[Federal Register Volume 81, Number 202 (Wednesday, October 19, 2016)]
[Rules and Regulations]
[Pages 71977-71981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18902]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 81, No. 202 / Wednesday, October 19, 2016 /
Rules and Regulations
[[Page 71977]]
BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Part 1006
[Docket No. CFPB-2014-0033]
RIN 3170-AA49
Safe Harbors From Liability Under the Fair Debt Collection
Practices Act for Certain Actions Taken in Compliance With Mortgage
Servicing Rules Under the Real Estate Settlement Procedures Act
(Regulation X) and the Truth in Lending Act (Regulation Z)
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Official Bureau interpretations.
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SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is
issuing this interpretive rule under the Fair Debt Collection Practices
Act (FDCPA) to clarify the interaction of the FDCPA and specified
mortgage servicing rules in Regulations X and Z. This interpretive rule
constitutes an advisory opinion for purposes of the FDCPA and provides
safe harbors from liability for servicers acting in compliance with
specified mortgage servicing rules in three situations: Servicers do
not violate FDCPA section 805(b) when communicating about the mortgage
loan with confirmed successors in interest in compliance with specified
mortgage servicing rules in Regulation X or Z; servicers do not violate
FDCPA section 805(c) with respect to the mortgage loan when providing
the written early intervention notice required by Regulation X to a
borrower who has invoked the cease communication right under FDCPA
section 805(c); and servicers do not violate FDCPA section 805(c) when
responding to borrower-initiated communications concerning loss
mitigation after the borrower has invoked the cease communication right
under FDCPA section 805(c).
DATES: This rule is effective on October 19, 2017, except that the
interpretation contained in Part II.A is effective on April 19, 2018.
FOR FURTHER INFORMATION CONTACT: Dania L. Ayoubi, Counsel, or Laura A.
Johnson or Amanda E. Quester, Senior Counsels; Office of Regulations,
at (202) 435-7700.
SUPPLEMENTARY INFORMATION:
I. Background
In January 2013, the Bureau issued several final rules concerning
mortgage markets in the United States (2013 Title XIV Final Rules),
pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection
Act (Dodd-Frank Act), Public Law 111-203, 124 Stat. 1376 (2010). Two of
these rules were (1) the Mortgage Servicing Rules Under the Real Estate
Settlement Procedures Act (Regulation X) (2013 RESPA Servicing Final
Rule); \1\ and (2) the Mortgage Servicing Rules Under the Truth in
Lending Act (Regulation Z) (2013 TILA Servicing Final Rule).\2\
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\1\ 78 FR 10695 (Feb. 14, 2013).
\2\ 78 FR 10901 (Feb. 14, 2013).
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The Bureau clarified and revised those rules through notice and
comment rulemaking during the summer and fall of 2013 in the (1)
Amendments to the 2013 Mortgage Rules under the Real Estate Settlement
Procedures Act (Regulation X) and the Truth in Lending Act (Regulation
Z) (July 2013 Mortgage Final Rule) \3\ and (2) Amendments to the 2013
Mortgage Rules under the Equal Credit Opportunity Act (Regulation B),
Real Estate Settlement Procedures Act (Regulation X), and the Truth in
Lending Act (Regulation Z) (September 2013 Mortgage Final Rule).\4\ In
October 2013, the Bureau clarified compliance requirements in relation
to successors in interest, early intervention requirements, bankruptcy
law, and the Fair Debt Collection Practices Act (FDCPA) \5\ through an
Interim Final Rule (IFR) \6\ and a contemporaneous compliance bulletin
(October 2013 Servicing Bulletin).\7\ Among other things, the IFR
provisionally exempted servicers from the early intervention
requirements when a borrower has properly invoked the FDCPA's cease
communication protections and indicated that the Bureau expected to
explore the potential utility and application of such requirements in
comparison to the FDCPA protections in a broader debt collection
rulemaking.\8\ In October 2014, the Bureau added an alternative
definition of small servicer in the Amendments to the 2013 Mortgage
Rules under the Truth in Lending Act (Regulation Z).\9\ The purpose of
each of these updates was to address important questions raised by
industry, consumer advocacy groups, and other stakeholders.
