The recent case of Lavallee v. Med-1 Solutions, LLC brings into relief the issues of debt collectors communicating with debtors by email. Because of the Federal Fair Debt Collection Practices Act (FDCPA) and other laws, such as the Telephone Consumers Protection Act (TCPA), contacts between debt collectors and debtors are heavily regulated. For example, under the FDCPA, within five days of a debt collector's first contact with a debtor, the debt collector must send the debtor a validation notice advising the debtor that she has certain rights under the FDCPA. Failure to send such a notice or failure to send a notice conforming to the requirements of the FDCPA makes the debt collector liable for damages.
Debt collectors and debtors often prefer to communicate by email for the same reasons others in commerce do. In the Lavallee case, the creditor sent an email to Ms. Lavallee with an attachment that, when opened, would take her to a .pdf document containing the FDCPA warning. Ms. Lavallee claimed she did not receive the email so she did not open the attachment. When the creditor began collection proceedings, Ms. Lavallee sued because she never received the required FDCPA validation notice.
In finding for Ms. Lavallee, the court cited several points.The court said there was no evidence Ms. Lavallee received the email.The creditor's software had a feature whereby it would notify the creditor when Ms. Lavallee had opened the attachment with the FDCPA warning. The creditor did not receive such a notice. Ms. Lavallee had never heard of the debt collector, would not have recognized their name in the email if she had received it, and the court emphasized that opening attachments from unknown emails senders was inadvisable.
Certainly the debt collector could have employed strategies to avoid this result, such as obtaining Ms. Lavallee's written consent to use email to send her notices, or by sending the validation notice by U.S. mail in addition to email. Debt collectors's studies show debtors want to be contacted by means convenient to them, including texts and emails. Current law was passed when such methods of communication did not exist and has not been updated. Most industry voices agree that clear regulatory guidance in this area, rather than the crazyquilt of differing court decisions, would benefit both consumers and debt collectors.
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