RMA Update June 2018

/RMA Update June 2018
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The committee remains focused on submitting responses to the BCFP (formally CFPB) RFI’s.  Below are the responses submitted in the last 30 days:

The 2018 State Legislative Calendar is starting to wind down with only a handful of states remaining in session beyond June. Here are a few noteworthy bills in states that are still in session:

California AB 38 – This bill would amend the California Student Loan Serving Act’s to narrow the definition of a “student loan servicer” to exclude debt collectors who are collecting on defaulted student loans.  [This bill is scheduled for a hearing in the Senate Banking and Financial Institutions Committee on June 20th.]

District of Columbia Bill B22-0572 – This bill would reduce the availability of wage garnishment as an option for collections through increased exemptions and lower garnishment rates. The bill would also require prescribed consumer notices informing consumers of their rights prior to garnishing wages. [This bill was heard in the Judiciary & Public Safety Committee on June 7th. Further action on this bill is anticipated. RMA is working in a coalition effort to obtain amendments.]

Massachusetts HB 1982 – This bill would require passive debt buyers to be licensed as debt collectors in Massachusetts. Currently, third party collection agencies and active debt buyers are regulated and licensed by the Massachusetts Division of Banks while passive debt buyers are regulated by the Attorney General’s Office and not required to be licensed. This bill would also exempt debt buying companies from bonding requirements and allow affiliated companies to be licensed under a single license and subject to a single examination [RMA has been advocating for uniformity and consistency in state licensing laws. Maintaining the Massachusetts bifurcated regulatory scheme does not make sense and adds to industry and consumer confusion. RMA has retained a Massachusetts lobbyist to assist us in our efforts. RMA testified in support of this bill at a legislative hearing in Boston on September 26th. There was no opposition to the bill. The bill was unanimously reported out of committee with the recommendation to pass on 2/7/18.]

Massachusetts SB 120 – This bill among other things would: (1) reduce the statute of limitations in an action for the collection of a consumer debt from six to four years to be measured from the earlier of the date of charge-off, placement for collection, or 180 days after the last regular payment; (2) prohibit payments made prior to the limitations period expiring from tolling the statute; (3) prohibit any attempt to collect a consumer debt once the statute of limitations has expired but would allow a debt collector to accept an unsolicited voluntary consumer payment on a debt; (4) extinguish judgments after five years unless the creditor takes action to enforce the judgment; and (5) reduce the percentage that is subject to wage garnishment. [RMA has retained a lobbyist to oppose the bill in its current form. RMA testified in opposition of this bill at a legislative hearing in Boston on September 25th. The bill was reported out of committee to the Ways & Means Committee on 12/18/17.]

Rhode Island HB 7929 – Creates the “Expired Debt Act” which would among other things: (1) prohibit consumer contact until the collector “possesses verifiable information documenting” chain of title, the amount of the debt, and the connection of the debtor to the debt; (2) require consumer notices on out of statute debt in every communication when the debt is beyond the statute of limitations; (3) prohibits default judgments on out of stat debt; and (4) provides damages for mental distress and emotional anguish. [RMA opposes this bill in its current form. RMA testified in opposition to the bill during committee testimony on April 11th—the bill was held in committee for further study.]

If you are interested in obtaining a copy of the RMA state tracking list, please contact David Reid at dreid@rmassociation.org.

11th Circuit Refuses to Compel Arbitration of TCPA Claims

Hope Gamble v. New England Auto Finance, Inc., Eleventh Circuit Court of Appeals, No. 17-15343 (May 31, 2018)

In an unpublished opinion, the U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court’s order denying an auto finance company’s motion to compel arbitration finding that the consumer’s TCPA claims were an independent cause of action based on rights created under the TCPA, and not subject to a contract arbitration provision that only covered disputes arising from or related to the agreement or the motor vehicle collateral.

A copy of the opinion is available at:  Link to Opinion.

A consumer entered into a retail installment sales contract (“RISC”) that was sold and assigned to an automotive finance company (“creditor”).  The RISC included a clause requiring arbitration of any “claim, dispute or controversy… whether preexisting, present or future, that in any way arises from or relates to [the RISC] or the Motor Vehicle securing [the RISC],” hereafter, the “arbitration provision”.  The RISC further provided the creditor the right to send its customers “emails, text messages and other electronic communications” (the “text consent provision”).  However, the text consent provision required separate signatures, and was never executed by the consumer.

