RMAI Update December 2021

RMAI wishes you, your families and your business colleagues a happy holiday season. We look forward to seeing you at Annual Conference in February. We are excited for all the great work we can do together in 2022!

The big day came and went, and the accounts receivables industry continued on. What day? Well, the implementation date for Reg. F – November 30^th. After literally a decade of work, the industry has more clarity when it comes to consumer communications and a few safe harbors, but the new rule also raises additional issues of concern. RMAI is currently gathering the issues and strategizing the best way to address them.  Work is never done in Washington, D.C.!

On Capitol Hill, the House and Senate continue to be focused on the “mega” bills such as the continuing resolutions to keep the government open, the National Defense Authorization Act, Infrastructure 2.0 – with all discussions being held with the 2022 midterm elections looming in the background. RMAI continues to monitor the Hill ensuring that industry-related language is not slipped into any of the major pieces of legislation. So far, so good! Focus has really been in other areas of the financial services ecosystem including lending equality/access, environmental investments, and COVID recovery proposals.

RMAI monitors, tracks, and responds to legislative and regulatory activity in all 50 states as the need arises.  Backed by RMAI’s State Legislative Committee and a team of state lobbyists, RMAI educates legislators about the industry and the negative impacts or unintended consequences a bill would have on businesses and consumers. In 2021, RMAI continued with its impressive track record of success. The following are some recent developments at the state legislative level that might be of interest:

District of Columbia B 348 – The D.C. City Council heard public testimony from RMAI and other industry participants on Monday, November 29, 2021, on the adoption of a permanent law based on the text contained in temporary bill # 348. The bill would make permanent a number of provisions related to D.C.’s debt collection laws, including: (1) expanding the prohibitions on deceptive behavior; (2) prohibiting debt collectors from making more than three phone calls to a consumer in seven days; (3) requiring debt collectors to have complete documentation related to the consumer debt being collected; (4) requiring debt collectors to provide extensive data and documents to the consumer within 15 days of a written request; (5) requiring lengthy consumer notices informing consumers of their rights; (6) requiring debt collectors who enter into a payment schedule or settlement to provide a written copy of the schedule or agreement; (7) adding specific requirements for a debt collector when initiating a cause of action against a consumer for consumer debt; and (8) increasing damages that can be awarded to a consumer for violation of the act. [RMAI retained a D.C. lobbyist to advocate on behalf of the industry. RMAI and an industry coalition were successful in amending the emergency and temporary bills by: (a) adding exemptions to the call cap limitation, (b) eliminating pre-charge-off itemization of credit card debt; (c) eliminating the requirement for 24 months of statements; (d) eliminating unsolicited mailing requirements foisted upon debt collectors involving sensitive consumer data; (e) eliminating a requirement that the “original account number” be in the bill of sale; (f) eliminating mandatory punitive damages; and (g) eliminating a “per violation” penalty. More work needs to be done on the “permanent” bill. RMAI and a coalition of associations, debt collectors, and creditors are seeking an additional 25 amendments to the permanent statutory language. More to come!]

New York SB 5724-A – This bill would set post-judgment interest at 2% per annum and would apply this interest rate retroactively to judgments entered prior to its effective date. The bill would also require filing an amended execution with the county Sherriff’s office on all outstanding judgments which would state the new interest rate and the revised balance. [This bill has passed both houses and is awaiting the Governor’s signature. Obtaining a veto is unlikely given the politics of New York State. Consequently, RMAI is seeking a chapter amendment with the Governor’s office to remove the burdensome requirement that executions be refiled on all outstanding New York judgments.]

California – RMAI would like to remind the membership of the December 31, 2021 deadline to submit an application to become a licensed debt collector in California. Any application filed on or before December 31^st will allow you to continue debt collection activities in California until the application has resulted in either an approval or denial. If you file an application on or after January 1, 2022, you will not be able to perform debt collection in California until your application has been approved.

Eleventh Circuit Vacates Hunstein II; Will Rehear the Case En Banc
Hunstein v. Preferred Collection & Mgt. Servs., 29 Fla. L. Weekly Fed. C 582 (U.S. 11th Cir. 2021)

On their own initiative, the active judges of the U.S. Court of Appeals for the Eleventh Circuit have taken a vote and will hear the appeal, en banc, in Hunstein v. Preferred Collection and Management Services, Inc.

In addition, the Circuit issued an order vacating the Oct. 28 substituted opinion in Hunstein.  As an en banc appeal, the matter will now be considered by all the active judges of the Circuit Court.

The Oct. 28 opinion found that the debt collector’s use of a letter vendor to print and send a dunning letter to a consumer sufficiently alleged a violation of section 1692c(b) of the federal Fair Debt Collection Practices Act and that the complaint’s allegation that the information was disclosed to employees of the letter vendor was sufficient to allow the plaintiff to proceed in federal court. We discuss that opinion in detail here.

