Archives for December 2019

SACRAMENTO, Calif. — The California Consumer Privacy Act of 2018 (CCPA) is the most anticipated privacy law of the decade. In an attempt to seemingly double down on the European Union’s 2016 General Data Protection Regulation (GDPR), the hastily drafted, hotly contested CCPA, is considered one of the strictest privacy laws in the United States. It takes effect on January 1, 2020, and has wrapped businesses in a swathe of new terms, ambiguous requirements and hefty penalties. 

To remedy the vagaries of the statute, the Office of the California Attorney General (AG), charged with writing CCPA regulations, hosted a number of public hearings to gather input from all stakeholders and invited comments from interested parties about the proposed CCPA regulations. The comment period closed on December 6, 2019. The Receivables Management Association International (RMAI), having closely monitored the legislation since it was signed into law on June 28, 2018, filed 17 pages of compelling, well-reasoned, comments regarding the proposed CCPA regulations. 

RMAI’s comments address numerous issues stemming from the proposed regulations. Among others, the most pertinent issues include: 

• Lack of definitive requirements to determine with certainty whether and when the CCPA applies to a particular business; 
• Overly broad definition of “sale of personal information”, such that the mere sale or transfer of an account or obligation to pay which includes personal information may be deemed a sale of personal information under the CCPA; 
• Lack of adequate guidance regarding language translation requirements for legally required consumer disclosures; 
• Dearth of guidance as to the accessibility standards required for consumer notices and disclosures presented via: website; oral in person and telephone conversations, printed forms, paper versions and signage; 
• Absence of a sample, uniform collection notice consumers can readily understand, and which businesses can follow in order to satisfy compliance with the CCPA when communicating with consumers about the debt; 
• Lack of guidance regarding consumer consent, notice, right to delete, right to opt-out; and 
• Conflicts between the CCPA and the Fair Debt Collection Practices Act so material that compliance with one is a virtual certainty of a violation of the other. 

RMAI’s comments represent many hours of analysis by its members and their keen understanding of the interplay among numerous Federal consumer protection statutes with the CCPA. As the international leader in promoting strong and ethical business practices within the receivables management industry, RMAI remains committed to advancing fair and balanced legislation for the benefit of its members and consumers alike. A copy of RMAI’s comments is available here. 

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About Receivables Management Association International

Receivables Management Association International (RMAI) is a nonprofit trade association that represents more than 500 companies that purchase or support the purchase of performing and nonperforming receivables on the secondary market. The Receivables Management Certification Program and Code of Ethics set the global standard within the receivables industry due to its rigorous uniform industry standards of best practice which focuses on the protection of the consumer. 

More information about RMAI is available at www.rmaintl.org. 

With the Pallone-Thune TRACED Act, S. 151, awaiting Senate floor action, the U.S. Senate Committee on Commerce, Science and Transportation has now favorably reported the Data Analysis Robocall Technology Act of 2019 (i.e., the DART Act of 2019), S. 2204. The bill, approved by a voice vote, is an amended version of the original S. 2204 introduced last July by Senators Mike Crapo (R-ID) and Amy Klobuchar (D-MN).

The amended version directs the Federal Communications Commission (the Commission), not later than 18 months after the date of enactment, to conduct a rulemaking proceeding “to consider establishing a process under which the Commission shall maintain a list of numbers that are not eligible to be blocked by a voice service provider….” The Commission is already considering such a Critical Calls List as part of its Third Further Notice of Proposed Rulemaking in its ongoing Docket No.17-89 (Advanced Methods to Target and Eliminate Unlawful Robocalls) (Third FNPRM).

S. 2204 would specifically permit four categories of numbers to be included on the list developed by the prescribed rulemaking:

• Numbers used for outgoing calls by a public safety answering point or similar facility that is designated to originate or route emergency calls.
• Those to originate calls from a government entity, such as a call generated during an emergency.
• Numbers used by a school, or a similar institution, to provide school-related notifications, such as notifications regarding (a) a weather-related closure or (b) the existence of an emergency affecting a school or students attending a school.
• Those used for similar or emergency purposes, as determined by the Commission.

These categories are not dissimilar from some of those being considered in the Third FNPRM for inclusion on a Critical Calls List. Indeed, the bill makes clear that it is not intended to “impede or delay” that analysis and development of such a list in that proceeding.

