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Collecting Consumer Debts: the Challenges of Change

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Collecting Consumer Debts: the Challenges of Change Collecting Consumer The Challenges of Change A Workshop Report Federal Trade Commission February 2009 Collecting Consumer Debts: The Challenges of Change A Workshop Report February 2009 Federal Trade Commission William E. Kovacic, Chairman Pamela Jones Harbour, Commissioner Jon Leibowitz, Commissioner J. Thomas Rosch, Commissioner Collecting Consumer Debts: The Challenges of Change This report is also available on the Internet. The online version of this report contains hyperlinks to news releases, reports, articles, workshop comments, transcripts, brochures, policy statements, and other information referenced in this report. You can find the online report at http://www.ftc.gov/bcp/workshops/debtcollection/dcwr.pdf. Collecting Consumer Debts: The Challenges of Change CONTENTS EX E CUTIV E SUMMARY . i i . INTRODUCTION . 1 ii . HT E DE BT COLL E CTION PROC ess . 2. iii . EL GAL FRAM E WORK O F DE BT COLL E CTION . 4. A. Fair Debt Collection Practices Act. 4 B. Section 5 of the FTC Act . .6 C. State Debt Collection Laws . .6 D. Privacy and Data Security Laws. 7 IV . TH E ROL E O F TH E FE D E RAL TRAD E COMMI ss ION . 9 V . CHANG es IN DE BT COLL E CTION INDU S TRY AND PRACTIC es . 11 A. Increased Consumer Debt and Delinquency Levels. 11 B. Debt Collection Industry Overview. 12 C. Evolution in Debt Collection Methods: Communication Technologies. .14 D. Information Collection and Storage. 17 1. Increases in Data Storage Capacity. .17 2. Improvement in Database Technologies. .18 E. Payment Methods. 20 vi . ODM E RNIZING TH E DE BT COLL E CTION SY S T E M AND LE GAL FRAM E WORK . 2. 1 A. Information Flow in the Debt Collection System. 21 1. Problems with Information Flow in the Debt Collection System. 22 2. Solutions to Information Flow Problems. 24 3. Future Directions in Information Flow. 34 B. New Technologies. 35 1. Communication Technologies. .35 2. Payment Technologies . 51 C. Debt Collection Litigation and Arbitration. .55 1. Litigation. .55 2. Arbitration. 58 3. Collecting on Judgments and Awards. .60 4. Time-Barred Debt and Discharged Debt. .62 5. Future Directions in Litigation and Arbitration . .65 D. Debt Collection Legal and Regulatory Systems. .66 1. Private Enforcement of the FDCPA. 66 2. Government Enforcement of the FDCPA. 67 3. Rulemaking to Implement the FDCPA. 68 vii . CONCLU S ION . 71 A Workshop Report Collecting Consumer Debts: The Challenges of Change Appe NDIX A: FAIR DE BT COLL E CTION PRACTIC es ACT . .A-1 Appe NDIX B: FTC ACTION S RE LAT E D TO DE BT COLL E CTION SINC E 1977 . B. -1 Appe NDIX C: INDIVIDUAL AND ORGANIZATIONAL COMM E NT S SUBMITT E D IN CONN E CTION WITH TH E WORK S HO P . C-1 A Workshop Report Collecting Consumer Debts: The Challenges of Change EXE C UTIVE SUMMARY Overview In late 2007, the Federal Trade Commission (“FTC” or “Commission”) convened a public workshop to evaluate the need for changes in the debt collection system, including the Fair Debt Collection Practices Act (“FDCPA”), to protect consumers better. Based on the workshop record and its experience, the Commission concludes that the debt collection legal system needs to be reformed and modernized to reflect changes in consumer debt, the debt collection industry, and technology. This report sets forth these changes and the modifications to the law the FTC believes are needed to provide better consumer protection without unduly burdening debt collection. As explained in detail in the body of the report, the Commission’s principal conclusions and proposals are: ³ Major problems exist in the flow of information within the debt collection system. O The law needs to be changed to require that debt collectors have better information, making it more likely their attempts to collect are for the right amount and are directed to the right consumer. O The law also needs to be amended to mandate that collectors provide better information to consumers explaining their rights under the FDCPA. ³ Debt collection laws need to be modernized to take account of changes in technology. O Debt collectors generally should be allowed to use all communication technologies, including new and emerging technologies, to contact consumers. The law, however, must be carefully crafted and applied to avoid collectors’ use of communication technologies in a manner that causes consumers to incur charges, or otherwise subjects them to unfair, deceptive, or abusive acts and practices. O Debt collectors generally should be allowed to use newer electronic payment methods to receive payments from consumers. To deter unauthorized access to the accounts of consumers through the use of these methods, however, the law needs to be changed to require that collectors obtain express