Several months after the consumer paid off the RISC, the creditor began sending text messages to the consumer offering her a new loan.  Even after she requested by telephone that the creditor stop sending these texts, the consumer received nine additional text messages.

The consumer filed a class action lawsuit in federal district court against the creditor under the federal Telephone Consumer Protection Act, 47 U.S.C. § 227, alleging that the creditor used an automatic telephone dialing system to send her, and others similarly situated, non-emergency text messages without their prior express consent, in violation of subsection § 227(b)(1)(A)(iii) of the TCPA. The trial court denied the creditor’s motion to compel arbitration.

The Eleventh Circuit first examined the creditor’s argument that because the consumer’s complaint asserts that the text consent provision governs her alleged lack of express consent to send text messages to her cell phone, the complaint inextricably ties a prima facie element of the TCPA claim — the lack of consent — to the RISC, thus triggering the arbitration provision.

The Eleventh Circuit disagreed with the creditor, concluding that the consumer’s rights to not receive unconsented-to text messages were established by law under the TCPA — well before she signed the RISC and refused to sign the text consent provision. It also rejected the creditor’s argument that the arbitration provision was broad enough to encompass the consumer’s claims.  While acknowledging that the plain language of the arbitration provision makes the arbitration provision broad, it does not make it limitless. Here, the consumer signed the RISC, but refused to sign the text consent provision, and the creditor did not violate the RISC.  Thus, in the Court’s view, the consumer’s claims did not arise from the RISC or any breach thereof, but rather from post-agreement conduct in alleged violation of a separate, distinct federal law — the TCPA.

Moreover, the Eleventh Circuit determined text messages do not relate to the financing terms set forth in the RISC, and the text consent provision is a separate stand-alone provision which the consumer never signed, and thus no agreement regarding text messages exists between the parties.

Put another way, the Eleventh Circuit explained that the existence of the RISC was irrelevant, unless it had specifically contemplated future TCPA claims — which it did not — and the consumer could have filed suit under the TCPA without there ever having been a contract between the parties.

Jury Returns Inconsistent Verdict in CFPB Action Against Ohio Debt Collection Law Firm, Verdict Under Advisement

Consumer Financial Protection Bureau v. Weltman, Weinberg & Reis Co., L.P.A., United States District Court for the Northern District of Ohio, Case No. 17cv-00817 (April 17, 2018)

An advisory jury, empaneled pursuant to Federal Rule 39(c)(1), recently returned an inconsistent verdict after trial in an action brought by the Consumer Financial Protection Bureau last year challenging that attorneys of a law firm specializing in the collection of debts were not “meaningfully involved” in collection activities engaged in by the firm in violation of the federal Fair Debt Collection Practices Act.

In April 2017, the CFPB commenced the enforcement action against the law firm in the U.S. District Court for the Northern District of Ohio alleging that collection letters being sent out by the firm suggested to its recipient that they were from an attorney, although no attorney with the firm had been “meaningfully involved” in sending the letter, including in “reaching a professional judgment that sending the letter is appropriate because, for example, the information in the letter is accurate and the debt is due and owing.” This, the CFPB opined, was false and misleading from the perspective of the “least sophisticated consumer,” and such misrepresentation was “material because it had the potential to influence consumers to pay an alleged debt when they would not have otherwise.”

A copy of the complaint in Consumer Financial Protection Bureau v. Weltman, Weinberg & Reis Co., L.P.A. is available at:  Link to Complaint.

At issue were pre-suit demand letters the law firm sent to consumers on its firm letterhead that prominently described the firm as “ATTORNEYS AT LAW,” asserted that a particular balance was due and owing, and listed the firm’s name in the signature block. Some letters also referenced “possible legal action” in the event the consumer does not pay the amount demanded.

Despite the fact that the letters were sent under the law firm’s name, the CFPB alleged that no firm attorney reviewed the letters before they were sent, or reviewed the consumer’s file or formed a professional judgment that the debt demanded was actually due and owing before the firm sent a demand letter on firm letterhead to a consumer.

In its trial brief, the law firm challenged the CFPB’s characterization of the facts, maintaining that its “attorneys design, supervise, and participate in every step of the collections process. And that the involvement of [the firm’s] attorneys is more than sufficient to satisfy the requirements of the law.” Amongst other things, the firm argued that it “maintains a robust compliance program” and that “all of its practices, processes, and procedures are designed and implemented under the constant supervision of experienced [firm] attorneys.”