The bill also requires the Commission, not later than 180 days after the date on which the Commission receives any report regarding the effectiveness of call blocking tools prescribed by the Commission in conjunction with the Third FNPRM, to submit  to both the Senate Commerce Committee and the House Energy and Commerce Committee “an analysis by the Commission with respect to the effectiveness of various categories of call blocking tools, as evaluated in the report; and…any legislative recommendations of the Commission relating to the report.”

With the immediate focus, undoubtedly, on Senate passage of S. 151, action this year on S. 2204 would appear uncertain. But there are no predictions by TCPAWorld at this juncture.

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Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

“How would you describe the relationship between credit/collections and sales?” I recently asked the question on LinkedIn. I want to thank all those that participated in this conversation, we had over twenty plus comments and I wish I could have included everyone’s responses.

Charley Dehoney, CEO of Manning’s Truck Brokerage said “Intertwined. Sales aren’t sales if you don’t collect the money. Collection is the conclusion of a sale, without collecting money, you’re just practicing or donating.”

Jay Bernard Halprin, Senior Vice President – Portfolio Management with Rauch-Milliken International said, “A love/hate marriage for the ages!”

Frank Sebastian, Director of Credit and A/R with Adidas said, “The credit department head should have an ongoing relationship with the head of sales, sales managers and major reps, as well as be training their credit team to have the same relationships.”

Michael Neme, Director of Enterprise Sales with Trinity/Burris Logistics said “I’ll stick with my industry (Supply Chain) because that’s what I know. I see great salespeople who spend tons of energy & time to land an account only to lose it shortly after because of the lack of relationship/transparency within: Accounts Payable, Accounts Receivable, Collections, Operations and Customer Service.”

Clint Richards, Regional Vice President State National Companies said, “It certainly helps to have a clean book of business, but having payment and credit conversations early in the process will be well worth your time.”

Jim Becker, Founder and CEO Becker Logistics said, “The relationship is STOP gaps. Sales should ask for Credit; it’s approved or denied, Collections collects (quickly or slowly) or doesn’t collect and Sales has to honor what Credit and Collections says.”

There is this stigma out there that it’s “us versus them”. When that shouldn’t and can’t be farther from the truth. All successful organizations know you have to have a healthy balance of “push versus pull”. The best do. The top sales producers throughout my career have been my biggest supporters and champions! I’ve been told that’s very unique and tell me more. This is such a vitally important relationship to the health of your organization!

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Step One: Educate

Take the approach that the sales person doesn’t know because they truly don’t. What do I mean by that? Credit/Collections leaders should not just call/email and say no! It should be an opportunity for them to build credibility with sales and educate them on what they are seeing. Early in my career, I made it a point to build relationships and gain trust with the sales operators and leaders of the business. We needed to have a mutual understanding that I was their biggest cheerleader. I would say things like “I want to see you on a golf course on a Friday” or “I want to see you on stage at the awards dinner”. I truly meant that and I knew if I could educate them, and build trust that we as an organization could scale! Credit/Collections leaders should never dictate a decision but supply as much of the story that paints the picture for why the recommendation is not to go forward. Or maybe it’s to go forward with a personal guarantee, security deposit, prepayment, or require automatic.

Fun fact: Most of your sales people aren’t trying to make Credit/Collections leaders job more difficult. They actually are interested in understanding why and mutually coming to the same conclusion. After I made this investment of time into our sales, they would tell me forget it, I don’t want to waste my time.

Step Two: Don’t waste time, it’s valuable!

The age old idiom, time is money. Guess what? It really is and your sales department should value their time. As I would expect the credit and collections departments to do the same. What do I mean? When you can get a sales person to understand that compounding revenue actually is a thing, something very special happens. I know, I know, you want me to spill but keep reading. The above mentioned “education” helps sales to determine what potential customers are worth the time investment. Sales (rightfully so) will always have high revenue goals and high activity/growth expectations and that’s important. But if they are wasting any time on a customer that is going out of business, filing bankruptcy, etc. That wasted time could have been spent on the right customer. A customer that’s increasing their spending volume, easy to work with and pays on time.

