On Oct. 8, S.737A was signed into New York law, “requiring debt
collectors to inform debtors that written communications are available in large
print format.” The legislation becomes effective Nov. 7, 2021.
The
problem with the law is the disconnect between what it says and what it tells
debt collectors to say.
What It Says
“Each and every principal creditor or debt collector shall, in
each initial communication, clearly and conspicuously disclose to the debtor
that each communication can be provided in an alternative, reasonably
accommodatable, format.”
“Communication”
is defined as “the conveying of information regarding a debt directly or
indirectly to any person through any medium.”
“Principal
creditor” is already defined as “any person, firm, corporation or organization
to whom a consumer claim is owed, due or asserted to be due or owed, or any
assignee for value of said person, firm, corporation or organization.” NY
CLS Gen Bus § 600(3).
What It Tells Debt Collectors to Say
Unfortunately,
the law proceeds to state:
“Such disclosure shall substantively contain the following:
(a) A statement that the consumer may request the letter in an
alternative, reasonably accommodatable format selected by the principal
creditor or debt collector such as large print, braille, audio compact disc, or
other means; and
(b) A business phone number that the consumer may call to make
such a request.”
Out of Focus
The
legislation was, simply, poorly drafted and creates questions that are
difficult to answer, a few of which are:
1.
What does “reasonably
accommodatable format selected by the principal creditor or debt collector”
actually mean? Does it mean a debt collector can choose to exclusively
offer large print regardless of circumstances, or does it mean the alternative
format must be “reasonably accommodatable” based on the actual circumstances?
For example, if the consumer is completely blind, can the debt collector still
choose to provide large print or is the debt collector’s selection limited to
formats such as braille or CD?
2.
Does this apply to all
written communications, including emails and text messages? The law states it
applies to each communication through any medium, but the sample language
refers to the consumer requesting “the letter” in an alternative format.
3.
What is the standard
for “large print,” which is undefined in this section? Can we rely on the
definition found elsewhere in New York law as “a font size of sixteen or
larger” for utility bills (N.Y. Pub. Serv. Law § 44), cable bills (N.Y. Pub.
Serv. Law § 224-b) and telephone bills (N.Y. Gen. Bus. Law § 399-zz)?
4.
Does the alternative
format option extend to documents provided for substantiation of the debts
pursuant to 23 NYCRR § 1.4(c), some of which may be account-level documentation
provided by the creditor?
Previous Legislation
The
large print notice legislation was originally introduced in 2011 and
reintroduced in virtually the same form every session through the 2019-2020
session. The 2019 Assembly bill, A.711, is a good example of the previous versions and includes
a memo explaining the legislation.
The
legislation defined “large print” to mean “a font size of sixteen or larger”
and limited the disclosure to informing the consumer “that written
communications . . . may be received in a large print format.” The memo
explained that the large print option did not apply to the initial
communication; only to “any further communications that the debtor may
receive.” Neither that bill nor the previous versions included the
confounding sample language in the current law.
Reading Between the Lines
The
shift from the 2019 language appears to reflect an intentional broadening of
scope. Unfortunately, determining the intent of the law, and simply how
to draft the notice correctly, is difficult to decipher because of the poor
drafting. Without further clarification, the best that can be done is to
consult with legal counsel of your choice and find a practical, workable
balance between what the statute says and what it says debt collectors should
say.