The effect of today’s order is that the Oct. 28 opinion is no longer “law,” and all the active judges of the Eleventh Circuit will consider the appeal anew.

Debt Buyer’s Motion to Compel Arbitration Denied by Calif. App. Court;  Creditor’s Affidavit Found Lacking
Chambers v. Crown Asset Mgt., LLC, 71 Cal. App. 5th 583 (2021)

The California Court of Appeal, Fourth District, recently affirmed a trial court’s denial of a debt buyer’s motion to compel arbitration, holding that an affidavit from the original creditor’s employee, used by the debt buyer to prove that an arbitration agreement had been mailed to the borrower, lacked foundation and violated the secondary evidence rule. The Court also concluded that the business records exception to the hearsay rule did not apply.

A borrower filed a putative class action lawsuit against a debt buyer based on alleged violations of the California Fair Debt Buying Practices Act. The debt buyer moved to compel arbitration. It relied on an affidavit from an employee of the original creditor who stated, in part, that the records showed the credit card account agreement containing an arbitration clause was mailed to the borrower and was not returned as undeliverable.

The borrower objected to the affidavit on various evidentiary grounds. The trial court sustained the objections and denied the debt buyer’s motion to compel arbitration and the debt buyer  appealed.

On appeal, the debt buyer contended that the trial court erred by excluding the affidavit because it was admissible under the secondary evidence rule (Cal. Evid. Code §§ 1521, 1523), and because the underlying documents qualified as business records (Cal. Evid. Code § 1271).

Section 1521(a) of the California Evidence Code provides: “The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following:

• A genuine dispute exists concerning material terms of the writing and justice requires the exclusion.
• Admission of the secondary evidence would be unfair.”

In addition, § 1271 states: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

• The writing was made in the regular course of a business;
• The writing was made at or near the time of the act, condition, or event;
• The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
• The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

Because the affidavit from the original creditor’s employee expressly referenced company records as the basis for her statement that the credit card account agreement had been mailed to the borrower, the Court reasoned that for the statement to be admissible, the underlying company records would have to be admissible.

The debt buyer argued that the underlying company records were admissible as business records under § 1271 because the affidavit stated that the employee “regularly review[s] and analyze[s] account records and transaction histories, including communications to and from cardholders.”  The debt buyer asserted that this statement showed that the original creditor’s “account records and transaction histories are made in the regular course of business.”

However, the Court held that the trial court could have reasonably found otherwise. The Appellate Court noted that although the employee stated that she regularly reviewed and analyzed the records, she did not say anything about their preparation. Nor did she describe the specific company records she relied upon to state that the borrower had been mailed the account agreement.

For the same reasons, the Court concluded that “the trial court could reasonably find that the [employee’s] affidavit was insufficient to establish that the unspecified records were made at or near the time of the act, condition, or event and the sources of information and method and time of preparation were such as to indicate its trustworthiness.”

The debt buyer also argued that the trial court erred by holding that the employee “had to attach the account records and transaction histories she reviewed.” However, the Court found no such mandate in the trial court’s decision and observed that the trial court “only referenced the lack of records as the reason for its close examination of the [consumer’s] affidavit, since that was the only evidence of mailing provided by [the debt buyer].” The Court held that the trial court was entitled to consider those circumstance, and noted that that attachment included “other records, including dozens of pages of [the consumer’s] account statements, but not any record of mailing.”

In addition, the debt buyer argued that the employee’s statements were admissible under section 1523(d) as a summary of a voluminous record. That statute provides that “[o]ral testimony of the content of a writing” may be admissible “if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.”

Rejecting that argument, the Court first noted that the debt buyer “did not argue in the trial court that the [employee’s] statements were admissible under this statute and subdivision.”  Additionally, according to the Court, the debt buyer “did not argue in the trial court that Anderson’s statements were admissible under this statute and subdivision.”

Finally, the debt buyer contended “the trial court erred by finding that [the employee] provided no information regarding the regular business practices or procedures of [the original creditor] with regard to the mailing of credit card agreements.”  The debt buyer relied on the employee’s statement that “[a]s part of [the original creditor’s] regular activities in the ordinary course of business, [the original creditor] maintains a record of any correspondence it receives from its cardholders, including requests to reject or opt out of an arbitration provision.”

The Court disagreed, explaining that the “statement discusses [the original creditor’s] regular practice of maintaining a record of whatever is received. It does not mention a practice of maintaining a record of whatever is sent. And, even if it did so, it still says nothing about what [the original creditor]  sends to its cardholders in the regular course of business, or when it does so.”

Accordingly, the Court affirmed the judgment of the trial court.

