Submission Number: 00066
Received: 11/22/2010 10:35:12 AM
Commenter: Kimberly Fedinatz
Organization: Private Citizen
Agency: Federal Trade Commission
Initiative: Statement of Policy Regarding Communications in Connection with Collection of a Decedent’s Debt; Project No. P104806
Attachments: No Attachments
This enforcement discretion policy needs clarification as to the term spouse, the issue of intestate succession. Also due to the frequent use of qualifiers such as "may," attempts at enforcement be unsuccessful.
"Spouse" is too broad - this term could be interpreted to include an ex-spouse, even if said ex-spouse was prior to the current widow(er), which is likely impermissible since the marital estate was divided in divorce, and violates the spirit of the rule. Also "persons who dispose of the decedent’s assets extrajudicially" is problematic - if the estate is subject to intestate succession, no one person is responsible for distribution, and thus every recipient heir disposes of the estate. Recovering from heirs, instead of one administrator, opens the door to harassment of an entire bereaved family, which the rule was designed to ameliorate. A narrower term is more appropriate, such as "one who, in an extrajudicial estate disposal, serves as the facto administrator."
There are also too many qualifying words in here, e.g. "to avoid creating the misimpression that the individual is personally liable for the decedent’s debt, it may be necessary for the collector to disclose clearly and prominently..." (Sec. II, p62393; & again 1 para. before the Conclusion) -- the word "may" means the statement will be entirely ignored, creates too much of a case-by-case enforcement regime, and an enforcement attempt will suffer strong pushback in court.