Defining the Definitions
Now that I am officially a Certified Receivables Compliance Professional through Receivables Management Association International (RMAI), I am aware that it is even more important to ensure that I and my business are always fully compliant with all laws affecting our industry. Of course, receiving my certification will not result in any big changes in the way we operate at Tag Process, since compliance was always a cornerstone of our business; however, obtaining RMAI certification proves how serious Tag Process is about compliance and best practices in our industry. In this webinar, three of the best in the business of defending our industry present examples and data from cases to help guide us towards best practices moving forward.
Keeping Records as Best Practice
We’ll start with some hard-hitting questions. Can you prove, for instance, whether your ATDS (automatic telephonic dialing system) only calls cell phones? Do your call records provide the ability to document what numbers your ATDS called and when? If not, these could be serious mistakes that cost you, in the long run, should a litigious plaintiff receive phone calls that you can’t prove any of the following: that you were indeed a live person, you have a record of prior permission to call, and/or the number was assuredly listed as a cell. Having data to support your story or case is crucial! A keen awareness of how, not only your telephone dialing system works but also keen records’ maintenance on all aspects of your consumer contact (calls, letters, electronic interactions, etc.) will provide insulation for any future possible problems. Data collection and record maintenance are our industry’s version of an ounce of prevention being worth a pound of cure.
Another example of data that needs to be kept and detailed records maintained is time-barred debt and any resulting lawsuits from these. For example, say a plaintiff has filed a class action under the FDCPA (Fair Debt Collection Practices Act) alleging that your company had a pattern of filing suits on time-barred debts; however, you have a policy that expressly prohibits such suits. Obviously, this isn’t something you did, you think. However, having a policy isn’t enough if you have to prove in a lawsuit that your business always complies with your policy. One way to determine whether you have followed your policy on time-barred consumer debts is your paper trail of the time-barred debt disclosures you’ve sent. Not only having the records of these disclosures, but making sure that the language used complies with CFPB (Consumer Financial Protection Bureau) policy and statutes is critical. Keeping accurate records and ensuring compliance in all consumer communication will go miles in insulating your company from litigious claims, saving time, money, headaches, and calls with your attorney.
Contact Consent and Settlement Letters
Any contact with consumers should be documented, as stated above. If a consumer says you’ve sent a concession letter stating they can pay less but request the full payment when they do call in, do you have data, not just from their claim, but historical records of settlement offers, amounts paid, accommodations for consumers, etc.? Again, and it can’t be stressed enough: best practices don’t just include policies stating that you will honor settlement offer letters, you need actual documentation of the contact letters, the resulting amounts paid, any accommodations offered, and any other relevant consumer contact instances.
Keeping a detailed paper trail also applies to contact consent documentation. If a consumer sues you stating that you do not have consent to contact them on their cell phone, do you have that record of consent? Do you have the latest statutes and regulations regarding consent revocation on file as well as knowledge of these to ensure that your contractual consent still applies? Any and all documentation you have will assist any case brought against your business. If you ask for consent digitally, It is very important to ensure that any opt-in regarding consent on your business’s website is maintained in a meaningful way and can be accessed later.
Meaningful Involvement by Attorneys
In another example, say the plaintiff has filed a class action alleging that your attorneys were not meaningfully involved in the files on which they filed suit for your company. Does the data and information you have on hand support the meaningful involvement of your attorneys in any actions they have taken on your behalf? Are you (and your attorneys) aware and well-versed in the state of the law regarding attorney involvement, including any new rulings for your state or on the federal level? The answers to these questions should obviously be yes and ensuring you and your attorney are on the same page regarding all actions for your business is crucial. In this situation, communication is key as well as adequate record keeping. You’ll need proof of your involvement in any document sent directly by your attorneys to consumers. This can be accomplished via a digital paper trail on your computer or some form of digital encryption. Additionally, there is safe harbor language drafted by the CFPB that can also be utilized by your attorney to assist in drafting documents that will theoretically be less problematic for litigious consumers to document their meaningful involvement.
Summary
These examples are scenarios that have happened to businesses in our industry. We’ve all learned over the years, and the defense attorneys for our industry also routinely mention, there is no lack of creativity regarding the consumer complaints against our industry. The data and scenarios presented here outline specific situations in which ensuring data collection, record keeping, and information storage are important. Applying these principles to all consumer-facing communications is crucial for not only compliance but continued operations without constant conundrums. Thus, while it is interesting to hear about these specific instances of suits against businesses in our industry, the key take-away point is to insulate your business against these claims by maintaining flawless records of contact and keeping these data easily and readily accessible. Similar to issues with data breaches, keeping your records and data safe, secure, and organized follows the age old adage of “better safe than sorry.” These are especially wise words in our current litigious society. Luckily, working with Tag Process as a service provider helps insulate your business from problems since we focus so heavily on maintaining best practices and constant compliance.
Disclaimer
This information is not legal advice and may not be used as legal advice. Information discussed or contained is not an explanation of the law and is presented for educational purposes only.