Support the Legislative Fund When You Renew Your Membership or Anytime
Show your company’s support of the Legislative Fund when you renew your membership for 2022 or anytime! Your RMAI membership gets you state and federal representation. Donate when you pay your renewal or use this link to donate to the Legislative Fund anytime.

RMAI actively monitors and responds to state and federal measures affecting how our members do business. Your contributions to the Legislative Fund extend the reach of RMAI’s advocacy across the country where and when needed. Read more about the Legislative Fund here.

The 2021 Legislative Fund infographic displays where donations have gone this year.  Every dollar goes to state and federal advocacy. 2021 has been another wild year for the receivables management industry, and 2022 is expected to be just as active.

FUTURE EDUCATION COMING SOON
As we wrap up 2021, we are diligently working to schedule our monthly webinars for 2022, including our regular Chief Compliance Officer Series, which will cover various updates on Reg F. Check out our Live Webinar page on the RMAI website for upcoming webinars.

COMPLETE YOUR EDUCATION CREDITS FOR INDIVIDUAL CERTIFICATION
View our Online Education selection and register for previously recorded webinars including the most recent webinar hosted on December 15^th, Navigating Uncomfortable Conversations sponsored by Wipfli.  All recorded monthly webinars are FREE to RMAI members and count toward new or renewal individual certification. (Special series and select required courses for certification are offered at a discounted member rate.)

SPONSOR WEBINARS
Get your business name and logo in front of a captive audience of your colleagues and RMAI members when you sponsor a webinar! View our Webinar Sponsorship Flyer for details and benefits of a sponsorship.

ANNUAL CONFERENCE EDUCATION
The 2022 Annual Conference will offer 14 hours of education for earning or renewing your certification or just staying current on the receivables management industry. Watch for your email and visit https://rmaintl.org/events/2022-annual-conference/ for details.

Contact Shannon Parod at [email protected] or 916.482.2590 with any questions.

Congratulations to our new and renewed Certified Receivables Compliance Professionals (CRCP) and new and renewed Certified Receivable Businesses (CRB)!

CRCP – New
Nick Michael – CBE Companies
Kristin LoVallo – Orion Capital Solutions

CRCP – Renewals
David Acheatal – Credit Corp Solutions
Jorge Garcia – PMGI
Ken Hamill – Resurgent Holdings
Patrick Lausen – Convergence Acquisitions
Chuck Riter – Emergent Business Group
Amanda Schenk – LawGistic Partners
Brett Soldevila – Security Credit Services
Tina Suppa – First Credit Services
Ryan Wall – Full Circle Financial
Adam Wertman – National Recovery Solutions
Steve Zahn – PRA GRoup

CRB – Renewals
Full Circle Financial
National Recovery Solutions
T & I Enterprises

GET CERTIFIED BEFORE THE NEW YEAR!
RMAI members have one more opportunity in 2021 to become a certified individual or certified business.  If you want to be certified by the end of the year, be sure to submit your application to [email protected]   by Friday, December 24^th.   

CRCP Requirements

• 24 education credits must be completed every two (2) years.
  • A minimum of 8 credits must be taken in a live classroom setting.
    • This requirement is currently being waived through 12/31/2021
  • A maximum of 16 credits can be earned via online webinars.
• 4 education credits must come from the Introductory Survey Course on Receivables Management.
  • Offered live at RMAI’s Annual Conference or as a pre-recorded webinar online.
• 2 credits must come from Industry Ethics
  • Offered at all RMAI conferences or as a pre-recorded webinar online.
• 1 credit must come from Diversity, Inclusion & Elimination of Bias
  • Offered live at RMAI’s Annual Conference, Executive Summit, or as a pre-recorded webinar online
• Complete the CRCP Application and submit with proof of completion of credits.

CRB Resources

• 7 Steps to Earning Certified Receivables Business – includes pricing details
• Governance Document (Appendix A)
• CRB Application
  • Provide proof of E&O Insurance (Standard A2)
  • Register on the CFPB Complaint Portal (Standard A8)
  • Update your company website(s) (Standard A14)

CRV Resources

• 7 Steps to Earning Certified Receivables Vendor – includes pricing details
• Governance Document (Appendix B)
• CRV Application
  • Requires a Pre-Certification Audit prior to submitting application.
  • Provide proof of E&O Insurance (Standard 104)
  • Update your company website (Standard 106)

View all certified businesses and vendors
View all certified individuals.
View educational requirements for certified individuals.

For questions about certification, contact RMAI at 916-482-2462 or email [email protected].

RMAI’s leadership cultivates relationships within the receivables management industry to expand business opportunities for members.