The jury determined that the law firm’s pre-suit collection letters contained “false, deceptive, or misleading representations or means in connection with the collection of a debt.” However, the jury rejected the CFPB’s claim that the firm’s attorneys were not meaningfully involved in the debt collection process. U.S. District Court Judge Donald C. Nugent has taken the jury’s verdict under advisement and has given the CFPB until June 15 to submit a brief arguing why he should rule in its favor. The law firm’s response will be due two weeks later.

Consumer’s Letter Alleging Debt Collector’s Credit Reporting was “Not Accurate” Triggers FDCPA Dispute

Evans v. Portfolio Recovery Associates, LLC, Seventh Circuit Court of Appeals, Nos. 17-1773, 17-1860, 17-1866, 17-2622, 17-2756, 18-1374 (May 2, 2018)

 A consumer’s attorney’s letter to a debt collector which stated that “the amount reported is not accurate,” was a dispute within the meaning of section 1692e(8) of the federal Fair Debt Collection Practices Act, regardless of whether the account information was accurate according to a recent decision from the Seventh Circuit Court of Appeals. A copy of the decision is available here.

 Following receipt of the consumer’s attorney’s letter, the debt collector continued to furnish information to credit reporting agencies concerning the account but did not indicate it had been disputed. The consumer filed a lawsuit claiming the debt collector’s failure to note the account as disputed violated section 1692e(8). The debt collector defended its position claiming that “[t]he record shows that these plaintiffs owed the debts and the amounts stated were accurate.” The Court of Appeals rejected the argument reiterating an earlier holding interpreting 1692e(8) as allowing a consumer to dispute a debt “for no reason at all.”

The Court also noted that a consumer is not required to use magic words to trigger a dispute under section 1692e(8) and, particularly, is not required to use the word “dispute” to trigger FDCPA protection.

  • Need re-certification credits?
  • Working toward becoming a Certified Receivables Compliance Professional (CRCP)?
  • Want the latest information in the Chief Compliance Officer world?

RMA has all this and more with live monthly and pre-recorded webinars.

UPCOMING WEBINARS 
Cyber Security: How to Keep Your Data Safe and PrivateTuesday, June 19, 2018
Chief Compliance Officer (CCO) Webinar Series – Top Compliance Concerns for 2018Tuesday, June 26, 2018

CURRENT ISSUES IN DEBT BUYING (RE-CERTIFICATION ONLY)
In addition to the two (2) hour education session at the Annual Conference and Executive Summit, RMA has identified the following recorded webinars which qualify for one (1) credit out of the four (4) credits of Current Issues in Debt Buying required for re-certification. Click to register.

RECORDED WEBINARS
Did you miss a live webinar? All recorded monthly webinars are FREE to our members. Special series and select required courses for certification are paid at member rate.

  • Are you currently purchasing debt portfolios? If so, your company may need to get certified. Contact the RMA office to get more details on getting your Certified Professional Receivables Company (CPRC) designation.
  • Become a part of our ever-growing list of certified individuals! Earn your Certified Receivables Compliance Professional (CRCP) designation simply by taking continuing education! Click here for full details.
  • Renewing your company certification? Check out the newest updates in Version 6.0 of the Receivables Management Certification Program, including a change from a 2-year renewal cycle to a 3-year renewal cycle with the compliance audit taking place between the 16th and 20th month.

Congratulations to our new and renewed companies and individuals!

New Companies
Bayview Solutions, LLC

Renewed Companies
Acctcorp International, Inc
Dyck O’Neal
Hilco Receivables, LLC
Icon Equities, LLC
Razor Capital
United Holding Group

New Individuals
Isaac Goldman, Chief Operating Officer, Vertican Technologies

Renewed Individuals
Joe Adams
James Barrons
Brian Bowers
Tracey Gibson
Jorge Gonzalez
William (Bill) Kolz
Lexi Knight
Eric Logvin
James Vaughn
Greg Woodford
Adam Wertman

View all certified companies and certified individuals on our website.

For help with certification, contact Michelle Wren at (916) 482-2462 or mwren@rmassociation.org.

