On Oct. 8, S.737A was signed into New York law, “requiring debt collectors to inform debtors that written communications are available in large print format.” The legislation becomes effective Nov. 7, 2021.
The problem with the law is the disconnect between what it says and what it tells debt collectors to say.
What It Says
“Each and every principal creditor or debt collector shall, in each initial communication, clearly and conspicuously disclose to the debtor that each communication can be provided in an alternative, reasonably accommodatable, format.”
“Communication” is defined as “the conveying of information regarding a debt directly or indirectly to any person through any medium.”
“Principal creditor” is already defined as “any person, firm, corporation or organization to whom a consumer claim is owed, due or asserted to be due or owed, or any assignee for value of said person, firm, corporation or organization.” NY CLS Gen Bus § 600(3).
What It Tells Debt Collectors to Say
Unfortunately, the law proceeds to state:
“Such disclosure shall substantively contain the following:
(a) A statement that the consumer may request the letter in an alternative, reasonably accommodatable format selected by the principal creditor or debt collector such as large print, braille, audio compact disc, or other means; and
(b) A business phone number that the consumer may call to make such a request.”
Out of Focus
The legislation was, simply, poorly drafted and creates questions that are difficult to answer, a few of which are:
1. What does “reasonably accommodatable format selected by the principal creditor or debt collector” actually mean? Does it mean a debt collector can choose to exclusively offer large print regardless of circumstances, or does it mean the alternative format must be “reasonably accommodatable” based on the actual circumstances? For example, if the consumer is completely blind, can the debt collector still choose to provide large print or is the debt collector’s selection limited to formats such as braille or CD?
2. Does this apply to all written communications, including emails and text messages? The law states it applies to each communication through any medium, but the sample language refers to the consumer requesting “the letter” in an alternative format.
3. What is the standard for “large print,” which is undefined in this section? Can we rely on the definition found elsewhere in New York law as “a font size of sixteen or larger” for utility bills (N.Y. Pub. Serv. Law § 44), cable bills (N.Y. Pub. Serv. Law § 224-b) and telephone bills (N.Y. Gen. Bus. Law § 399-zz)?
4. Does the alternative format option extend to documents provided for substantiation of the debts pursuant to 23 NYCRR § 1.4(c), some of which may be account-level documentation provided by the creditor?
The large print notice legislation was originally introduced in 2011 and reintroduced in virtually the same form every session through the 2019-2020 session. The 2019 Assembly bill, A.711, is a good example of the previous versions and includes a memo explaining the legislation.
The legislation defined “large print” to mean “a font size of sixteen or larger” and limited the disclosure to informing the consumer “that written communications . . . may be received in a large print format.” The memo explained that the large print option did not apply to the initial communication; only to “any further communications that the debtor may receive.” Neither that bill nor the previous versions included the confounding sample language in the current law.
Reading Between the Lines
The shift from the 2019 language appears to reflect an intentional broadening of scope. Unfortunately, determining the intent of the law, and simply how to draft the notice correctly, is difficult to decipher because of the poor drafting. Without further clarification, the best that can be done is to consult with legal counsel of your choice and find a practical, workable balance between what the statute says and what it says debt collectors should say.