New York State Department of Financial Services Implements Debt Collection Regulations

New York State Department of Financial Services Implements Debt Collection Regulations

The state of New York recently enacted new debt collection regulations, 23 NYCRR 1, for third-party debt collectors and debt buyers.

Not to be confused with the New York City Department of Consumer Affairs, the New York State Department of Financial Services (“NYSDFS”) now requires specific disclosures on all notices to consumers in New York State.  Yes, that means collectors are potentially required to comply with both regulations when collecting in New York City.

Review 23 NYCRR 1 here:

http://www.dfs.ny.gov/legal/regulations/adoptions/dfsf23t.pdf

NYSDFS Responds to FAQs 

Helpfully, on February 9, 2015, NYSDFS published answers to FAQs which includes, among other points, valuable information about how to simultaneously comply with the NYSDFS regs and the New York City requirements. We highly recommend you review the NYSDFS Responses to FAQs very carefully.  Please contact the firm with any questions.

Review the FAQs and NYSDFS answers here:

http://www.dfs.ny.gov/legal/regulations/adoptions/faq-debt-collect.htm

Another critical point raised in the FAQ responses appears in response number 2.  NYSDFS states some collectors may be entirely exempt from the new regulations for collecting debts where credit was “provided by a seller of goods or services directly to a consumer exclusively for the purpose of enabling the consumer to purchase consumer goods or services directly from the seller.”  Please contact the firm to discuss how this exemption may or may not apply to your business.

Liability

NYSDFS regulators may impose civil penalties of up to $5,000 per offense for failure to comply with the new regulations.

Consumers do not have a private right of action for a collector’s failure to comply with the NYSDFS regulations.  We may see consumer claims that a collector’s failure to comply with NYSDFS requirements constitutes an FDCPA claim.  It is common for the consumer bar to “bootstrap” claims whereby a NYSDFS claim would allegedly constitute a violation of the FDCPA.  There are cases on both sides of the claim that a violation of state law/regulation constitutes (by itself) a violation of the FDCPA.

The Eleventh Circuit has said that a “violation of state law may support a federal cause of action under the FDCPA.” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010).  However, the Eighth Circuit has clarified that “the FDCPA was designed to provide basic, overarching rules for debt collection activities; it was not meant to convert every violation of a state debt collection law into a federal violation. Only those collection activities that use any false, deceptive, or misleading representation or means, including the threat to take any action that cannot legally be taken under state law, will also constitute FDCPA violations.” Carlson v. First Revenue Assurance, 359 F.3d 1015, 1018 (8th Cir. 2004) (internal quotations omitted).

As long as the collector makes a legitimate effort to comply with the NYSDFS regulations, the Eighth Circuit reasoning coupled with the FDCPA Bone Fide Error defense provides viable defense arguments.

The firm can assist you in reviewing the new disclosure requirements and updating your compliance management department.  Please contact Chad or Bess if you would like more information. (chad.echols@theecholsfirm.com or  bess.lochocki@theecholsfirm.com)

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