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Joint Industry Letter to NYCDCA Seeks Extension, Poses 25 FAQs

Are You Ready For The New NYC Debt Collection Rules?
REGISTER: Maurice Wutscher Webinar “Are You Ready For The New NYC Debt Collection Rules?”

Yesterday ARM industry trade associations Receivables Management Association International, ACA International, and the New York State Collectors Association, along with the National Creditors Bar Association and the New York State Bar Association submitted a joint letter to the New York City Department of Consumer and Worker Protection (formerly the Department of Consumer Affairs) requesting a 60-day extension to the effective date of its new language preference rules. 

This is not the first request by industry. Earlier this month, in response to a similar request, the agency agreed to suspend enforcement of the rules for 60 days but did not extend the June 27 effective date.

The rules require collection agencies to record the “language preference” of consumers and the number of consumers engaged by the collection agency in a language other than English. Debt collectors are also required to request and record a consumer’s “language preference” and make other disclosures in the course of collection activities.

Prior to the effective date, the rules received no written comments and no testimony was given during an April public hearing. In their previous letter, the same associations noted the comment period occurred during the height of the COVID-19 crisis in New York and little notice was provided. The agency did not notify its licensees of the proposed rules, although it had sent communications to them concerning other matters during the same period.

“As is evident from our conversation on June 17, 2020, as well as from the included requests for clarification, there is still substantial clarification needed on the Preferred Language Rule to make it workable for our industry and to avoid unintended consequences that are detrimental to consumers,” yesterday’s industry letter notes. 

There are many problems with the rules beginning with the lack of any definitions for their most critical terms. But the most glaring failure of the rules is the ambiguity concerning what is a “language preference.” Public entities that are required by law to develop Language Access Programs use guidance such as that issued by the U.S. Department of Justice (DOJ) (67 FR 41455) which asks the agency, among other things, to consider the number or proportion of limited English proficiency (LEP) persons being serviced.

According to the U.S. Department of Health and Human Services, LEP persons are those for whom English is not their primary language and “have difficulty communicating effectively in English.” But what the rules focus on is a person’s preference, even if they can effectively (or even fluently) converse in English. In fact, English could be the person’s primary language, but under these rules that fact is not considered.

ON-DEMAND WEBINAR NOW AVAILABLE

I will discuss the new rules with Marina Banje, Senior Compliance Counsel of Cavalry Portfolio Services, LLC, and my partner Eric Rosenkoetter during a webinar now available on demand. With just a few days to go before the rules become effective, we will explore implementation of the disclosure and reporting requirements and share our thoughts on how the agency might be viewing the many ambiguous requirements the new rules impose. Click here to register.

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Donald Maurice provides counsel to the financial services industry, successfully litigating matters in the state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. Don is peer-rated AV by Martindale-Hubbell, the worldwide guide to lawyers. In addition to being a frequent speaker and author on consumer financial services law, he serves as outside counsel to RMA International, on the governing Board of Regents of the American College of Consumer Financial Services Lawyers and on the Governing Committee of the Conference on Consumer Finance Law. From 2014 to 2017, he chaired the ABA's Bankruptcy and Debt Collection Subcommittee. For more information, see https://mauricewutscher.com/attorneys/donald-maurice/

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