Step Three: The Compound Effect

If your salesforce is now educated, values their time, this step can be truly magical. I like to give the analogy of a hamster wheel. A sales person brings on a new customer, adds their revenue and suddenly they don’t pay their bills. Their account gets suspended, what happens to that new added revenue? Poof, it’s gone. The sales person goes back to the “pavement” and eventually replaces that lost revenue. They find that new customer, feel like they are getting momentum with the large uptick in revenue they added, when BAM! You receive a bankruptcy notification, once again “poof” goes that revenue. The revenue that they undoubtedly worked hard to bring on. What eventually will happen is while this salesperson can sell revenue, they are just running on a hamster wheel. If this is a good salesperson, you are risking them burning out or just getting frustrated so they quit. Losing a sales person that only needed some good advice.

Now let’s take that same sales person and educate them. They are learning what are the warning signs credit/collections are seeing. They are proactively going to their credit department before any time or money is wasted. Is this a customer I should keep pursuing or onto the next one? They work cohesively together and on board a new customer, one that’s not in severe financial distress. This customer comes on board and out of the gates, they are spending more revenue than anticipated. We aren’t panicking though, we are comfortable with this customer, everyone is excited. Sales person is pumped and onto the next deal. That customers revenue really starts ramping and we have another new customer. That originally revenue has really started taking off and now adding another new customer. Don’t look now but the original new customer and revenue is taking off and adding this revenue starts the compound effect. I’d be willing to put this test up against anything out there. The best sales people aren’t worried about bringing any revenue on, they are focused on making sure it’s the compounding type of customers.

In closing, if you have sales people that are extremely active but are losing business due to bad debt, forward them this article. Once they realized that it wasn’t credit/collections is there to be a valuable tool in their arsenal to help them achieve their professional goals, the “stickier” and healthier their book of business will be.

I hope you see purposeful decision-making throughout the steps mentioned above. If not, feel free to reach out to me via email at keich@theiainstitute.com. I would love to hear your thoughts. Even better, #chimein on my personal LinkedIn page where this article will be shared and published for open comments.

WILMINGTON, Del. — Katabat, a leading global supplier of debt management software solutions, has delivered a significant release of its software, Katabat 9.0, which offers enhanced security, additional payment platform integrations, and improved client communication capabilities.

“We always focus on improving our clients’ experience with each major release of our debt collections software,” said Katabat CEO Ray Peloso. “The latest capabilities in Katabat 9.0 were developed based on client feedback as well as ensuring we remain best-in-breed on digital payments capabilities. With over 160 enhancements, including improved call and email communication capabilities and a wider range of integrated payment processing platforms, Katabat 9.0 provides our clients a user-friendly, digitally-enhanced experience across the debt collection lifecycle.”

Key new features and enhancements in Katabat 9.0 include: 

• Multiple security enhancements to continue to exceed PCI and SOC2 requirements, including the addition of CVV on debit/credit card payments and call recording encryption
• Enhanced Twilio click-to-call capabilities for improved overall cloud communications performance
• Integrations to BillingTree and RePay payment processing platforms
• Amazon SES email integration
• Collection of express consent across multiple mobile numbers
• Increased ease of capturing email campaign results

Katabat’s single, integrated solution provides clients with the power to control all their debt collections execution in one, unified strategy. The Katabat Unified Collections product is delivered securely for greater adaptability and flexibility to meet constantly changing business needs.

Katabat’s full suite of debt management solutions helps lenders, financial institutions and debt collectors streamline communications and optimize engagement throughout the entire customer lifecycle. By applying machine learning to the debt management and collections processes, Katabat’s solutions help improve collections and recovery through a better customer experience, all while reducing costs and compliance risk. 

For more information on Katabat 9.0 or to set up a demo, go here or contact us at info@katabat.com.

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About Katabat

With more than a decade of experience delivering debt collection solutions to global banks and debt collection agencies, Katabat combines collections and machine learning expertise to help clients engage with customers and increase collections. Katabat partners with lenders and collectors across multiple industries to stay at the cutting edge of debt management, machine learning, automation, regulatory compliance, and data security. To learn more about our full range of debt management products, contact Katabat at info@katabat.com.

