Debt Collection Practices in Connection With the Global COVID-19 Pandemic (Regulation F), 21163-21181 [2021-08303]
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21163
Rules and Regulations
Federal Register
Vol. 86, No. 76
Thursday, April 22, 2021
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 under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
BUREAU OF CONSUMER FINANCIAL
PROTECTION
12 CFR Part 1006
[Docket No. CFPB–2021–0008]
RIN 3170–AA41
Debt Collection Practices in
Connection With the Global COVID–19
Pandemic (Regulation F)
Bureau of Consumer Financial
Protection.
ACTION: Interim final rule; request for
public comment.
AGENCY:
The Bureau of Consumer
Financial Protection (Bureau) is issuing
this interim final rule to amend
Regulation F, which implements the
Fair Debt Collection Practices Act
(FDCPA) and currently contains the
procedures for State application for
exemption from the provisions of the
FDCPA. The interim final rule addresses
certain debt collector conduct
associated with an eviction moratorium
issued by the Centers for Disease
Control and Prevention (CDC) in
response to the global COVID–19
pandemic. The interim final rule
requires that debt collectors provide
written notice to certain consumers of
their protections under the CDC eviction
moratorium and prohibit
misrepresentations about consumers’
ineligibility for protection under such
moratorium.
DATES: This interim final rule is
effective on May 3, 2021. Comments
must be received on or before May 7,
2021.
ADDRESSES: You may submit comments,
identified by Docket No. CFPB–2021–
0008, by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: 2021-IFR-Eviction-Notice@
cfpb.gov. Include Docket No. CFPB–
2021–0008 in the subject line of the
message.
SUMMARY:
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• Hand Delivery/Mail/Courier:
Comment Intake, Bureau of Consumer
Financial Protection, 1700 G Street NW,
Washington, DC 20552. Please note that
due to circumstances associated with
the COVID–19 pandemic, the Bureau
discourages the submission of
comments by hand delivery, mail, or
courier.
Instructions: The Bureau encourages
the early submission of comments. All
submissions should include the agency
name and docket number for this
rulemaking. Because paper mail in the
Washington, DC area and at the Bureau
is subject to delay, and in light of
difficulties associated with mail and
hand deliveries during the COVID–19
pandemic, commenters are encouraged
to submit comments electronically. In
general, all comments received will be
posted without change to https://
www.regulations.gov. In addition, once
the Bureau’s headquarters reopens,
comments will be available for public
inspection and copying at 1700 G Street
NW, Washington, DC 20552, on official
business days between the hours of 10
a.m. and 5 p.m. Eastern Time. At that
time, you can make an appointment to
inspect the documents by telephoning
202–435–7275.
All comments, including attachments
and other supporting materials, will
become part of the public record and
subject to public disclosure. Proprietary
information or sensitive personal
information, such as account numbers,
Social Security numbers, or names of
other individuals, should not be
included. Comments will not be edited
to remove any identifying or contact
information.
FOR FURTHER INFORMATION CONTACT: Seth
Caffrey, Courtney Jean, Adam Mayle,
Kristin McPartland, or Michael Silver,
Senior Counsels, Office of Regulations,
at 202–435–7700 or https://
reginquiries.consumerfinance.gov/. If
you require this document in an
alternative electronic format, please
contact CFPB_Accessibility@cfpb.gov.
SUPPLEMENTARY INFORMATION:
I. Summary of the Interim Final Rule
The Bureau issues this interim final
rule to address certain debt collector
conduct associated with an eviction
moratorium issued by the CDC. This
interim final rule applies to debt
collectors, as that term is defined in the
FDCPA. The FDCPA establishes broad
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consumer protections and prohibits debt
collectors from engaging in harassment
or abuse, making false or misleading
representations, or engaging in unfair
practices in debt collection.
On March 29, 2021, the CDC extended
an existing agency order that imposes an
eviction moratorium that generally
limits the circumstances in which
certain persons may be evicted from
residential property. The Bureau is
concerned that consumers are not aware
of their protections under the CDC
Order’s eviction moratorium and that
FDCPA-covered debt collectors may be
engaging in eviction-related conduct
that violates the FDCPA.
This interim final rule amends
Regulation F, which implements the
FDCPA, to require debt collectors to
provide written notice to certain
consumers of their protections under
the CDC Order’s eviction moratorium
and to clarify that certain
misrepresentations are prohibited. More
specifically, § 1006.9 prohibits certain
acts by debt collectors that undermine
the purpose and effectiveness of the
CDC Order’s eviction moratorium to
prevent the further spread of COVID–19.
Section 1006.9(a) and (b) sets forth the
purpose and coverage of subpart B and
defines certain terms used in the
subpart, and § 1006.9(c) identifies the
prohibited acts. The Bureau is adopting
§ 1006.9 pursuant to its authority under
FDCPA section 814(d) to write rules
with respect to the collection of debts by
debt collectors and, with respect to
§ 1006.9(c), pursuant to its authority to
interpret FDCPA sections 807 and 808.
II. Background
A. The FDCPA
In 1977, Congress passed the FDCPA 1
to eliminate abusive debt collection
practices by debt collectors, to ensure
that those debt collectors who refrain
from using abusive debt collection
practices are not competitively
disadvantaged, and to promote
consistent State action to protect
consumers against debt collection
abuses.2 The statute was a response to
‘‘abundant evidence of the use of
abusive, deceptive, and unfair debt
collection practices by many debt
1 15
2 15
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U.S.C. 1692 et seq.
U.S.C. 1692e.
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collectors.’’ 3 According to Congress,
these practices ‘‘contribute to the
number of personal bankruptcies, to
marital instability, to the loss of jobs,
and to invasions of individual
privacy.’’ 4 Among other things, the
FDCPA establishes broad consumer
protections and prohibits debt collectors
from engaging in harassment or abuse,5
making false or misleading
representations,6 and engaging in unfair
practices in debt collection.7
The FDCPA, in general, applies to
debt collectors as that term is defined
under the statute.8 The Bureau has
authority under the FDCPA to prescribe
substantive rules with respect to the
collection of debts by debt collectors.9
This interim final rule amends existing
Regulation F, 12 CFR part 1006.10
B. COVID–19 Pandemic and CDC Order
On January 31, 2020, the Department
of Health and Human Services declared
a public health emergency for the entire
United States to aid the nation’s
healthcare community in responding to
the 2019 novel coronavirus (COVID–19)
pandemic.11 By the end of August 2020,
there were over 5,500,000 COVID–19
cases identified in the United States and
over 174,000 deaths related to the
disease.12
On September 4, 2020, the CDC
published an agency order (CDC Order
or Order) entitled ‘‘Temporary Halt in
Residential Evictions To Prevent the
3 15
U.S.C. 1692a.
4 Id.
5 15
U.S.C. 1692d.
U.S.C. 1692e.
7 15 U.S.C. 1692f.
8 The FDCPA generally provides that a debt
collector is ‘‘any person who uses any
instrumentality of interstate commerce or the mails
in any business the principal purpose of which is
the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due
another.’’ 15 U.S.C. 1692a(6). FDCPA section 803(6)
also sets forth several exclusions from the general
definition. Id.
9 15 U.S.C. 1692l(d).
10 Independent of this interim final rule, the
Bureau has published two final rules that revise
Regulation F, 12 CFR part 1006, which implements
the FDCPA. See 85 FR 76734 (Nov. 30, 2020); 86
FR 5766 (Jan. 19, 2021). The original effective date
for these final rules was November 30, 2021. Id. The
Bureau has proposed extending the effective dates
for these final rules to January 29, 2022. See Bureau
of Consumer Fin. Prot., CFPB Proposes Delay of
Effective Date for Recent Debt Collection Rules
(Apr. 7, 2021), https://www.consumerfinance.gov/
about-us/newsroom/cfpb-proposes-delay-ofeffective-date-for-recent-debt-collection-rules/.
11 Press Release, U.S. Dep’t of Health & Human
Servs., Secretary Azar Declares Public Health
Emergency for United States for 2019 Novel
Coronavirus (Jan. 31, 2020), https://www.hhs.gov/
about/news/2020/01/31/secretary-azar-declarespublic-health-emergency-us-2019-novelcoronavirus.html.
12 85 FR 55292, 55292 (Sept. 4, 2020).
6 15
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Further Spread of COVID–19.’’ 13 Citing
the historic threat to public health
posed by the COVID–19 pandemic, the
CDC, pursuant to section 361 of the
Public Health Service Act, issued an
eviction moratorium that generally
limits the circumstances in which
certain persons may be evicted from
residential property.14 According to the
CDC, eviction moratoria help protect
public health in several ways. First,
eviction moratoria encourage selfisolation by people who become ill or
who are at risk for severe illness from
COVID–19 due to an underlying
medical condition.15 Second, eviction
moratoria allow State and local
authorities to more easily implement
stay-at-home and social distancing
directives to mitigate the community
spread of COVID–19.16 Third, eviction
moratoria limit the likelihood of
individuals moving into close quarters
in congregate or shared living settings,
such as homeless shelters, which then
puts individuals at higher risk of
contracting COVID–19.17
The CDC Order initially was set to
expire on December 31, 2020.18 The
CDC Order has been extended three
times and currently is set to expire on
June 30, 2021.19 In the most recent
extension on March 29, 2021, the CDC
emphasized the continued threat to
public health posed by COVID–19. The
CDC stated that, as of March 25, 2021,
over 29,700,000 cases had been
identified in the United States and there
were over 540,000 deaths due to the
disease.20 Further, the CDC stated that,
although transmission of COVID–19 has
decreased since a peak in January 2021,
the number of cases per day has
remained almost twice as high as the
initial peak in April 2020 and
transmission rates are similar to the
second peak in July 2020.21 The CDC
stated in its most recent extension of the
Order that despite higher rates of
vaccine coverage, the relaxing of
community mitigation efforts may
continue to expose vulnerable
22 See
13 Id.
14 See
id.; see also 42 U.S.C. 264 and its
implementing regulation 42 CFR 70.2.
15 86 FR 16731, 16733 (Mar. 31, 2021).
16 Id.
17 Id. at 16734.
18 85 FR 55292, 55297 (Sept. 4, 2020).
19 Section 502 of title V, Division N of the
Consolidated Appropriations Act, 2021, Public Law
116–260, 134 Stat. 1182, 2078 (2020), extended the
original Order until January 31, 2021. On January
29, 2021, following an assessment of the ongoing
pandemic, the CDC Director renewed the CDC
Order until March 31, 2021. 86 FR 8020 (Feb. 3,
2021). On March 29, 2021, the CDC Director
extended the CDC Order until June 30, 2021. 86 FR
16731 (Mar. 31, 2021).
