QUESTION
We tried to
collect a debt and our regulator notified us of a complaint for contacting the
debtor at an “inconvenient” time. That is his word, not ours. This seems very
arbitrary! We really do not know how to figure this out. What time is considered
an inconvenient time?
ANSWER
The applicable
regulations are much less arbitrary than you think! With respect to an inconvenient time, the consumer is required to
provide prior consent or a court needs to authorize such contact, in the
absence of which there is a clear mandate that a debt collector may not contact
the consumer on any date, at any time, or in any place, if the debt collector
knows or should know that such time, date or place is inconvenient.
What
constitutes actually knowing the acceptable time, date or place to contact the
debtor?
Courts will
generally find such actual knowledge pertains if the consumer informs the debt
collector, even casually or informally, that a particular time or place of contact
is inconvenient. This is supported by the purpose of the Fair Debt Collection
Practices Act (FDCPA), which has a primary goal of protecting unsophisticated consumers
who are not expected to assert their rights. Moreover, courts will often impose a burden of reasonable injury
on the debt collector to determine what times or places are inconvenient.
Please note,
the term “consumer” includes the consumer’s spouse, parent (if the consumer is
a minor), guardian, executor, or administrator. [15 USC § 1692c(d)]
The
statutory language sets forth the timeframe for unusual and inconvenient hours:
between 9:00PM and 8:00AM. [15 USC § 1692c(a)(1)]
It is worth
noting that the Federal Trade Commission (FTC) takes the position that contacting
the debtor on Sundays is not presumptively unusual or inconvenient.
However,
contact with certain types of employees at their places of employment may be
viewed by courts and the FTC as inherently inconvenient. For instance, it is
prohibited to contact a nurse or a doctor working at a hospital, or a waiter at the restaurant where he or she works. Be cautious in this regard,
since it is easy to fall into a grey area!
Contact with a consumer may be
unusual or inconvenient for a variety of reasons other than those described herein, and, whatever the view, be especially careful to determine if the debt collector knows or
should know that such a time, date or place is inconvenient.
Jonathan Foxx
Managing Director
Lenders Compliance Group
