by Jeff Sovern
Section 1692g(a)(4) requires debt collectors to send consumers a "a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector . . . . " But as best I can tell, the CFPB's proposed debt collection regulation doesn't provide for notification of this right to verification if you use the safe harbor of Model Form B-3, which appears at page 491 of the proposal. Here's what the model form says about this (I apologize for not getting the formatting correct; as one of my children likes to point out far too gleefully, I'm not great at tech):
How can you dispute the debt?
Call or write to us by November 12, 2019, to dispute all
or part of the debt. If you do not, we will assume that our
information is correct. If you write to us by November 12, 2019,
we must stop collection on any amount you dispute until we
send you information that shows you owe the debt.
You may use the form below or you may write to us without the
form. You may also include supporting documents. We accept
disputes electronically at www.example.com/dispute.
What else can you do?
Write to ask for the name and address of the original
creditor. If you write by November 12, 2019, we will stop
collection until we send you that information. You may use the
form below or write to us without the form. We accept such
requests electronically at www.example.com/request.
Nowhere there does it refer to verification. But the Bureau thinks the form does cover the consumer's verification rights, and indeed, that it meets the requirement of § 1692g(a)(4) of specifying that verification requests much be in writing. The Proposal states at page 253 "While Model Form B–3 would alert consumers to an oral dispute option, the form would clarify that only a written dispute would invoke verification rights pursuant to FDCPA sections 809(a)(4) and (5).” Maybe the Bureau thinks that a right to verification is limited to the right to obtain the name and address of the original creditor. But that has to be wrong as a matter of standard statutory interpretation because § 1692g(a)(5) already requires the validation notice to say that the consumer can request the original creditor's name and address. In other words, (a)(4) would have no independent meaning if all verification meant was that the consumer can get the original creditor's name and address and so would be surplussage. Courts usually construe statutes to avoid surplussage.
That definition of verification also seems inconsistent with what at least some courts say verification means. For example, in Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 783–86 (6th Cir. 2014) (per curiam), the court wrote that a verifying collector:
[S]hould provide the date and nature of the transaction that led to the debt, such as a purchase on a particular date, a missed rental payment for a specific month, a fee for a particular service provided at a specified time, or a fine for a particular offense assessed on a certain date.
That's a lot more than the name and address of the original creditor though I should note that some courts require less (for more on what verification requires, and consumer survey results on that question, see the article I co-authored here).
Now maybe the Bureau thinks that the right to verification is encapsulated in the right to dispute the debt, especially as the model form includes a tear-off which lists several reasons the consumer might to dispute the debt, as follows:
I want to dispute the debt because I think:
□ This is not my debt.
□ The amount is wrong.
□ Other (please describe on reverse or
attach additional information).
I want you to send me the name and
address of the original creditor.
While Proposed § 1006.34(c)(3)(i) provides for the validation notice to include a “statement that specifies . . . that, if the consumer notifies the debt collector in writing before the end of the validation period that the debt, or any portion of the debt, is disputed, the debt collector must cease collection of the debt, or the disputed portion of the debt, until the debt collector sends the consumer either the verification of the debt or a copy of a judgment,” that provision does not appear in the model form.
I would be interested in hearing comments on this if anyone thinks I have gone off the track.