20 Id. at 16732.
21 See id.
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populations to higher-than-average
infection rates.22 The Order also
described the global emergence of new
variants of the virus that studies have
shown are more easily transmitted and
may increase mortality.23
The CDC Order generally prohibits a
landlord, owner of a residential
property, or other person with a legal
right to pursue eviction or possessory
action from evicting for non-payment of
rent any person protected by the CDC
Order 24 from any residential property
in any jurisdiction in which the CDC
Order applies.25 This prohibition
applies, without limitation, to an agent
or attorney acting on behalf of a
landlord or owner of the residential
property.26 To be a ‘‘covered person’’
under the CDC Order’s eviction
moratorium, a person must submit a
written declaration under penalty of
perjury attesting to certain eligibility
criteria generally establishing that,
because of the person’s financial
situation, the person is unable to make
full rental payments and, if evicted,
likely would become homeless or would
be required to move into a congregate or
shared living setting.27
The CDC Order defines ‘‘evict’’ and
‘‘eviction’’ as any action by a landlord
or owner of a residential property—
which also includes an agent or attorney
acting on behalf of the landlord or the
owner of the residential property—or
any other person with a legal right to
pursue eviction or a possessory action,
to remove or cause the removal of a
person protected by the CDC Order from
a residential property.28 The CDC Order
does not cover foreclosure on a home
mortgage.29 The CDC Order does not
apply in any State, local, territorial, or
tribal area with a moratorium on
residential evictions that provides the
same or greater level of public-health
protection than the requirements listed
in the CDC Order.30 Moreover, the CDC
Order does not preclude evictions
unrelated to the non-payment of rent.31
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id. at 16732–33.
id.
24 The CDC Order defines those individuals who
are covered by the CDC Order as ‘‘covered persons,’’
but this interim final rule generally refers to such
persons as ‘‘persons protected by the CDC Order’’
for simplicity.
25 Id. at 16732 n.3.
26 Id.
27 Id. at 16734.
28 Id. at 16732.
29 Id.
30 Id. at 16736.
31 Specifically, the CDC Order does not preclude
evictions based on a tenant, lessee, or resident: (1)
Engaging in criminal activity while on the premises;
(2) threatening the health or safety of other
residents; (3) damaging or posing an immediate and
significant risk of damage to property; (4) violating
23 See
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The CDC Order does not bar a landlord,
residential property owner, or their
representative, including an attorney,
from filing an eviction action in court,
but it does prohibit the physical
removal of a person from the property
if the person meets the criteria and
submits the declaration.32 Since the
person must file a declaration to obtain
this protection, however, a person must
first be aware that the CDC Order exists
and may apply to them.
To respond to the public health threat
posed by the COVID–19 pandemic,
Federal, State, and local governments
have taken a variety of actions,
including restrictions on travel, stay-athome orders, and mask requirements.33
In addition to the CDC Order’s eviction
moratorium, governments have
established other eviction moratoria to
alleviate the economic and public
health consequences of the COVID–19
pandemic. For instance, section 4024 of
the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act) 34
provided a temporary moratorium on
eviction filings as well as other
protections for tenants in certain rental
properties with Federal assistance or
federally related financing. State and
local governments have also
implemented temporary eviction
moratoria, rent freezes, and rental
assistance programs.35
In the wake of the COVID–19
pandemic, the Bureau has taken
numerous steps to protect and assist
consumers facing possible eviction and
housing insecurity.36 On March 29,
any applicable building code, health ordinance, or
similar regulation relating to health and safety; or
(5) violating any other contractual obligation, other
than the timely payment of rent or similar housingrelated payment (including non-payment or late
payment of fees, penalties, or interest). Id. at 16733.
32 Centers for Disease Control & Prevention,
FREQUENTLY ASKED QUESTIONS (Apr. 13,
2021), https://www.cdc.gov/coronavirus/2019-ncov/
downloads/Eviction-Moratoria-Order-FAQs02012021-508.pdf (CDC Order FAQs).
33 86 FR 16731, 16733 (Mar. 31, 2021).
34 CARES Act section 4024, Public Law 116–136,
134 Stat. 281, 492 (2020).
35 See, e.g., Eviction Lab, COVID–19 HOUSING
POLICY SCORECARD, https://evictionlab.org/
covid-policy-scorecard/ (last visited Apr. 1, 2021);
U.S. Dep’t of the Treasury, Emergency Rental
Assistance Program, https://home.treasury.gov/
policy-issues/cares/emergency-rental-assistanceprogram (last visited Apr. 1, 2021); Perkins Coie
LLP, COVID–19 Related Eviction and Foreclosure
Orders/Guidance 50-State Tracker (Mar. 29, 2021),
https://www.perkinscoie.com/en/news-insights/
covid-19-related-eviction-and-foreclosureordersguidance-50-state-tracker.html.
36 See generally Bureau of Consumer Fin. Prot.,
Help for homeowners and renters during the
coronavirus national emergency, https://
www.consumerfinance.gov/coronavirus/mortgageand-housing-assistance/ (updated Mar. 25, 2021);
and Protections for renters during COVID–19,
https://www.consumerfinance.gov/coronavirus/
mortgage-and-housing-assistance/rent-protections-
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2021, the Bureau’s Acting Director and
the Federal Trade Commission’s Acting
Chairwoman issued a joint statement
regarding their agencies’ work to help
stop illegal evictions and protect
American consumers facing economic
hardship due to COVID–19.37 This
interim final rule aims to complement
this and other efforts the Bureau has
initiated since the onset of the COVID–
19 pandemic to assist consumers and to
protect those most vulnerable to harms
arising from violations of Federal
consumer financial protection law.
C. Rental Evictions and Debt Collectors
When a consumer becomes
delinquent on rental payments,
landlords, residential property owners,
or their agents (which may include
attorneys acting on their behalf)
typically seek to bring the consumer’s
account current. Landlords, residential
property owners, or their agents may
engage in oral or written
communication with tenants and may
arrange payment schedules or reduced
payments.38 The Bureau understands
that a significant number of landlords
and residential property owners hire
debt collectors for pre-eviction
collections.
If efforts to resolve the unpaid rent are
not successful, a landlord, residential
property owner, or their agent may seek
to evict the tenant from the property. In
order to remove a tenant from the
property through legal process, the
landlord, residential property owner, or
their agent typically must first provide
notice to the tenant of their intent to
evict and, if the tenant does not bring
the account current or leave the
premises, then file an eviction action in
court, often with a claim of back rent.
These eviction processes are governed
primarily by State or local law. While
some landlords or residential property
owners may represent themselves in
court, the Bureau understands that a
large segment of landlords or residential
covid-19 (last visited Apr. 10, 2021). On April 5,
2021, the Bureau issued a notice of proposed
rulemaking to amend Regulation X to establish a
temporary COVID–19 emergency pre-foreclosure
review period until December 31, 2021, for
principal residences to help ensure that borrowers
affected by the COVID–19 pandemic have an
opportunity to be evaluated for loss mitigation
before the initiation of foreclosure. 86 FR 18840
(Apr. 9, 2021).
37 Press Release, Bureau of Consumer Fin. Prot.,
CFPB Acting Director Uejio & FTC Acting
Chairwoman Slaughter Issue Joint Statement on
Preventing Illegal Evictions (Mar. 29, 2021), https://
www.consumerfinance.gov/about-us/newsroom/
cfpb-acting-director-uejio-and-ftc-actingchairwoman-slaughter-issue-joint-statement-onpreventing-illegal-evictions/.
38 This interim final rule generally uses the terms
‘‘tenant’’ and ‘‘renter’’ interchangeably.
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property owners hire an attorney to
conduct eviction proceedings on their
behalf.39
FDCPA section 803(5) defines ‘‘debt’’
as any obligation or alleged obligation of
a consumer to pay money arising out of
a transaction in which the money,
property, insurance or services which
are the subject of the transaction are
primarily for personal, family, or
household purposes, whether or not
such obligation has been reduced to
judgment. A consumer’s unpaid
residential rent would typically fall
within the FDCPA’s definition of debt
because it is an obligation of a consumer
to pay money arising out of a
transaction for personal, family, or
household purposes. FDCPA section
803(6) generally defines ‘‘debt collector’’
as any person who uses any
instrumentality of interstate commerce
or the mails in any business the
principal purpose of which is the
collection of any debts, or who regularly
collects or attempts to collect, directly
or indirectly, debts owed or due or
asserted to be owed or due another.40
Attorneys who regularly engage in debt
collection activity, even when that
activity consists of litigation, are debt
collectors as defined in the FDCPA.41
Therefore, attorneys who engage in
eviction proceedings on behalf of
landlords or residential property owners
to collect unpaid residential rent may be
39 Eric. S. Peterson & Cathy McKitrick et al.,
Landlords evict hundreds of Utah renters each
month despite a ban during the pandemic, The Salt
Lake Tribune (Dec. 12, 2020), https://
www.sltrib.com/news/2020/12/12/landlords-evicthundreds/ (finding that in August 2020, nearly twothirds of eviction filings in Utah appear to have
been filed by one law firm) (Peterson & McKitrick);
Bob Ivry, Down and Out in Eviction Court, The
American Prospect (Mar. 18, 2021), https://
prospect.org/infrastructure/housing/down-and-outin-eviction-court/ (‘‘Philadelphia landlords were
represented by legal counsel in 82 percent of
eviction cases from 2015 to 2020, according to a
study by Community Legal Services . . . . In
Kansas City, 1.3 percent of tenants were represented
from 2006 to 2016, while 84 percent of landlords
had lawyers, according to the KC Eviction Project.’’)
(Ivry).
40 FDCPA section 803(6)’s definition of ‘‘debt
collector’’ also includes any creditor who, in the
process of collecting its own debts, uses any name
other than the creditor’s own which would indicate
that a third person is collecting or attempting to
collect such debts.
41 See Heintz v. Jenkins, 514 U.S. 291, 299 (1995)
(holding that ‘‘attorneys who ‘regularly’ engage in
consumer-debt-collection activity’’ are subject to
the FDCPA, ‘‘even when that activity consists of
litigation’’). In reaching this conclusion, the
Supreme Court discussed the history of the FDCPA,
which contained an express exemption for lawyers
until Congress repealed the exemption in its
entirety in 1986 ‘‘without creating a narrower,
litigation-related exemption to fill the void.’’ Id. at
294–95.
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‘‘debt collectors’’ as defined by the
FDCPA.42
D. COVID–19 Pandemic Impacts on
Renters, Evictions, and Debt Collectors
The COVID–19 pandemic has had
extraordinarily widespread and adverse
effects on the economy. Since the start
of the COVID–19 pandemic,
employment has fallen dramatically in
response to public health measures and
diminishing consumer demand.43
Renters have been particularly impacted
by these economic trends. Renters are
more likely than homeowners to have
become unemployed or experienced
decreasing income during the COVID–
19 pandemic.44 In addition, renters tend
to have less savings than homeowners
and are therefore more vulnerable to
economic shocks.45 By the end of 2020,
8.8 million rental households were
behind in their rental obligations.46 The
average delinquent rental household
owed more than $5,000.47 Even as the
economy and the labor market have
begun to improve in 2021, substantial
rental debt remains.48
The COVID–19 pandemic,
furthermore, has disproportionately
impacted the housing security of
minority and low-income households.
Black and Hispanic households have
been significantly more likely than other
types of households to accrue rental
42 According to the National Creditors Bar
Association, 52 percent of their members practice
in the area of landlord and tenant law, https://
www.creditorsbar.org/about-ncba (last visited Apr.
