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insideARM's "Frequently Asked Questions" Document on the Final Rule

I am absolutely a frequent question-asker. (Well, maybe that's a lie? There have been times in my life where maybe two follow-up questions would have saved me a lot of embarrassment.)

I've put together an FAQ document that answers many of the questions that have come up in webinars, in comments, and in emails. I feel I got it right.

Research Assistant members can find the document here.

Non-members can find it here for $129. (But it's cheaper to become a Research Assistant member because you'll get a lot of other resources for free, too, with membership.)

Here's a taste:

Regarding call frequency, can you call seven times in one week per account? Meaning if the debtor has four accounts or four separate debts, can you call seven times per week per each debt?

Yes. Mostly. The CFPB uses the phrase “particular debt” often in the Final Rule, and in the case of the “7-in-7” guidance, that is seven call attempts within seven days, using however many correct numbers you have for the consumer.

[Note: The 7-in-7 guidance is not a safe harbor but a rebuttable presumption. Borrowing the CFPB’s own language, but updating it for debt collection: “Under a safe harbor, a consumer is unable to challenge whether the collection agency met its ability to repay obligations. Under a rebuttable presumption, the consumer has the ability to raise a legal challenge but must overcome the legal presumption that the collection agency complied with this obligation.]

If you are an agency with multiple debt accounts for one consumer, you can call the consumer seven times per each particular debt. If the consumer answers, contact has been made and the collector cannot initiate telephone communication with the consumer for seven consecutive days after that contact unless asked to by the consumer, or if the consumer proactively calls the debt collector within that 7-day moratorium period.

Because the CFPB uses the phrase “particular debt,” if you discuss more than one debt with a consumer on a single phone call (e.g., you discuss a utility debt and a credit card debt), then each of those debts triggers the 7-day call moratorium. If you call the consumer with the intent to discuss more than one debt, but you are unable to reach the consumer, then that call only counts as one attempt on one of the debts (your choice), and you have six more attempts on that particular debt.

The big thing to remember, in this and other matters regarding call frequency, is: you may be allowed seven call attempts per particular debt, but you also still need to be mindful of the FDCPA’s provision against harassing consumers. This is a case where you need to align regulation with best practices that aren’t going to make you a target for a lawsuit.

Student Loan Exception: If a consumer has three loans/debts with the same servicer, and those debts have the same account number (say, the consumers SSN), then it is seven calls per account, not particular debt.

HIPAA Consideration: On page 636 of the Final Rule, the Bureau uses an example of a consumer with multiple debts -- a medical debt and two credit card debts. This may be a confusing example since it would be a potential HIPAA violation to discuss a consumer’s medical debt on a call about credit card debt, since the recording of that call could be made available outside of the permitted individuals allowed that protected medical information (the credit card client). Do not combine medical and other types of debt into one conversation with a consumer.

"What do we do for a year?"

This isn't in the FAQ doc, but it is something that has been on my mind:

The Rules were published on 30 November 2020. They will go into effect on 30 November 2021. So, in the meantime -- what do we do?

This is a complicated and nuanced question. The Rule, as I mentioned, goes into effect on 30 November 2021. So, the FDCPA, as it now exists, is still the Law of the Land. This means things like the 7-in-7 guideline don't have a published regulation behind it, or "unlimited"* texts and emails.

[* Be careful, btw, with "unlimited." The CFPB appears to be considering communication in total: 7 calls, texts, emails, etc. Harassment is still a possibility even if the reg seems to suggest you can do all of those things safely.]

There are some things -- consent management, for instance -- that agencies probably can begin implementing. Same as deciding with your creditor clients if they will be using a transfer letter with the accounts they send you. I would suggest that anything that improves the reliability of your data should be something you are mapping and implementing now.

But anything to do with the actual collecting...

This is definitely a conversation that your compliance team, your ops team, and your general counsel should talk through. There are risks, and a lot will depend on your appetite for risk. I don't like to give shoulder-shrug answers, but I don't know any better way to advise except: make sure you're weighing ::all:: the outcomes.