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\3\ 78 FR 44685 (July 24, 2013).
\4\ 78 FR 60381 (Oct. 1, 2013).
\5\ 15 U.S.C. 1692 et seq.
\6\ 78 FR 62993 (Oct. 23, 2013).
\7\ Bureau of Consumer Fin. Prot., CFPB Bulletin 2013-12,
Implementation Guidance for Certain Mortgage Servicing Rules (Oct.
15, 2013), available at http://files.consumerfinance.gov/f/201310_cfpb_mortgage-servicing_bulletin.pdf.
\8\ 78 FR 62993, 62994 (Oct. 23, 2013). The Bureau received
comments in response to the IFR that it took into account in
developing the proposed rule and sample forms for consumers in
bankruptcy.
\9\ 79 FR 65300, 65304 (Nov. 3, 2014).
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A. Proposed Rule
On December 15, 2014, the Bureau published for notice and comment a
proposed rule to amend Regulations X and Z.\10\ Among other things, the
Bureau proposed three sets of rules relating to successors in interest.
First, the Bureau proposed rules to define successors in interest for
purposes of Regulation X's subpart C and Regulation Z as those persons
who acquired an ownership interest in the property securing a mortgage
loan in a transfer protected from due-on-sale enforcement by the Garn-
St Germain Depository Institutions Act of 1982. Second, the Bureau
proposed rules relating to how a mortgage servicer confirms a successor
in interest's identity and ownership interest in the property. Third,
the Bureau proposed to apply specified mortgage servicing rules in
Regulations X and Z to successors in interest whose identity and
ownership interest in the property have been confirmed by the servicer.
The Bureau proposed these changes to address the significant problems
that successors in interest continue to encounter with respect to the
servicing of mortgage loans secured by their property--such as lack of
access to information about the mortgage loan--which can lead to
unnecessary foreclosures.
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\10\ 79 FR 74176 (Dec. 15, 2014).
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The Bureau also proposed to maintain the IFR's exemption from the
live contact requirements of Sec. 1024.39(a)
[[Page 71978]]
with regard to a mortgage loan for which a borrower has invoked the
cease communication protections of FDCPA section 805(c), for a servicer
subject to the FDCPA with respect to that loan, while partially
eliminating the exemption from the written early intervention notice
requirements of Sec. 1024.39(b) to require that a servicer provide a
modified written notice to the borrower, if loss mitigation options are
available. In addition to the information set forth in Sec.
1024.39(b)(2), the proposal would have required that the modified
written early intervention notice include a statement that the servicer
may or intends to invoke its specified remedy of foreclosure.
B. Final Rule
Concurrent with issuing this interpretive rule, the Bureau is
finalizing the proposed changes described above, with certain
adjustments in the Amendments to the 2013 Mortgage Rules under the Real
Estate Settlement Procedures Act (Regulation X) and the Truth in
Lending Act (Regulation Z) (2016 Servicing Final Rule).\11\ Among other
things, the 2016 Servicing Final Rule includes the proposed three sets
of rule changes relating to successors in interest, with modifications
to address concerns raised in comments the Bureau received. First, the
2016 Servicing Final Rule adds definitions of successor in interest to
Regulations X and Z that are modeled on the categories of transferees
that are protected from due-on-sale enforcement by the Garn-St Germain
Depository Institutions Act of 1982.\12\ Consistent with the proposal,
successors in interest, as defined in the 2016 Servicing Final Rule,
will not necessarily have assumed the mortgage loan obligation (i.e.,
legal liability for the mortgage debt) under State law or otherwise be
legally obligated on the mortgage loan.
