Debt Collection: Something Different This Way Comes

By some estimates, more than a third of the adult population in the US is going to come in contact with a debt collector at some point. If you have never had to deal with debt collector before, your only exposure to the industry could be from the media, and perhaps by way of this hilarious anecdote about debt buying from John Oliver. Or, you may have tuned in to random soundbites on the nightly news promoting wariness about debt collection scams that flare up.

Count yourself lucky if you have missed out on financial setbacks and have not had to contend with collection issues. Count yourself luckier still if your contact with the legitimate collection side of the debt and credit industry was only in the last couple years.

You are the luckiest if you first come in contact with a debt collector in the near future, say 12 or more months from now. I say this with confidence because the wild west days of debt collection are over. Some people just have yet to catch up with this fact.

Whats different about debt collectors today.

I’ve discussed much needed changes in the debt collection marketplace in the past, but you may be surprised (I still am somewhat) that we are fast entering a time where debt collection is highly civilized (said with a lilt in my voice from Old Spice commercials).

Because of rules and law changes at the state level, and also due to CFPB investigation and enforcement actions against banks and debt collectors, there is much that has changed over the last few years in the debt collections landscape. I want to touch on some of the most dramatic developments that have already influenced collections first, then wade into what debt collections may look like as soon as next year.

Debt collectors made changes in some of the following ways:

• Starting with the recession, and record credit card default rates, debt collectors at banks and at the larger third party agencies took on a “we are here to help the customer” tone. This stood in stark contrast to the more normal stern sounding, stress the customer out – your full balance is do right now – debt collection tone that existed prior. Record default rates are no longer, but the change in tone of debt collectors largely stuck.
• Legitimate debt collectors are far more compliant with existing rules and laws than ever before. Things like not calling before 8 am or after 9 pm, or the frequent calls to family and neighbors under the auspices of “locating the consumer” (when they already confirmed your address and talked to you on your phone 3 days ago) happen only seldom, and when they do, it is likelier today you are dealing with a blatant collection scam (I have another article coming next week about the rash of scams I am seeing of late).
• Banks are putting collections agencies they work with under much higher scrutiny and auditing them stringently. You really have to have your ducks in a row as an agency to get accounts from anyone other than small local creditors and service providers. This has cleansed some of the questionable actors from dialing for dollars all by itself.
• Banks have to follow new OCC guidance about who they may sell accounts to (transferring the legal rights to unpaid debts is quite normal since the 1990’s). This guidance from a primary regulator like the OCC has been compounded by federal regulatory action by the CFPB against major banks, debt collectors, and debt buyers. The affect of this has been less debt for sale, though that market may be thawing. More on this development below. But suffice to say that the John Oliver video I linked to above would have been much more applicable, say 6 years ago, than today. While I laughed throughout the video, most of the concerns it raised are already managed by state and federal regulators in just the last few years, and will be even more so in the months ahead. While buying a portfolio of really old, out of statute to sue in court medical bills is unfortunately still possible, you would not be able to buy fresh default credit card debt how Oliver did.

Debt collectors and new realities.

There are only a few states with what I would consider excellent consumer protections from certain debt collector practices. California recently enacted the Fair Debt Buying Practices Act, and New York is getting serious about how collectors interact with its residents. There are several states considering legislation to further protect people from questionable collection practices. Regulators have already made meaningful impacts by issuing new guidance to banks, and through existing and pending enforcement actions.

Regulatory actions from the CFPB against the largest credit card issuers, debt buyers, and a large collection law firm, set beside new bank guidance by the OCC regarding how banks sell or place debt for collection, have combined to give somewhat clearer visibility of more formal changes to come that bring a national impact with them.

Some existing actions prevent the sale of debts that cannot be properly documented to the standard a court may set, or that have been part of a bankruptcy filing. Other actions prevent how or when someone will be sued by a debt collector.

Last week the CFPB announced an upcoming July 28th field hearing about a required small business impact study regarding proposed debt collection rules. We should get to see more details about those proposed rules for the first time in nearly 2 years.

Here is a wish list of a sort that I hope to see changed nationally, and with all players, when it comes to debt collection.

Debt Documentation

Similar to the provision of the FDBPA in California I mentioned above, we need every flavor of debt collector (whether banks collecting post charge off, a collection agency, collection attorney, or debt buyer) to provide every consumer making payments an accurate accounting of how those payments are being applied.

It is ridiculous the trouble people express to me about making payments to a law firm or collection agency, and sometimes for years, without any invoicing and billing system to reflect the amount remaining owed. They try in vain to get some kind of accountability and get nowhere, and that is because it is often not required. It is shameful we have gone as long as we have without this fundamental math being readily provided.