3, 2021) (NCBA).
43 Lauren Bauer & Kristen Broady et al., Ten facts
about COVID–19 and the U.S. economy, Brookings
Inst. (Sept. 17, 2020), https://www.brookings.edu/
research/ten-facts-about-covid-19-and-the-u-seconomy/.
44 JPMorgan Chase Inst., Renters v. Homeowners:
Income and Liquid Asset Trends during COVID–19,
(Mar. 2021), https://www.jpmorganchase.com/
institute/research/household-debt/rentershomeowners-income-and-liquid-asset-trendsduring-covid-19.
45 Id.
46 Bureau of Consumer Fin. Prot., Housing
insecurity and the COVID–19 pandemic, at 17 (Mar.
2021), https://files.consumerfinance.gov/f/
documents/cfpb_Housing_insecurity_and_the_
COVID-19_pandemic.pdf (CFPB Housing Insecurity
Report).
47 Id. at 17.
48 The Federal Reserve Bank of Philadelphia
estimated that renters owed $11 billion in rent in
March 2021. See Federal Reserve Bank of
Philadelphia, Household Rental Debt During
COVID–19: UPDATE FOR 2021, at 8 (Mar. 2021),
https://www.philadelphiafed.org/communitydevelopment/housing-and-neighborhoods/
household-rental-debt-during-covid-19-update-for2021 (Household Rental Debt During COVID–19);
see also Urban Inst., Many People are Behind on
Rent. How Much Do They Owe? (Feb. 24, 2021),
https://www.urban.org/urban-wire/many-peopleare-behind-rent-how-much-do-they-owe (analyzing
three estimates of back rent owed by U.S.
households in January 2021 that ranged from $8.4
billion to $52.6 billion).
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debt.49 As of December 2020,
households with incomes below
$75,000 were more than twice as likely
to be behind on rental obligations than
households with incomes above
$75,000.50
Individuals and families who are at
risk of losing their housing because of
delinquent rent face dire personal and
financial consequences. As the Bureau
explained in the CFPB Housing
Insecurity Report, families that do not
have access to safe, affordable, and
stable housing (also referred to as
housing insecurity) face the prospects of
homelessness as well as a host of other
negative outcomes, such as higher rates
of depression, higher rates of
suspension and expulsion from school,
and increased risks of chronic health
conditions. In the midst of a global
pandemic, housing insecurity can make
it difficult for renters to comply with
public health measures such as
quarantining or restricting the number
of close contacts.51 Federal, State, and
local eviction moratoria have slowed the
pace of evictions, but thousands of
renters are still evicted weekly.52
According to the CFPB Housing
Insecurity Report, as of December 2020,
9 percent of renters reported that it was
likely they would be evicted in the next
two months.53 Approximately 16
percent of Black renters and 11 percent
of Hispanic renters who were surveyed
expressed this belief.54 Data on eviction
rates also suggests that minority renters
are particularly vulnerable to eviction.55
49 As of December 2020, Black and Hispanic
households were more than twice as likely to report
being behind on their rental payments as White
households. See U.S. Census Bureau, Census
Household Pulse Survey, Week 21 (December 9–
December 21) (Jan. 6, 2021), https://
www.census.gov/data/tables/2020/demo/hhp/
hhp21.html (Census Household Pulse Survey). As
of March 2021, 7.8 percent of Hispanic/Latino
households and 5.8 percent of Black households
had rental debt, compared to 4.4 percent of White
households. See Household Rental Debt During
COVID–19, supra note 48, at 8.
50 Census Household Pulse Survey, supra note 49.
51 CFPB Housing Insecurity Report, supra note 46,
at 3.
52 Id. at 14.
53 Id. at 15. This finding is consistent with other
research on consumers’ views about housing
precarity. According to a study by the Mortgage
Bankers Association, 2.3 million tenants said they
feel at risk of eviction or would be forced to move
in the next 30 days. Mortg. Bankers Ass’n, MBA
RIHA Study Reveals Progress, but 5 Million Renters
and Homeowners Missed December Payments (Feb.
8, 2021), https://www.mba.org/2021-press-releases/
february/mba-riha-study-reveals-progress-but-5million-renters-and-homeowners-missed-decemberpayments.
54 CFPB Housing Insecurity Report, supra note 46,
at 15.
55 Reinvestment Fund, Evictions in Philadelphia:
Race (and Place) Matters, at 2 (Feb. 2021), https://
www.reinvestment.com/wp-content/uploads/2021/
02/ReinvestmentFund_PHL-Evictions-Race-and-
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In addition to formal evictions,
informal evictions can occur outside the
judicial eviction process. Evidence
suggests that informal evictions may be
common.56 Tenants may preemptively
move out of rental housing to avoid an
eviction filing, which may have negative
consequences for the tenant whether or
not the filing ultimately leads to
physical removal.57 Tenants may take
this preemptive step, for example, to
prevent the mere possibility of having
an eviction judgment on their records
because subsequent landlords may
refuse to rent to tenants with an eviction
history. This practice is sometimes
referred to as ‘‘self-eviction.’’ 58 Such
Place-Matters.pdf (between 2018 and 2019, Black
and Hispanic Philadelphians experienced an
annual eviction filing rate of 8.8 percent and 5.2
percent, respectively, compared to 3.1 percent of
White Philadelphians); Jane Place Neighborhood
Sustainability Initiative, Unequal Burden, Unequal
Risk: Households Headed by Black Women
Experience Highest Rates of Eviction, at 6, https://
www.jpnsi.org/evictions (last visited Apr. 1, 2021)
(from September 2019 to March 2020, 82.2 percent
of tenants facing evictions in New Orleans were
Black).
56 See Matthew Desmond & Tracey Shollenberger,
Forced Displacement From Rental Housing:
Prevalence and Neighborhood Consequences,
Demography, vol. 52, no. 5, at 1751–72 (Aug. 2015),
www.jstor.org/stable/43697545 (survey in
Milwaukee between 2011 and 2013 found that
informal evictions were twice as frequent as formal
evictions) (Desmond & Shollenberger); Sophie
Collyer & Lily Bushman-Copp, Forced Moves and
Eviction in New York City, Robin Hood (May 2019),
https://www.robinhood.org/uploads/2019/08/
HOUSING-REPORT_8.5.pdf (study found that half
of evictions in New York City resulted from forced
moves, which include informal evictions).
57 Desmond & Shollenberger, supra note 56, at
1751–72; Hous. Action Ill. & Lawyers’ Comm. for
Better Hous., Prejudged: The Stigma of Eviction
Records (Mar. 2018), https://lcbh.org/sites/default/
files/resources/Prejudged-Eviction-Report-2018.pdf;
Reinvestment Fund, Resolving Landlord-Tenant
Disputes: An Analysis of Judgments by Agreement
in Philadelphia’s Eviction Process (May 2020),
https://www.reinvestment.com/wp-content/
uploads/2020/05/ReinvestmentFund_Report-2020_
PHL-Evictions-Judgments-by-Agreement-LandlordCourt.pdf.
58 As an Eviction Lab report notes, ‘‘[m]any
tenants may move out before the eviction case
concludes, even if they would qualify for protection
under the eviction moratorium. Data from before
the pandemic show that many tenants leave
without the case going to court, perhaps aware that
the vast majority of cases end with decisions in the
landlord’s favor. At the same time, just the presence
of a filing on a tenant’s record can prevent that
tenant from accessing safe and healthy rental
housing in the future.’’ https://evictionlab.org/
moratorium-extended-evictions-continue/ (last
visited Apr. 7, 2021). Furthermore, according to a
legal services organization, ‘‘[t]he consequences of
eviction records go far beyond temporary
displacement and loss of shelter. Eviction records
mean loss of housing subsidy vouchers, ineligibility
for other public housing programs, and being
screened out of private housing, leading to
dangerous cycles of poverty and instability.’’ Cmty.
Legal Servs. of Phila., Breaking the Record:
Dismantling the Barriers Eviction Records Place on
Housing Opportunities, at 1 (Nov. 2020), https://
www.phillytenant.org/breaking-the-recorddismantling-the-barriers-eviction-records-place-on-
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losses of rental housing may be
comparable to evictions from the
perspective of consumers, even if they
are not evident in eviction filing
statistics. Moreover, preliminary
findings from one university research
study indicate that informal evictions
have increased during the COVID–19
pandemic, including situations where
renters received texts, emails, or verbal
communication from landlords telling
them to leave; arrived home to find their
doors locked or possessions removed; or
moved even though they recognized
their legal right to challenge the
landlord’s action, out of fear that the
landlord would make their living
situation difficult if they refused to
leave.59
That consumers may be unaware of
their eligibility for temporary protection
under the CDC Order and potentially
other moratoria may explain the
continuing rates of formal and informal
evictions during the COVID–19
pandemic. Stakeholders, including
consumer advocates and legal aid
organizations, have expressed concerns
to the Bureau that many consumers at
risk of eviction either do not know
about the CDC Order or, if they are
aware of it, they may be under the
mistaken impression that the Order’s
protections automatically apply or they
otherwise may be uncertain about what
steps they must take to avail themselves
of the CDC Order’s eviction
protections.60
housing-opportunities/. See also Eric S. Peterson &
Ria Agarwal et al., Renters can be haunted by past
evictions or debt claims even if they never made it
to court, The Salt Lake Tribune (Feb. 22, 2021),
https://www.sltrib.com/news/2021/02/22/renterscan-be-haunted-by/.
59 Univ. of Washington Graduate Sch., Informal
evictions are on the rise during the pandemic, with
people of color most at risk for housing insecurity
(Mar. 11, 2021), https://www.grad.washington.edu/
student-alumni-profiles/informal-evictions-are-onthe-rise-during-the-pandemic-with-people-of-colormost-at-risk-for-housing-insecurity/ (‘‘ ‘If a landlord
wants to evict a tenant and they’re really intent on
doing it, they are probably going to accomplish it
without serving a formal eviction notice,’ said Matt
Fowle, one of the researchers of the study . . . .
‘Tenants perceive that they have less power now
compared to landlords than they did before the
pandemic.’ ’’).