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\11\ See Bureau of Consumer Fin. Prot., Final Rule: Amendments
to the 2013 Mortgage Rules under the Real Estate Settlement
Procedures Act (Regulation X) and the Truth In Lending Act
(Regulation Z) (Aug. 4, 2016), available at http://www.consumerfinance.gov/policy-compliance/rulemaking/final-rules/amendments-2013-mortgage-rules-under-real-estate-settlement-procedures-act-regulation-x-and-truth-lending-act-regulation-z.
\12\ Regulation X Sec. 1024.31; Regulation Z Sec.
1026.2(a)(27)(i).
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Second, the 2016 Servicing Final Rule includes new rules relating
to how a mortgage servicer confirms a successor in interest's identity
and ownership interest. It also defines confirmed successor in interest
under subpart C of Regulation X and under Regulation Z as a successor
in interest once a servicer has confirmed the successor in interest's
identity and ownership interest in the relevant property.
Third, the 2016 Servicing Final Rule provides that a confirmed
successor in interest is considered a borrower for purposes of
Regulation X subpart C and Sec. 1024.17 and a consumer for purposes of
Regulation Z Sec. Sec. 1026.20(c) through (e), 1026.36(c), 1026.39,
and 1026.41 (collectively referred to herein as the Mortgage Servicing
Rules). Under the 2016 Servicing Final Rule, confirmed successors in
interest can obtain information about the mortgage loan through
requests for information and notice of error procedures.\13\ Confirmed
successors in interest are also generally entitled to receive notices
required under the Mortgage Servicing Rules to the extent applicable,
if the servicer is not providing the same specific notices to another
borrower on the account.\14\ Applying these protections to confirmed
successors in interest will further the purposes of RESPA and TILA by
helping to prevent unnecessary foreclosures and other consumer harm by
keeping confirmed successors in interest informed of the status of the
mortgage loans on their property.
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\13\ The 2016 Servicing Final Rule provides that, in responding
to a request for information under Sec. 1024.36 or a request for
documentation under Sec. 1024.35(e)(4), a servicer may omit
location and contact information and personal financial information
(other than information about the terms, status, and payment history
of the mortgage loan) if: (i) The information pertains to a
potential or confirmed successor in interest who is not the
requester; or (ii) the requester is a confirmed successor in
interest and the information pertains to any borrower who is not the
requester.
\14\ The same exemptions and scope limitations apply to
confirmed successors in interest as to other borrowers under the
Mortgage Servicing Rules. Additionally, if a servicer provides an
initial written notice and acknowledgment form to a confirmed
successor in interest upon confirmation in compliance with the
requirements of Regulation X Sec. 1024.32(c)(1) through (3), the
2016 Servicing Final Rule allows the servicer not to provide notices
under the Mortgage Servicing Rules to the confirmed successor in
interest until the confirmed successor in interest requests such
notices through the acknowledgment.
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The 2016 Servicing Final Rule also finalizes the proposed partial
exemption from the early intervention requirements with regard to a
mortgage loan for which any borrower has invoked the cease
communication right pursuant to FDCPA section 805(c), for a servicer
subject to the FDCPA with respect to that loan, with modifications to
address concerns raised in comments the Bureau received. Under the 2016
Servicing Final Rule, if a borrower has invoked the cease communication
right pursuant to FDCPA section 805(c), a servicer subject to the FDCPA
with respect to that loan is exempt from the live contact requirements
with respect to that mortgage loan. If no loss mitigation option is
available or while any borrower on the mortgage loan is a debtor in
bankruptcy under title 11 of the United States Code, a servicer is also
exempt from the written notice requirements with respect to that
mortgage loan. If these conditions are not met, the servicer is
required to provide a modified written early intervention notice
pursuant to Sec. 1024.39(d)(3), as described in more detail below.
