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Debt Collection Industry is Upset Over Recent Ruling


There are many areas where the law has not kept up with technology–even somewhat dated technology. The debt collection industry is now trying to use a decision by a federal court to argue that the Fair Debt Collection Practices Act needs updating to keep up with technology. While the act does need some refreshers, debt collectors are using the decision as an excuse to try to win wholesale changes to the FDCPA, which will be unfavorable for consumers.

Decision Rules Links to Disclosures Are Insufficient

The case involves a relatively simple fact pattern: A debt collector sent an email to a consumer, that informed the consumer that legally required disclosures could be accessed through a secure link (which in some reports was called an “attachment,” which is different from an actual secure link). If and when the consumer clicked on the link/attachment, the disclosures required by the FDCPA, sometimes called a “g notice,” would appear.

The consumer sued and argued, and the courts agreed, that the link/attachment was not a proper way for a consumer to access required FDCPA disclosures. The collections industry is now up in arms about the decision, claiming that the FDCPA needs refreshing to keep up with modern technology. It also says the decision will discourage debt collectors from using email, which is the preferred method of communication according to the debt collection industry.

Are Links to Disclosures Acceptable?

However, while email is an acceptable way to communicate in today’s world, that is not to say that providing FDCPA disclaimers in separate links or attachments is an acceptable way to give clients legally required disclaimers.

Many consumers, especially the elderly, or those who are not technologically savvy, may not know how to access secure links. Many people don’t even touch links or attachments for safety reasons (such as to avoid viruses).

All a debt collector needs to do to comply with the law is provide required disclosures in the body or text of emails. Debt collectors may argue that doing so puts them at risk if someone other than the account owner accesses the emails, thus exposing the consumer’s private debt information to third parties.

However, this concern can easily be remedied by a legal assumption that the email address a consumer provides to a creditor is only accessible by the consumer/account holder. This would only require a small alteration to the FDCPA, as opposed to the complete changes the debt collection industry is now proposing.

Debt collectors also fail to point out that the decision was by a federal court in Indiana. There is nothing to say that other federal courts would rule the same way. Many FDCPA questions are different based on the opinions of different federal courts, and it is premature to assume that this single decision will ever become the law of the land nationally.

Are debt collectors harassing you? Contact Jacobs Legal to speak with one of our Miami consumer rights attorneys today.


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