Q: What factors rebut the presumption of a violation of the prohibition against repeated or continuous telephone calls or conversations?
A: Under the Debt Collection Rule, to rebut the presumption of a violation, it must be proven that, despite the number of calls a debt collector made, the debt collector did not cause a telephone to ring or engage any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
Presumption of Violation Rebuttal Factors. Factors that may rebut the presumption of a violation include but are not limited to:
- Calls required by applicable law. Whether a debt collector placed a telephone call to comply with or as required by applicable law. For example, a telephone call to inform the consumer of available loss mitigation options in compliance with the Bureau’s mortgage servicing rules under Regulation X, 12 CFR § 1024.39(a), may be an example of a call placed to comply with applicable law.
- Calls related to active litigation. Whether a telephone call was directly related to active litigation involving the collection of a particular debt. A telephone call to complete a court-ordered communication or as part of negotiations to settle active debt collection litigation involving the collection of a particular debt may be examples of calls directly related to active litigation involving the collection of a particular debt. However, the debt collector must comply with the prohibition on communicating or attempting to communicate with a consumer represented by an attorney with regard to the specific debt. 12 CFR § 1006.6(b)(2).
- Consumer response calls. Whether a debt collector placed a telephone call in response to a consumer’s request for additional information when the exclusion for telephone calls made with the consumer’s direct prior consent does not apply. For example, a consumer may tell the debt collector that the consumer would like more information about a debt but end the call before the debt collector can confirm whether the consumer’s general statement about seeking more information constitutes the consumer’s consent for the debt collector to place additional calls within the next seven days to provide the requested information. A telephone call to provide the requested information may be an example of a call placed in response to a consumer’s request for additional information when the exclusion for calls made with the consumer’s direct prior content does not apply.
- Consumer benefit calls. Whether a debt collector placed a telephone call to convey information to the consumer that, as shown through evidence, would provide the consumer with an opportunity to avoid a demonstrably negative effect relating to the collection of the particular debt, where the negative effect was not in the debt collector’s control, and where time was of the essence.
Updated October 1, 2021