60 Letter to President Biden, Director Walensky,
Secretary Fudge, and Secretary Vilsack from
thousands of National and Multistate Organizations
(Mar. 15, 2021), https://nlihc.org/sites/default/files/
Eviction-Moratorium-Letter_March.15.2021.pdf
(asserting that corporate and other landlords
continue to evict tenants before tenants know about
the moratorium protections or by finding reasons
for eviction other than nonpayment of rent and
urging, among other policy suggestions, that the
Federal government at minimum require landlords
to provide notice to renters of their rights under the
CDC moratorium); Natalie Campisi, Government
Extends Eviction Moratorium For 3 Months. Here’s
What Renters Should Do, Forbes (Mar. 29, 2021),
https://www.forbes.com/advisor/personal-finance/
what-renters-should-do-when-eviction-moratorium-
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A Government Accountability Office
(GAO) report analyzing the effectiveness
of COVID–19 eviction moratoria found
that some renters may not fully
understand that they have to take action
to become protected under the CDC
Order’s eviction moratorium, and others
may not understand all of the required
steps, including how to submit the
required declaration.61 The GAO report
included a comparison of jurisdictions
subject to both the CDC Order and State
or local moratoria with jurisdictions
where only the CDC Order applied and
found that the jurisdictions without
separate State or local moratoria
experienced larger increases in eviction
filings. The GAO noted that, although
comprehensive information does not
exist on renter awareness of the CDC
Order’s protections, the increasing rate
of eviction filings and the apparent need
for State and local measures targeted at
increasing awareness of the CDC Order’s
protections suggest that some renters
and property owners may be unaware of
the CDC Order or its requirements.62
The GAO noted that ‘‘clear, accurate,
and timely information’’ is ‘‘essential to
keep the public informed during the
COVID–19 pandemic.’’ 63 The GAO
concluded that, as the COVID–19
pandemic persists, potentially millions
of renters and property owners will
continue to experience financial
challenges, and that while the CDC
Order provides some measure of relief
to struggling renters, some renters facing
eviction may be unaware of and unable
to exercise the moratorium, and
therefore unnecessarily evicted.64
The Bureau also is aware of reports
that even when renters are aware of the
CDC Order and attempt to exercise their
rights under the Order to halt evictions,
they may be falsely informed that they
are ineligible for temporary protection
from eviction under the CDC Order or
otherwise may be discouraged from
submitting a declaration that could
trigger a ‘‘covered person’’ designation
ends/ (‘‘ ‘One of the problems with the CDC
moratorium is that tenants need to know it exists
and they need to apply for it—many renters don’t
realize this is an option,’ says Marcus Roth,
development director at the Coalition on
Homelessness and Housing in Ohio. Unlike the
eviction moratorium in the CARES Act, the CDC
order is not automatic, which might have
contributed to the lack of awareness for many
tenants.’’).
61 See Gov’t Accountability Office, Covid–19
Housing Protections: Moratoriums Have Helped
Limit Evictions, but Further Outreach Is Needed, at
1 (Mar. 15, 2021), https://www.gao.gov/products/
gao-21-370 (GAO Report).
62 Id. at 17.
63 Id. at 1.
64 Id. at 30.
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under the CDC Order.65 Numerous
public reports and Bureau outreach with
consumer advocates, legal aid
organizations, and other stakeholders
also suggest that parties to the eviction
process may be engaged in other
conduct in violation of Federal, State, or
local eviction moratoria.66
Consumer advocacy groups, legal aid
organizations, housing organizations,
faith groups, and other stakeholders
have expressed concerns to the Bureau
that debt collectors under the FDCPA
are not abiding by the CDC Order.67
This feedback includes, among other
things, allegations that debt collectors
have engaged in eviction-related
conduct that in their view violates the
65 According to a study by the National Housing
Law Project, 91 percent of tenants surveyed
reported illegal evictions in their area during the
pandemic, which included allegedly false
statements that properties were not covered by
eviction moratoria. See Nat’l Hous. Law Project,
Stopping COVID–19 Eviction Survey Results (July
2020), https://www.nhlp.org/wp-content/uploads/
Evictions-Survey-Results-2020.pdf. See also
Peterson & McKitrick, supra note 39.
66 See, e.g., Press Release, Washington State
Office of the Attorney General, AG FERGUSON
FILES LAWSUIT AGAINST NATIONAL SORORITY
FOR CHARGING AND THREATENING UW
STUDENTS IN VIOLATION OF EVICTION
MORATORIUM (Jan. 25, 2021), https://
www.atg.wa.gov/news/news-releases/ag-fergusonfiles-lawsuit-against-national-sorority-charging-andthreatening-uw; Annie Nova, The CDC banned
evictions. Tens of thousands have still occurred,
CNBC (Jan. 14, 2021), https://www.cnbc.com/2020/
12/05/why-home-evictions-are-still-happeningdespite-cdc-ban.html; Ashley Balcerzak, NJ renters
still being locked out by landlords despite COVID
eviction freeze (Mar. 11, 2021), https://
www.northjersey.com/story/news/2021/03/11/njrental-assistance-covid-eviction-freeze-ignoredsome-landlords/6892203002/; Sophie Nieto-Munoz,
N.J. announces new measures to protect tenants
from illegal lockouts during eviction moratorium
(Apr. 5, 2021), https://www.nj.com/coronavirus/
2021/04/nj-announces-new-measures-to-protecttenants-from-illegal-lockouts-during-evictionmoratorium.html (noting that a spokesman for the
New Jersey Attorney General said that the office
‘‘has received 17 written complaints regarding
landlords illegally evicting tenants since April 2020
. . . but stressed there are likely many, many more’’
and that ‘‘the Volunteer Justice Lawyers say there
have been hundreds across the state, with illegal
evictions ramping up since the fall’’). The Bureau
has not independently verified the allegations
described in public news reports and stakeholder
outreach.
67 For example, a variety of consumer advocate,
legal aid organization, civil rights organization,
faith group, and other stakeholders urged the
Bureau and FTC to explore use of FDCPA and
Federal Trade Commission Act authorities, among
other authorities, to take ‘‘immediate’’ action to
‘‘prevent or limit imminent rental evictions,’’ noting
that, ‘‘[w]hile the CDC eviction moratorium has
been helpful, it still leaves many families
unprotected, it has been inconsistently
implemented, and some landlords have used
questionable and sometimes abusive tactics to
evade it.’’ Letter from Nat’l Consumer Law Ctr. et
al., to Acting Bureau Director David Uejio & Fed.
Trade Comm’n Acting Chair Rebecca K. Slaughter
(Mar. 3, 2021), https://www.nclc.org/images/pdf/
special_projects/covid-19/CFPB_FTC_Moratorium_
Ltr.pdf.
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FDCPA.68 The Bureau has engaged in
informal outreach with such groups and
with industry participants.69
The Bureau has concluded that
consumer harms associated with
evictions during the COVID–19
pandemic necessitate immediate action,
specifically pertaining to the activity of
debt collectors who are involved in the
evictions process during the pendency
of the CDC Order. For these reasons and
the reasons discussed below, the Bureau
is amending Regulation F in this interim
final rulemaking to require certain debt
collectors to provide written notice to
certain consumers of their protections
under the CDC Order’s eviction
moratorium and prohibit certain
misrepresentations.
The Bureau believes that this
rulemaking is appropriate during the
COVID–19 pandemic, which presents
extraordinary circumstances.70 The
Bureau will evaluate comments received
on the interim final rule to determine
whether it is appropriate to revise the
amendments. The Bureau also will
continue to monitor the market to assess
consumers’ experiences under the
interim final rule.
As part of this rulemaking, the Bureau
consulted with, or offered to consult
with, the appropriate prudential
regulators and other Federal agencies.
III. Legal Authority
The Bureau is issuing this interim
final rule pursuant to its authority under
FDCPA section 814(d), which provides
that the Bureau ‘‘may prescribe rules
with respect to the collection of debts by
debt collectors,’’ as defined in the
FDCPA.71 In particular, as discussed in
part V, the provisions of this interim
final rule are based on an interpretation
of FDCPA sections 807 and 808. A debt
collection rule published by the Bureau
in November 2020 (the November 2020
Final Rule) provides an overview of
how the Bureau interprets FDCPA
sections 807 and 808.72
FDCPA section 807 generally
prohibits a debt collector from ‘‘us[ing]
any false, deceptive, or misleading
representation or means in connection
with the collection of any debt.’’ 73
Then, ‘‘[w]ithout limiting the general
application of the foregoing,’’ section
807 lists 16 examples of conduct that
violate that section.74 Similarly, FDCPA
section 808 prohibits a debt collector
from ‘‘us[ing] unfair or unconscionable
means to collect or attempt to collect
any debt.’’ 75 Then, ‘‘[w]ithout limiting
the general application of the
foregoing,’’ FDCPA section 808 lists
eight examples of conduct that violate
that section.76 Consistent with the
approach in the November 2020 Final
Rule,77 the Bureau interprets FDCPA
sections 807 and 808 in light of: (1) The
FDCPA’s language and purpose; (2) the
general types of conduct prohibited by
those sections and, where relevant, the
specific examples enumerated in those
sections; and (3) judicial decisions.
By their plain terms, FDCPA sections
807 and 808 make clear that their
examples of prohibited conduct do not
‘‘limit[ ] the general application’’ of
those sections’ general prohibitions. The
FDCPA’s legislative history is consistent
with this understanding,78 as are
opinions by courts that have addressed
this issue.79 Accordingly, the Bureau
may interpret the general provisions of
FDCPA sections 807 and 808 to prohibit
conduct that the specific examples in
FDCPA sections 807 and 808 do not
address if the conduct violates the
general prohibitions. In addition, the
Bureau uses the specific examples to
inform its understanding of the general
prohibitions. The Bureau also interprets
FDCPA sections 807 and 808 in light of
the significant body of existing court
decisions interpreting those sections,
which provide instructive examples of
collection practices that are not
addressed by the specific prohibitions
in those sections but that nonetheless
run afoul of the FDCPA’s general
73 15
68 Consumer
advocates and legal aid
organizations have reported, among other conduct,
instances (which the Bureau has not independently
verified) of landlords’ attorneys refusing to accept
a signed tenant declaration when presented with
one or advising landlords to have their property
managers tell tenants who present a signed
declaration that they are not eligible under the CDC
Order as means of avoiding compliance with the
CDC Order.
69 Apart from this rulemaking, the Bureau will
continue to monitor debt collector conduct with
respect to the eviction process for any potential
consumer harm or compliance concerns and
consider taking additional action at a later time if
needed.
70 See also part IV.
71 15 U.S.C. 1692l(d).
72 See 85 FR 76734, 76739–41 (Nov. 30, 2020).
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U.S.C. 1692e.
U.S.C. 1692e(1)–(16).
75 15 U.S.C. 1692f.
76 15 U.S.C. 1692f(1)–(8).
77 See 85 FR 76734, 76738–41 (Nov. 30, 2020).
78 See, e.g., S. Rep. No. 382, 95th Cong., 1st Sess.
4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1698
(‘‘[T]his bill prohibits in general terms any
harassing, unfair, or deceptive collection practice.
This will enable the courts, where appropriate, to
proscribe other improper conduct which is not
specifically addressed.’’). Courts have also cited
legislative history in noting that, ‘‘in passing the
FDCPA, Congress identified abusive collection
attempts as primary motivations for the Act’s
passage.’’ Hart v. FCI Lender Servs., Inc., 797 F.3d
219, 226 (2d Cir. 2015).
79 See, e.g., Stratton v. Portfolio Recovery Assocs.,
LLC, 770 F.3d 443, 450 (6th Cir. 2014) (‘‘[T]he listed
examples of illegal acts are just that—examples.’’).
