New Technologies & Forbidden Debt Collection Practices

When the Fair Debt Collection Practices Act (“FDCPA”) was enacted back in 1977, it was designed to help the federal government protect consumers’ privacy rights, while monitoring and enforcing proper debt collection activities. It was also passed to protect the rights of “ethical debt collectors” whose lawful efforts were sometimes confused with those of competitors who took abusive shortcuts to recover outstanding debts.

Like most states, Texas has enacted its own similar statute entitled, The Texas Fair Debt Collection Practices Act, passed in 1997. It’s located in Title 5, Chapter 392 of the state’s Finance Code.

New Technologies Are Clearly Challenging the FDCPA’s Viability

During the past decade, various legal scholars and others have urged the federal government to update the FDCPA in light of the many new and emerging communication technologies. However, no agency could readily respond since Congress never conferred any future rule-making authority on the government entity when it first enacted the law.

Fortunately, after the Dodd-Frank Act was passed “in response to the financial crisis of 2008,” all FDCPA enforcement duties [including rule-making authority] were transferred to the new Consumer Financial Protection Bureau (CFPB).

At present, the CFPB is working hard to address the problems that are surfacing as debt collectors contact putative debtors by using automated dialers, Internet emails, text messages – and even Internet platforms such as Facebook and MySpace. At times, these new technologies appear quite appealing to debt collection agencies.

In fact, one company reported “increased payment rates by nearly 100% within five days” when text messaging was used. However, some privacy violations may have occurred and even prompted lawsuits. In another case, a debt collector used poor judgment when he posted a message on Facebook to the page of a putative debtor’s friend.

The FDCPA Is Responding & New Rules May Be Announced in the Near Future

As of November 2013, the Consumer Financial Protection Bureau (CFPB) took a “first step toward considering consumer protection rules for the debt collection market.”  In addition, the Federal Trade Commission (FTC) has remained heavily involved. In fact, at one point, the FTC sponsored a workshop so it could solicit suggestions from consumers, debt collection agencies, and others about the types of new rules required to address the many new technologies.

However, CFPB Director Richard Cordray is clearly leading the way. His bureau has been communicating with the public since late 2013 to draft new rules. (See the CFPB’s Advance Notice of Proposed Rulemaking, published in 12 CFR Part 1006).  Although an official publication date has not yet been announced, it’s very likely that new FDCPA rules will be issued during the next six to twelve months.

What Types of General Changes Are We Likely to See?

Broad FDCPA terms like “communication” will have to be expanded to include all new technologies. In addition, the FDCPA’s “disclosure requirement” will have to be “applied to new communication platforms that pose a threat to consumer privacy.”

The CFPB will also probably prevent debt collectors from forcing putative debtors to accept certain new forms of contact — without first obtaining their “express written consent” to such contact — especially when it “may cause consumers financial harm.”

Until new rules are released, debt collectors must remain cautious when contacting debtors via new technologies since the courts are quite sensitive to reasonable privacy concerns.

Will the Courts Remain Open to Debt Collectors’ Tech Dilemmas in the Future?

While new legal shifts can always occur, debt collectors appear pleased with the recent decision handed down in the New York case of Zweigenhaft v. Receivables Performance Management LLC. Stated succinctly, this case involved a young man who heard a voicemail left for his father. It made him aware that his father owed a debt.  The young man then returned the call and answered questions regarding his identity and the phone number he was using to place his call.

Claiming that the voice mail and conversation with his son “violated the FDCPA’s prohibition on third-party communications,” the father filed a lawsuit. In ruling against the father, the court held that to do otherwise “would place an undue restriction on an ethical debt collector in light of our society’s common use of communication technology.

Recent opinions like Zweigenhaft indicate that many courts remain eager to properly balance out the needs and concerns of both debt collection agencies and consumers. This type of unbiased approach remains crucial since so many people owe money in this country. In fact, during 2012, “approximately 30 million individuals, or 14% of American adults, had debt that was or had been subject to the collections process (averaging approximately $1,500).”

Conclusions

While we await the release of new rules to supplement the FDCPA, both common sense and conservative courtesies should continue to guide debt collection agencies as they use new technologies to contact putative debtors.  In addition, every effort must be made to reach the correct debtor directly. If messages are left, it’s always safest to avoid stating that any money is owed by the party you are trying to contact.