Welcome new RMA members!
The RMA membership continues to grow. Welcome to our newest members:
AGORA Data, Inc. — Affiliate
Brownstein Hyatt Farber Schreck, LLP — Associate Law Firm
Capital Alliance Solutions, Inc. — Associate Collection Agency
Seventy Two Pixels — Affiliate
Sunset Solutions Group, LLC — Associate Debt Buyer

Read more about these members and other members on the Member Search page

Are you displaying the RMA member logo?
If you don’t have the rebranded RMA member logo displayed on your company’s home page, you’re missing out!
Many organizations and businesses choose to display logos of associations they belong with to convey a commitment to their industry profession. To display the member logo, email Barbara Souza at bsouza@rmassociation.org.

RMA is entering into a partnership with Insperity. The partnership between Insperity and RMA provides preferred member pricing on select Insperity® HR solutions.  As a RMA member company, you can customize your back office from the many products and services Insperity offers. Visit their website HERE to find out more on what they offer to RMA members.

HR Spotlight Brought to You by the RMA & Insperity Partnership:
7 Most Frequent HR Mistakes and How to Avoid Them.

RMA works hard to open new markets and promote the industry at various conferences and events—look for us at these events.

National Independent Automobile Dealers Association (NIADA) Convention & Expo | June 18-21

2018 ACA International Convention | July 23-25
Visit RMA in the Exhibition Hall!

2018 RMA Executive Summit | July 31-August 2

Executive Summit 2018

Early bird savings are sailing away on June 1st! Register today and book your room before the room block fills up. RMA’s 2018 Executive Summit will take place in scenic Maine, July 31–August 2. To catch your early bird savings and hotel booking, visit rmassociation.org/ES18.

Sponsorship opportunities are available.

CALL FOR PRESENTATIONS

RMA is now accepting proposals for the upcoming 2019 Annual Conference, February 5 – 7, 2019 at the Aria Resort & Casino, Las Vegas, NV. Presentations should be unique, creative and industry focused as audience interaction and engagement are key! Your industry knowledge and commitment enables us to build a strong and relevant educational agenda for our 22nd Annual Conference!

Submissions Due by Monday, August 6, 2018!

Click here to complete and submit a proposal.

Contact Michelle Wren at mwren@rmassociation.org or 916.482.2462 with any questions you may have.

Contribute Now

Thank you 2017-2018 Legislative Fund contributors. Your support allows us to influence threatening legislation, while also promoting and preserving the best interests of our members. Make your contribution today!

Diamond ($25,000)
Certified Debt Buyer
Portfolio Recovery Associates, LLC

Titanium ($15,000)
Certified Debt Buyer
Cavalry Investments, LLC

Platinum ($10,000)
Certified Debt Buyer
Encore Capital Group
Associate Collection Agency
Financial Recovery Services, Inc.

Gold ($7,500)
Certified Debt Buyer
Unifund CCR LLC

Silver ($5,000)
Certified Debt Buyer
CKS Financial
Crown Asset Management, LLC
JH Capital Group
Plaza Services, LLC
Velocity Portfolio Group

Associate Debt Buyer
U.S. Equities Corp.

Associate Collection Agency
Credit Control, LLC

Affiliate
Digital Recognition Network
National Loan Exchange NLEX

Bronze ($2,500)
Certified Debt Buyer
Absolute Resolutions Corp.
Cornerstone Support
Galaxy Asset Management, LLC
Integras Capital Recovery LLC
RAzOR Capital
Security Credit Services, LLC

Associate Collection Agency
Glass Mountain Capital, LLC

Affiliate
EZ Messenger

Brass ($1,000)
Certified Debt Buyer
Acctcorp International, Inc.
Collins Asset Group
Jormandy, LLC
Mjollnir Group
Resurgence Capital, LLC
The Bureaus, Inc.
The Cadle Company

Certified Collection Agency
Stoneleigh Recovery Associates
Halsted Financial Services, LLC
Certified Law Firm
Peroutka, Miller, Klima & Peters, P.A.

Associate Debt Buyer
Balbec Capital
International Debt Buying Consultants, LLC
dba Portfolio Management Group
Western States Financial Management, LLC

Associate Law Firm
Andreu, Palma, Lavin & Solis, PLLC
Bedard Law Group, P.C.
Mullooly, Jeffrey, Rooney & Flynn, LLP
Simmonds & Narita, LLP
The Law Offices of Ronald S. Canter, LLC
Tobin & Marohn
Vargo & Janson, P.C.

