Virus Sparks Calls To Pump The Brakes On Debt Suits

By Kevin Penton | April 26, 2020, 8:02 PM EDT

As the COVID-19 pandemic continues to envelop the country, some consumer advocates are calling for greater protections for consumers until the crisis abates, arguing that the economic crisis is negatively impacting the ability of Americans to not only pay their debts but also fight collection actions in court.

Grace, a New York City employee who preferred not to use her last name, is one such consumer.

She said that a debt collector in recent weeks used an existing court order to begin garnishing wages from her paycheck. She was concerned about going to a courthouse to assert her argument that the debt from an old credit card bill is inaccurate.

She ultimately reached out for assistance to the New Economy Project, which talked with the collector and managed to put off continued garnishments.

"It's really hard to make ends meet right now, with having to buy additional food and standing in really long lines," said Grace, who has two children, including one with Type 1 diabetes that needs medication.

While the federal government has announced initiatives such as pulling back from collecting on defaulted student loans during the next six months and instituting a moratorium on foreclosures for federally backed mortgages, consumer advocates say that some debt collectors in recent weeks have continued to squeeze consumers whose bottom lines are already stretched thin.

"These companies are not even holding off in light of the economic devastation hitting our country," said Alexa Rosenbloom, an attorney at Greater Boston Legal Services. "We find it pretty disgusting and disheartening."

While new lawsuits in hard-hit states such as New York have dried up as courts have scaled back their operations, debt collectors are still moving against consumers with existing cases and orders, said Susan Shin, legal director of the New Economy Project.

The nonprofit earlier this month sent a petition to New York Gov. Andrew Cuomo urging for a moratorium on debt collection during the COVID-19 crisis.

"It really undermines the ability of people to pay their rent and put food on the table," said Shin of debt collection, noting that consumers are hard pressed to challenge the collectors' actions in court, given the novel coronavirus.

Such concerns have extended to federal relief payments under the recently passed Coronavirus Aid, Relief and Economic Security Act.

Several financial services trade organizations, including the American Bankers Association and the Bank Policy Institute, wrote a letter to Congress in April arguing that the legislators should clarify that stimulus checks should not be garnished by collectors.

Under the law, Congress exempted the checks from being used to offset debts for federal and state agencies, but it did not go as far as exempting private creditors," according to the April 15 letter.

"We believe it is imperative that Congress make it clear that these payments are treated as benefits subject to the federal exemption from garnishment," the letter by the financial organizations reads.

Richard Cordray, the former head of the Consumer Financial Protection Bureau, has encouraged the federal agency to identify actions that should be off limits for collectors in the near future, such as the filing of new debt collection lawsuits or the garnishing of wages.

"The CFPB should issue guidance about what parameters debt collectors should observe in the current crisis to avoid engaging in conduct that is abusive or unconscionable," Cordray wrote to the agency in early April.

While some debt collection companies have spoken of providing relief to consumers during the current crisis, the CFPB should collect data on the relative success of such efforts and commit to providing monthly updates on the information, the Student Borrower Protection Center advocated in an April 6 report.

"It is time for the bureau to wake up to its role as the nation's top consumer watchdog," said Seth Frotman, the protection center's executive director.

The CFPB offered guidance in early April on how it planned to handle consumer credit reporting oversight during the crisis, telling companies that it would offer them some flexibility on meeting dispute investigation deadlines and that it wouldn't go after them for telling credit bureaus about payment help given to borrowers.

The agency otherwise encouraged lenders to continue their consumer credit reporting during the crisis, asserting that continuing to provide "accurate information to consumer reporting agencies produces substantial benefits for consumers, users of consumer reports, and the economy as a whole," according to a April 1 statement by the agency.

Aracely Panameño, a director at the Center for Responsible Lending, slammed the document as "outright cruel," saying that the guidance did not protect consumers nor provide them relief.

"Giving payday lenders a free pass to do negative reporting on borrowers they've trapped in crippling debt during a time of crisis isn't helpful to consumers," Panameño said. "It will only drive credit scores lower and make workers financially vulnerable during a time when they need safe and affordable credit."

CFPB officials could not be reached for comment.

Last month, Greater Boston Legal Services urged the heads of several debt collection industry groups to hold off on lawsuits and on the involuntary collections of debts until the crisis abides, arguing that low income individuals such as those served by the civil legal aid organization should be focusing on providing essentials for their families and on remaining indoors, rather than on going to work while sick to pay off consumer debt.

But ACA International, a trade group of collection agencies, creditors and debt buyers, believes that its professionals should be free to communicate with consumers about the best payment programs they could participate in, including the possibility of halting collections or deferring payments, said Mark Neeb, the company's CEO, in a statement.

"Disrupting the work of the industry means disrupting the credit ecosystem, which would cause further harm to consumers, lenders, medical providers and other businesses throughout the country who rely on the [accounts receivable management] industry," Neeb said.

Receivables Management Association International, a trade association for more than 550 companies that either purchase debt or support the practice, is encouraging its members to use "hardship provisions" for those impacted by the novel coronavirus.

That could include ceasing collection activities for those who can establish that their only source of income is from "exempt sources" such as Social Security or Supplemental Security Income, according to an announcement last month.

But Nadine Cohen, the managing attorney at Greater Boston Legal Services, noted that RMAI's policies contain a lot of "vague" language, such as offering to "work with and be sensitive to consumers," rather than concrete action.

At a time of national crisis, when many courts are essentially shut down because of coronavirus fears, it is inconceivable that debt collection companies not cease to stop activities against vulnerable consumers, she said.

"We are very concerned by people who are losing income and are being hounded by debt collectors," Cohen said.

--Additional reporting by Jon Hill and RJ Vogt. Editing by Katherine Rautenberg.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

Correction: A previous version of this article misspelled the name of the New Economy Project's legal director. The error has been corrected.

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