June 12, 2020: On May 28, 2020, the New York City Department of Consumer Affairs (DCA or Department) adopted new rules requiring debt collectors to inform consumers about whether foreign language access services are available and to retain records relating to language access services. Specifically, these rules require debt collectors as of June 27, 2020 to:
1) Request and record the language preference of the consumer before collecting or attempting to collect a debt. There is an exception to recording the language preference if the debt collector is not aware of the preference despite reasonable attempts to obtain it;
2) Inform consumers in the validation notice:
a. Of any language access services available, including whether the consumer may obtain from the debt collector a translation of any communication into a language other than English;
b. That a translation and description of commonly used debt collection terms is available in multiple languages on the Department’s website at www.nyc.gov/dca;
3) “Clearly and conspicuously” disclose on any website maintained by the debt collector that is accessible by the public:
a. Any language access services available, including whether the consumer may obtain from the debt collector a translation of any communication into language other than English;
b. That a translation and description of commonly used debt collection terms is available in multiple languages on the Department’s website at www.nyc.gov/dca;
4) File an annual report in a form made publicly available on the Department’s website, identifying, by language:
a. The number of consumer accounts on which an employee collected or attempted to collect a debt owed or due or asserted to be owed or due in a language other than English; and
b. The number of employees that collected or attempted to collect on such accounts in a language other than English;
5) Inform the client (in the case of third-party collection agency) or the purchaser (in the case of a debt buyer) or the attorney (in the case of a referral for litigation) of the consumer’s language preference, if known;
The rules also state that a “false, deceptive, or misleading representation” includes:
6) The false, inaccurate, or partial translation of any communication when the debt collector provides translation services; or
7) The false representation or omission of a consumer’s language preference when returning, selling, or referring for litigation any consumer account, where the debt collector is aware of such preference.
These rules have a number of operational challenges, in large part caused by the lack of written DCA guidance or interpretation of the rules’ provisions. Unfortunately, the rules were proposed and adopted during at the height of the COVID-19 crisis in New York City, with minimal public outreach. Additionally, RMAI does not believe that DCA had informed the debt collectors licensed by the City of the proposed rule. Not surprisingly, DCA received zero comments.
RMAI, working with a coalition of industry trade associations, submitted a letter to DCA on June 11, 2020, requesting that the implementation date be postponed and the comment period be reopened to allow the industry and the public an opportunity to comment on the rules. However, given that this request may be denied, RMAI is urgently advising all members who collect accounts belonging to New York City residents to adopt these requirements by June 27th or cease collections until you are able to operationalize these requirements.
RMAI recommends that you share this Member Alert with your legal counsel, compliance department, and operational staff to ensure the broadest level of knowledge of these new requirements. RMAI has a scheduled meeting with DCA staff on June 17th to discuss this matter and will provide additional guidance to the membership when available.
This alert is intended for members of the Receivables Management Association International and is for informational purposes only and is in no way intended to provide legal advice. Members are encouraged to consult with an attorney of their choice for legal advice concerning this matter.