II. Application of Interpretive Rule
While many mortgage servicers are not subject to the FDCPA,
mortgage servicers that acquired a mortgage loan at the time that it
was in default are subject to the FDCPA with respect to that mortgage
loan. The Bureau is issuing this interpretive rule to clarify the
interaction between certain provisions of the FDCPA and the Mortgage
Servicing Rules. This interpretive rule constitutes an advisory opinion
under FDCPA section 813(e) and provides a safe harbor from liability
for actions done or omitted in good faith in conformity with the
opinion, even if the opinion is rescinded or amended in whole or in
part after the act or omission occurs, or is determined invalid by a
judicial authority.\15\ The interpretations contained in this rule are
included in relevant commentary to Regulations X and Z.\16\
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\15\ FDCPA section 813(e).
\16\ Regulation X comments 30(d)-1 and 39(d)-2; Regulation Z
comment 2(a)(11)-4.ii.
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A. Confirmed Successors in Interest
In the 2016 Servicing Final Rule, the Bureau is extending certain
protections of Regulations X and Z to cover confirmed successors in
interest whether or not a successor has assumed the mortgage loan
obligation.\17\ For
[[Page 71979]]
example, servicers generally will have to comply with Regulation X's
requirements for loss mitigation and Regulation Z's requirements for
periodic statements with respect to confirmed successors in
interest.\18\ This interpretive rule clarifies the interaction between
the requirements in the 2016 Servicing Final Rule applicable to
confirmed successors in interest and FDCPA section 805(b)'s general
prohibition on communicating with third parties in connection with
collection of a debt.
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\17\ For purposes of Regulation X subpart C, successor in
interest is defined as:
A person to whom an ownership interest in a property securing a
mortgage loan subject to this subpart is transferred from a
borrower, provided that the transfer is:
A transfer by devise, descent, or other operation of
law on the death of a joint tenant or tenant by the entirety;
A transfer to a relative resulting from the death of a
borrower;
A transfer where the spouse or children of the borrower
become an owner of the property;
A transfer resulting from a decree of a dissolution of
marriage, legal separation agreement, or from an incidental property
settlement agreement, by which the spouse of the borrower becomes an
owner of the property; or
A transfer into an inter vivos trust in which the
borrower is and remains a beneficiary and which does not relate to a
transfer of rights of occupancy in the property.
Regulation X Sec. 1024.31. The 2016 Servicing Final Rule's
definition of successor in interest for Regulation Z is identical,
except that the Regulation Z definition substitutes ``a dwelling
securing a closed-end consumer credit transaction is transferred
from a consumer'' for ``a property securing a mortgage loan is
transferred from a borrower.'' Regulation Z Sec. 1026.2(27)(i). The
categories included in these definitions track the categories of
transfers protected by section 341(d) of the Garn-St Germain
Depository Institutions Act of 1982. The 2016 Servicing Final Rule
also defines confirmed successor in interest as a successor in
interest once a servicer has confirmed the successor in interest's
identity and ownership interest in the relevant property. Regulation
X Sec. 1024.31, Regulation Z Sec. 1026.2(a)(27)(ii).
\18\ Regulation X Sec. Sec. 1024.30(d) and 1024.41; Regulation
Z Sec. Sec. 1026.2(a)(11) and 1026.41.
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FDCPA section 805(b) generally prohibits debt collectors from
communicating with third parties in connection with the collection of a
debt in the absence of a court order or prior consumer consent given
directly to the debt collector. FDCPA section 805(b) permits debt
collectors to communicate with a person who is a consumer for purposes
of section 805. FDCPA section 805(d), in turn, states that the term
consumer for purposes of section 805 includes the consumer's spouse,
parent (if the consumer is a minor), guardian, executor, or
administrator.\19\ The use of the word ``includes'' indicates that
section 805(d) is an exemplary rather than exhaustive list of the
categories of individuals that are ``consumers'' for purposes of FDCPA
section 805.
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\19\ 15 U.S.C. 1692c(d). In general, the FDCPA defines consumer
as ``any natural person obligated or allegedly obligated to pay any
debt.'' FDCPA section 803(3), 15 U.S.C. 1692b(3).
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FDCPA section 805 thus recognizes the importance of permitting debt
collectors to communicate with a narrow category of other persons who,
by virtue of their relationship to the obligor or the debt in question,
may need to communicate with the debt collector in connection with the
collection of the debt.
