judgment. Suggest solutions to problems. Be creative. You’ll collect more money, preserve the creditor’s business relationships, and build a reputation that may result in more business or responsibility for yourself.
Thomas E. Brenan IV is president of the International Association of Commercial Collectors and President and CEO of Altus GTS Inc. based in Kenner, Louisiana.
The International Association of Commercial Collectors, Inc. (IACC), is an international trade association comprised of more than 350 commercial collection agencies, attorneys, law lists and vendors.
The following is a checklist collection professionals can use to help objectively determine which legal debt collection solution to select. Agency decision makers (evaluators) rank each one of the listed features on a scale from 1 to 5 in their respective column based on the feature’s importance to the agency (1 being least important and 5 being essential). Then in the “Software Possesses Functionality” column, decision makers can check off whether or not each feature is possessed by various prospective collection solutions. The final section on this checklist is composed of features suggested by collection software vendors for consideration.
Budget: ___________________________ Decision Makers: ___________________________ Date of Re-Evaluation: ____________________________
Legal Collections Functionality
Product Possesses Functionality
Integrated with pre-legal collections
Integrated with Microsoft Word
Track multiple cases for each account
Multiple, configurable lines of legal business
History of legal actions
Release/approve billings for invoicing
View legal documents history
Unlimited number of liable and non-liable parties
Individual case party statuses
Track party garnishments
Track party services
Track party judgments
Case and case party tasks scheduled automatically
Multiple check requests based on court requirements
Multiple legal documents based on court requirements
Product Possesses Functionality
Pre charge-off collections
Post charge-off recovery
Automated file processing
Pre Charge-Off Collections Functionality
Product Possesses Functionality
Disputes/deduction codes can be assigned
Identifies and tracks problem invoices
Coded problems separates from other receivables
Offers customer and invoice-level notes
Electronically reproduces/transmits invoices
Vendor Recommended Functionality
Product Possesses Functionality
Import demographic changes via spreadsheet
Contributed by: Hubbard Systems
Import financial transactions via spreadsheet
Contributed by: Hubbard Systems
Re-classify costs as recoverable/non-recoverable
Contributed by: Hubbard Systems
Reimburse clients for non-recoverable costs not collected from consumers
Consumer Complaint Response An effective compliance management system should ensure that a supervised entity is responsive and responsible in handling consumer complaints and inquiries. Intelligence gathered from consumer contacts should be organized, retained, and used as part of an institution’s compliance management system.
Consumer Complaint Response – Examination Objectives Examiners will consider consumer complaints to determine whether:
1. Consumer complaints and inquiries, regardless of where submitted, are appropriately recorded and categorized. 2. Complaints and inquiries, whether regarding the entity or its service providers, are addressed and resolved promptly. 3. Complaints that raise legal issues involving potential consumer harm from unfair treatment or discrimination, or other regulatory compliance issues, are appropriately escalated. 4. Complaint data and individual cases drive adjustments to business practices as appropriate. 5. Consumer complaints result in retrospective corrective action to correct the effects of the supervised entity’s actions when appropriate. 6. Weaknesses in the compliance management system exist, based on the nature or number of substantive complaints from consumers.
Consumer Complaint Response – Examination Procedures Examiners should review records, interview management, and contact consumers if needed to evaluate this consumer response component of the compliance management system. Examiners should:
1. Obtain and review records of recent consumer complaints and inquiries received by CFPB about the entity and its service providers. 2. Review industry or other benchmarking complaint data collected by CFPB. 3. To the extent available, obtain and review records of recent consumer complaints against the institution from the prudential regulator, from state regulators, from state attorneys general offices or licensing and registration agencies, and from private or other industry sources. 4. Request and review from the institution being examined its policies and procedures for receiving, escalating, and resolving consumer complaints and inquiries. 5. Request and review the record of consumer complaints and inquiries received by the institution for a specific recent period of time. 6. Identify complaints alleging deception, unfair treatment, unlawful discrimination, or other significant consumer injury; and review some or all of those complaints for handling, timeliness, disposition, and any prospective and retrospective corrective actions. 7. Determine whether corrective action is offered or taken for any complaint resulting in a conclusion of violation of law or regulation. 8. Determine whether complaints involving service providers or other third parties referring business to the supervised entity receive prompt and appropriate handling and follow-up by the entity. 9. If a supervised entity maintains multiple consumer response centers or units, determine whether it employs a common set of best practices as applicable. 10. Determine whether evaluations of consumer contacts are shared within the supervised entity and included in compliance management reporting to the Board and senior management, and whether such information is used in modifying policies, procedures, training, and monitoring. 11. Draw preliminary conclusions regarding the strength, adequacy, or weakness of the supervised entity’s response to consumer issues and concerns, and identify business conduct areas, specific regulations, or organizational units for more detailed review.
