As Director of Education for insideARM and the iA Institute, I oversee our Research Assistant program. Folks have the chance to write to me, much like an Agony Aunt, with all manner of questions regarding compliance and operations.
With publication of the New/Final Rules, there has been no shortage of questions -- so, in this Thanksgiving Week, I thought I'd share a recent question/answer:
I stumbled upon an unusual point which I have not heard anyone mention. Section 1006.2 (p. 563) defines the term “consumer” as the person obligated to pay the debt. However, in section 1006.6 (p. 566) it explicitly defines the same term differently, and it includes the consumer’s spouse for purposes of that section. (As you know, it is never a good practice to use a term in its own definition.)
That section states among other things, that if a consumer notifies a debt collector in writing that the consumer refuses to pay debts or that communications should cease, then all communications should cease. So if the spouse writes a letter to this effect, then must the collector honor the request? Are inconvenient times for the spouse to be taken into account when communicating?
There are a host of other statements in that section referencing communications with the “consumer” which are decidedly odd if you interpret it as including the spouse of the debtor. Such as, the collector must not communicate with any person other than the consumer (page 568.) So communications with the debtor’s spouse is allowed??
The FDCPA has always had these two definitions for "consumer."
But, what makes this question important, and the distinction important, is in how this definition interacts with the guardrails around communication with a consumer.
As you pointed out, under 15 USC 1692a in the FDCPA, a consumer is defined as "any natural person obligated or allegedly obligated to pay any debt." If I, Mike Bevel, have a past-due cell phone account, then for the purposes of the FDCPA and collection agencies/collection law firms, I am a consumer -- and have protections and obligations. In this definition of "consumer," and in this example, I am the only one who actually owes the debt.
Under 15 USC 1692c of the FDCPA, which deals with communications, the FDCPA broadens the definition of consumer to include spouses and, if the consumer is a minor, the minor's parent(s). It also defines "consumer" as a "guardian, executor, or administrator."
(The Bureau is taking some time to consider the case of the surviving spouse of a decedent consumer, and doesn't address this at all in the Final Rule, but will have something -- allegedly -- in its December releases. The FDCPA as it is currently doesn't make any provisions for communications with a deceased consumer's spouse.)
The Final Rule doesn't change much of this. The FDCPA as it now stands (which doesn't reflect the Final Rules, because the Final Rules do not go into effect until 1 year after publication in the Federal Register, and they have not yet been published in the Federal Register. Here's a link to bookmark if you want to check periodically to see if it has been published yet: https://www.federalregister.gov/agencies/consumer-financial-protection-bureau) defines a consumer as:
any natural person obligated or allegedly obligated to pay any debt.
And the Final Rule defines a consumer as:
any natural person obligated or allegedly obligated to pay any debt. For purposes of § 1006.6, the term consumer includes the persons described in § 1006.6(a). The Bureau may further define this term by regulation to clarify its application when the consumer is deceased.
(1006.6 is the Consumer Communication section.)
A debt collector can communicate with a consumer, and "consumer" can be:
(1) The consumer’s spouse;
(2) The consumer’s parent, if the consumer is a minor;
(3) The consumer’s legal guardian;
(4) The executor or administrator of the consumer’s estate, if the consumer is deceased;
(5) A confirmed successor in interest
And that's essentially how the FDCPA currently defines a consumer w/r/t communications.
A debt collector cannot collect from a spouse, parent, legal guardian, executor, administrator of the consumer's estate, or a confirmed successor in interest -- but they are protected from third-party disclosure violations if they communicate with any of those individuals about a consumer's debt.
It also means that any one of the individuals above can also ask a collector to cease all communications, and has protections provided by "convenient time and place" clauses, both in the FDCPA as it now stands and in the Final Rule.
So. After that long prologue (which I hope you found useful), here are the answers to your questions:
So if the spouse writes a letter to this effect [i.e., a cease and desist], then must the collector honor the request? Yes. The spouse, who in this context is the consumer, can legally demand that a collection agency cease communications. And the collector isn't allowed to ask a follow-up like, "Are you sure that's what your spouse would want?"
Are inconvenient times for the spouse to be taken into account when communicating? Also yes. The same inconvenient times/places afforded the consumer debtor are also afforded the consumer's spouse.
There are a host of other statements in that section referencing communications with the “consumer” which are decidedly odd if you interpret it as including the spouse of the debtor. Such as, the collector must not communicate with any person other than the consumer (page 568.) So communications with the debtor’s spouse is allowed? Yes, a collection agency can communicate with the consumer debtor and the consumer debtor's spouse. (As well as the other entities that fall under the definition of consumer in both the FDCPA as it currently is, and in the Final Rule.) But again, this also means that these other consumers can request the same things that a consumer debtor can.