Collector - September 2017 - 8

COLLECTIONTIPS

Due Process
What to do when you find out a
consumer has an attorney.
By Anne Rosso May

Y

ou're just a few minutes into a call
with a consumer when she says,
"You need to talk to my attorney
about this." What are your obligations in
this situation, and what should you say
and do next?
Consumers always have the option of
retaining an attorney to represent them
during any interaction with a debt collector.
The attorney's role is to protect consumers
and make sure their rights are not violated.
They serve as an intermediary between the
consumer and the debt collector. Consumers
often hire attorneys to help them navigate
the debt collection process or work with a
collection agency to negotiate a settlement.
When a consumer retains an attorney,
however, you need to know that several
communication issues arise under the Fair
Debt Collection Practices Act. To start,
as soon as you find out the consumer has
an attorney, you are obligated to cease
communication with the consumer and
speak solely with the consumer's attorney.
Consumers are not obligated to provide
this information to you in writing-verbal
notice that they are currently represented by
an attorney is perfectly acceptable. However,
check your company's policy as some
organizations require written notification.
Similarly, if the consumer tells you that
she has filed for bankruptcy, you must cease
all communication with the consumer and
defer to her attorney.
Ask the consumer for her attorney's
name and contact information. Bear in
mind that the consumer is not obligated
to give you detailed information about the
attorney-just enough information to allow
you to "reasonably" identify and contact that
person, according to the FDCPA.
Thank the consumer for her time and let
her know that you will be communicating

08

with her attorney from this point on.
Update the consumer's file with this new
information and follow your agency's
policies on steps to take after the call is over.
Going forward, the only time you can
resume communication with the consumer
is if her attorney fails to respond to your
communications within a reasonable period
of time (your agency should have a policy
on this process) or the attorney gives you
permission to contact the consumer directly.
While a cease communication notice from
a consumer requires you to stop contacting
the consumer, this does not apply to the
consumer's attorney. Collectors can continue
to contact a consumer's attorney about the
debt even after a consumer sends a cease
communication notice.
The U.S. Court of Appeals for the
Seventh Circuit concluded that Section
805 of the FDCPA permits debt collectors
to communicate freely with consumers'
attorneys, reasoning, "A [consumer] who
does not want to be pestered by demands for
payment, settlement proposals, and so on,
need only tell his lawyer not to relay them."

If an attorney calls you on behalf of
a consumer, it's usually best to proceed
cautiously.
Defer to your agency's policies on what
to say, such as how to validate the debt or
whether or not to state the mini-Miranda
to the attorney.
Finally, while the FDCPA allows you to
communicate with a consumer's attorney
regarding the consumer's debt, it's important
to understand that a power of attorney may
not necessarily fit this description.
While a power of attorney may very well
be an attorney at law, a power of attorney
may also be another trusted non-attorney
individual, such as a consumer's parent or
friend. In this case, you should make sure you
have obtained the consumer's authorization
to speak with her power of attorney. Review
your company's policy regarding requesting
power of attorney documentation, and keep
in mind that some states have particular laws
relating to powers of attorney as well.
Anne Rosso May is editor of Collector
magazine.

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Table of Contents for the Digital Edition of Collector - September 2017

Collector - September 2017 - Cover1
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Collector - September 2017 - 1
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