74 15
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prohibitions in sections 807 and 808.80
Consistent with the majority of courts,
the Bureau interprets FDCPA sections
807 and 808 to incorporate an objective,
‘‘unsophisticated’’ or ‘‘least
sophisticated’’ consumer standard.81
Finally, courts have found that a debt
collector collecting back rent is subject
to the FDCPA, including the statute’s
prohibitions on deception and
unfairness.82
IV. Administrative Procedure Act
Under the Administrative Procedure
Act (APA),83 notice and opportunity for
public comment are not required if the
Bureau for good cause finds that notice
and public comment are impracticable,
unnecessary, or contrary to the public
interest.84 Similarly, publication of this
interim final rule at least 30 days before
its effective date is not required where
the Bureau has identified good cause for
a different effective date.85
The Bureau finds that prior notice and
public comment are impracticable and
contrary to the public interest in
consideration of the public health
emergency caused by the COVID–19
pandemic and its effects on consumers.
In particular, renters may be vulnerable
to the negative economic impacts of the
pandemic, which include an elevated
risk of eviction, and the immediate
health and safety consequences that are
likely to ensue.86 Citing the continuing
health and safety risks posed by the
COVID–19 pandemic, the CDC Order, as
extended on March 29, 2021, maintains
the eviction moratorium until June 30,
2021. As the CDC Order extension
noted, although COVID–19 transmission
has decreased since a peak in January
2021, the current number of cases per
day remains almost twice as high as the
initial peak in April 2020 and
transmission rates are similar to the
second peak in July 2020.87 Since the
CDC Order’s eviction moratorium went
into effect in September 2020, some
80 85
FR 76734, 76740 (Nov. 30, 2020).
84 FR 23274, 23282–83 (May 21, 2019).
82 See, e.g., Romea v. Heiberger & Assocs., 163
F.3d 111, 115–16 (2d Cir. 1998) (‘‘[U]nder the
FDCPA, back rent is debt.’’); Lipscomb v. The
Raddatz Law Firm, P.L.L.C., 109 F. Supp. 3d 251,
258–59 (D.D.C. 2015) (concluding that ‘‘the FDCPA
applies where eviction proceedings include an
attempt to recover back rent’’).
83 5 U.S.C. 551 et seq., 701 et seq.
84 5 U.S.C. 553(b)(B).
85 5 U.S.C. 553(d)(3).
86 See also 86 FR 16731, 16737 (Mar. 31, 2021)
(in describing how it would be impracticable to
provide notice and comment, the CDC wrote in the
extension of the CDC Order that, ‘‘The rapidly
changing nature of the pandemic requires not only
that CDC act swiftly, but also deftly to ensure that
its actions are commensurate with the threat.’’).
87 See id. at 16732.
81 Id.;
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debt collectors have engaged in evicting
consumers from residential properties.
As discussed more fully in parts II
and V, the Bureau has become aware in
the months following the initial
institution of the CDC Order’s eviction
moratorium that consumers who
interact with these debt collectors may
not be aware of their protections under
the CDC Order and the steps they must
take to avail themselves of such
protections.88 As explained below, the
failure of debt collectors to disclose
these protections can violate the FDCPA
with immediate consequences to health
and safety. At the same time, debt
collectors who otherwise might disclose
these protections may lack clear
direction about how to do so to comply
with the FDCPA. The Bureau also
understands that some debt collectors
may be engaging in misrepresentations
regarding consumers’ ineligibility for
the CDC Order’s protections. These
challenges have emerged only after the
CDC Order initially took effect, and the
eviction moratorium effectuated by the
CDC Order has recently been extended
for a limited period. To provide
necessary protection for consumers,
particularly in light of the health and
safety consequences of eviction, as well
as clarity for debt collectors, it is critical
that the interim final rule take effect as
soon as practicable.
For similar reasons, the Bureau also
finds that delaying this rulemaking to
allow for prior public comment would
be contrary to the public interest,
because the interim final rule is
necessary to avoid the harm to
consumers and to address the lack of
clarity for debt collectors that would
result if the interim final rule did not
take effect a short time after issuance.
By identifying a practice that violates
the FDCPA and identifying the means
by which a debt collector may comply
with the FDCPA while engaging in
certain actions related to residential
evictions, the interim final rule will
benefit consumers while minimizing the
burden on debt collectors.
For these reasons, the Bureau also
finds that there is good cause for this
interim final rule to be effective less
than 30 days after publication, to ensure
that this interim final rule is effective on
May 3, 2021 and for the duration of the
CDC Order’s effective period and any
extension thereof.
V. Section-by-Section Analysis
Subpart B—Rules for Debt Collectors
Subject to the Fair Debt Collection
Practices Act
Section 1006.9 Debt Collection
Practices in Connection With the Global
COVID–19 Pandemic
Section 1006.9 prohibits certain debt
collection practices by debt collectors
related to the global COVID–19
pandemic. More specifically, § 1006.9
prohibits certain acts by debt collectors
that, by interfering with consumers’
ability to protect themselves from
eviction pursuant to the CDC Order,
undermine the purpose of the CDC
Order’s eviction moratorium to prevent
the further spread of COVID–19. Section
1006.9(a) and (b) sets forth the purpose
and coverage of subpart B and defines
certain terms used in the subpart, and
§ 1006.9(c) identifies the prohibited
acts. The Bureau is adopting § 1006.9
pursuant to its authority under FDCPA
section 814(d) to write rules with
respect to the collection of debts by debt
collectors and, with respect to
§ 1006.9(c), pursuant to its authority to
interpret FDCPA sections 807 and 808.
9(a) Purpose and Coverage
Section 1006.9(a) identifies the
purpose of subpart B of part 1006 and
is consistent with FDCPA section 802,
which sets forth the purpose of the
FDCPA.89 Pursuant to section 802, the
purpose of the FDCPA is to eliminate
abusive debt collection practices by debt
collectors, to ensure that debt collectors
who refrain from using abusive debt
collection practices are not
competitively disadvantaged, and to
promote consistent State action to
protect consumers against debt
collection abuses. Section 1006.9(a) thus
provides that the purpose of subpart B
is to eliminate certain abusive debt
collection practices by debt collectors
related to the global COVID–19
pandemic, to ensure that debt collectors
who refrain from using such abusive
debt collection practices are not
competitively disadvantaged, and to
promote consistent State action to
protect consumers against such debt
collection abuses.
Section 1006.9(a) also identifies the
coverage of subpart B. Section 1006.9(a)
provides that subpart B applies to debt
collectors, as defined in FDCPA section
803(6),90 other than a person excluded
from coverage by section 1029(a) of the
Dodd-Frank Wall Street Reform and
Consumer Protection Act (Dodd-Frank
89 15
88 See,
e.g., GAO Report, supra note 61, at 1.
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U.S.C. 1692a(6).
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Act).91 Section 1006.9(a) reflects the
Bureau’s FDCPA rulemaking authority
as set forth in FDCPA section 814(d).92
9(b) Definitions
9(b)(1)
Section 1006.9(b)(1) provides that the
terms ‘‘consumer,’’ ‘‘debt,’’ and ‘‘debt
collector’’ have the meaning given to
them in FDCPA section 803.93 FDCPA
section 803(3) defines ‘‘consumer’’ as
any natural person obligated or
allegedly obligated to pay any debt.94
FDCPA section 803(5) defines ‘‘debt’’ as
any obligation or alleged obligation of a
consumer to pay money arising out of a
transaction in which the money,
property, insurance or services which
are the subject of the transaction are
primarily for personal, family, or
household purposes, whether or not
such obligation has been reduced to
judgment.95 A consumer’s unpaid
residential rent would typically fall
within the FDCPA’s definition of debt
because it is an obligation of a consumer
to pay money arising out of a
transaction for personal, family, or
household purposes.96 FDCPA section
803(6) generally defines ‘‘debt collector’’
as any person who uses any
instrumentality of interstate commerce
or the mails in any business the
principal purpose of which is the
collection of any debts, or who regularly
collects or attempts to collect, directly
or indirectly, debts owed or due or
asserted to be owed or due another.
FDCPA section 803(6)’s definition of
‘‘debt collector’’ also includes any
creditor who, in the process of
collecting its own debts, uses any name
other than the creditor’s own which
would indicate that a third person is
collecting or attempting to collect such
debts.
9(b)(2)
Section 1006.9(b)(2) provides that the
term ‘‘CDC Order’’ means the order
issued by the CDC titled Temporary
Halt in Residential Evictions to Prevent
the Further Spread of COVID–19, as
91 Public Law 113–203, 124 Stat. 1376, 2004
(2010) (12 U.S.C. 5519(a)).
92 FDCPA section 814(d) provides, in part, that
the Bureau may not prescribe rules under the
FDCPA with respect to motor vehicle dealers as
described in section 1029(a) of the Dodd-Frank Act.
15 U.S.C. 1692l(d). Any motor vehicle dealers who
are FDCPA-covered debt collectors still need to
comply with the FDCPA.
93 15 U.S.C. 1692a.
94 15 U.S.C. 1692a(3).
95 15 U.S.C. 1692a(5).
96 See, e.g., Romea, 163 F.3d at 115–16 (‘‘[U]nder
the FDCPA, back rent is debt.’’); Lipscomb, 109 F.
Supp. 3d at 258–59 (concluding that ‘‘the FDCPA
applies where eviction proceedings include an
attempt to recover back rent’’).
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extended by the CDC.97 As explained in
part II, the CDC Order generally
prohibits a landlord, owner of a
residential property, or other person
with a legal right to pursue eviction or
possessory action from evicting for nonpayment of rent any covered person
from any residential property in any
jurisdiction in which the Order applies
during the effective period of the
Order.98 The CDC Order will remain in
effect until June 30, 2021, unless
extended, modified, or rescinded.
9(b)(3)
Section 1006.9(b)(3) provides that the
term ‘‘eviction notice’’ means the
earliest of any written notice that the
laws of any State, locality, territory, or
tribal area require to be provided to a
consumer before an eviction action
against the consumer may be filed. Not
all jurisdictions require such a notice,
and some jurisdictions may require
more than one. The definition clarifies
that, for purposes of this interim final
rule, the term eviction notice refers to
the earliest of any such notice that must
be provided. Jurisdictions that do
require such a notice may refer to the
notice using different names.99 The
definition of eviction notice is meant to
encompass all such required notices,
regardless of the names by which those
notices are known. Thus, comment
9(b)(3)–1 clarifies that the term eviction
notice includes, for example, notices to
quit, notices to pay rent or quit, and
notices to terminate tenancy. As
explained in the section-by-section
analysis of § 1006.9(c)(1), a debt
collector who provides a consumer with
an eviction notice while the CDC Order
97 86 FR 16731 (Mar. 31, 2021). In the event the
CDC further extends the CDC Order, the Bureau
expects that the requirements and prohibitions in
this interim final rule will continue to apply until
the expiration of any such extension.
98 This prohibition applies, without limitation, to
an agent or attorney acting on behalf of a landlord
or owner of the residential property. Id. at 16732
n.3.
