Last week, the New York City Department of Consumer Affairs (DCA) provided some clarity to debt collectors on its newly-enacted Limited English Proficiency Rule (LEP Rule). DCA issued an FAQ document and a form for the annual reporting requirement for the LEP Rule, and also announced yet another extension of its grace period for enforcement, which now runs through October 1, 2020. In this article, you'll find a summary of the three-page, thirteen-question long document.
- The LEP Rule applies to anyone who is required to obtain a Debt Collection Agency license in NYC.
- When asked if the LEP Rule applies to creditors, DCA says "yes, no, and maybe" depending on the functions of the creditor's actions and other statutory litmus tests (citations can be found in the FAQ document).
- The LEP Rule does not apply to litigation activities that can only be performed by a licensed attorney, such as filing a lawsuit or requesting an income execution.
Annual reporting requirement
The annual report form is a lot less convoluted than many speculated when the rule was first issued. The reporting form can be found here, and only requires collectors to keep a month-by-month log of the:
- Number of NYC consumer accounts on which the agency collected or attempted to collect a debt in a language other than English; and
- Number of employees who collected or attempted to collect a debt from NYC consumers in a language other than English.
These are aggregate numbers, the report form does not call for an account-by-account or consumer-by-consumer log.
Agencies need to maintain the annual report but don't need to send it to DCA on an annual basis. DCA only wants to see it if they request it.
Specifics on requesting language preference
We'll briefly summarize this in bullet points:
- Language preference must be solicited for each consumer from whom the agency attempts to collect. This means that if there are multiple consumers on the account, then a language preference must be solicited from each.
- The request for language preference can come after the consumer verifies his identity and after the debt collector provides required disclosures (e.g., Mini-Miranda).
- Once a debt collector has obtained and recorded the language preference—or exhausted reasonable attempts to do so—they need not make the request again in subsequent communications. Debt collectors may not infer a language preference.
- If a consumer declines to provide a language preference, the agency may record the non-response to satisfy its obligation.
Validation letter and website requirements
The FAQs seem to imply that a debt collector must list the language access services it provides in its validation letter to consumers and on its publicly-accessible websites. This includes if the agency has the option for a consumer to speak with a multilingual company representative, to receive collection letters in the preferred language, and to list the languages in which the debt collector provides language access services.
There does not seem to be a requirement to provide specific language access services. A debt collector may provide some, but not all, services so long as this is clearly and conspicuously articulated in the validation letter and on the website. For example, just because a debt collector provides a multilingual representative for consumers to speak with on the phone, that does not mean that the debt collector must also provide written communications in that language.
If a collector does not provide language access services, then it must state so in the validation letter.
While it is not explicitly specified, there does not seem to be a requirement for agencies to request a language preference in the validation letter or on its websites.
What, exactly, are language access services?
DCA provides examples of language access services, including but not limited to:
- Collection letters in a language other than English
- Customer service representatives who speak in a language other than English
- A translation service for the collector's website
- A service that interprets phone conversations in real-time.