DUDE, STOP TEXTING ME! New Restrictions for Debt Collectors under the FDCPA

On behalf of Ben Barco, Crawford & von Keller North Carolina Managing Attorney on Wednesday November 3, 2021

The Fair Debt Collections Practices Act (FDCPA) limits what type of contact debt collectors and loan servicers can have when attempting to collect a debt. As of November 30, 2021, a final rule amending Regulation F will take effect, which both restricts debt collectors, and gives consumers more power regarding how they allow debt collectors to contact them about outstanding financial obligations. Here is a brief synopsis of those changes.

FEWER PHONE CALLS

Collectors cannot call a consumer more than 7 times within a consecutive 7-day period, unless they have a live telephone conversation with the consumer, they are attempting to collect the debt from. (12 C.F.R. § 1006.14(b)(2))
- The period starts on the date of the 1^st telephone conversation.
This rule applies to EACH DEBT, not each consumer.
- Meaning, if a consumer owes several debts, which is often the case, a collector can call the consumer more often based on the number of debts owed.
There are Exclusions to the call frequency limit:

Calls for which the consumer gives prior consent
Calls that don’t connect to the dialed telephone number
Calls placed to a specified professional (e.g. Attorney)

CAN COLLECTORS LEAVE A VOICEMAIL?

Yes, but the collector must be VERY LIMITED about what they say.
- What are they allowed to say?
  - Business name
    - But they cannot say in the voicemail they are a debt collector
  - Request that consumers respond
  - Provide contact information for the consumer to respond to

CAN DEBT COLLECTORS TEXT OR EMAIL CONSUMERS?

Yes.
With ever growing technologies and social media, debt collectors can use text messages or email to contact consumers.
- There are options though for consumers to limit this contact.

CAN DEBT COLLECTORS CONTACT CONSUMERS ON FACEBOOK?

Yes, debt collectors can attempt to contact consumers through social media, like Facebook, Instagram, Twitter, LinkedIn, etc., but there are restrictions.
- Debt collectors cannot communicate with consumers in a way that is able to be viewed by the general public or the consumer’s social media contacts (i.e. friends and followers).
  - Meaning, they can’t post a message on a consumer’s public wall or communicate in any way that a 3^rd party could see it.
  - They can, however, send a private message, unless the debtor specifically restricts or request that they not contact them in that way.
- Also, if a friend request, follow request, or contact link request is made, the debt collector MUST disclose that they are a debt collector. (12 C.F.R. § 1006.18)

CONSUMERS CAN DECIDE HOW THEY WANT TO BE CONTACTED

The amended rule now allows consumers to tell a debt collector by what type of method they want to be contacted, if any.
- For example, a consumer may tell a debt collector “Stop texting me” or “Only communicate with me via email.”
- The debt collector must then use these statements as an affirmative request to limit contact to the particular medium desired.
Consumers still have the right to request that all collection communications from the collector cease pursuant to the FDCPA.

DEBT COLLECTORS MUST TELL CONSUMERS THEY CAN OPT-OUT

A debt collector who communicates electronically via either an email address, text message to a telephone, or other electronic device must notify the consumer that they can Opt-Out of further electronic communications.
Debt collectors also cannot charge a fee to opt-out of the communication. (12 C.F.R. § 1006.6(e))

CAN DEBT COLLECTORS CONTACT CONSUMERS VIA WORK EMAIL?

No, provided they know or should know it’s a work email.
- Exceptions:
  - Consumer previously used the work email to communicate about the debt
  - Prior consent has been given and has not been withdrawn

ADDITIONAL DEBT VALIDATION REQUIREMENTS

If a Consumer requests validation of the debt, the debt collector must provide the following information:
- Debt collector disclosure
- Debt collector name and mailing address
- Consumer’s name and mailing address
- If the debt collector is collecting a debt related to a consumer financial product or service under § 1006.2(f), the name of the creditor to whom the debt was owed on the itemization date
- Account number
- Name of the creditor to whom the debt is owed
- Itemization date
- Amount of the debt owed on the itemization date
- Itemization of the current amount owed including:
  - Interest
  - Fees
  - Payments
  - Credits
- Current amount of the debt owed

This amended rule is intended to both update the means of communication to allow debt collectors additional methods of communication with consumers and provide consumers with more control and options on how they talk with collectors. If you have questions about what your rights are regarding communications with consumers and the collections of debts, please contact Crawford and von Keller, a full-service creditors’ rights firm of The Carolinas.