Affiliate
CBC Companies
CMS Services
Resource Management Services, Inc.
VeriFacts, Inc.

Individual / Non-members
Century Support Services, LLC
Dara Tarkowski
Mike Colby
Other

Certified Debt Buyer
Autovest, LLC
Cascade Capital, LLC
Converging Capital, LLC.
Credit Management Corporation
Debt Recovery Solutions, LLC
eCAST Settlement Corp.
Gemini Capital Group, LLC
HS Financial Group, LLC
Icon Equities, LLC
Indiana Receivables, Inc.
Investment Retrievers, Inc.
Jefferson Capital Systems
NCB Management Services, Inc.
Poser Investments, Inc.
Quantum3 Group, LLC
Troy Capital, LLC
United Debt Holdings
West Bay Recovery, Inc.

Certified Broker
DebtTrader.com

Certified Collection Agency
Frontline Asset Strategies, LLC

Certified Law Firm
Dobberstein Law Firm, LLC
G. Reynolds Sims & Associates, P.C.
Law Offices of Steven Cohen, LLC
Lawgix Lawyers, LLC

Associate Debt Buyer
ABC Collections LLC
Allen & Durrant Corp.
Alliance Credit Services, Inc.
Atlas Acquisitions
Convergence Acquisitions LLC
Emergent Business Group Inc.
Fair Collections & Outsourcing, Inc.
Genesis Recovery Services
National Check Resolution, Inc.
Oliphant Financial, LLC
PerSolve, LLC
Pharus Funding, LLC
Phoenix Asset Group, LLC
Premier Forty Financial, LLC
RIP Medical Debt
Universal Fidelity LLC

Associate Collection Agency
A-1 Collection Service
Adams London & Weiss, LLC
Allied Collection Services, Inc.
Alpha Recovery Corp.
Apple Recovery, LLC
Crisis Consulting and Marketing
DRS Processing, LLC
ExpertSource Global Services Private Ltd.
FMS, Inc.
Lockhart, Morris & Montgomery, Inc.
Midwest Recovery Systems, LLC
SIMM Associates, Inc.
TCF & Associates
Universal Fidelity LLC

Associate Law Firm
Butler & Associates, P.A.
Delev & Associates, LLC
Faloni & Associates, LLC
Harrington, Anderson & DeBlasio
Hinshaw & Culbertson (added 1-16)
Hudson Cook, LLP
Hunt & Henriques
Keith. D. Weiner & Associates,
Kirschenbaum & Phillips, P.C.
Law Offices of Daniel C. Consuegra, P.L.
Law Office of James R. Vaughan, P.C.
Linebarger Goggan Blair & Sampson, LLP
Malone Akerly Martin PLLC
McNall & Associates, P.C.
Pressler and Pressler, LLP
Rausch, Sturm, Israel, Enerson & Hornik, LLC
Schachter Portnoy, LLC, Attorneys at Law
Venable, LLP
Winn Law Group, APC

International Debt Buyer
CBV Collection Services Ltd.

Affiliate
Accelerated Data Systems
Acumen Solutions Group
ComplyARM, Inc.
Comtronic Systems, LLC
Contact Relief
Convoke, Inc.
Court Appearance Professionals
DAKCS Software Systems, Inc.
Debt Sales Partners
Diversified Consultants, Inc. (added 1-16)
Equifax, Inc.
Garnet Capital Advisors, LLC
FLOCK Specialty Finance
Harvest Strategy Group, Inc.
JS Technologies, Inc.
Metronome Financial, LLC
MicroBilt Corporation
MRS BPO, LLC
PCI Group Inc.
SAM, Inc. – Solutions for Account Management
TransUnion
ProVest LLC
Quantrax Corporation Inc.
Solutions by Text
The Blacklist Alliance
Vertican Technologies, Inc.
WebRecon LLC
Y2Payment Systems, Inc.

Individual(s) / Non-member(s)
Central Portfolio Control, Inc.
Consumer Asset Management
Dan Crowley
David Reid
FMA Alliance, Ltd.
Gatestone & Co. International Inc.
Greenberg Advisors
Jan Stieger
Mac Murray & Shuster, LLP
PayNearMe
Receivables Management Association
Seventy Two Pixels, LLC
Welch & Company, LLC

2018-06-14T18:34:09+00:00 May 21, 2018|RMA Update|