In light of its expertise as the agency that Congress has charged
with interpreting and implementing the FDCPA, RESPA, and TILA, the
Bureau interprets the term consumer for purposes of FDCPA section 805
to include a confirmed successor in interest as that term is defined in
Regulation X Sec. 1024.31 and Regulation Z Sec. 1026.2(a)(27)(ii).
Given their relationship to the obligor, the mortgage loan, and the
property securing the mortgage loan, and given the Bureau's extension
of certain protections of Regulations X and Z to them, the Bureau
concludes that confirmed successors in interest are--like the narrow
categories of persons enumerated in FDCPA section 805(d)--the type of
individuals with whom a servicer needs to communicate about the
mortgage loan. As the Bureau notes in the 2016 Servicing Final Rule, a
servicer's failure to provide information to a successor in interest
about the status of a mortgage loan or to evaluate the successor in
interest for available loss mitigation options could result in
unnecessary foreclosure and loss of the successor in interest's
ownership interest. Under this interpretive rule, servicers subject to
the FDCPA with respect to a mortgage loan do not violate FDCPA section
805(b)'s prohibition on communicating with third parties by
communicating with a confirmed successor in interest about a mortgage
loan secured by property in which the confirmed successor in interest
has an ownership interest, in compliance with the Mortgage Servicing
Rules.\20\
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\20\ As a consequence of this interpretation, the protections in
FDCPA sections 805(a) and (c), which apply to consumers for purposes
of section 805, apply to confirmed successors in interest. Under
FDCPA section 805(a), a debt collector may not--without the prior
consent of the consumer or the express permission of a court--
communicate with the consumer in connection with the collection of
any debt in certain circumstances, including at any unusual or
inconvenient time or place. And, as explained in greater detail
below, FDCPA section 805(c) provides that, if a consumer refuses in
writing to pay a debt or requests that a debt collector cease
communicating with the consumer about the debt, the debt collector
must generally cease communicating with the consumer.
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Because this interpretive rule applies only to the use of the term
consumer in section 805, it does not affect the definition of consumer
under the remaining FDCPA provisions. Moreover, this interpretive rule
applies only to confirmed successors in interest as defined in
Regulation X Sec. 1024.31 and Regulation Z Sec. 1026.2(a)(27)(ii) to
facilitate their access to information about the mortgage loan
encumbering their property. It does not expand the definition of
consumer for purposes of FDCPA section 805 beyond confirmed successors
in interest as defined in Regulations X and Z. Furthermore, this
interpretation does not relieve servicers that are debt collectors of
their obligations under the FDCPA, including their obligations under
FDCPA sections 806 through 808.\21\
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\21\ For example, servicers that are debt collectors must not:
Engage in conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the collection of a
debt; use any false, deceptive, or misleading representation or
means in connection with the collection of a debt; or use unfair or
unconscionable means to collect or attempt to collect any debt.
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B. Required Early Intervention Notice
As explained in the 2016 Servicing Final Rule, the Bureau is, in
part, eliminating the exemption from the written early intervention
requirements with regard to a mortgage loan for which any borrower has
invoked the cease communication right under FDCPA section 805(c), for a
servicer subject to the FDCPA with respect to that loan. A servicer
that is a debt collector with respect to that loan is exempt from the
written notice requirements with regard to that loan if no loss
mitigation option is available \22\ or while any borrower on the
mortgage loan is a debtor in bankruptcy under title 11 of the United
States Code. If these conditions are not met, the servicer is required
to provide a modified written early intervention notice that, among
other things, includes statements encouraging the borrower to contact
the servicer, provides a brief description of examples of loss
mitigation options that may be available from the servicer, and states
that the servicer may or intends to invoke its specified remedy of
foreclosure.\23\ The servicer is legally required to provide a
delinquent borrower with the written notice not later than the 45th day
of the borrower's delinquency. As a general matter, this written notice
must be provided well before the servicer may initiate foreclosure: In
most cases, the servicer is legally required to wait until a borrower's
mortgage loan obligation is more than 120 days delinquent, after the
written notice has been sent, to make the first notice or filing
required by applicable law for any judicial or non-
[[Page 71980]]
judicial foreclosure process. This written notice may not contain a
request for or suggestion of payment, other than for purposes of loss
mitigation, and the servicer is not required to provide it to the
borrower more than once during any 180-day period.\24\
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\22\ See Regulation X comment 39(d)-1 (explaining availability
of loss mitigation options).