I believe legitimate collections over payment installments would actually increase the more the consumer could see what is left owing. And the debt collection industry as a whole would gain a huge bump in credibility if accurate payment invoicing were the norm.

And while we are on the subject of debt documentation, it should be required that all debt collectors (banks too) are required to send consumers an outline of what they are agreeing to accept as payments, or settlement in full, prior to the consumer remitting the first monthly payment, or full settlement amount, on charged off debts. This practice became widely adapted by the entire industry during the recession, but there are still notable exceptions. Synchrony, a huge branded credit card issuer, still messes with consumer confidence by delaying documentation,  and Portfolio Recovery Associates, the second largest debt buyer in the nation, appears to think its okay too.

If I am the OCC I would want to know why Synchrony values this practice. And if I was thinking about selling debt to a debt buyer like PRA, I would think twice until they got this ridiculous “no soup for you” policy in line with what they partly already have to do for newly purchased debt in California.

Post Charge Off Interest

Just because you can does not mean you should. Banks charging default interest when accounts go bad is part of the carrot/stick principle of lending. It is also part of the “what the crap… how is making an un-payable debt more un-payable going to help you collect” question I have had for years.

If the IRS is not going to treat an amount as income if cancelled or forgiven, than why have post charge off interest at all? Someone with a huge data set please run the numbers and show me the meaningful benefit when you measure balance accretion on the 1/5 of the accounts that go more than 90 days late (that will ever be collected on), against the safety and soundness principles of our banking system, and the confidence of consumers and the public dealing with collections.

Is that return a benefit to lending practices as a whole? Is there more to be gained by eliminating post charge off interest from accruing? My guess is NO to the former, and YES to the latter.

Bank and Creditor Notifications

Some early indications from recent regulatory action is that large credit card issuers are sending what many call a “Goodbye Letter”. This is the bank notifying a former customer – that could not keep up required minimum payments – that their account has been assigned or sold, and who to.

These types of consumer notices will help a percentage of people – who are still trying to actively manage their financial setbacks – to know who is legitimately collecting, and to be prepared for future communication and resolution efforts.

I imagine better lettering to consumers will help everyone in the collection life cycle. I hope this becomes a required practice.

Attorney Fair Collection Rules Carve Out

Please… for all that is good and gracious… do not carve out attorneys from new rules designed to protect consumers. Attorney collection abuses are no different than any other debt collector. In many cases it can be worse, as judgments lend credibility to bad practices and the impression that bad acts and practices are court sanctioned.

I have participated in regulatory changes at the federal level. Attorneys were provided some limited carve outs from consumer protection in debt relief. That door left ajar created 100’s of millions of dollars of consumer abuse (that we know about so far).

According to Jared Strauss, a former debt collector for attorney and non attorney agencies “If attorney’s are carved out – regular collection agencies could largely cease to exist”. Jared has keen insights into debt collector behavior, such as how debt collectors look at your credit, and why debt validation letters can cause trouble. I share his concerns.

The abuse we have seen in legal collections is not limited to the court procedural stuff, such as running collection mills with attorneys supposedly supervising thousands of cases a month, affidavit and notary chicanery, or the foundation lacking to prove a claim once it is brought.

Employees that man the phones for debt collection attorneys are some of the most egregious offenders when speaking to consumers.

Beware the unintended consequences.

Fair Collection Rules for Banks

I have called out some of the best banks out there for how much of an improved debt collection environment they created for their card members and customers for unsecured accounts. Much of those changes came as a result of the recession. And like I mentioned above, the changes have largely stuck. But as can be seen from consent orders between the CFPB and banks, there is reason to extend fair debt collection rules to credit issuers.

If credit card originators were subject to debt collection rules it may lead to some banks assessing the benefits to internal collections. They may opt to outsource all collections after 90 day defaults. Some banks who are not selling debt, like American Express and Discover, may start to look at the benefits of that type of recovery. Maybe Wells Fargo will sell debts instead. If collectors there blatantly lie to me, what can the consumer expect?

Compliance and legal costs at originators, set beside expectations on recovery from post charge off collections, may create a more robust collection space. And that space may soon be filled with nothing but meaningfully regulated entities, rather than years past where we are left to point to the cleanest dirty shirt.

The changes I know would benefit consumers and the collection industry alike are not limited to those above. There are many nuanced things to come that I will cover in greater detail here and on the Debtbytes video channel.