99 See, e.g., Ala. Code 35–9A–421
(‘‘Noncompliance with rental agreement; failure to
pay rent.’’); Ariz. Rev. Stat. Ann. 33–1368
(‘‘Noncompliance with rental agreement by tenant;
failure to pay rent; utility discontinuation; liability
for guests; definition.’’); DC Code Ann. 42–
3505.01(a) (providing that ‘‘[a]ll notices to vacate
shall contain a statement detailing the reasons for
the eviction’’); Fla. Stat. Ann. 83.56(3)
(‘‘Termination of rental agreement.’’); 735 Ill. Comp.
Stat. 5/9–209 (‘‘Demand for rent—eviction action.’’);
Kan. Stat. Ann. 58–2564(b) (‘‘Material
noncompliance by tenant; notice; termination of
rental agreement; limitations; nonpayment of rent;
remedies.’’); N.C. Gen. Stat. 42–3 (‘‘Term forfeited
for nonpayment of rent.’’); Tex. Prop. Code Ann.
24.005 (‘‘Notice to Vacate Prior to Filing Eviction
Suit.’’); Vt. Stat. Ann. tit. 9, 4467 (‘‘Termination of
tenancy; notice.’’); Wis. Stat. Ann. 704.17 (‘‘Notice
terminating tenancies for failure to pay rent or other
breach by tenant.’’).
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is in effect may be required at that time
to disclose to the consumer certain
information about the CDC Order.
9(c) Prohibitions
Section 1006.9(c) prohibits certain
deceptive and unfair acts by debt
collectors. As discussed further below,
§ 1006.9(c)(1) generally prohibits debt
collectors from filing an eviction action
against a consumer to whom the CDC
Order reasonably might apply without
disclosing that the consumer may be
eligible for temporary protection from
eviction under the CDC Order. Section
1006.9(c)(2) prohibits debt collectors
from falsely representing or implying to
a consumer that the consumer is not
eligible for temporary protection from
eviction under the CDC Order.
The prohibitions in § 1006.9(c) apply
only if certain initial conditions are
satisfied. First, because this interim
final rule is designed to address
deceptive and unfair debt collection
practices with respect to the CDC Order,
the prohibitions apply only during the
effective period of the CDC Order, and
only in jurisdictions in which the CDC
Order is effective. As already noted, the
CDC Order is set to expire on June 30,
2021, unless extended, modified, or
rescinded. The CDC Order does not
apply in any State, local, territorial, or
tribal area with a moratorium on
residential evictions that provides the
same or greater level of public-health
protection than the requirements listed
in the CDC Order.100
Second, the prohibitions in
§ 1006.9(c) apply only to a debt
collector’s conduct in connection with
the collection of a debt. That is because
the Bureau is adopting § 1006.9(c)
pursuant to its authority to interpret
FDCPA sections 807 and 808, which
prohibit certain conduct by debt
collectors in connection with the
collection of a debt.101
9(c)(1)
According to the CDC, an eviction
moratorium—like quarantine, isolation,
and social distancing—can be an
effective public-health measure to
prevent the spread of COVID–19.102
Evicted renters must move, which can
100 86 FR 16731, 16736 (Mar. 31, 2021). See also
CDC Order FAQs, supra note 32. State, local,
territorial, and tribal moratoria are discussed further
in the section-by-section analysis of § 1006.9(c)(1).
101 As discussed elsewhere in this interim final
rule, FDCPA section 807 generally prohibits debt
collectors from using any false, deceptive, or
misleading representation or means in connection
with the collection of any debt, and FDCPA section
808 generally prohibits debt collectors from using
unfair or unconscionable means to collect or
attempt to collect any debt.
102 86 FR 16731, 16733 (Mar. 31, 2021).
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increase the risk of COVID–19 spread,
particularly given that, according to the
CDC, a large number of evicted renters
may move into close quarters in shared
housing or become homeless.103 In
addition, according to the CDC, the risk
of eviction for non-payment of rent is
related to factors such as suffering a job
loss, having limited financial resources,
low income, or high out-of-pocket
medical expenses.104 As noted in part II,
to qualify for the CDC Order’s eviction
moratorium, a person must submit a
written declaration under penalty of
perjury attesting to certain eligibility
criteria generally establishing that,
because of the person’s financial
situation, the person is unable to make
full rental payments and, if evicted,
likely would become homeless or would
be required to move into a congregate or
shared living setting.105
Based on informal outreach to
consumer advocates and other
stakeholders discussed in part II, and
the GAO report discussed in part II,106
the Bureau understands that many
consumers are unaware that they may
be temporarily protected from eviction
for nonpayment of rent under the CDC
Order, or, if they are aware of the Order,
they may believe its protections apply
automatically or may not otherwise
understand the steps needed to avail
themselves of such protections.
Consumers who are unaware of the CDC
Order cannot evaluate whether they
qualify for protection under the
eligibility criteria set forth in the Order.
Consumers who assume the protections
apply automatically or do not
understand the steps needed to exercise
their protections may fail to take such
necessary steps, including submitting a
declaration. As a result, some
consumers who otherwise might be
permitted to remain in their homes
during the pendency of the CDC Order
may be evicted because they fail to
claim such protection or may choose to
leave before being evicted (i.e., either
before any eviction action is filed, or
after an eviction action is filed but
before any physical eviction takes
place). And, as discussed in the CDC
Order, evictions can undermine public
health by contributing to the spread of
COVID–19. Requiring debt collectors to
disclose the existence of the CDC Order
to certain consumers in certain
circumstances will help to address these
harms by increasing the likelihood that
103 Id.
at 16734–35.
at 16731 n.2.
105 Id. at 16731–32.
106 See GAO Report, supra note 61, at 1
(describing how ‘‘clear, accurate, and timely
information’’ is ‘‘essential to keep the public
informed’’ during the COVID–19 pandemic).
104 Id.
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consumers will become aware of the
Order, and that consumers eligible for
protection under the Order will take the
steps necessary to obtain and invoke
that protection.
For these reasons, § 1006.9(c)(1)
provides that, during the effective
period of the CDC Order, a debt
collector collecting a debt in any
jurisdiction in which the Order applies
must not, in connection with the
collection of that debt, file an eviction
action for non-payment of rent against a
consumer to whom the CDC Order
reasonably might apply without
disclosing to that consumer clearly and
conspicuously in writing, on the date
that the debt collector provides the
consumer with an eviction notice or, if
no eviction notice is required by
applicable law, on the date that the
eviction action is filed, that the
consumer may be eligible for temporary
protection from eviction under the CDC
Order.
Section 1006.9(c)(1) specifies that a
debt collector must provide the
disclosure only if the debt collector files
an eviction action for non-payment of
rent by the consumer. A debt collector
who files an eviction action unrelated to
the payment of rent would typically not
be acting ‘‘in connection with the
collection of a debt,’’ which is required
for the FDCPA to apply. The disclosure
requirement is consistent in this respect
with the CDC Order, which specifies
that the Order does not preclude
evictions based on certain conduct by a
tenant, lessee, or resident unrelated to
the non-payment of rent. Specifically,
the CDC Order does not preclude
evictions based on a tenant, lessee, or
resident: (1) Engaging in criminal
activity while on the premises; (2)
threatening the health or safety of other
residents; (3) damaging or posing an
immediate and significant risk of
damage to property; (4) violating any
applicable building code, health
ordinance, or similar regulation relating
to health and safety; (5) or violating any
other contractual obligation, other than
the timely payment of rent or similar
housing-related payment (including
non-payment or late payment of fees,
penalties, or interest).107
Comment 9(c)(1)–1 clarifies that a
debt collector does not file an action to
evict a consumer for non-payment of
rent if the debt collector files the action
based solely on the consumer engaging
in one or more of the actions specified
in the CDC Order as unrelated to the
payment of rent. If a debt collector files
an eviction action for non-payment of
rent and other reasons unrelated to non107 86
FR 16731, 16736 (Mar. 31, 2021).
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payment, the disclosure requirement
applies. For ease of reference, this
interim final rule refers to an eviction
action that meets all of the conditions of
§ 1006.9(c)(1) (i.e., filed by a debt
collector during the effective period of
the CDC Order, in a jurisdiction in
which the Order applies, and for
nonpayment of rent against a consumer
to whom the Order reasonably might
apply) as an ‘‘eviction action.’’
Section 1006.9(c)(1) requires debt
collectors to provide the disclosure only
to consumers to whom the CDC Order
reasonably might apply. Comment
9(c)(1)–2 clarifies that a consumer to
whom the CDC Order reasonably might
apply is a consumer who reasonably
might be eligible to be a covered person
as defined in the CDC Order.108
Comment 9(c)(1)–2 also clarifies that a
consumer is not reasonably eligible to
be a covered person if the debt collector
has knowledge that the consumer is not
eligible for protection under the CDC
Order. If a particular consumer would
not actually qualify for temporary
eviction protection under the CDC
Order, then there is likely no deception
or unfairness to cure, no consumer
benefit from receiving a disclosure
about the Order, and no reason to cause
debt collectors to incur the expense of
providing such a disclosure.
The Bureau recognizes that, given the
multiple factual assertions to which a
consumer must attest in the declaration
before the protections of the CDC Order
attach, in many circumstances it will be
difficult for a debt collector to identify
the consumers to whom the CDC Order
reasonably might apply. Accordingly,
§ 1006.9(c)(1) does not require a debt
collector to make an individualized
determination as to a consumer’s
eligibility for protection under the CDC
Order in connection with providing the
disclosure. Comment 9(c)(1)–2 clarifies
that nothing in § 1006.9(c)(1) prohibits a
debt collector from providing the
disclosure to a consumer even if the
consumer might not reasonably be
eligible to be a covered person. In
addition, comment 9(c)(1)–2 clarifies
that a debt collector may comply with
the § 1006.9(c)(1) disclosure
requirement by, for example, providing
the disclosure to each consumer against
whom the debt collector files an
eviction action for non-payment of
rent.109 Comment 9(c)(1)–2 also clarifies
108 See
supra note 24.
example, under the interim final rule, if
a debt collector concludes that the CDC Order
would not reasonably apply to a particular
consumer, the debt collector need not provide the
disclosure to that consumer. However, the debt
collector also would not violate the interim final
rule if the debt collector provided the disclosure to
109 For
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21171
that a debt collector does not violate
FDCPA sections 807 or 808 merely
because the debt collector provides the
disclosure to consumers as described in
comment 9(c)(1)–2 even if the consumer
is not reasonably eligible to be a covered
person.
Given that eligibility under the CDC
Order depends on the consumer’s
personal circumstances and actions, the
Bureau expects that, in most situations
involving non-payment of rent, a debt
collector will not know whether a
consumer reasonably might be eligible
for protection under the Order. The
Bureau therefore expects that most debt
collectors will provide the disclosure to
most or all consumers to whom they
provide an eviction notice for nonpayment of rent or against whom they
file an eviction action for non-payment
of rent. The Bureau notes that
§ 1006.9(c)(1) requires debt collectors to
disclose to consumers that the
consumers ‘‘may’’ be eligible for
temporary protection from eviction
under the CDC Order. The Bureau
believes that, in this context, the
disclosure does not convey, impliedly
or expressly, that the debt collector has
determined that the consumer is eligible
for protection under the CDC Order.
