RMA Update – July 2017

State Legislative Activity

RMA is currently tracking more than 160 bills at the state level that impact the receivables industry in both positive and negative ways. Here are a few noteworthy bills that have had recent activity:

California SB 16 – This bill would restrict garnishment orders for the collection of private student loans. [RMA and its California lobbyist are working with an industry coalition in opposition to this bill.]

California SB 298 – This bill would exempt the first $4,800 dollars in a deposit account from bank levies as a means to satisfy court-ordered judgments. [RMA and its California lobbyist are working with an industry coalition in opposition to this bill.]

Maine LD 1199 (HP 836) – This bill was enacted into law and takes effect on January 1, 2018. The law requires debt buying companies to: (1) possess certain data and documents prior to collecting or attempting to collect a debt and (2) provide specific data and documents in the complaint and to the court prior to judgment. See related RMA member alert and press release.

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 lobbyist has been retained to oppose the bill in its current form.]

Oregon HB 2356 (introduced at the request of the AG) – This bill was enacted into law and while certain provisions take effect immediately, the provisions relating to data and documents take effect on January 1, 2018. The law requires debt buying companies to: (1) provide specific data and documents in the initial pleadings and to the court prior to judgment; (2) maintain specific policies and procedures; (3) obtain a license from the state to operate a debt buying company; (4) not sell debt to an unlicensed buyer; and (5) obtain E&O insurance. See related RMA member alert.

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

Court Decisions

The following are noteworthy court decisions recently handed down that may impact RMA members:

TCPA Consent Given in Contract Cannot Be Subsequently Revoked, Says Second Circuit 
Reyes v. Lincoln Automotive Financial Services, Second Circuit Court of Appeals, No. 16-2104 (June 22, 2017)

The Second Circuit Court of Appeals affirmed the decision of a trial court holding that the federal Telephone Consumer Protection Act (TCPA) does not permit a person to revoke TCPA consent that is a term of a contract. Noting that the 2015 FCC Ruling (In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7993-94 (2015)) provides that a consumer can revoke prior consent under the TCPA, the court found revocation is not possible when consent to be called is given “as bargained-for consideration in a bilateral contract.”

Third Circuit Serves Up a Double Fault in a Crushing FDCPA and TCPA Decision
Daubert v. NRA Group, LLC, Third Circuit Court of Appeals, Nos. 16-3613 and 16-3629 (July 3, 2017)

Under the federal Telephone Consumer Protection Act (TCPA), the trial court ruled that a collection agency’s telephone system used an automated dialing system to call the consumer to collect a medical debt without prior consent. Even though the consumer appears to have provided his cell phone number to the hospital where he incurred the medical debt, the Third Circuit said “more is required” than the simple provision of the cell phone number to an intermediary hospital who was not a creditor. Distinguishing decisions from the Sixth and Eleventh Circuits (Baisden and Mais, respectively), the Third Circuit pointed out that in those cases the hospital intake forms gave permission to release the consumer’s information for payment purposes. Here, there was no evidence that the consumer released his information to be used for payment purposes.

Additionally, under this ruling, a debt collector cannot rely on a trial court decision to escape federal Fair Debt Collection Practices Act (FDCPA) liability. In this case, the debt collector had made operational changes to its lettering to use QR (Quick Response) codes. Two trial court decisions found that the use of QR codes did not violate the FDCPA. When the debt collector was later sued for using QR codes on its letter, the trial court here found that it did violate the FDCPA, but the debt collector was exempt from liability under the FDCPA’s bona fide error exception because it relied on earlier trial court decisions. The Third Circuit disagreed finding that a bona fide error cannot be premised on a mistaken legal interpretation of the FDCPA, even when it is premised on trial court decisions.

9th Cir. Amends, Reinforces Its Ruling that Foreclosure Trustees Are Not FDCPA ‘Debt Collectors’
Ho v. ReconTrust Co, Ninth Circuit Court of Appeals, No. 10-00741 (May 22, 2017)

The U.S. Court of Appeals for the Ninth Circuit recently amended its opinion in Ho v. ReconTrust Co., maintaining and affirming its prior ruling that the trustee in a California non-judicial foreclosure did not qualify as a debt collector under the federal Fair Debt Collection Practices Act (FDCPA). The amendments to the prior ruling among other things add that a California mortgage foreclosure trustee meets the FDCPA’s exclusion from the term “debt collector” for entities whose activities are “incidental to … a bona fide escrow arrangement” at 15 U.S.C. § 1692a(6)(F). Splitting from the Fourth and Sixth Circuits and ruling against the position argued by the CFPB in an amicus curiae brief, the Ninth Circuit explained that the California foreclosure trustee defendant was not attempting to collect money from the plaintiff when it sent her a notice of default and notice of sale so that its activities did not qualify as debt collection. This holding affirms the leading case of Hulse v. Owen Federal Bank, 195 F. Supp. 2d 1188 (D. Or. 2002), which has been the subject of much debate concerning whether non-judicial foreclosure constitutes debt collection.

Education

RMA offers an array of educational programs for those seeking their Certified Receivables Compliance Professional (CRCP) designation or wanting to gain additional professional education. Educational content is available via our website in a live monthly webinar format and prerecorded sessions that are available 24/7.

 JULY WEBINARS

• CCO: What Does a Compliance Officer Need to Know About Information Security? – Thursday, July 20, 2017
• Putting a Succession Plan In Place – Wednesday, July 26, 2017
• Recorded Webinars: Did you miss a live webinar? No worries, they are all recorded and available on our website.

CALL FOR PRESENTATIONS
RMA is now accepting proposals for the upcoming 2018 Annual Conference in 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 21st Annual Conference! Submissions due by Monday, July 31, 2017!

Access the proposal form here and send a completed copy to Michelle Wren at mwren@rmaintl.org.

Certification

New Certification Standards Adopted
Version 5.1 of RMA’s highly regarded Receivables Management Certification Program has been approved by the Certification Council and takes effect on August 1, 2017. RMA will continue to accept company applications under version 5.0 until July 28, 2017. For those certified under version 5.1, the most significant change is the addition of data and document requirements when purchasing judgments. More information on the changes was contained in the 30-day comment period member alert published in May.

CONGRATULATIONS
Congratulations to our newly certified individuals and company!

Individuals
James MacGuire, Apple Recovery, LLC
Antonio Zuniga, Oak Shore Capital, LLC
Jayson Durrant, NDA Investments
James Archer, Heritage Funding, LLC

Company
Admin Recovery, LLC

View all certified companies and certified individuals on our website.

Certification Help:  Contact Michelle Wren at (916) 482-2462 ormwren@rmaintl.org.

New Members

(from May 13, 2017 – June 14, 2017)

Welcome new RMA members!

The RMA membership continues to grow. Welcome to our newest members:

• ANWD Credit – Associate Debt Buyer – Texas
• Faloni & Associates, LLC – Associate Law Firm – New Jersey
• PMGI, LLC – Associate Debt Buyer – California
• Wilco Finance, Inc. –  Originating Creditor – North Carolina

Read more about these members and other members on theMember Search page.

Get Your Logo Here!
Show your support of the industry and your dedication to excellence by featuring the RMA member logo on your website, email signature, or elsewhere. To opt in to use the membership logo, please complete and sign the logo reuse form and send it to Barbara Souza at bsouza@rmaintl.org. The member logo will be sent to you upon receipt of your completed form.

Executive Summit

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