\23\ Regulation X Sec. 1024.39(d)(3). The 2016 Servicing Final
Rule provides the following model language that servicers that are
debt collectors may use:
This is a legally required notice. We are sending this notice to
you because you are behind on your mortgage payment. We want to
notify you of possible ways to avoid losing your home. We have a
right to invoke foreclosure based on the terms of your mortgage
contract. Please read this letter carefully.
Appendix MS-4(D). Use of this model clause or another statement
in compliance with Sec. 1024.39(d)(3)(i), on a written notice as
required by and in compliance with the other requirements of Sec.
1024.39(d)(3), provides a safe harbor from FDCPA liability under
section 805(c) for providing the required statement.
\24\ Regulation X Sec. 1024.39(d)(3).
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Section 805(c) of the FDCPA provides that, if a consumer refuses in
writing to pay a debt or requests that a debt collector cease
communicating with the consumer about the debt, the debt collector must
discontinue communicating with the consumer, subject to enumerated
exceptions. As relevant here, the prohibition does not apply where a
debt collector communicates with a consumer who has invoked the cease
communication right to notify the consumer that the debt collector or
creditor may invoke specified remedies which are ordinarily invoked by
such debt collector or creditor \25\ or, where applicable, to notify
the consumer that the debt collector or creditor intends to invoke a
specified remedy.\26\
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\25\ FDCPA section 805(c)(2).
\26\ FDCPA section 805(c)(3).
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Because failure to provide the written early intervention notice
required by Sec. 1024.39(d)(3) is closely linked to a servicer's
ability to invoke its specified remedy of foreclosure, the Bureau
concludes that the notice falls within the exceptions in FDCPA sections
805(c)(2) and (3).
This interpretation is limited to the specific situation where a
servicer that is a debt collector with respect to a mortgage loan is
required by Sec. 1024.39(d)(3) to provide a modified written early
intervention notice to a borrower who has invoked the cease
communication right under FDCPA section 805(c) with regard to that
loan. It is a narrow safe harbor, based only upon the interplay between
these two specific federal consumer protections--the early intervention
requirements of Sec. 1024.39 of Regulation X and the cease
communication provision and statutory exceptions of section 805(c) of
the FDCPA. All other provisions of the FDCPA, including the
prohibitions contained in FDCPA sections 805 through 808, are
unaffected by this interpretation, and a servicer that is a debt
collector with respect to the particular mortgage loan remains liable
to the extent that anything in the notice violates any other provision
of the FDCPA.\27\
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\27\ For example, servicers that are debt collectors must not:
Engage in conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the collection of a
debt; use any false, deceptive, or misleading representation or
means in connection with the collection of a debt; or use unfair or
unconscionable means to collect or attempt to collect any debt.
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The Bureau concludes that, in the limited circumstances where a
servicer is subject to the FDCPA with respect to a borrower's mortgage
loan and the borrower has invoked the cease communication right
pursuant to FDCPA section 805(c) with regard to that mortgage loan, and
where the servicer complies with the requirements of the modified
written early intervention notice under Sec. 1024.39(d)(3) of
Regulation X, the modified written early intervention notice required
under Sec. 1024.39(d)(3) is within the statutory exceptions of FDCPA
section 805(c)(2) and (3) and thus does not violate section 805(c) with
respect to the mortgage loan.