Accordingly, nothing in the disclosure
constitutes legal advice, and a debt
collector does not violate the FDCPA by
providing the disclosure to a consumer
to whom the protection is not
reasonably likely to apply or to whom
the protection does not ultimately
apply.
Section 1006.9(c)(1) requires a debt
collector to provide the disclosure on
the date that the debt collector provides
the consumer with an eviction notice or,
if no eviction notice is required by
applicable law, on the date that the
eviction action is filed.110 Formal
notices and court filings are likely to
command a consumer’s attention and
crystallize the threat of eviction. Thus,
requiring debt collectors to provide the
disclosure on the same date as they
provide these documents helps ensure
that consumers receive information
about the CDC Order when that
information may be especially salient to
that consumer out of an abundance of caution. More
generally, a debt collector would not violate the
interim final rule if the debt collector provided the
disclosure to a consumer against whom the debt
collector files a covered eviction action without
making an individualized determination whether
the CDC Order is reasonably likely to apply to that
consumer.
110 If, as of the date this interim final rule takes
effect, a debt collector has provided the consumer
an eviction notice but not yet filed an eviction
action, the debt collector would comply by
providing the disclosure on the date that the
eviction action is filed.
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them and they may be most likely to act
on that information. Information about
the CDC Order may be especially salient
and important to a consumer when the
consumer receives an eviction notice.
Consumers who believe they qualify for
protection under the CDC Order and
receive the disclosure at that time may
be less likely to leave the property of
their own accord in the mistaken belief
that the debt collector can physically
evict them.111 For consumers who do
not receive an eviction notice,
information about the CDC Order may
be especially salient and important
when an eviction action is filed. As
noted above, the CDC Order does not
prohibit the filing of eviction actions;
the Order prohibits only the actual,
physical removal of persons covered by
the Order from their homes.112 Thus, a
consumer who receives the disclosure at
the time an eviction action is filed will
still be able to take action to obtain the
CDC Order’s protection before the harm
the Order addresses (i.e., physical
removal) takes place.113
Section 1006.9(c)(1) requires a debt
collector to disclose to the consumer on
the same date that—but not necessarily
at the same time as—the debt collector
provides the consumer with an eviction
notice or files an eviction action.
Accordingly, comment 9(c)(1)–3
clarifies that a debt collector may satisfy
this requirement by, for example,
delivering the disclosure to the address
that is the subject of eviction
proceedings; the debt collector is not
required to ensure that the consumer
actually receives the disclosure.
Delivering the disclosure to the address
that is the subject of the eviction
proceedings, particularly if provided
with the notice of eviction or eviction
filing, makes it highly likely that the
consumer will receive the disclosure. In
light of this, requiring debt collectors to
ensure that consumers actually receive
the disclosure would be unduly
burdensome for debt collectors. The
Bureau also notes that the FDCPA’s
disclosure requirements generally do
not require debt collectors to ensure
actual receipt.114
Additionally, the Bureau recognizes
that, to minimize costs, a debt collector
may wish to provide the disclosure at
111 See part II.D for discussion of informal
evictions.
112 See CDC Order FAQs, supra note 32.
113 If the landlord or the property manager rather
than the debt collector provides the eviction notice,
§ 1006.9(c)(1) requires the debt collector to provide
the disclosure on the date that the debt collector
files the eviction action—even if the landlord or the
property manager separately disclosed the existence
of the CDC Order.
114 See 15 U.S.C. 1692g.
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the same time that the debt collector
provides the consumer with an eviction
notice or serves the consumer with an
eviction action. The Bureau does not
believe that this would reduce the
effectiveness of the disclosure for
consumers. Therefore, comment 9(c)(1)–
3 clarifies that a debt collector may
provide the disclosure at the same time
that the debt collector provides the
consumer with any eviction notice or
serves the consumer with any eviction
action. For example, a debt collector
may, but is not required to, include the
disclosure in an envelope either on or
with the eviction notice or in the same
mailing in which the debt collector
serves the consumer with an eviction
action.115
Comment 9(c)(1)–4 clarifies that
§ 1006.9(c)(1) does not require a debt
collector to provide the disclosure more
than once. Nevertheless, the Bureau also
believes that a consumer who has been
provided the disclosure once would not
be harmed by receiving the disclosure
again. Accordingly, comment 9(c)(1)–4
also clarifies that nothing in
§ 1006.9(c)(1) prohibits a debt collector
from providing the disclosure more than
once, such as in each subsequent
communication with the consumer.
Comment 9(c)(1)–4 further clarifies that,
in addition, a debt collector does not
violate FDCPA sections 807 or 808
merely because the debt collector
provides the disclosure more than once.
As noted, § 1006.9(c)(1) requires the
debt collector to disclose that the
consumer may be eligible for temporary
protection from eviction under the CDC
Order. Comment 9(c)(1)–5 provides
sample language that a debt collector
may use to comply with this disclosure
requirement. The sample language alerts
consumers to the possibility of
protection from eviction, prompts them
to take follow-up steps, and directs
them to further resources available on
the Bureau’s website and by telephone
through the Department of Housing and
Urban Development’s Housing
Counseling Program. Specifically,
comment 9(c)(1)–5.i provides sample
language that a debt collector may use
to comply with this disclosure
requirement if the debt collector is
disclosing that the consumer may be
eligible for temporary protection from
eviction solely under the CDC Order.
The sample language in comment
9(c)(1)–5.i states: ‘‘Because of the global
COVID–19 pandemic, you may be
115 In the case of eviction actions, service of
process often happens shortly after filing, so
providing the disclosure at the time of service still
ensures that consumers receive the disclosure when
information about the CDC Order is likely to be
relevant to them.
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eligible for temporary protection from
eviction under Federal law. Learn the
steps you should take now: visit
www.cfpb.gov/eviction or call a housing
counselor at 800–569–4287.’’ 116
Comment 9(c)(1)–5.i also clarifies that a
debt collector does not violate FDCPA
sections 807 or 808 merely because the
debt collector provides the sample
language in comment 9(c)(1)–5.i to a
consumer in a jurisdiction in which the
CDC Order does not apply.
The Bureau recognizes that the CDC
Order does not apply in any State, local,
territorial, or tribal area with a
moratorium on residential evictions that
provides the same or greater level of
public-health protection than the CDC
Order.117 Section 1006.9(c)(1) does not
require debt collectors collecting debts
in such jurisdictions to disclose such
protections, but debt collectors may
nevertheless wish to do so.118 The
Bureau also recognizes that a debt
collector may be uncertain about
whether the CDC Order or a State, local,
territorial, or tribal moratorium applies
in a particular jurisdiction because it
may be unclear whether the CDC Order
is more protective than any such
moratorium. As a result, a debt collector
may wish to disclose that the consumer
may be eligible for temporary protection
from eviction under the CDC Order or
under State, local, territorial, or tribal
law. Comment 9(c)(1)–5.ii provides
alternative sample language that a debt
collector may use to make such a
disclosure while satisfying
§ 1006.9(c)(1). The sample language in
116 Section 1006.9(c)(1) requires a debt collector
to disclose that the consumer may be eligible for
temporary protection from eviction under the CDC
Order. The Bureau believes that consumers may be
more familiar with the term ‘‘Federal law’’ than the
term ‘‘CDC Order,’’ particularly given the Bureau’s
concern that consumers may be unaware of the CDC
Order’s existence. To aid consumer comprehension,
the sample language in comment 9(c)(1)–5 therefore
uses the term ‘‘Federal law.’’
117 86 FR 16731, 16736 (Mar. 31, 2021).
118 In light of the large number of potential State,
local, territorial, and tribal moratoria, the Bureau
has not made a finding in this interim final rule that
it is unfair or deceptive under the FDCPA for a debt
collector in a jurisdiction in which such a
moratorium applies to file an eviction action against
a consumer without disclosing that moratorium to
the consumer. Nevertheless, a debt collector’s
failure to disclose such information to a consumer
may violate the FDCPA’s prohibitions on deception
or unfairness (or both) for the same reasons
discussed in this interim final rule with respect to
the failure to disclose the CDC Order, particularly
if State, local, territorial, or tribal law offers greater
protection than the CDC Order. Providing the
disclosure in comment 9(c)(1)–5.ii likely cures any
deception or unfairness under FDCPA sections 807
or 808 that would arise from the failure to disclose
a more protective State, local, territorial, or tribal
law. Nothing in § 1006.9(c)(1) affects a debt
collector’s obligation to provide any moratoriumrelated disclosure required by State, local,
territorial, or tribal law.
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comment 9(c)(1)–5.ii states: ‘‘Because of
the global COVID–19 pandemic, you
may be eligible for temporary protection
from eviction under the laws of your
State, territory, locality, or tribal area, or
under Federal law. Learn the steps you
should take now: visit www.cfpb.gov/
eviction or call a housing counselor at
800–569–4287.’’ Comment 9(c)(1)–5.ii
also clarifies that a debt collector does
not violate FDCPA sections 807 or 808
merely because the debt collector
provides the sample language in
comment 9(c)(1)–5.ii to a consumer in a
jurisdiction in which only the CDC
Order applies or in which the CDC
Order does not apply.
Section 1006.9(c)(1) requires the debt
collector to make the disclosure clearly
and conspicuously in writing. Requiring
debt collectors to provide the disclosure
to consumers clearly and conspicuously
and in writing rather than electronically
(such as by email) increases the
likelihood in the context of eviction
during the global COVID–19 pandemic
that consumers will actually receive and
understand the disclosure, since the
Bureau expects that most debt collectors
will provide the disclosure to the
address that is the subject of eviction
proceedings. Requiring debt collectors
to provide the disclosure to consumers
clearly and conspicuously and in
writing rather than orally (such as
during a telephone call) increases the
likelihood that consumers will retain
the disclosure, refer back to it if
necessary, and act upon it if
appropriate. Comment 9(c)(1)–6 clarifies
that clear and conspicuous means
readily understandable. In addition, the
comment clarifies that the location and
type size also must be readily noticeable
and legible to consumers, although no
minimum type size is mandated.
The Bureau is finalizing § 1006.9(c)(1)
as an interpretation of FDCPA sections
807 and 808, pursuant to its authority
under FDCPA section 814(d) to
prescribe rules with respect to the
collection of debts by debt collectors.
FDCPA section 807 generally prohibits
debt collectors from using any false,
deceptive, or misleading representation
or means in connection with the
collection of any debt. In addition,
FDCPA section 807(2)(A) specifically
prohibits falsely representing the
character, amount, or legal status of any
debt; FDCPA section 807(4) specifically
prohibits representing or implying that
non-payment of a debt will result in,
among other things, the seizure or sale
of any property unless such action is
lawful and the debt collector or creditor
intends to take such action; and FDCPA
section 807(5) specifically prohibits
threatening to take any action that
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cannot legally be taken or that is not
intended to be taken.
