Blog LenderLaw Watch June 06, 2019

CFPB Releases New Proposed FDCPA Rules

On May 7, 2019, the Consumer Financial Protection Bureau (CFPB or Bureau) released a Notice of Proposed Rule Making (Notice) to implement the Fair Debt Collection Practices Act (FDCPA).  The Bureau’s stated purpose for the proposed rules, which would be placed in the existing Regulation F, is to “set clear, bright-line limits on the number of calls debt collectors may place to reach consumers on a weekly basis,” and “clarify how collectors may communicate lawfully using newer technologies, such as voicemails, emails and text messages,” among other things.

The Notice proposes several term expansions, which would allow debt collectors to expand its communications with debtors.  One notable term expansion is redefining the term “consumer” to include “a deceased natural person who is obligated or allegedly obligated to pay debt,” thereby also expanding the allowable communications a debt collector may have with a debtor’s successor-in-interest or personal representative of the debtor’s estate.  Another expansion is the creation of the new term, “limited content message,” which would allow debt collectors to leave voice mails to consumers (containing a limited set of identified information, and nothing else) that would be “deemed not to be a communication under the FDCPA.”  This “limited content message” would permit a debt collector to leave a message for a person other than the debtor “without communicating.”  The proposed rules would also allow debt collectors to provide FDCPA disclosures through electronic means, provided such disclosures are in a “form that the consumer may keep and access later.”

However, the expansions are not without new proposed requirements and prohibitions.  New opt-out options for emails and text messages are included in the proposed requirements of what must be provided to a consumer, including providing the consumer with the option to allow the debt collector to only communicate with them through a specific email address or telephone number.  Most notable are the new proposed prohibitions for the way a debt collector communicates with a debtor.  Under the proposed regulations, debt collectors would be prohibited from placing telephone calls to a debtor within seven days of having a telephone conversation with a debtor, or more than seven times within a seven day period.  Further, debt collectors would be prohibited from contacting debtors through social media, with the exception of direct messaging, and would be prohibited from contacting a debtor through an email address provided by the debtor’s employer.  The proposed regulations would also prohibit a debt collector from threatening to sue, or suing, a debtor for a time-barred debt.  However, a debt collector would continue to not be prohibited from collecting a time-barred debt using other allowable means.

For those seeking to comment, the Notice is open for public comment for 90 days (until August 5, 2019).