verifiable consent from consumers before accessing their accounts. i A Workshop Report Collecting Consumer Debts: The Challenges of Change ³ Certain debt collection litigation and arbitration practices appear to raise substantial consumer protection concerns. O Among the concerns expressed were whether, given the current volume of state court debt collection lawsuits, some of the cases filed lack a sufficient evidentiary basis, whether procedural aspects of such lawsuits achieve the appropriate balance in protecting the interests of consumers and debt collectors, and whether the arbitration process adequately addresses consumer interests and is sufficiently transparent. O Because the workshop record does not contain adequate information for the FTC to determine the nature and extent of these concerns, the agency will convene regional roundtables this year with state court judges and officials, debt collectors, collection attorneys, consumer advocates, arbitration firms, and other interested stakeholders to obtain more information about these concerns and develop possible solutions. The participation of state officials in these roundtables will be critical, because debt collection litigation and arbitration involve many issues of state as well as federal law. ³ Debt collection law must evolve to include a regulatory process that ensures that legal requirements keep pace with changes in the marketplace. O The law therefore should be changed to grant the Commission the authority to issue regulations to implement the FDCPA. ³ Debt collection law enforcement must be pursued aggressively to deter collectors from engaging in conduct that harms consumers. O Private actions, not FTC actions, were intended to be and should continue to be the main means of promoting industry compliance with the FDCPA. To increase deterrence, the law should be changed to increase the statutory damage amounts available in private FDCPA actions to reflect inflation since 1977. O To hold more individuals, rather than just companies, responsible, and to obtain stronger monetary remedies, the FTC has modified its law enforcement approach in recent years, and the agency will continue to pursue enforcement in a way that will increase compliance with the law. Summary and Recommendations Consumer credit is a critical component of today’s economy. Credit allows consumers to purchase goods and services for which they are unable or unwilling to pay the entire cost at the time of purchase. By extending credit, however, creditors take the risk that consumers will not ii A Workshop Report Collecting Consumer Debts: The Challenges of Change repay all or part of the amount they owe. If consumers do not pay their debts, creditors may become less willing to lend money to consumers, or may increase the cost of borrowing money. Creditors typically use collectors to try to recover on debts to decrease the amount of their lost revenues. Debt collection thus helps keep credit available and its cost as low as possible. Debt collection activities, however, also may harm consumers. In 1977, Congress passed legislation to protect consumers from harmful debt collection practices and to protect ethical collectors from competitive disadvantage. The result was the landmark Fair Debt Collection Practices Act, which established specific standards of conduct for the collection industry. Consumer groups, labor groups, state and federal law enforcement officials, and collection industry trade associations supported the law’s passage. The Federal Trade Commission is the primary governmental enforcer of the FDCPA. Consumers also may file their own actions against debt collectors who violate the statute. The FDCPA prohibits abusive, deceptive, and unfair debt collection practices, and specifies numerous practices that are barred. Some debt collectors, such as those entities recently sued by the Commission, continue to use these unlawful practices. There was a general consensus at the workshop that the practices prohibited by Congress in the FDCPA harm consumers and that the prohibitions should be enforced vigorously. The Commission therefore believes there is a continuing need for both public and private actions to deter violations of the statute. The FTC hosted its two-day workshop in October 2007, thirty years after the FDCPA was enacted. The goals of the workshop were to explore changes in the collection industry and examine their impact on consumers and businesses. In announcing the workshop, entitled “Collecting Consumer Debts: The Challenges of Change,” the Commission solicited public comments on a number of topics. Experts representing consumer groups, the collection industry, academia, and government agencies participated in the workshop and submitted written comments. This report describes the information the Commission received in connection with
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