United States: CFPB (Finally) Issues Debt Collection Rules

In 1977, gas cost 62 cents per gallon; the first Apple II computers became available for sale; even the most primitive mobile phones were half a decade away from being released to the public; and debt collectors relied on landline phones, the US mail or in-person conversations to collect the debts assigned to them. When Congress passed the Fair Debt Collection Practices Act ("FDCPA") that year, it could not have envisioned a world where consumers communicate instantly using cellphones, text messages, emails and social media.

No federal agencies promulgated any significant regulations under the FDCPA in the 40 subsequent years. Until the Dodd-Frank Act became effective, no federal agency even had the authority to do so. In the absence of any controlling regulations, courts were free to fashion their own standards and interpretations of the FDCPA. Given the voluminous amount of FDCPA litigation, courts across the country quickly created inconsistent standards and a maze of differing interpretations. Fortunately for entities seeking simple, practical and uniform standards for FDCPA compliance in the modern age, the Consumer Financial Protection Bureau (the "CFPB" or "the Bureau") issued its proposed Regulation F under the FDCPA (the "Proposed Rule") on May 7, 2019.

In this Legal Update, we summarize the CFPB's proposed debt collection rulemaking and describe the consequences for entities engaged in collecting consumer-purpose debts. We do not rehash all 538 pages of the Bureau's proposal but instead summarize some of the most significant developments that FDCPA-regulated entities should review when considering whether to provide comments to the Bureau regarding the Proposed Rule


Overview of the FDCPA

Before we discuss the content of the Proposed Rule, we briefly remind our readers of the basic structure of the FDCPA.

Congress passed the FDCPA in 1977 in order to combat "[d]isruptive dinnertime calls, downright deceit, and more."1 The FDCPA applies to "debt collectors," who are generally third-party entities (i.e., not original creditors) who either (i) regularly collect debts on behalf of others or (ii) obtained defaulted debts, but only if the entity's "principal purpose" is the collection of debts.2 In general, the FDCPA prohibits a debt collector from using unlawful, abusive, deceptive, or unfair collection tactics in connection with the collection of debts. The FDCPA contains an extensive (but not exclusive) list of practices that are prohibited under this standard. They include tactics such as calling a debtor at unreasonable hours, calling a debtor at work when the debt collector knows that the debtor's employer does not allow the debtor to receive calls, letting the phone ring incessantly in order to harass the debtor, threatening to take actions that the collector does not intend to or cannot legally take, communicating with unauthorized third parties about the debt, and making any collection-related communication that would tend to confuse the "least sophisticated consumer." The FDCPA also imposes several affirmative disclosure requirements on debt collectors, including with respect to debt validation notices, "mini-Miranda" notices, and self-identification.

The Proposed Rule generally restates the FDCPA definition of a "debt collector" with only minor changes.3 Even if a collector is not covered by the FDCPA, the Bureau views the practices prohibited by the FDCPA as potentially unfair, deceptive, and/or abusive practices ("UDAAPs") that could violate the Dodd-Frank Act when undertaken by any person engaged in collection activities.4 As a result, even entities such as first-party collectors, or servicers of performing mortgage loans that later become delinquent, should review the Proposed Rule and consider revising their practices as a matter of best practices and UDAAP risk control.


The proposed rule clarifies a number of terms used in the FDCPA that have been the root of significant litigation and enforcement actions since the passage of the FDCPA. We explain the proposed rule's clarifications below.

Communication and Limited-Content Messages: the FDCPA prohibits a debt collector from communicating with third parties about the consumer's debt, unless the third party is the consumer's lawyer, a consumer reporting agency, the creditor or the creditor's lawyer, or the debt collector's lawyer.5 In addition, a debt collector communicating with a consumer must provide the so-called "mini-Miranda" notice to inform the consumer that the communication is from a debt collector.6 As a result, debt collectors frequently were tripped up by inadvertently having a communication overheard by a third party, especially if the debt collector chose to leave voicemails for debtors after an unsuccessful attempt to establish contact with the consumer. If a debt collector left a voicemail identifying itself as a debt collector and implied or revealed the existence of the consumer's debt, it could unknowingly violate the FDCPA if the debtor lived with a roommate or other third parties who might have access to the voicemail box. On the other hand, if the voicemail was considered to be a communication in connection with the collection of the debt, the collector would violate the FDCPA if it did not identify itself and disclose that it is a debt collector.