C. Borrower-Initiated Communications Concerning Loss Mitigation After
Invocation of Cease Communication Rights
Even after a borrower has invoked the cease communication right
under section 805(c) of the FDCPA, the borrower may contact the
servicer to discuss or apply for loss mitigation. For instance, as
noted above, Sec. 1024.39(d)(3) requires servicers subject to the
FDCPA with respect to a borrower's mortgage loan to provide a written
early intervention notice to borrowers who have invoked the FDCPA's
cease communication right with regard to that loan if any loss
mitigation option is available and no borrower on the mortgage loan is
a debtor in bankruptcy under title 11 of the United States Code. The
written notice must include a statement encouraging the borrower to
contact the servicer.\28\ The Bureau believes that, when borrowers
respond to such a notice by contacting the servicer to discuss
available loss mitigation options or otherwise initiate communication
with the servicer concerning loss mitigation, such a borrower-initiated
communication should not be understood as within the category of
communication that borrowers generally preclude by invoking the cease
communication right under FDCPA section 805(c). The Bureau therefore
concludes that a borrower's invocation of the FDCPA's cease
communication right with regard to a mortgage loan does not prevent a
servicer that is a debt collector with respect to that mortgage loan
from responding to borrower-initiated communications concerning loss
mitigation.
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\28\ See Regulation X Sec. 1024.39(b)(2)(i).
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As noted above, FDCPA section 805(c) empowers borrowers to direct
debt collectors to cease contacting them with respect to a debt and
frees borrowers from the burden of being subjected to unwanted
communications regarding collection of a debt. Borrower-initiated
conversations about loss mitigation options do not give rise to the
burden of unwanted communications that FDCPA section 805(c) protects
against. Rather, they are sought out by borrowers for this narrow
purpose. The Bureau therefore concludes that a borrower's cease
communication notification pursuant to FDCPA section 805(c) should
ordinarily be understood to exclude borrower-initiated communications
with a servicer concerning loss mitigation because the borrower has
specifically requested the communication at issue to discuss available
loss mitigation options. Accordingly, when a servicer that is a debt
collector with respect to a mortgage loan responds to a borrower-
initiated communication concerning loss mitigation after the borrower's
invocation of FDCPA section 805(c)'s cease communication protection
with regard to that loan, the servicer does not violate FDCPA section
805(c) with respect to such communications as long as the servicer's
response is limited to a discussion of any potentially available loss
mitigation option. For example, a servicer may discuss with a borrower
any available loss mitigation option that the owner or assignee of the
borrower's mortgage loan offers, instructions on how the borrower can
apply for loss mitigation, what documents and information the borrower
would need to provide to complete a loss mitigation application, and
the potential terms or details of a loan modification program,
including the monthly payment and duration of the program. These
borrower-initiated communications, although variable, are unlikely to
be perceived as within the scope of the cease communication request
given the borrower's initiation of communications concerning loss
mitigation information.
This is the case even if the borrower provides a cease
communication notification during the loss mitigation application and
evaluation process under Sec. 1024.41. The borrower usually should be
understood to have excluded the loss mitigation application and
evaluation process under Sec. 1024.41 from the general request to
cease communication, and therefore a servicer should continue to comply
with the procedures under Sec. 1024.41. Only if the borrower provides
a communication to the servicer specifically withdrawing
[[Page 71981]]
the request for loss mitigation does the cease communication
prohibition apply to communicating about the specific loss mitigation
action.\29\
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\29\ See Bureau of Consumer Fin. Prot., Implementation Guidance
for Certain Mortgage Servicing Rules, CFPB Bulletin 2013-12 (Oct.
15, 2013), available at http://files.consumerfinance.gov/f/201310_cfpb_mortgage-servicing_bulletin.pdf.