On Tuesday, the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) held a workshop titled Accuracy in Consumer Reporting. The workshop consisted of four different panel discussions as well as individual remarks from several speakers. Below is a summary of the discussions relevant to the ARM industry.

Panel 1: Furnisher Practices and Compliance with Accuracy Requirements

The first panel discussed the different issues related to furnishing data to credit bureaus. The panel was moderated by two CFPB representatives: Susan Stocks (Office of Enforcement) and David Wake (Office of Supervision Policy). Panelists included:

• Leslie Bender (Chief Strategy Officer and General Counsel, BCA Financial Services)
• Francis Creighton (President and Chief Executive Officer, Consumer Data Industry Association)
• Syed Ejaz (Policy Analyst, Consumer Reports)
• Nessa Feddis (Senior Counsel and Vice President, American Bankers Association)
• Elisabeth Johnson-Crawford (Chief Technical Officer, Credit Builders Alliance)

The panel discussed how credit reports are used: decisions regarding extending credit, rental agreements, employment, and other uses. It was noted that this list is expected to expand as time goes on. Due to this, accuracy in furnishing practices is paramount, done through policies and procedures related to accurate furnishing of data and the ability to monitor for disputes and anomalies.

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The issue of mass credit report disputes from credit repair organizations, which are both mailed directly to data furnishers and filed as complaints in the CFPB’s online portal, was brought up by Creighton. The flood of disputes and the sharp rise in Fair Credit Reporting Act (FCRA) litigation—most of which is on minuscule technicalities—harms the credit reporting process. Ejaz responded to this by saying when he worked in a Congress mailroom, they likewise received a lot of form letters and were able to sift through those to pick out the letters that pointed out legitimate concerns.

The use of alternative data in credit reporting was discussed related to both its benefits and risks. Alternative data can be a way to bring those who are currently unbanked or underbanked into the fold, especially considering the increased uses of consumer credit reports for different stages of a consumer’s life. On the other hand, alternative data needs to be closely analyzed and considered before it is included because of risks of inaccuracy and unintended consequences, such as data that allows for disparate impact for certain groups of consumers.

Panel 2: Current Accuracy Topics for Traditional Credit Reporting

The second panel focused on issues related to accuracy in credit reporting. The panel was moderated by Tony Rodriguez and Kiren Gopal, both from the CFPB’s Office of Supervision Policy. Panelists included:

• Roberto Cera (Senior Manager, Data Acquisitions, TransUnion)
• E. Michelle Drake (Shareholder, BergerMontague, PC)
• Troy Kubes (Vice President and Deputy Chief Compliance Officer, Equifax)
• Ed Mierzwinski (Senior Director, Federal Consumer Programs, U.S. Public Interest Research Group)
• Donna Smith (Chief Data Officer, Consumer Information Services, Experian North America)
• Michael A. Turner (President and Chief Executive Officer, Policy and Economic Research Council)

All speakers on the second panel agreed that accuracy in credit reporting is important to both consumers and industry. However, there was a contentious discussion about how serious this is for consumers, industry, and regulators. 

The biggest critics were Drake and Mierzwinski. Drake presented a need for regulators and private attorneys who work on consumer protection issues. She mentioned that currently there is a conflict of interest between industry and the credit reporting bureaus, where the data furnishers are the primary customers of the bureaus. She says, “the credit bureaus only do as little as possible to keep their business partners happy.” She further stated that consumers act as a “canary in a coal mine,” where the onus is on them to spot errors, rather than on the furnishers and credit bureaus.

This position was countered by Smith, who pointed out that the profitability of the credit bureaus’ customers is based on the accuracy of the data. It’s in everyone’s interest, says Smith, to minimize inaccuracy in credit reports. Turner concurred, stating that banks primarily deal with credit reports for the purpose of extending credit, so inaccurate data would harm the bottom line. Drake replied that if such economic incentives were sufficient, then there wouldn’t be a need for regulators and consumer advocates, which is not the case. 

Editor’s Note: Panel 3, related to background screening, is omitted from this article.

