by John H. Bedard, Jr. - Bedard Law Group, P.C.
Are you considering an e-mail campaign in your
arsenal of collection strategies? Do you
accept inbound e-mail from consumers? Do
you include e-mail addresses on your web site?
If you are a collector and not thinking about these things, you
may be missing some opportunities. You
may also be overlooking some risk.
Although reported case law addressing e-mail in the context of consumer
collections is scarce, the law is beginning to develop, albeit slowly. Communicating with consumers via e-mail
raises compliance challenges; however, these challenges are not
insurmountable. Here are some cases
which discuss e-mail in the collection context:
Pacheco v. Joseph McMahon
Corp., 698 F. Supp. 2d 291 (D. Conn.
2010). In Pachecho, a collector
sent an e-mail to a consumer to collect a debt.
Included in the body of the e-mail was the statement, “ . . . Your
balance will be in excess of $2,000, before legal fees. Give me a call. . .” The e-mail did not include any profanity, was
not abusive, and was otherwise courteous. Like most e-mail, the tone was
informal and casual. However, the
consumer was located in Connecticut. Connecticut
law puts certain restrictions on the ability to collect attorney fees. The consumer brought suit accusing the collector
making misrepresentations about the debt because of the reference to “attorney
fees” in the e-mail. The court agreed,
granting the consumer’s motion for summary judgment. The court found that the reference to
attorney fees was a false representation about “character, amount, or legal
status” of the debt because under Connecticut
law, attorney fees are restricted.
Stating that the consumer would be liable for attorney fees was false.
Silver v. Law Offices of Howard
Lee Schiff, P.C., 2010 U.S.
Dist. LEXIS 76072 (D. Conn.
July 28, 2010). In Silver, the
consumer hired an attorney after receiving communication from the
collector. Instead of calling the
collector or sending a letter advising of attorney representation, the
consumer’s attorney sent an e-mail to the collector. The e-mail advised the collector that the
consumer was now represented by counsel.
After the e-mail was sent, the collector called the
consumer. The call occurred at 6:09p.m.
on the same day the e-mail was sent. The
collector did not open the e-mail until 6:30p.m., which is when the collector
learned of the attorney representation.
The consumer sued the collector for contacting a represented
consumer. The court found no violation,
explaining that the statute prohibits communication with the consumer if the
collect knows or has knowledge of or can readily ascertain the
attorney’s name and address. Since the
collector did not check his e-mail until 6:30p.m., he did not know or have
knowledge of the attorney representation; therefore, the phone call did not
violate the prohibition on communicating with represented consumers.
Lakefish
v. Certegy Payment Recovery Servs., 2011 U.S. Dist. LEXIS 36475 (D. Or. Apr.
4, 2011). In Lakefish, the
collector sent a consumer the validation notice in writing. In response, the consumer sent an e-mail to
the collector requesting the name and address of the original creditor. The validation notice requirement
specifically includes a requirement to send the consumer “a statement that,
upon the consumer's written request within the thirty-day period, the
debt collector will provide the consumer with the name and address of the
original creditor, if different from the current creditor.” The court found that the inbound e-mail from
the consumer requesting the name and address of the original creditor was
sufficient to trigger the collector’s obligation to respond or stop
collecting. Ultimately, the court found
there was no violation of the validation request because the collector properly
responded to the e-mail.
E-mail is ubiquitous in today’s economy. Consumers and collectors alike want to
communicate via e-mail. It’s easy,
low-cost, convenient, and to use a trendy buzz-word, it’s “green.” The anachronistic FDCPA; however, creates
compliance challenges which ultimately hurt consumers when collectors are
reluctant to step into the 21st century e-mail world. Collectors should not undertake
an e-mail campaign lightly. It requires
a thoughtful workflow plan, policies and procedures, and buy-in from the
highest levels of the organization. And
of course, get your compliance people involved in the process!
John H. Bedard, Jr.
Bedard Law Group, P.C.
2810 Peachtree Industrial Blvd., Suite D
Duluth,
GA 30097
678-253-1871 ext. 244