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The Bureau notes that this interpretation provides a safe harbor
from FDCPA section 805(c) for servicers that are debt collectors with
respect to a particular mortgage loan communicating with the borrower
in connection with a borrower's initiation of communications concerning
loss mitigation. Preceding a borrower's loss mitigation application and
during the evaluation process, a servicer may respond to borrower
inquiries about potentially available loss mitigation options and
provide information regarding any available option. Similarly, if that
borrower submits a loss mitigation application, the servicer's
reasonable diligence obligations under Sec. 1024.41(b)(1) require the
servicer to request additional information from the borrower, including
by contacting the borrower, and these communications by the servicer to
complete a loss mitigation application do not fall within the cease
communication prohibition. The servicer may also seek information that
will be necessary to evaluate the borrower for loss mitigation, though
the servicer may not seek a payment unrelated to the purpose of loss
mitigation. Once the borrower's loss mitigation application is
complete, a servicer's communications with a borrower in accordance
with the procedures in Sec. 1024.41 are not subject to liability under
FDCPA section 805(c) because they arise from the borrower's application
for loss mitigation.
The Bureau recognizes that, in order for a borrower to engage in
meaningful loss mitigation discussions with a servicer, the servicer
may discuss repayment options, the borrower's ability to make a
payment, and how much the borrower can afford to pay as a part of a
loss mitigation option for which the servicer is considering the
borrower. Furthermore, the Bureau understands that any offer for a loan
modification or repayment plan is likely to include a specific payment
amount the borrower must pay under the terms of the loss mitigation
agreement. Such communications, as long as for the purpose of loss
mitigation, are permissible because they should not be understood as
within the scope of the cease communication request.
The Bureau emphasizes, however, that the cease communication
prohibition continues to apply to a servicer's communications with a
borrower about payment of the mortgage loan that are outside the scope
of loss mitigation conversations. The Bureau's interpretation does not
protect a servicer that is a debt collector with respect to a mortgage
loan and is using borrower-initiated communications concerning loss
mitigation as a pretext for debt collection in circumvention of a
borrower's invoked cease communication right under FDCPA section 805(c)
with regard to that loan. Seeking to collect a debt under the guise of
a loss mitigation conversation is not exempt from liability under FDCPA
section 805(c) under this interpretation. Thus, in subsequently
communicating with a borrower concerning loss mitigation, the servicer
is strictly prohibited from making a request for payment that is not
immediately related to any specific loss mitigation option. Some
examples of impermissible communications include initiating
conversations with the borrower related to repayment of the debt that
are not for the purposes of loss mitigation, demanding that the
borrower make a payment, requesting that the borrower bring the account
current or make a partial payment on the account, or attempting to
collect the outstanding balance or arrearage, unless such
communications are immediately related to a specific loss mitigation
option.\30\ Additionally, all other provisions of the FDCPA, including
the prohibitions contained in FDCPA sections 805 through 808, continue
to apply.\31\
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\30\ See 53 FR 50097, 50103 (Dec. 13, 1988) (Section 805(c)-2 of
the Federal Trade Commission's (FTC) Official Staff Commentary on
FDCPA section 805(c)) (``A debt collector's response to a `cease
communication' notice from a consumer may not include a demand for
payment, but is limited to the three statutory exceptions [under
FDCPA section 805(c)(1) through (3)].'').
\31\ For example, servicers that are debt collectors must not:
Engage in conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the collection of a
debt; use any false, deceptive, or misleading representation or
means in connection with the collection of a debt; or use unfair or
unconscionable means to collect or attempt to collect any debt.
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III. Regulatory Requirements
This rule articulates the Bureau's interpretation of the FDCPA. It
is exempt from notice and comment rulemaking requirements under the
Administrative Procedure Act pursuant to 5 U.S.C. 553(b). Because no
notice of proposed rulemaking is required, the Regulatory Flexibility
Act does not require an initial or final regulatory flexibility
analysis.\32\ The Bureau has determined that this rule does not impose
any new or revise any existing recordkeeping, reporting, or disclosure
requirements on covered entities or members of the public that would be
collections of information requiring OMB approval under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
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\32\ 5 U.S.C. 603(a) and 604(a).
Dated: August 2, 2016.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2016-18902 Filed 10-18-16; 8:45 am]
BILLING CODE 4810-AM-P