Panel 4: Navigating the Dispute Process

Credit report disputes and dispute investigation procedures are a hot button issue for the industry, so this discussion is timely. This panel was moderated by representatives from the FTC: Amanda Koulousias, (Division of Privacy and Identity Protection) and Beth Freeborn (Bureau of Economics, FTC). Panelists include:

• LaDonna Bohling (Chief Compliance Officer, Receivable Solutions)
• Eric J. Ellman (Senior Vice President, Public Policy and Legal Affairs, Consumer Data Industry Association)
• Stephanie Froelich (Chief Executive Officer, True Hire)
• Kristi C. Kelly (Attorney, Kelly & Guzzo)
• Rebecca Kuehn (Partner, Hudson Cook) 
• Chi Chi Wu (Staff Attorney, National Consumer Law Center)

The threshold issue brought up here is that in order to be able to dispute an incorrect item on a credit report, the consumer must first be able to access his or her credit report. Ellman mentioned that today, consumers have more access to their credit reports than they ever did before. The consumer advocates countered that the rise in credit reporting agencies—or even data gathering companies who may not consider themselves credit reporting agencies—also increases the difficulty of eliminating inaccurate information. The consumer might dispute and get deleted an inaccurate item with one credit reporting agency, only to find out that this agency got their information from a different company that continues to report the inaccurate information.

The different types of disputes were discussed. Bohling shared that while consumers have the ability to submit credit report disputes with the credit reporting bureaus, a direct dispute with the data furnisher can usually be resolved more efficiently since the data furnisher possesses a lot more information related to the situation than the bureau does. Wu, however, mentioned that there is a lot of variability in how data furnishers handle disputes. The credit reporting agency, according to Wu, is supposed to be the check that balances out this variability, and the credit reporting agency is supposed to be the check to balance out this variability. Wu cited the most recent CFPB Supervisory Highlights, which states that the credit reporting agencies are not doing that, and instead are relying solely on what the furnisher states.

The consumer advocates mentioned that the larger data furnishers require their representatives to complete a certain amount of disputes within a specific amount of time, which can lead to investigations of disputes being done in haste. Bohling, however, countered that some of the key performance indicators for these representatives are quality and accuracy.

insideARM Perspective

All in all, the workshop presented a robust discussion about credit reporting issues. Leslie Bender, who appeared on the first panel, provided the following comment to insideARM:

We are grateful that the FTC and CFPB hosted this group of stakeholders all dedicated to defending the integrity of consumers’ credit files. The workshop confirms that common ground among all the participants is that it is critical for information in consumers’ credit files to provide an accurate, complete and portable economic picture. 

STOCKTON, Calif. — C B Merchant Services (CBMS), recently announced grants totaling $90,000 have been made to 41 non profit organizations located in San Joaquin, Stanislaus and Calaveras Counties.   CBMS also supports a competitive essay scholarship opportunity, administered by the CAC Educational Scholarship Foundation (cacesf.org).  Open to all graduating seniors, scholarship funds awarded may be used to attend any accredited public or private college, university or trade school.

Established in 1917 and headquartered in Stockton CA., CBMS specializes in providing accounts receivable management, billing, early out and debt collection services and serves creditors locally and throughout California. Without the support of our clients and dedication of   our staff, past and present, we would not have made it this far and be in a position to give back to our community, “We’re proud to continue supporting organizations that help make our community a better place to live,” Said C B Merchant Services President, Linda Guinn.

ROCHESTER, NY — The employees of Continental Service Group, Inc., d/b/a ConServe, take great pride in supporting their community – especially during the holiday season.  In the hopes of making the holidays just a bit brighter for those less fortunate and/or facing particularly difficult challenges, the ConServe team provided significant funding to several local agencies that support children and families struggling to overcome some heavy burdens.  ConServe also continues to demonstrate through this donation, their gratitude to Veterans for their personal sacrifices, dedication, service and commitment to their country.

In the month of November, ConServe donated to the Hillside Special Santa program, Veterans Outreach Center and Eagle Star Housing (ESH).  “We are incredibly grateful to ConServe for thinking of Veterans Outreach Center and local veterans,” said Laura Stradley, Veterans Outreach Center Executive Director and U.S. Army Veteran.  She continues, “every dollar counts toward ensuring the brave men and women who fought for our freedoms have the services and support needed to reintegrate into the community.  This donation will go a long way toward providing job training, housing, wellness services, suicide prevention and awareness, and so much more for those who served us.”  Zach Fuller, Executive Director of Eagle Star Housing said, “we cannot thank ConServe and their amazing staff enough for their wonderful donation during this holiday season.  Their support demonstrates not only what a phenomenal organization they are, but their continued commitment to our community and the veterans that proudly served our country.  This donation will help ESH support homeless Veterans during the holidays by continuing to provide safe housing and warm meals.”

