Top Compliance Question

The two most common compliance questions received by ACA’s Compliance Department concerned leaving voicemail messages for consumers and whether more than one entity may attempt to collect on an account at the same time.

The top compliance question received by ACA’s Compliance Department in August, once again, concerned leaving voicemail messages for consumers. As stated in previous Top Compliance Question articles, several courts have concluded that a message left on a consumer’s answering machine or voicemail constitutes a "communication" under the Fair Debt Collection Practices Act (FDCPA).

In the opinions of these courts, the messages were required to include the Mini-Miranda disclosure, as required by Section 807(11) of the FDCPA. Additional information on related court decisions and compliance suggestions is available to members at E-Compliance document #429.

The next most common question received by ACA’s Compliance Department in August was whether more than one entity may attempt to collect on an account at the same time. Although the FDCPA may not specifically prohibit a creditor from attempting to collect an account once it is placed with a collection agency, the situation is a violation waiting to happen.

Collection attempts by more than one party may violate various provisions of the FDCPA. For example, Section 807(2)(A) bars making a false representation of the amount of any debt. If two parties are attempting to collect the same debt, the consumer could be misled to believe that two debts are owed. Also, if the consumer makes a payment to one party, the other party may not credit the payment and future collection letters from that collector would attempt to collect the wrong amount. A consumer may also be misled as to which party is actually collecting on the account or whether the account is in collection.

For this and several other reasons, when an account is placed for collections, both parties should agree that while the agency is in possession of the account, no other parties are to attempt to collect the debt. Additional information and compliance suggestions are available to members at E-Compliance document #432.

This article is provided by ACA International’s Legal and Government Affairs Department.

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