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This week a Research Assistant member wanted to better understand how ARM companies were emailing consumers so we took an informal poll of those on the call asking who:
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Actively communicates with consumers via email? Nearly everyone responded affirmatively.
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Sends the written communication in the body of the email? Nearly everyone responded affirmatively.
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Uses hyperlinks in consumer email communications? There were less affirmative responses to this question. Those who are using hyperlinks are using them to direct the consumer to action or page on their consumer website/portal.
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Uses email communications to send the initial model validation notice? There was a split between collection attorneys and collection agencies on this question. Collection attorneys are not typically sending the initial validation notice communication via email whereas collection agencies are more likely to send it via email.
What might explain these responses?
Throughout the commentary of Regulation F, the CFPB specifically addressed email communication and placing the notice within the body of the email. This is the preferred delivery method based on the outcome and analysis of Lavallee v. Med-1 Solutions. Footnote 586 of Regulation F summarizes the following:
In Lavallee v. Med-1 Solutions, the United States Court of Appeals for the Seventh Circuit held that the emails sent by Med-1 Solutions to Lavallee did not meet the FDCPA’s requirements for electronic delivery of the validation notice information within an initial communication because the emails did not “contain” the validation notice information. Lavallee v. Med-1 Solutions, LLC, 932 F.3d 1049 at 1055 (7th Cir. 2019). The court observed that, to access the validation notice information, the consumers receiving the emails had to complete multiple, discrete tasks and “[a]t best, the emails provided a digital pathway to access the information.” Id. at 1055-56. Under the specific facts of that case, the Bureau agrees with the Seventh Circuit that the electronic delivery procedures used by Med-1 Solutions did not satisfy the requirement in FDCPA section 809(a) that the initial communication “contain” the validation notice information. Nonetheless, the Bureau believes that a debt collector may properly provide the validation notice information to a consumer within the debt collector’s electronic initial communication with the consumer, provided that the communication “contains” the validation notice information.
In short, email communications to consumers should be easily accessible to ensure they have received actual notice.
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