ConServe continues to raise funds to support a variety of non-profit agencies and organizations as part of a diversified community investment plan.  Through their Jeans For Charity philanthropy program, in conjunction with the company’s “Matching Gift Program”, ConServe employees can elect to participate in monthly charitable donations in exchange for the option of wearing jeans to work.

About ConServe

ConServe is a top-performing and award-winning provider of accounts receivable management services specializing in customized recovery solutions for our Clients. Anchored in ethics and compliance, and steadfast in our pursuit of excellence, we are a consumer-centric organization that operates as an extension of our Clients’ valued brands.  For over 34 years, we have partnered with our Clients to provide unmatched customer service while simultaneously helping them achieve their accounts receivable management goals.  Visit ConServe online at: www.conserve-arm.com

About ConServe’s Jeans For Charity Program

ConServe’s Jeans For Charity initiative began in 2008 when their employees had an idea to launch a program that would provide a way of giving back to their communities.  ConServe employees can participate in monthly charitable donations, benefitting a wide-range of not-for-profits (501-C-3) organizations, in exchange for having the option of dressing down and wearing jeans to work for the entire month. The funds raised by the employees’ generosity are supplemented by the organization’s Matching Gift Program – symbolizing ConServe’s commitment to good corporate citizenship. This ongoing initiative is just one of the ways in which ConServe supports varied and diverse community agencies. To date the program has donated over $990,327 to local community organizations. 

About the Hillside Special Santa Program

Founded in 1837, Hillside Family of Agencies is one of the oldest family and youth non-profit human services organizations in the United States. The organization provides child welfare, mental and physical health, youth development, juvenile justice, special education and developmental disabilities services across central and western New York, and in Prince George’s County, MD. Annually, Hillside serves approximately 13,000 youth and adults. Our Family of Agencies works individually and collectively to help children, youth and families find their pathways to success and break the damaging cycles of poverty, trauma and neglect.  Visit them online at:  www.hillside.com/connect/get-involved/special-santas

About the Veterans Outreach Center

Since 1973, Veterans Outreach Center has been committed to improving the quality of life for veterans and their families by offering free, veteran-specific services, including employment counseling, vocational training and housing for homeless Veterans.  For more information about VOC services please call (585) 546-1081 or visit www.vocroc.org

About Eagle Star Housing:

ESH is a not for profit organization that first opened its doors on June 1, 2012.  ESH provides transitional housing for homeless Veterans for a period of 60 to 90 days.  ESH provides freshly cooked meals, transportation and life skills training.  Life skills training includes but not limited to:  budgeting, personal finance management, grocery shopping, hygiene upkeep, apartment hunting, and job searches.  In total, ESH has provided over 68,000 safe sleeping nights to over 880 homeless Veterans transition with a success rate of 80% connecting the Veteran to the next appropriate level of care.  Visit them online at:  http://eaglestarhousing.com/

Editor’s Note: This article was originally published on the Maurice Wutscher blog and is republished here with permission.

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There is no discovery rule for federal Fair Debt Collection Practices Act claims, the U.S. Supreme Court held today. Affirming the U.S. Court of Appeals for the Third Circuit’s decision in Rotkiske v. Klemm, today’s opinion also overrules an earlier ruling from the U.S. Court of Appeals for the Ninth Circuit, Mangum v. Action Collection Serv., Inc. There, the Ninth Circuit permitted FDCPA claims to run from when the plaintiff knows or has reason to know of the violation.

Rotkiske had sued a collection law firm alleging it violated the FDCPA by filing a lawsuit to collect a debt after the debt’s limitations period had expired.  But Rotkiske did not learn of the collection lawsuit until six years after it was filed because, he alleged, the suit was served at an address where he did not reside, and someone other than himself accepted service.

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The District Court dismissed the case, finding Rotkiske’s FDCPA claim was filed well after the expiration of the FDCPA’s one-year limitations period. The District Court also rejected Rotkiske’s argument that the “discovery rule” permitted his lateness because he could not have discovered the FDCPA violation earlier. It also rejected the argument that because of the law firm’s alleged conduct, his FDCPA claim was “equitably tolled.”

The Third Circuit affirmed the trial court’s decision concerning the discovery rule. Rotkiske did not raise the equitable tolling argument on appeal.

No Discovery Rule

The background rule for interpreting statutes of limitation is that the time to file a claim begins to run “when the cause of action accrues.” This is the first moment when a litigant can file a lawsuit and ask a court for relief.

Sometimes Congress uses language that permits the running of the limitations period from when a person learns they have been damaged. So the limitations period could be calculated from this later date, the “discovery” date. But when Congress chooses statutory text that does not express its intention to include such “discovery” language, the “discovery rule” cannot be applied.

The Court’s opinion, delivered by Justice Clarence Thomas, found no support for a discovery rule in the text of the FDCPA.

Section 1692k(d) of the act provides that the time to bring an FDCPA claim begins to run “within one year from the date the violation occurs.” Congress’s choice of the phrase “violation occurs” is indicative of its intent to start running the clock on FDCPA claims from the date of the violation. This point was raised by the Receivables Management Association International (RMAI) before the Supreme Court in the amicus brief I authored on its behalf.

Equitable Tolling Waived

Rotkiske raised the equitable tolling argument once again. Still, the Court would not consider it for two reasons – it was not raised in his appeal to the Third Circuit or in Rotkiske’s petition for certiorari to the Supreme Court.

Justice Sotomayor, in a concurring opinion, agreed with the majority’s opinion and simply noted, “[n]othing in today’s decision prevents parties from invoking that well-settled doctrine” of equitable tolling.

Dissent Favors “Fraud-Based” Discovery Rule

Justice Ginsburg’s dissenting opinion reasoned that there is a “fraud-based discovery rule” that differs from both the traditional discovery rule and equitable tolling. Under the fraud-based discovery rule, when a person is injured by fraud, the limitations period does not begin to run until the fraud is discovered.

This differs from equitable tolling because equitable tolling does not look at when the limitations period starts, it recognizes it has already started. Equitable tolling only acts to suspend the running of the limitations period if the litigant is diligently pursuing her rights and is prevented from filing her lawsuit by “extraordinary circumstances.”

Justice Ginsburg believed that the fraud-based discovery rule applied to Rotkiske’s circumstances and that his FDCPA claim did not begin to run until he discovered the offending collection lawsuit.

The dissent believed that Rotkiske pleaded sufficient facts to support the fraud-based rule and that it was properly before the Third Circuit. Still, the majority and concurring opinions believed the Third Circuit correctly held the issue was not raised on appeal and was therefore not before the Supreme Court.

Fraud-Based Discovery Rule—A Higher Bar

The death of the traditional discovery rule in FDCPA cases can now be confirmed. Equitable tolling of FDCPA claims is not impacted by the decision as both the majority opinion and Justice Sotomayor’s concurring opinion point out.

As for the dissent, my opinion is that the “fraud-based” discovery rule has limited application to FDCPA claims. After all, it takes very few facts to allege a “false” statement as an FDCPA claim. But the bar is much higher for a “fraudulent” act.

I don’t believe Rotkiske pleaded the required elements to claim fraud – he never alleged that the collection law firm purposely concealed the debt collection lawsuit from him, which probably explains why Justice Ginsburg stood alone in her dissent.

WILMINGTON, Del. — Invenio Financial (Invenio), the debt purchasing subsidiary of Phillips & Cohen Associates, Ltd. (PCA), is delighted to announce the appointment of Kim Londergan-Colburn, as SVP, Portfolio Strategy & Management, to lead the management and oversight of the group’s growing purchase portfolio.  

Invenio, which has acquired portfolios with a face value over $4Bn, and PCA form one of the globe’s leading specialist debt buying and servicing groups, and offers unique, niche solutions to creditors across a variety of industries, domestic and international markets. 

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Londergan-Colburn, a highly respected industry leader, brings with her over 17 years’ experience in recoveries strategy, process improvement and quality monitoring on behalf of major institutions such as Bank of America and more recently Barclaycard, where she played a lead role in US Recovery Operations.

