You may already have heard that the Consumer Financial Protection Bureau wants to allow debt collectors to contact you as much as they want by text or email.
What you may not know is that the bureau’s proposal also includes a provision that would change how debt collectors inform you of your rights, allowing them to send a link to a web page rather than mail you a full rundown of safeguards.
A federal appeals court recently ruled that this isn’t good enough — that sending links via text or email wouldn’t comply with the disclosure requirements of the Fair Debt Collection Practices Act, which prohibits collectors from harassing or tricking consumers.
Such links provide “a digital pathway to access the required information,” the 7th Circuit Court of Appeals concluded. This can’t be seen as a true disclosure of rights “when it merely provides a means to access them.”
I asked the CFPB what it plans to do. Will it change its proposed rule? Will it take the matter to the U.S. Supreme Court?
No one got back to me.
The rule change highlights how the CFPB under the Trump administration has become much friendlier to businesses — even traditionally unsavory industries such as debt collectors and payday lenders — and less eager to ensure fair treatment of consumers.
Why is disclosure-by-link such a bad idea? Because the Federal Trade Commission and other government agencies have spent years educating consumers about the dangers of clicking on links from unfamiliar sources.
Such links can lead to phishing attacks or malware being downloaded into your computer or hand-held device. In a worst-case scenario, all your data could be encrypted by a hacker and you could be forced to pay a ransom to get it back.
Debt collectors, therefore, could gain an edge since many consumers wouldn’t click the link and thus would remain in the dark about their rights.
“They’d be making a disclosure, but basically, they would be sending it out into vapor,” said Andrea Bopp Stark, a staff attorney with the National Consumer Law Center. “It would be a phantom disclosure.”
The CFPB has been doing its darnedest to play down the impact of its looser approach to debt collection.
As I reported in June, it described the move merely as “the first proposed rulemaking to implement the requirements and prohibitions applicable to debt collectors under the Fair Debt Collection Practices Act since it was passed in 1977.”
That’s a spectacularly bland way of saying debt collectors would be able to inundate consumers with an unlimited number of texts and emails, as long as recipients don’t opt out from electronic communications.
And people might not understand they have a right to opt out if they don’t click the link to their legal safeguards — which they probably won’t do because the FTC, among others, has told them not to.
That would mean they’d never learn debt collectors can’t call you at work if you tell them not to, or that they can’t call before 8 a.m. or after 9 p.m.
Not clicking the link would mean people would never know they have a right to demand proof of an obligation, and that they have a right to tell the collector to stop contacting them.
I asked the CFPB if its rule change puts consumers at a disadvantage by reducing the likelihood they’d be informed of their rights. Again, no one got back to me.
Stark at the National Consumer Law Center said there’s no mistaking that the proposed rule would undermine the disclosure requirement passed by Congress more than four decades ago.
“If people don’t click the hyperlink — and they’ve already been told not to because it could be a scam — they won’t know their rights,” she said.
Worse, some consumers may simply ignore the texts or emails from debt collectors, believing, not unreasonably, that they’re bogus.
Stark said this could result in collectors filing lawsuits, receiving summary judgments in court because consumers didn’t defend themselves and then garnishing wages.
“It’s just astounding,” she said.
The CFPB is aware of the potential harm to consumers. If you sift through the more than 500 pages of the proposed rule, you come across the following:
“Federal agencies have advised consumers against clicking on hyperlinks provided by unfamiliar senders. ...Consumers may be likely to follow safe browsing habits and not click on a hyperlink in an initial communication from an unfamiliar debt collector.”
The bureau also acknowledges that “receiving disclosures electronically rather than in the mail may affect the likelihood that borrowers notice and read the disclosures.”
Yet despite all that, “the bureau does not believe that consumer comprehension of an electronic notice will be different from a paper notice.”
All appearances to the contrary notwithstanding.
Is there any upside to these changes? Sure, if you’re a debt collector.
Aside from the advantage of dealing with less-informed consumers, the CFPB says collectors will save a lot of their own money as they try to shake loose money from you and me.
The proposed rule estimates that debt collectors now spend between 50 cents and 80 cents for each of their roughly 140 million mailed communications annually, “whereas the marginal cost of sending the same communication by email would be approximately zero.”
Not surprisingly, the Assn. of Credit and Collection Professionals, also known as ACA International, thinks the proposed changes are pretty great.
The industry group said it “applauds the bureau for seeking to incorporate commonly used modern technology and clearer guidelines for its use.”
Interested parties — including consumers — have until Sept. 18 to make their thoughts known to the CFPB.
You can do so online at Regulations.gov or by sending an email to 2019-NPRM-DebtCollection@cfpb.gov (make sure you include “Docket No. CFPB-2019-0022" in the subject line).