It appears as thought it took a debt collection case to get the Bureau of Consumer Financial Protection to stand up and file its first amicus brief since Mick Mulvaney took over the agency from former director Richard Cordray.
The CFPB waded in and filed a brief in support of a plaintiff who is suing a collection agency for allegedly violating the Fair Debt Collection Practices Act because she was sent a validation notice via email instead of via traditional mail. The brief was filed with the Seventh Circuit Court of Appeals and will pit the bureau against ACA International, which filed an amicus brief two months ago on behalf of the plaintiff.
A copy of the CFPB’s brief in the case of Beth Lavallee v. Med-1 Solutions LLC can be accessed by clicking here.
The issue at hand in this case is whether sending a validation notice via email satisfies the requirement in the FDCPA that a debt collector sends “the consumer a written notice containing” details about the debt and the individual’s rights.
A lower court granted summary judgment in favor of the plaintiff in this case, after undisputed evidence indicated that the plaintiff never accessed the validation notices that were emailed to her by the defendant. The lower court ruled that the validation notices were never “sent” to the plaintiff and therefore, the defendant had violated the FDCPA.
The CFPB acknowledges in its amicus brief that it is attempting to tackle the topic of electronically delivering validation notices, but has not yet made any decisions because its debt collection rule is still being developed.
In its brief, the CFPB invokes the E-SIGN Act, a law that establishes a “national framework for electronic signatures and transactions.” But the E-SIGN Act states that:
“if a statute, regulation, or other rule of law requires that information relating to a transaction or transactions in or affecting interstate or foreign commerce be provided or made available to a consumer in writing, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if” certain conditions are met.
Among those conditions are the consent of the individual to receive messages and information via email.
Because there was no indication that the plaintiff provided the necessary consent to receive communications via email, the defendant was required to use traditional mail to communicate with the plaintiff, the CFPB argues in its brief.