On joining Invenio, Ms. Londergan-Colburn commented: “I am excited to join Invenio at such a key time to lead the group’s portfolio strategy and management.” 

Matthew Saperstein, COO of Invenio Financial, added, “The combination of Invenio and PCA’s specialist experience and servicing capability means that we are uniquely positioned to offer comprehensive solutions to financial institutions, and we are seeing demand for our innovative solutions increase both domestically and internationally.  We are delighted to bring Kim aboard as our global debt portfolio continues to grow rapidly and are looking forward to her driving value for our clients and increasing process efficiency across our operation as part of her new role.” 

Adam S. Cohen, Group CEO added “We have exciting growth aspirations across the US, Canada, Australia, and an expanding number of EU markets, and are delighted to be able to add a leader of Kim’s quality and experience to our organization. Her wealth of industry knowledge will enhance our ability to create incremental value to creditors while at the same time providing a truly Best in Class experience for consumers.” 

About Invenio Financial

Invenio Financial, the debt buying affiliate of Phillips & Cohen Associates (UK), Ltd., has built an award-winning reputation in the accounts receivable management industry through its proven, compassionate recovery processes. As the founding member of the Samaritans Academy, Phillips & Cohen Associates, Ltd. utilizes special recruitment, hiring and training techniques and ongoing key performance indicators to create an environment where staff take the time to truly understand customers’ circumstances.  The group’s unique processes and specialist services have driven rapid and sustained growth across a number of international markets alongside significant industry recognition for the Treating Customer Fairly enhancements delivered through this niche service offering. 

About Phillips & Cohen Associates, Ltd.

Phillips & Cohen Associates, Ltd. is a full-service accounts receivable management company providing customized services to creditors in a variety of specialized market segments.  Phillips & Cohen Associates, Ltd is headquartered in Wilmington, DE, with additional offices in Colorado, and Florida, as well as international offices in the UK, Canada, Spain, Germany and Australia.  For more information about Phillips & Cohen Associates visit www.phillips-cohen.com. PCA provides Equal Employment Opportunity for all individuals regardless of race, color, religion, gender, age, national origin, disability, marital status, sexual orientation, veteran status, genetic information and any other basis protected by federal, state or local laws.

ARLINGTON, Va. — Convoke, a leader in SaaS solutions for the debt collection market, marks the end of another successful year by releasing the most recent software update to its debt collections compliance and management hub.  The latest software release includes foundational changes to improve efficiency and platform enhancements to enable Convoke’s customers to most efficiently meet their business needs, vendor oversight responsibilities, and regulatory compliance requirements.  The latest software release is Convoke’s fourth and final release of 2019, and further builds upon the rich and diverse functionality present in the Convoke platform.

“This has been one of our most productive years as a company,” said Dave Pauken, CEO of Convoke.  “With this year’s release of multiple new features and functionality, Convoke is ready to meet the needs of its customers in an uncertain and complex regulatory environment.  We look forward to meeting with our customers in the new year as we continue to collaborate and solve the challenges facing the collection industry.”

Company Growth 

To achieve outstanding results for its growing customer base, Convoke added software technology and customer support professionals during 2019, with plans for additional expansion of its staffing in 2020.  Convoke was named one of Virginia’s fastest-growing companies earlier in 2019.

Upcoming Executive Summit

For the fifth consecutive year, Convoke is pleased to be hosting its January 2020 Executive Summit in Naples, Florida.  This forum gives Convoke the opportunity to meet with the senior executives of its customers, and for the entire group to interact and share the collections and compliance challenges they face.  This two-day summit allows Convoke and its customers to work together in both identifying and coming up with solutions for those challenges.

About Convoke

Convoke is a leader in SaaS solutions for the debt collection market.  It enables credit issuers to comply with regulatory and internal requirements and manage and monitor debt collection activities for all third-parties, while maximizing recoveries and realizing material cost savings.  Convoke’s online platform is a central, validated and persistent hub that records, organizes and stores information and activities, facilitates, tracks and automates interaction with third parties, and provides powerful auditing, management and reporting tools.  Convoke is headquartered in Arlington, VA.  For more information on Convoke, please visit www.convokesystems.com.