Debt collectors licensed by the New York City Department of Consumer Affairs (NYC DCA) will be required to comply with new requirements to provide language access service disclosures to consumers starting June 27, 2020. The NYC DCA adopted the new rules on May 28, 2020.
The new rules do not create a separate obligation for debt collectors to provide any language access services; instead, consumers must be notified of any existing language access services and resources available through the NYC DCA. The requirements are as follows:
- Disclosure: In any initial collection notice and on any public-facing website maintained by the collector, provide the consumer with the following information:
- The availability of any language access services provided by the collector, and
- The availability of a translation and description of commonly used debt collection terms in a consumer's preferred language on the Department's website.
- Record Retention: "To the extent reasonably possible," request, record, and retain a record of the language preference of each consumer from whom the collector attempts to collect a debt.
- The language preference of each consumer must be maintained unless the collector is unable to obtain the preference "despite reasonable attempts to obtain it."
- Reporting: Maintain a report identifying, by language:
- The number of consumer accounts on which an employee of the collector attempted to collect a debt in a language other than English, and
- The number of employees who attempted to collect on such accounts.
The new rules also prohibit:
- Providing false, inaccurate, or incomplete translations of any communication to a consumer in the course of attempting to collect a debt.
- This appears to be a strict liability standard. Given the express inclusion of a knowledge element in the below prohibition, the lack of a knowledge or intent requirement here is likely an intentional omission. In addition, no safe harbor was identified.
- Misrepresenting or omitting a consumer's language preference when returning, selling, or referring for litigation any consumer account, where the debt collector is aware of such preference.
While new to New York City licensees, this type of requirement is not unique, as similar language access service requirements applicable to collection activity can be found in a limited number of jurisdictions. For example, California requires third-party debt collectors to provide the required notices in a language other than English if the collector used a language other than English in the initial oral communication.
Language access requirements can also be found in other federal and state laws applicable to other financial services institutions, such as the Truth-in-Lending Act's (TILA) requirements for certain mortgage-related disclosures to be provided in a language other than English. However, a notable difference is that the TILA requirements are generally triggered when an advertisement is made in a language other than English, whereas the NYC DCA rules require the debt collector to provide these disclosures with every initial collection notice and on its website. Similarly, some states require certain disclosures to be provided in the language used in advertisements or negotiations in connection with personal loans. Some states have codified these requirements, such as California and Texas, while others have implemented such requirements through case law, such as Florida.
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