Several federal appeals courts have reached the conclusion that contacts from a debt collector that do not refer to or imply the existence of a debt, and do not reveal information about the debtor's debts, are not "communications" for purposes of the FDCPA.7 However, the law remained unsettled and, as recently as 2017, the FTC entered into a stipulated judgment with a debt collector to settle allegations that the collector left voice messages in a manner that could reveal the existence and status of the consumer's debt to an unauthorized third party.8 The Bureau ultimately believed this conflict led collectors to err on the side of not leaving voicemails, which in turn led to more frequent call attempts so that collectors could ensure they established live, right-party contact.9

The Proposed Rule resolves this conflict by clarifying that a debt collector does not convey information regarding a debt "directly or indirectly to any person" if the debt collector provides only a "limited-content message."10 A "limited-content message" must include only the expressly required content set forth in the Proposed Rule, and nothing more (except the optional content described below). The Proposed Rule requires that a "limited-content message" include all of the following:

  • The consumer's name;
  • A request that the consumer reply to the message;
  • The name or names of one or more natural persons whom the consumer can contact to reply to the debt collector;
  • A telephone number that the consumer can use to reply to the debt collector, and
  • If applicable, a clear and conspicuous statement describing one or more ways the consumer can opt out of further attempts to communicate by the debt collector to that telephone number (discussed in further detail below in the "Opt Out" section).11

In addition to the required content, a debt collector leaving a limited-content message may also opt to include a salutation, the date and time of the message, a generic statement that the message relates to an account, or suggested dates and times for the consumer to reply to the message.12 If a collector includes information in a message that exceeds the permitted information and conveys information about the debt, such as information revealing that the message relates to the collection of a debt (such as the consumer's account number), the collector loses the protection of the limited-content message exception.13 As the name of the debt collector is not among the required or optional content, a collector may lose the protection of the "limited-content message" exception if a message included the collector's name. Consistent with this view, the Bureau noted that email cannot be used to transmit a "limited-content message" because email messages "typically require additional information (e.g., a sender's email address) that may in some circumstances convey information about a debt."14

Although a limited-content message is not a "communication" under the Proposed Rule, it is nonetheless considered an attempt to communicate, and is subject to the restrictions in the Proposed Rule regarding attempts to communicate with a consumer regarding a debt (such as the seven-call limit discussed below).15

Consumer: As noted above, the FDCPA strictly prohibits communication of a consumer's debt to third parties besides a limited list of persons.16 The limited scope of the exceptions to this prohibition presented several difficulties for debt collectors. First, debt collectors were hampered in resolving the debts of a deceased person with an estate or executor, since discussing the deceased person's debts would be prohibited by the FDCPA.17 Second, the Bureau's Regulation X mortgage servicing rules require a mortgage servicer to promptly communicate with successors-in-interest regarding a mortgage loan upon death of the borrower.18 If the mortgage loan was in default when the servicer obtained servicing, the servicer would be mandated by Regulation X to communicate with a successor-in-interest, but would be prohibited by the FDCPA, since successors-in-interest are not among the limited list of persons with whom a collector may convey information about a debt.

Acknowledging this conflict, the Bureau previously issued an interpretive rule providing a safe harbor from FDCPA liability when servicers communicate with a successor-ininterest in compliance with Regulation X.19 The Proposed Rule formally resolves this conflict by adopting a definition of "consumer" that includes the executor, administrator, or personal representative of the debtor's estate, if the debtor is deceased, as well as a confirmed successor-in-interest as defined in Regulation X and Regulation Z. 20 As a result, mortgage servicers who are subject to the FDCPA would be free to comply with Regulation X without worrying whether they are inadvertently violating the FDCPA.


1 Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1720 (2017).

2 15 U.S.C. § 1692a(6). See also Barbato v. Greystone Alliance LLC, 916 F.3d 260 (3d Cir. 2019).

3 Proposed 12 C.F.R. § 1006.2(i)(1).

4 See CFPB Bulletin 2013-07 (Jul. 10, 2013).

5 15 U.S.C. § 1692c(b).

6 Id. § 1692e(11).

7 See Scribner v. Works & Lentz, Inc., 655 F. App'x 702, 703-04 (10th Cir. 2016) (call to manager of debtor's apartment complex; caller did not identify herself or her employer as debt collector or refer to any debt owed by debtor); Brown v. Van Ru Credit Corp., 804 F.3d 740, 743 (6th Cir. 2015) (voicemail left with debtor's business; voicemail did not mention debtor, his alleged debt, or that caller was debt collector); Marx v. Gen. Revenue Corp., 668 F.3d 1174, 1177 (10th Cir. 2011) (fax to debtor's work location; fax indicated its purpose was to verify employment and did not reference any debt).

8 See Stipulated Order for Permanent Injunction and Civil Penalty Judgment, United States v. GC Servs. Limited Partnership, Civ. No. 17-1461 (S.D. Tex. Mar. 2, 2017).

9 Proposed rule with request for public comment: Debt Collection Practices (Regulation F), Docket No. CFPB-2019-0022 ("Notice of Proposed Rule"), at 60.

10 Proposed 12 C.F.R. § 1006.2(b).

11 Id. § 1006.2(j).

12 Id.

13 Comment 2(j) to Proposed 12 C.F.R. § 1006.2.

14 Notice of Proposed Rule at 63.

15 Proposed 12 C.F.R. § 1006.2(b).

16 15 U.S.C. § 1692c(b).

17 Notice of Proposed Rule at 73.

18 12 C.F.R. § 1024.38(b)(1)(vi).

19 81 Fed. Reg. 71977 (Oct. 19, 2016).

20 Proposed 12 C.F.R. § 1006.2(e); Comment 6(a)(4) to

To view the full article click here

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions