UNITED STATES OF AMERICA
January 5, 1993
Charles R. Stewart
Dear Mr. Stewart:
This is in response to your December 18 letter requesting a staff opinion concerning your dispute with a collection agency. The collection agency is attempting to collect on a check you wrote that was not honored by your bank. The collection agency allegedly sent you two collection letters that apparently include the notice required by Section 7-15-2(2) of the Utah Financial Institutions Code. An attorney for the collection agency argues that this notice renders unnecessary the Section 807(11) and Section 809 notices required by the Fair Debt Collection Practices Act (FDCPA), which this office enforces. I have enclosed a copy of the FDCPA for your reference. The opinion of the Commission staff is that the collection agency must include the FDCPA notices.
The collection agency's attorney apparently based his argument on his reading of Section 817 of the FDCPA, which states:
Section 817 does not support the attorney's argument, however, because the Commission has never exempted any class of debt collection practices within the State of Utah, including those that comply with Section 7-15-2(2) of the Utah Financial Institutions Code. Moreover, it is unlikely that the Commission would grant such an exemption because the requirements imposed by Section 7-15-2(2) are not substantially similar to those imposed by Sections 809(a) and 807(11) of the FDCPA. Section 809(a) provides, among other things, that:
In addition, Section 807(11) requires that a debt collector "disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose."
The notice required by Section 7-15-2(2) of the Utah statute (1) does not inform consumers of their right to dispute the debt, (2) does not notify consumers of their right to obtain verification of the debt, (3) does not inform consumers of their right to learn the name and address of the original creditor, and (4) does not disclose that the notice is an attempt to collect a debt. Thus, not only has Utah not applied for exemption of any class of debt collection activities within the State, it appears that such an exemption would not have been granted in any event. Consequently, the debt collector at issue must comply with the FDCPA, including Sections 807(11) and 809.
The views expressed herein represent an informal staff opinion. As such, they are not binding on the Commission. They do, however, reflect the staff's current enforcement position.
Thomas E. Kane