Compliance Audit Audit coverage of compliance matters is the fourth component of an effective compliance management system. The audit function should review an institution’s compliance with Federal consumer financial laws and adherence to internal policies and procedures and be independent of both the compliance program and business functions that include customer sales or service.
A compliance audit program provides a board of directors or its designated committees with a determination of whether policies and standards adopted by the board to guide risk management are being implemented to provide for the level of compliance and consumer protection established by the board. The audit should also identify any significant gaps in board policies and standards.
Compliance Audit – Examination Objectives Examiners will seek to determine whether:
1. The audit program is sufficiently independent and reports to the board or a committee of the board. 2. The audit program addresses compliance with all applicable Federal consumer financial laws. 3. The schedule and coverage of audit activities is appropriate to the size of the entity, its consumer financial product offerings, and its manner of conducting its consumer financial products business. 4. All appropriate compliance and business unit managers receive copies of audit reports in a timely manner. 5. Audit results lead to appropriate, timely corrective action.
Compliance Audit – Examination Procedures Examiners will review records of the compliance audit program and discuss the audit methods, results, and reporting with audit managers. Examiners should:
1. Request the supervised entity’s audit plans and schedules for the prior year, current year, and the following year. 2. If compliance audit is performed by a third party, request and review the engagement letters or contracts covering the prior year and the current year. 3. Determine the basis for the audit plan and schedule and whether reporting is to the board of directors or to an audit committee or other committee of the board. 4. Request and review all compliance audit reports for a specified period of time, including any fair lending audit reports. 5. Determine whether written audit reports identify the scope, sampling techniques, findings/deficiencies, recommendations for corrective action, and management responses with time frames for corrective action. 6. Determine whether audit scopes include previous audit, and examination findings, new requirements, new products and channels, and self-identified higher risk areas of the supervised entity’s operations. 7. Request and review audit workpapers for a sample of audits covering fair lending laws and regulations; potential unfair, deceptive, or abusive practices; or other areas that may pose heightened risks to consumers. 8. Determine whether corrective actions are tracked and any delay in appropriate management response or lack of corrective action is escalated. 9. Determine whether the supervised entity’s chief compliance officer and appropriate business unit head(s) receive copies of audit reports, so that adjustments can be made to compliance program elements in a timely manner. 10. Review audit function structure and policies and procedures to ensure that the audit function, whether internal or external, is sufficiently independent of the business line and compliance management function. 11. Draw preliminary conclusions about the strength, adequacy, or weakness of the compliance audit component of the compliance management system, and identify areas for further review based on gaps in audit coverage or to confirm the accuracy of audit findings and reporting.
Monitoring and Corrective Action – Examination Objectives Monitoring is a compliance program element that seeks, in an organized and risk-focused way, to identify procedural or training weaknesses in an effort to provide for a high level of compliance by promptly identifying and correcting weaknesses. Monitoring and testing is generally more frequent and less formal than compliance audit coverage and reporting, may be carried out by the business unit, and does not require the same level of independence from the business or compliance function that an audit program does.
Examiners should evaluate monitoring and audit programs to determine whether, considered together, they are adequate and comprehensive. Examiners review of compliance monitoring and testing should determine whether:
1. Monitoring is scheduled and completed and leads to timely corrective actions where appropriate. 2. The supervised entity is determining that transactions and other consumer contacts are handled according to the entity’s policies and procedures. 3. Monitoring and testing consider the results of risk assessments or other guides for prioritizing reviews. 4. Monitoring addresses deficiencies identified in internal or external audits, and the board’s or management’s directives on resolving the deficiencies. 5. Findings are escalated to management and to the board of directors if appropriate.
