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Repossessions: 2.2.3a The 2022 UCC Amendments

The 2022 UCC amendments focus on providing rules for commercial transactions involving virtual currencies, distributed ledger technologies (including blockchain), artificial intelligence, and other technological developments. The amendments add a new Article 12 addressing certain types of digital assets defined as “Controllable Electronic Records” (CERs). Extensive changes are made throughout the rest of the UCC Articles to conform to the new Article 12 rules.

Fair Debt Collection: 6.7.2.9 Frequency Standard Prior to Regulation F Standards

Prior to Regulation F (effective November 30, 2021), courts found that the point at which telephone calls become so frequent as to violate FDCPA § 1692d(5) depends on the circumstances.221 FTC interpretations do not provide a numerical test,222 and only point to extremes—a call on the day before and the day after a promised payment would not violate the provision, but six phone calls in an hour would.223 Before Regulation F, courts also refused to

Fair Debt Collection: 9.2.1 Meaning of “Initial Communication”

NOTICE OF DEBT; CONTENTS.—Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice . . .13

Fair Debt Collection: 9.2.3 Validation Notice Where Consumer Is Deceased

The Official Interpretations to Regulation F (effective November 30, 2021) provide that if the debt collector knows or should know that the consumer is deceased, and if the debt collector has not previously provided the validation information to the deceased consumer, then a person who is authorized to act on behalf of the deceased consumer’s estate operates as the consumer for purposes of the validation information requirements.49 In the initial communication, or within five days, the validation information

Fair Debt Collection: 9.3.1 Oral Notice

The purpose of the debt validation information is to ensure that the consumer can avoid mistaken claims, without having to go to court, simply by requiring the collector to verify the debt.

Fair Debt Collection: 9.3.2.1 Generally

Regulation F (effective November 30, 2021) defines a validation notice as a written or electronic notice that provides the validation information required by Regulation F.76 Regulation F allows for emailed or other electronic validation notices. But the notice must be sent in a way that complies with Reg. F § 1006.42 and other Regulation F provisions.

Fair Debt Collection: 9.3.2.2 Expected to Provide Actual Notice and In Form Consumer Can Keep

Regulation F (effective November 30, 2021) requires that a notice sent in writing or electronically “must do so in a manner that is reasonably expected to provide actual notice, and in a form that the consumer may keep and access later.” 81 The Regulation F Official Interpretations provide three relevant factors as to whether a communication is reasonably expected to provide actual notice. These are whether the debt collector:

Fair Debt Collection: 9.3.2.3 Compliance with the E-SIGN Act

When an electronic validation notice is sent after the initial communication (i.e., not found in the initial communication itself), then Regulation F (effective November 30, 2021) requires that the notice be sent in accordance with 15 U.S.C.

Fair Debt Collection: 9.3.4 Delivery of Notice to Consumer’s Attorney

If the consumer is represented by an attorney, the Fourth,118 Seventh,119 and Eleventh120 Circuits hold that the validation notice should be sent to the attorney, while a split Ninth Circuit decision held the FDCPA inapplicable to communications to a consumer’s attorney.121 FTC staff once believed the notice need not be given to a consumer’s attorney (who may be unaware of verification rights)

Fair Debt Collection: 9.4.1 Overview

Regulation F (effective November 30, 2021) has detailed requirements as to the substance of verification information that must be provided to the consumer, whether the information is conveyed in a written or electronic notice or conveyed orally as part of an initial oral communication.151

Fair Debt Collection: 9.4.2.1 Generally

In Regulation F (effective November 30, 2021), several items required to be disclosed in the validation information refer to the “itemization date.” The itemization date is any one five reference dates for which a debt collector can ascertain the amount of the debt:

Fair Debt Collection: 9.4.2.2 The Five Reference Dates

In Regulation F (effective November 30, 2021), the first reference date is “[t]he last statement date, which is the date of the last periodic statement or written account statement or invoice provided to the consumer by a creditor.” 180 The last statement may be provided by a creditor or a third party acting on the creditor’s behalf, including a creditor’s service provider.181 However, a statement or invoice provided by a debt collector is not a last statement, unless the debt colle

Fair Debt Collection: 9.4.4 Debt Collector’s Name and Mailing Address

Under Regulation F (effective November 30, 2021), the validation information must include “the debt collector’s name and the mailing address at which the debt collector accepts disputes and requests for original-creditor information.”205 A debt collector may disclose its trade or doing-business-as (dba) name, instead of its legal name.206 A debt collector also may disclose its vendor’s mailing address, if that is an address at which the debt collector accepts disputes and requests for origin

Fair Debt Collection: 9.4.5 Consumer’s Name and Mailing Address

Under Regulation F (effective November 30, 2021), the validation information must include the consumer’s name and mailing address.209 A debt collector must disclose the version of the consumer’s name that the debt collector reasonably determines is “the most complete and accurate version of the name about which the debt collector has knowledge.”210 A debt collector does not do so if it “omits known name information in a manner that creates a false, misleading, or confusing impression about t

Fair Debt Collection: 9.4.6 Creditor’s Name and the Account Number

Under Regulation F (effective November 30, 2021), the validation information must include the name of the creditor to whom the debt currently is owed.213 The Official Interpretations to Regulation F specify that the debt collector can use the creditor’s legal name, trade name or doing-business-as (dba) name.214

Fair Debt Collection: 9.4.7.1 Generally

Under Regulation F (effective November 30, 2021), the validation information must include three different disclosures related to the debt amount: the debt amount on the itemization date,225 an itemization of the current debt amount,226 and the total of the current amount of debt.227