Christmas Observed | December 24-25, 2021 – RMAI Office Closed

New Year’s Observed | December 31, 2021 – RMAI Office Closed

RMAI 2022 Annual Conference | February 7-10, 2022

RMAI 2022 Executive Summit | August 2-4, 2022

Thank you to our December 2020 – December 10, 2021 Legislative Fund Contributors!

Diamond $25,000
Cavalry Investments, LLC

Crown Asset Management, LLC

Portfolio Recovery Associates, LLC

Resurgent Holdings, LLC

Titanium $15,000

Velocity Portfolio Group, Inc.

Platinum $10,000

C&E Acquisition Group, LLC/Diverse Funding Associates, LLC/DNF Associates

CKS Financial

Midland Credit Management

National Credit Adjusters

Unifund CCR LLC

Gold $7,500

Everchain

Silver $5,000

Collins Asset Group LLC

Digital Recognition Network

NCB Management Services, Inc.

Oliphant United, LLC

Pharus Funding, LLC

Superlative RM

U.S. Equities Corp.

Bronze $2,500

Absolute Resolutions Corp.

Investment Retrievers, Inc.

National Loan Exchange, Inc.

RAzOR Capital, LLC

SAM, Inc. – Solutions for Account Management

Spire Recovery Solutions, LLC

Synergetic Communication, inc.

Brass $1,000

Andreu, Palma, Lavin & Solis, PLLC

Bayview Solutions, LLC

Equifax, Inc.

FLOCK Specialty Finance

Halsted Financial Services, LLC

Invenio Financial, a Phillips & Cohen Associates Company

Jormandy, LLC

Kino Financial Co., LLC

Resurgence Capital, LLC

Stenger & Stenger P.C.

The Cadle Company

TrueAccord

United Holding Group

VeriFacts, Inc.

Other

Accelerated Data Systems

Acctorp International, Inc.

Action Collection Agencies, Inc.

Aldridge Pite Haan, LLP

Alpha Recovery Corp.

Arko Consulting LLC

ARM Compliance Business Solutions

Attunely Inc.

Ballard Spahr, LLP

Beam Software

Business and Professional Collection Service, Inc.

Butler & Associates, P.A.

Capio

Capital Collection Management, LLC

Cascade Capital, LLC

CMS Services

Collins Asset Group

Commercial Credit Group Inc.

Complete Credit Solutions

Comtronic Systems, LLC

Converging Capital, LLC

Convoke, Inc.

Credit Control, LLC

Credit Management Corporation

CSS Impact!

D & A Services, LLC

D. Scott Carruthers, APLC

David Reid

Delev & Associates, LLC

Delta Outsource Group, Inc.

Dynamic Recovery Solutions

Faloni Law Group, LLC

Financial Recovery Services, Inc.

First American Acceptance Co., LLC

First Solutionis Debt Management, LLC

FMS, Inc.

FocusOne, Inc.

G. Reynolds Sims & Associates, P.C.

Gaskell & Giovannini, LLC

Genesis Recovery Services

Guglielmo & Associates, PLLC

Harvest Strategy Group, Inc.

Hunt & Henriques

Indiana Receivables, Inc.

International Debt Buying Consultants, LLC

Keith D. Weiner & Associates Co., LPA

Kelly Knepper- Stephens

Kirschenbaum & Phillips, P.C.

Klima, Peters, & Daly, P.A.

Law Offices of Steven Cohen, LLC

Lippman Recupero

Lockhart, Morris & Montgomery, Inc.

London & London

Malone Frost Martin PLLC

Mercantile Adjustment Bureau, LLC

Metronome Financial LLC

Monarch Recovery Management, Inc.

Mullooly, Jeffrey, Rooney & Flynn, LP

National Check Resolution, Inc.

National Enterprise Systems, Inc.

National Recovery Associates

National Recovery Solutions

NDS, LLC

Nelson & Kennard

Neustar, Inc.

NRA Group, LLC

Ontario Systems, LLC

Orion Capital Solutions, LLC

Palinode, LLC

PCI Group, Inc.

PerSolve, LLC

Phin Solutions, Inc.

Poser Investments, Inc.

Premier Forty Financial, LLC

Pressler, Felt and Warshaw, LLP

Provana

ProVest

Quantum3 Group, LLC

Ras LaVrar

Rausch, Sturm, LP

Repay

Resource Management Services, Inc

RevSpring

RIP Medical Debt

Security Credit Services, LLC

Simmonds & Narita LLP

Slovin & Associates

Solutions by Text

Stone, Higgs & Drexler

Superlative RM

Troy Capital, LLC

Universal Fidelity LP

US Mortgage Resolution, LLC

USI Solutions, Inc.

VanDerHeyden Law Office PA

Vargo & Janson, P.C.

Velo Law Office

Venable LLP

Venandi Systems, LLCVerifacts, Inc.