Monitoring and Corrective Action – Examination Procedures Examiners should review monitoring, testing, and corrective action reports; sample supporting documents; and interview individuals responsible for compliance monitoring, testing, and corrective action. Examiners should:
1. Determine the chief compliance officer’s role in the compliance monitoring element of the compliance program. 2. Request and review the monitoring and testing schedule for the current year or next 12 months, and review the currency of reviews in process against the current schedule. 3. Request and review the risk assessments or other documents that led to the monitoring and testing program plan, including any fair lending risk assessments. 4. Discuss with the compliance officer or monitoring manager the coverage of service providers that have contact with consumers. 5. Determine whether and to what extent monitoring includes calculation tools, the content of consumer disclosures and notices, marketing materials, and scripts or guides for employee contacts with consumers. 6. Request and review all compliance monitoring, testing and corrective action reports completed during a specific period of time. Include reports related to fair lending compliance, such as fair lending “self-evaluations.” (But do not request reports of fair lending “self-tests” that meet the strict requirements set forth in 12 CFR 1002.15.) 7. Review reports for indications of systemic weaknesses, repeat violations of law and resulting risks or harms to consumers, or other matters of significant concern such as potential discriminatory effects of policies or procedures or particular business units with continuing or high levels of non-compliance. 8. Review a sample of reports and supporting documents covering potential unfair, deceptive, or discriminatory practices or related matters that pose heightened risks to consumers for thoroughness of review, accuracy of findings, and appropriateness of recommendations. 9. Determine whether monitoring results in corrective action that is timely and appropriate in size and scope. 10. Draw a preliminary conclusion regarding the strength, adequacy, or weakness of the monitoring and corrective action element of the compliance program, and select areas for further review either because of lack of coverage by the monitoring program or to confirm monitoring or corrective action findings.
Training – Examination Objectives Education of an entity’s board of directors, management, and staff is essential to maintaining an effective compliance program. Board members should receive sufficient information to enable them to understand the entity’s responsibilities and the commensurate resource requirements. Management and staff should receive specific, comprehensive training that reinforces and helps implement written policies and procedures. Requirements for compliance with Federal consumer financial laws, including prohibitions against unlawful discrimination and unfair, deceptive, and abusive acts and practices, should be incorporated into training for all relevant officers and employees, including audit personnel. Examiners should seek to determine whether:
1. Compliance training is current, complete, directed to appropriate individuals based on their roles, effective, and commensurate with the size of the entity and nature and risks to consumers presented by its activities. 2. Training is consistent with policies and procedures and designed to reinforce those policies and procedures. 3. Compliance professionals have access to training that is necessary to administer a compliance program that is appropriate for that supervised entity and its business strategy and operations.
Training – Examination Procedures Examiners should request and review training records and interview management and staff as appropriate to evaluate this element of the compliance program and to refine and focus the examination. Examiners should:
1. Request and review the schedule, record of completion, and materials for recent compliance training of board members and executive officers.
2. Determine the involvement of compliance officer(s) in selecting, reviewing, or delivering training content.
3. Request and review policies, standards, schedules, and records of completion for compliance-specific training of compliance professionals, managers, and staff, and documents demonstrating that service providers who have consumer contact or compliance responsibilities are appropriately trained.
4. Request and review samples of the content of training materials and comprehension tests, including training related to fair lending, new regulatory requirements, new products or channels of distribution, and marketing (including scripts).
5. Request and review training developed as a result of management commitments to address monitoring, audit, or examination findings and recommendations or issues raised in consumer complaints and inquiries.
6. Determine whether the program is designed to provide training about the specific regulatory requirements relevant to the functions of particular positions for loan officers, such as the Truth in Lending Act and the Equal Credit Opportunity Act.
7. Review records of follow-up, escalation, and enforcement for units with training completion rates that do not meet the supervised entity’s standards or deadlines.
8. Request and review the supervised entity’s plans for additions, deletions, or modifications to compliance training over the next 12 months and any plans for changes to the overall training resources and compare actual training activities to prior plans.
9. Draw preliminary conclusions about the strength, adequacy, or weakness of the training element of the compliance program, and select lines of business, organizational units, or other areas for more detailed review and testing.