Editor's Note: This article was originally published on the Maurice Wutscher blog and is republished here with permission.
A trio of bills currently pending in the New York State Senate would extinguish debt, require licensing and impose additional requirements in collection litigation.
Senate Bill 691 goes a bit further by proposing to reduce the statute of limitations in “consumer credit transactions” to three years although it does provide certain exceptions.
In addition, Senate Bill 691 would require certain disclosures to be provided to defendants in lawsuits brought on “consumer credit transactions.” The bill proposes the notice, in both English and Spanish, be provided to the clerk of the court along with a “stamped unsealed envelope addressed to the defendant” at the time the plaintiff files a proof of service of the summons and complaint.
Senate Bill 691 also proposes to require complaints in “consumer credit transactions” to have attached “the contract or other written instrument on which the action is based” and provide itemization of the amount being sought, chain of title and other information.
Finally, Senate Bill 691 proposes that creditors obtain affidavits from the original creditor as well as each assignor in the chain of title providing particular facts concerning the debt.
New York Senate Bill 2343 would require “debt collection agencies” to be licensed on or after Oct. 1, 2020.
New York already has debt collection regulations promulgated by the Department of Financial Services. Those regulations closely follow the definition of “debt collector” found in the federal Fair Debt Collection Practices Act (FDCPA) with its two-prong approach, plus the addition of purchasers of debt, defining a “debt collector” as “any person engaged in a business:
- the principal purpose of which is the collection of any debts, or
- any person who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
- Debt collector includes without limitation a buyer of debts who seeks to collect such debts either directly or indirectly.”
The regulatory exemptions from the definition also track the FDCPA but include certain activities related to legal actions.
Senate Bill 2343, on the other hand, takes a different approach and defines a “debt collection agency” as “a person, firm or corporation engaged in business:
- the principal purpose of which is to regularly collect or attempt to collect debts owed or due or asserted to be owed or due to another and shall also include
- a buyer of delinquent debt who seeks to collect such debt either directly or through the services of another by, including but not limited to, initiating or using legal processes or other means to collect or attempt to collect such debt.”
The legislation includes the same definitional exemptions as the FDCPA but adds “any officer or employee of a debt collection agency,” attorneys except those “regularly engage[d] in activities traditionally performed by debt collectors,” persons employed by public utilities, and persons collecting child support or alimony unless they also regularly collect other types of debt.
In addition to the licensing provisions, a debt collection agency would be required to obtain a “bond, contract of indemnity, or irrevocable letter of credit” in the following amounts:
- 1-4 employees: $10,000
- 5-9 employees: $25,000
- 10-20 employees: $50,000
- 20+ employees: $75,000
The penalty for operating as a debt collection agency in violation of the licensing requirements would be $500 “per attempt to collect a debt.”