In a previous article we briefly touched on the subject of tracing under the Fair Debt Collection Practices Act (FDCPA). As I stated in that article, I am often asked the question, “What laws do we have to follow when skip tracing a consumer regarding a debt?” My usual reply is, “That is a very broad question, let’s discuss it.”
In this article we will “discuss it” a little more in depth and see if we can clarify certain things that a tracer may or may not do when tracing.
What Kind of Tracing Are You Doing?
The first thing is to determine if we are skip tracing in the traditional sense, speaking to third parties to obtain current location or contact information, or cybertracking. In this article we will address traditional skip tracing and cover cybertracking in the next issue.
Each state may have consumer protection statutes which would relate to tracing and it is important that the tracer know the laws in the state where they are making third party contact.
The primary statute we will address today is 15 U.S. Code § 1692b, better known as Section 804 of the Fair Debt Collection Practices Act - Acquisition of location information.
The following is the exact wording of the statute:
Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall—
(1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;
(2) not state that such consumer owes any debt;
(3) not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
(4) not communicate by post card;
(5) not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and
(6) after the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney’s name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector. (Pub. L. 90–321, title VIII, § 804, as added Pub. L. 95–109, Sept. 20, 1977, 91 Stat. 876.)
What This Law Means
After reading the statute there are some things that are very clear and must be followed by the tracer (information in bold indicates the way we train our tracers):
• The tracer must identify themselves (a first name ending in “ie” or “y” such as Bobby, Judy, Ronnie or Suzy).
• The tracer must state they are attempting to confirm or correct location information, “I am trying to get in touch with your brother Randy.”
• The tracer must not identify their employer unless the third party specifically requests that information. If asked by the third party the tracer must give the full and legal identity of their employer. If the tracer uses an acronym that acronym must be properly registered pursuant to state statutes. Depending on circumstances, Collection Services International or CSI Group.
• The tracer must never directly state or imply in any way that the consumer owes a debt even if directly asked by the third party.
Third Party: “Is this regarding a debt?”
Tracer: “That is a very strange question, why would you ask me that?”
After the third party answers, the tracer follows with the single word “Really” and asks the third party another question.
• The tracer is limited as to how many contacts they can make with a third party. So no matter the outcome of the conversation, whether the third party gave valid information or not, the tracer always closes the call the same way.
Tracer: “Thank you very much, you gave me just the information I needed. May I contact you again next week/two weeks/month to see if you have heard from Randy?”
• If the tracer is using any type of written communication by snail mail, text or e-mail, they must be extremely cautious and follow the applicable parts of section 804 very closely.
• If the tracer is told by any third party that the consumer is represented by an attorney and provided the attorney’s name and contact information, the tracer MUST attempt contact through the attorney before contacting any other parties in the tracing process.
These are the provisions a tracer must follow when contacting third parties to trace a consumer for payment.
One final point a tracer must be aware of is the definition of “location information.” By looking in the definition section of the FDCPA, we find the term “location information” means a consumer’s place of abode, his/her telephone number at such place or his/her place of employment. It has been made very clear by case law that if the tracers ask for any information not within this limited parameter it could easily be viewed as a violation. So yes, asking for the phone number at the place of business is viewed as a violation.
In the next issue we will look closely at what laws apply to a cybertracker when tracing consumers.