US Supreme Court Landmark Case: Burwell v. Hobby Lobby Stores, Inc.

UNITED STATES SUPREME COURT LANDMARK DECISION:

RELIGIOUS RIGHTS OF PRIVATE CLOSELY-HELD FAMILY BUSINESSES UPHELD

In one of the most hotly contested cases of the 2013-2014 term, the Supreme Court made a landmark ruling regarding a family’s religious rights in running their family-owned business on June 30, 2014. Burwell v. Hobby Lobby Stores, Inc. involved the objections of privately-owned businesses to the coverage of certain types of contraception under employer health care plans, as required by Department of Health and Human Services (HHS) regulation under the Affordable Care Act (ACA). In a decision that could have significant impact for other privately-held businesses, for-profit corporations, and their employees, the Supreme Court held that closely-held for-profit corporations are exempt from the HHS contraception regulation.

Hobby Lobby is an arts and crafts company founded by David Green and owned by the Green family with about 21,000 employees. The Green family are devout Christians. The Hobby Lobby case also involved Mardel Christian and Educational Supply, owned by Mart Green, one of David’s sons. Hobby Lobby’s case was consolidated with the case of Conestoga Wood Specialties, a small furniture company owned by the Hahns, a Mennonite family.

The decision was not founded on a private company’s right to raise religious First Amendment claims, but rather on an interpretation of the Religious Freedom Restoration Act of 1993 (RFRA). The companies relied on the RFRA’s mandate that the Government not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, otherwise that person may be entitled to an exemption. The law presumes the exemption unless the Government can show that its action: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The employers objected to four types of contraception required to be covered by their health plans under the HHS regulations as a burden of their exercise of religion entitling them to an exemption under RFRA.

Under the ACA passed in 2010, the HHS is charged with determining what types of contraception should be covered by employer health plans. Certain entities were exempted from the outset by the HHS: churches and related entities, non-profits that object to contraception, employers with grandfathered plans (no changes prior to March 23, 2010), and employers with fewer than 50 employees. Companies in violation of the law are faced with the alternative of being fined $100 per person per day or payment of higher wages to employees and a scaled tax.

The Court noted that allowing RFRA and First Amendment religious claims by corporate entities is not novel. But extending those rulings to for-profit corporations is new, a direction the Court has been reluctant to take until now. The Court also noted that its ruling was narrow and only applied to closely-held companies.

Interpreting the RFRA as applied to the facts of these cases, the Court found that the HHS regulations create a substantial burden on the company owners’ religious rights. To the company owners the objectionable contraceptive methods were equivalent to abortion. Thus, they were faced with the choice of assisting carrying out health plans contrary to their religious beliefs or being subject to fines, which would have amounted to about $475 million a year for Hobby Lobby alone. While the Court determined that a compelling government interest existed, it found that other, less restrictive means to further that interest existed, such as plans that allow employees to make separate payments for such coverage. The Court also noted that the simplest approach would be for the Government to assume such costs as the HHS had not demonstrated that such a plan was not a feasible alternative.

“Closely-held” corporations are defined by the Internal Revenue Service as those which a) have more than 50% of the value of their outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and b) are not personal service corporations. By this definition, approximately 90% of U.S. corporations are “closely held”, and approximately 52% of the U.S. workforce is employed by “closely-held” corporations. (Blake, 2014).

Interestingly, the Court noted that determining issues regarding a publicly-traded corporation’s religious beliefs would be far more problematic than the closely-held corporations involved in Hobby Lobby. This case could have far reaching impact. It is yet to be seen what other religious exemptions will be claimed by other employers under the Hobby Lobby ruling. Stay tuned for further developments!

References

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 22 (2014).

Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010).

Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb – 2000bb-4 (1993).

Blake, A. (2014, June 30). A LOT of people could be affected by the Supreme Court’s birth control decision — theoretically. The Washington Post. Retrieved from http://www.washingtonpost.com/blogs/the-fix/wp/2014/06/30/a-lot-of-people-could-be-affected-by-the-supreme-courts-birth-control-decision/.