CFPB Notice of Proposed Rulemaking for Email

Since the recent release of the CFPB’s ground-breaking Notice of Proposed Rulemaking, RevSpring’s team of experts have been diligently reviewing the entire document, with a special focus on electronic communication. Over the past several years, consumer preferences have shifted from paper to email. RevSpring applauds the CFPB’s efforts to update the existing regulatory guidelines and incorporate the communication channels preferred by many consumers.

RevSpring offers a proven email solution successfully used by many agencies that complies with the proposed rules. Since 2017, we’ve invested $16 million in developing electronic and self-service technology solutions that improve the consumer experience, drive payments and lower collection costs. We are continuing to develop and expand functionality within the proposed rules. As the rules are finalized, our team will ensure continued compliance enabling your organization to use email as part of an omni-channel solution.

RevSpring’s Chief Compliance Officer and General Counsel Rob Horwitz has conducted a thorough review of the proposed rules and below is a summary of the proposed rules relating to email communication:

Email

TopicRequirementsRevSpring Solutions
Written DisclosuresThe proposed rules allow debt collectors to send written disclosures required by the FDCPA, such as the initial 1692g/first notice, electronically using the E-Sign Act approach which requires compliance with section 101(c) of the E-Sign Act or an alternative approach, which essentially is an opt-out regime.

The alternative approaches allow the disclosure to be sent in the body of an email or on a secure Web site that is accessible by clicking on a clear and conspicuous hyperlink in the email. If disclosures are hyperlinked to a Web site, the disclosure must be accessible for a reasonable period of time. The consumer must be able to save, print and have the opportunity to opt out of this method of communication.

You can review the full electronic communication disclosure requirement on the CFPB Web site here.

RevSpring’s email solution supports using a hyperlink to disclosures displayed on a Web site. Our product team is actively researching a solution that will enable all required information, including variable data such as state disclosures, to be included in the body of the email. We will provide more information about this product enhancement and a release timeline in the near future.
Opt-outEvery communication must include a clear and conspicuous statement describing one or more ways a consumer can opt-out of future communications to that email address.All emails include a clear and conspicuous “unsubscribe” link. RevSpring will return a data file noting all unsubscribes to update the consumer communication preferences in your system of record.
Unintentional Unauthorized 3rd Party DisclosuresThe proposed rule provides a safe harbor for unintentional unauthorized 3rd party disclosures if:

  • Direct Consent: Email was sent to an address from which the consumer recently contacted the debt collector other than to request no additional communications using that address.
  • Opt-Out:  Debt collector notifies consumer (phone or letter) that it may send emails to a specific address and gives consumer chance to opt-out before sending such emails. Debt collector can ask for an immediate answer over the phone.
  • Prior Consent:  Original creditor or prior collector had recently sent communications to that email address and no request for opt-out was received and debt collector took “additional steps” to prevent using an email it knows had led to a prohibited 3rd party disclosure.

Note that the proposed rule does NOT define “recently.”

RevSpring’s implementation team will collaborate with you to incorporate appropriate business rules based on the CFPB requirements.
Work EmailCannot use an email address a debt collector knows is provided by the consumer’s employer unless:

  • Debt collector receives prior consent from the consumer to use the email address; or
  • Debt collector receives an email from the consumer using the email address
RevSpring’s implementation team will collaborate with you to incorporate appropriate business rules based on the CFPB requirements.
Time and Place RestrictionsTime and place restrictions exist for emails. Cannot send before 8 a.m. and after 9 p.m. local time for the consumer’s location. If the debt collector has mixed information regarding the consumer’s location (zip code places in eastern time zone and phone number places in pacific time zone), no liability exists if the debt collector sends the email at a time that is compliant for all “locations at which the consumer’s information indicates he/she might be located.”

From a time restriction perspective, email communication occurs when it is sent, not when it is viewed.

Your business rules will drive the timing for all consumer communication to ensure messages are not sent outside of the permissible window.
Record RetentionDebt collectors will need to retain records to demonstrate compliance for three years after a consumer communication has occurred or the account is transferred.RevSpring offers multiple record retention solutions and will continue to work with clients to identify and implement the solution best suited for your needs. Some solutions are hosted by RevSpring offering the convenience of the cloud, while others offer clients the ability to host the records on a server they control.

RevSpring recognizes that engaging consumers to meet their financial obligations in the current regulatory and legal environment is challenging. We are hopeful the finalized rules will be beneficial for all stakeholders, including your organization. Our legal and product teams will continue their detailed review of RevSpring’s technology in light of the proposed rules. We will ensure your organization has the ability to incorporate email communication into an omni-channel solution to create a positive consumer experience, drive response rates and decrease your operational costs.

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