Fastfax #1145 - CCS Pay | CCS Pay

1 2013 ACA International. All Rights Reserved. Page 1 of 7 _____ Last Updated on July 15, 2013 Reviewed for accuracy, updated case law, now includes federal and state law. _____ NOTICE This Fastfax is being provided pursuant to your agreement to the legal disclaimer at the end of this document. You are responsible for reading and adhering these terms. Mini-Miranda Disclosure: Federal and State Requirements Initial Communication Section 807(11) of the Fair Debt Collection Practices (FDCPA) requires a debt collector to inform a consumer in the initial communication with the consumer that This communication is from a debt collector.

2 This is an attempt to collect a debt and any information obtained will be used for that purpose. This disclosure is commonly known as the mini-Miranda. In the event that a debt collector s first communication with a consumer is oral, the full mini-Miranda disclosure must be provided in the oral communication as well as included in the first written communication sent to the The disclosure is required even when it is the consumer who initiates the The mini-Miranda disclosure, whether in the initial or subsequent communications with a consumer, must be made clearly.

3 3 Although the FDCPA does not define the term clearly nor does it specify a particular font size, color or placement of the disclosure, courts have provided guidance on the issue. Several courts have determined the mini-Miranda may be provided on the back of the collection notice as long as there is adequate reference on the front side of the notice ( , See reverse side for important consumer information. ).4 The mini-Miranda disclosure must be clear, readable and noticeable by even the least sophisticated Subsequent Communications All communications subsequent to the initial written communication are required to disclose to the consumer that the communication is from a debt Mere use of the word collection or the phrase collection agency may not reveal to the least sophisticated consumer that the communication is from a debt collector.

4 FTC staff has acknowledged in an informal staff letter, that literal compliance with the requirements of 807(11) would require a debt collector to state This communication is from a debt collector in all communications with a Courts have indicated that a collection notice must convey the intended message, but are not necessarily required to follow the precise language of 807(11).8 Courts have found that including a phrase such as Debt Collector since 1998 or professional collection agency may be interpreted as meeting the disclosure Additionally, a collection notice signed by a debt collector including the words Debt Collector immediately under her name on the signature line may satisfy the disclosure requirements.

5 If the statement This communication is from a debt collector is not included verbatim, the communication must disclose to the least sophisticated consumer that the letter is in fact from a debt Fastfax #1145 Strikethrough = Deleted/Old Text Underline = Added/New Text 2013 ACA International. All Rights Reserved. Page 2 of 7 Communications Requiring Disclosures Section 807(11) requires the mini-Miranda disclosure to be included in communications with a consumer. Section 803(2) defines the term communication as the conveying of information regarding a debt directly or indirectly to any person through any medium.

6 11 The Seventh Circuit determined the mini-Miranda was not required in a letter that did not request a payment from the consumer, but rather requested information from the consumer regarding a possible Additionally, the Seventh Circuit also determined that a letter sent from a mortgage service company, which did not request payment, was not required to include the disclosure because it was only sent to inform the consumer of the current status of their Some courts have held the mini-Miranda is not required in communications with a consumer s attorney, because the attorney should have been able to determine from the nature, contents and context of the verbal statements that the communication was from a debt However, courts are split on this issue and on the issue of whether communications with a consumer s attorney are actionable under the FDCPA.

7 Because of the inconsistency in court decisions on this issue, it may be prudent to include the mini-Miranda in all communications with a consumer s Section 807(11) of the FDCPA does not require the mini-Miranda disclosure to be included in formal pleadings made in connection with a legal action. However, communications in conjunction with litigation activity that fall outside the scope of legal pleadings are subject to the mini-Miranda disclosure In post-judgment communications with a consumer, such as a post-judgment settlement letter or an eviction notice for past due rent, the mini-Miranda disclosure is required to be Additionally.

8 Numerous courts have held debt collectors violate the FDCPA by failing to provide the mini-Miranda disclosure when leaving a message on a consumer's answering machine or voice One district court determined a caller may not be required to disclose this communication is from a debt collector in subsequent messages to a consumer if prior communications between the parties suggest the consumer would know the nature and identity of the caller in the voice mail However, other courts have disagreed with this interpretation of the FDCPA, thus caution dictates a debt collector should include the mini-Miranda disclosure in all communications, regardless of the consumer s knowledge of the fact the communication is from a debt State Requirements Aside from requirements under the FDCPA, many states have their own mini-Miranda requirements for oral and written communications.

9 While some state requirements are more restrictive than the FDCPA, others are simply reiterations. The following identifies laws and regulations impacting mini-Miranda disclosures at a state level. Arkansas (a) A debt collector may not use a false, deceptive, or misleading representation or means in connection with the collection of a debt. (b) Without limiting the general application of subsection (a) of this section, the following conduct is a violation of this section: (11) The failure to disclose: (A) In the initial communication with the consumer and, in addition, if the initial communication with the consumer is oral in the initial oral communication that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.

10 And (B) In subsequent communications, that the communication is from a debt collector, except that this subdivision (b)(11) does not apply to a formal pleading made in 2013 ACA International. All Rights Reserved. Page 3 of 7 connection with a legal action; Ark. Code Ann. 17-24-506 (West, WESTLAW through end of 2012 Fiscal Sess.). Colorado A debt collector or collection agency shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt, including, but not limited to.