“Substantially similar.” It’s a phrase that any plaintiff’s attorney is going to fall in love with once the calendar hits November 30 and Regulation F goes into effect. For the purposes of this article, we’re using “substantially similar” with respect to making changes to Regulation F’s Model Validation Notice while still being able to enjoy the safe harbor that using the form provides. In the latest episode of “You Wanted a Rule, You Got a Rule,” John Bedard of Bedard Law Group breaks down some of the ways in which collectors can change the Model Validation Notice without losing the safe harbor protections.
First, Bedard points to some examples provided by the Consumer Financial Protection Bureau that outline permissible changes to the Model Validation Notice which do not cause a collector to lose the safe harbor protections. For example, with respect to consumers who are deceased, collectors may address a letter to the consumer’s estate rather than to the consumer himself or herself, Bedard notes. Another example is if the mailing address on the tear-off portion of the notice needs to be moved “a little bit” to accommodate the window of an envelope that might be used to send the tear-off back, that should be ok. Collectors can also add bar codes or QR codes to the letter, provided they are not visible through the window portion of the envelope.
Bedard walks through several other situations and examples in his discussion of this section of Regulation F. At the end of the day, he notes, the phrase “substantially similar” will ultimately be defined by the case law that is produced as a result of lawsuits filed against collectors.
“There’s a lot of unanswered questions when it comes to substantially similar,” Bedard says. “And regrettably, lawyers, judges, and juries are going to be deciding whether or not letters are substantially similar.”
Check out all the episodes in the series here: You Wanted a Rule, You Got a Rule. You will also find links on that page to subscribe to the audio version of the series through Apple Podcasts, Google Podcasts, and Spotify. Like what you see? Be sure to reach out to John and let him know!