Collector - July 2018 - 52
Relationship Goals Between Consumers,
Spouses and Debt Collectors
What you need to know about spousal
By Angela Czerlanis
edding season is approaching
its peak in the U.S. As a
debt collector, you may find
yourself part of some of these unions while
attempting to communicate with and
collect from one or both spouses.
Section 805(d) of the Fair Debt Collection
Practices Act states that the term "consumer"
includes the consumer's spouse for the
purpose of debt collection communications.
Under the FDCPA, you may discuss
one spouse's debt with the other. If the
spouses are co-obliged to pay the debt, it's
permissible for a debt collector to request
payment from both people.
NOT ALL STATES MIRROR
Depending on state law, a consumer's
spouse may be an unauthorized third party.
As such, communication with the spouse
about the debt beyond obtaining location
information for the consumer would be
prohibited, as would a request for payment
from a non-liable spouse.
COMMON LAW OR
In common law property states, debts
incurred by one spouse are that spouse's
debt alone. Income earned by one spouse
does not automatically become jointly
owned. Debts are owed by both spouses
only if the debt benefits the marriage or
the debt was jointly undertaken. All other
debts, such as business debt from one
spouse's business or a car loan in which
the title is only in one spouse's name, are
considered separate debts.
Nine community property states (Arizona,
California, Idaho, Louisiana, Nevada, New
Mexico, Texas, Washington, and Wisconsin)
are different. All debts incurred by either
spouse during the marriage are considered
community debts. Each spouse is liable for
debts incurred during marriage, even if the
account was only listed in one name.
DOCTRINE OF NECESSARIES
Some state requirements established in
statute or case law hold a spouse liable
for providing the "necessaries" of life to
the other. Other states no longer invoke
the doctrine of necessaries. This becomes
particularly important when determining
liability for health care debts of spouses and
their minor children.
CEASE COMMUNICATIONS AND
WAIVER OF CEASE DIRECTIVE
What if, as a collector, you're in the middle?
In Clark v. Capital Credit & Collection
Servs., Inc., 460 F.3d 1162, 1170 (9th Cir.
2006), a husband and wife were responsible
for a debt. The husband sent letters to the
collection agency, precluding any phone
calls to the consumers or to their home.
A few months later the wife called the
collection agency about the debt and the
collector called back with information about
the debt. The court found that the wife
waived her husband's cease communication
request for purposes of responding to the
Know your consumer-determine if you
may communicate with their spouse and
to what extent. Politely decline engaging in
conversations that could lead to violations, and
save a date to sit down and review state laws.
Renew your policies, procedures and training
so that you may effectively conduct collection
communications with consumers' spouses.
For more information, consult ACA's
SearchPoint™ document #2040, State
Collection Laws: Communication with
Angela Czerlanis is ACA International's
compliance education specialist.