Because of the continuing health and
safety risks posed by the COVID–19
pandemic, the CDC Order provides
temporary protection to certain
consumers against whom a covered
eviction action is filed. A debt collector
who nevertheless files a covered
eviction action against a consumer may
explicitly or implicitly represent to the
consumer that the consumer is not
eligible, and could not become eligible,
for protection under the CDC Order.119
This representation is false or
misleading when made to consumers
who are eligible, or could become
eligible, for protection under the CDC
Order (such as if they submitted a
declaration). Further, such a
misrepresentation is similar to a false
representation of the character and legal
status of a debt, which FDCPA section
807(2)(A) specifically prohibits. It is
also similar to a false representation that
non-payment will result in the seizure
or sale of property. And it is similar to
a threat to take an action that cannot
legally be taken, which FDCPA section
807(5) specifically prohibits. The
disclosure required by § 1006.9(c)(1)
corrects this false representation by
informing consumers that temporary
protection from eviction may be
available under the CDC Order.
FDCPA section 808 generally
prohibits a debt collector from using
unfair or unconscionable means to
collect or attempt to collect any debt. In
addition, FDCPA section 808(6)(C)
specifically prohibits a debt collector
from taking or threatening to take any
nonjudicial action to effect
dispossession or disablement of
property if the property is exempt by
law from such dispossession or
disablement. As explained above, the
Bureau believes that many consumers
are unaware that they may be
temporarily protected under the CDC
Order from eviction for non-payment of
rent. As also explained above, the
Bureau believes that lack of awareness
about the CDC Order, including that the
protections are not automatic and the
requirement that the consumer provide
a declaration, causes some consumers
who would be eligible for such
temporary protection to forgo it. For
such consumers—and for public health
more broadly—this harm is significant.
Furthermore, evicting a consumer who
would have been protected under the
119 Similarly, as the Bureau and many courts have
recognized, the filing of a legal action to collect a
time-barred debt explicitly or implicitly
misrepresents to the consumer that the debt is
legally enforceable. See 86 FR 5766, 5778 (Jan. 19,
2021).
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CDC Order, had the consumer known
about the CDC Order, is similar to taking
an action to effect dispossession of
property that is exempt from such
dispossession. For these reasons, the
Bureau concludes that a debt collector
violates FDCPA section 808’s
prohibition on unfairness by filing a
covered eviction action against a
consumer without disclosing to the
consumer clearly and conspicuously in
writing, on the date that the debt
collector provides the consumer with an
eviction notice or, if no eviction notice
is required by applicable law, on the
date that the eviction action is filed that
the consumer may be eligible for
temporary protection from eviction
under the CDC Order.
9(c)(2)
The Bureau understands, based on
informal outreach to consumer
advocates and other stakeholders, that
some debt collectors may have falsely
represented or implied to consumers
that those consumers are ineligible for
protection under the CDC Order.120
False statements about a consumer’s
ineligibility for protection under the
CDC Order may cause an eligible
consumer to forgo that protection,
possibly leading to the consumer’s
departure or eviction from residential
property in which the consumer
otherwise would have been entitled to
remain for the duration of the CDC
Order’s eviction moratorium. Such
departures or evictions can contribute to
the spread of COVID–19 by forcing
consumers to move, often into close
quarters in shared or congregate housing
settings.121
For these reasons, § 1006.9(c)(2)
provides that, during the effective
period of the CDC Order, a debt
collector collecting a debt in any
jurisdiction in which the Order applies
must not, in connection with the
collection of that debt, falsely represent
or imply to a consumer that the
consumer is ineligible for temporary
protection from eviction under the CDC
Order. The Bureau is finalizing
§ 1006.9(c)(2) as an interpretation of
FDCPA section 807, pursuant to its
authority under FDCPA section 814(d)
to prescribe rules with respect to the
collection of debts by debt collectors. As
noted above, FDCPA section 807
120 For example, as described in part II, consumer
advocates and legal aid organizations have reported,
among other conduct, instances (which the Bureau
has not independently verified) of landlord
attorneys refusing to accept a signed tenant
declaration when presented with one or advising
landlords to have their property managers tell
tenants who present a signed declaration that they
are not eligible under the CDC Order.
121 86 FR 16731, 16734–35 (Mar. 31, 2021).
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generally prohibits debt collectors from
using any false, deceptive, or misleading
representation or means in connection
with the collection of any debt. A debt
collector who, in connection with the
collection of a debt, falsely represents or
implies to a consumer that the
consumer is ineligible for protection
under the CDC Order uses false,
deceptive, or misleading means to
collect the debt. Such activity therefore
violates FDCPA section 807.
Supplement I to Part 1006—Official
Interpretations
The interim final rule adds
Supplement I to Regulation F to publish
official interpretations of the regulation
(i.e., commentary). Comment I–1
explains that the commentary is the
Bureau’s vehicle for supplementing
Regulation F and that the provisions of
the commentary are issued under the
same authorities as the corresponding
provisions of Regulation F and in
accordance with the notice-andcomment procedures of the APA.
VI. Effective Date
This interim final rule is effective on
May 3, 2021. Although this interim final
rule is being issued without notice and
opportunity for comment for the good
cause reasons described in part IV above
(i.e., the vulnerability of renters to the
negative economic impacts of the
pandemic, the risk of eviction, and the
health and safety consequences that
may ensue), the interim final rule will
impose a new disclosure requirement on
debt collectors. Consequently, debt
collectors may need some time to
become aware of the new disclosure
requirement and implement it into their
processes and systems to the extent they
are engaged in the evictions process.
The Bureau does not believe that a
lengthy compliance period is necessary,
however, in view of the disclosure’s
short length and simplicity, and because
the disclosure does not need to be
customized to the specific consumer.122
The Bureau also plans on engaging in
robust regulatory implementation and
consumer education efforts to increase
stakeholder awareness of the interim
final rule. The compliance period thus
balances these considerations.
VII. Dodd-Frank Act Section 1022(b)
Analysis
A. Overview
In developing this interim final rule,
the Bureau has considered the potential
122 In addition, the Bureau notes that debt
collectors may, but are not required to, comply with
the interim final rule’s disclosure requirement
before the effective date.
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benefits, costs, and impacts as required
by section 1022(b)(2)(A) of the DoddFrank Act.123 Specifically, section
1022(b)(2)(A) of the Dodd-Frank Act
requires the Bureau to consider the
potential benefits and costs of a
regulation to consumers and covered
persons, including the potential
reduction of access by consumers to
consumer financial products or services,
the impact on depository institutions
and credit unions with $10 billion or
less in total assets as described in
section 1026 of the Dodd-Frank Act, and
the impact on consumers in rural areas.
The Bureau consulted with appropriate
prudential regulators and other Federal
agencies regarding the consistency of
this interim final rule with prudential,
market, or systemic objectives
administered by such agencies, as
required by section 1022(b)(2)(B) of the
Dodd-Frank Act.
This interim final rule amends
Regulation F, which implements the
FDCPA. The interim final rule addresses
certain debt collector conduct
associated with an eviction moratorium
issued by the CDC in response to the
COVID–19 pandemic. The amendments
would require that debt collectors
provide written notice to certain
consumers of their protections under
the CDC Order and prohibit
misrepresentations about consumers’
ineligibility for protection under such
moratorium.
This interim final rule’s purpose is to
prevent debt collectors from making
false or misleading representations or
engaging in unfair practices associated
with the eviction moratorium issued by
the CDC. As stated above, the CDC
Order generally prohibits consumers
protected by the CDC Order from
physical removal from residential
property for non-payment of rent. To be
covered by the CDC Order, a person
must submit a written declaration under
penalty of perjury attesting to certain
eligibility criteria generally establishing
that, because of the person’s financial
situation, the person is unable to make
full rental payments and, if evicted,
would likely become homeless or would
be required to move into a congregate or
shared living setting.
Despite the eviction moratorium,
physical removals of consumers from
residential property have continued,
potentially including consumers who
may have been eligible for protection
under the CDC Order. As discussed
above, the GAO found that some renters
may not fully understand that they have
to take action to become protected
under the CDC Order’s eviction
moratorium, and others may not
understand all of the required steps,
including how to submit the required
declaration.124 The GAO concluded
that, as the COVID–19 pandemic
persists, potentially millions of renters
and property owners will continue to
experience financial challenges, and
that while the CDC Order provides some
measure of relief to struggling renters,
some renters facing eviction may be
unaware of and unable to exercise the
moratorium, and therefore
unnecessarily evicted.125 This interim
final rule prohibits debt collectors, in
certain circumstances, from filing an
eviction action for non-payment of rent
against a consumer to whom the CDC
Order reasonably might apply without
disclosing to that consumer in writing
that the consumer may be eligible for
temporary protection from eviction
under the CDC Order. The interim final
rule also clarifies that debt collectors, in
certain circumstances, must not falsely
represent or imply to a consumer that
the consumer is ineligible for temporary
protection from eviction under the CDC
Order. Therefore, this interim final rule
may increase awareness of the CDC
Order for consumers who do not know
about the CDC Order or who do not
understand the specific steps needed to
avail themselves of the CDC Order’s
temporary protections. This, in turn,
may encourage consumers to invoke the
CDC Order’s protections and
subsequently reduce the number of
physical removals that the CDC Order is
intended to prevent.
1. Data and Evidence
The discussion below relies on
publicly available sources, including
reports published by the Bureau. These
sources form the basis for the Bureau’s
consideration of the likely impacts of
the interim final rule. To the extent
possible, the Bureau provides estimates
of the potential benefits and costs to
consumers, covered persons, and
landlords and residential property
owners of this interim final rule given
available data. However, the data with
which to quantify the potential costs,
benefits, and impacts of the interim
final rule are generally limited.
For the purpose of this analysis, the
Bureau uses, among other sources,
publicly available data on eviction
filings provided by the Eviction Lab at
Princeton University. The Bureau
analyzed two datasets from the Eviction
Lab. The Eviction Lab Eviction Tracking
System (ETS) collects records of
eviction case filings weekly for 27 cities
124 See
123 12
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125 Id.
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across the United States. The Bureau
analyzed data from those 27 cities
through March 20, 2021. Second, the
Bureau analyzed Eviction Lab data from
2000 to 2016 that counts eviction filings
nationally.
However, the Bureau does not have
sufficient data that would allow it to
reliably estimate the national quantity of
other relevant aspects of the eviction
process, such as eviction notices or the
physical removal of consumers from
residential property. As explained
below, a more complete characterization
of the benefits and costs of this interim
final rule requires a full catalog of
eviction-related events and the
economic circumstances of the affected
consumers. The Bureau is not aware of
the existence of such data.
In light of these data limitations, the
analysis below generally includes a
qualitative discussion of the benefits,
costs, and impacts of the interim final
rule, rather than a quantitative analysis.
General economic principles and the
Bureau’s expertise in consumer
financial markets, together with the
limited data that are available, provide
insight into these benefits, costs, and
impacts.
2. Description of the Baseline
The Bureau considers the benefits,
costs, and impacts of the interim final
rule against a current law baseline that
assumes the Bureau takes no action.
Under the baseline, the CDC Order
continues to be in effect until June 30,
2021.126 The assumed baseline assumes
that rental assistance remains available
to eligible consumers through the
Department of Treasury’s Emergency
Rental Assistance Program along with
eviction moratoria, rent freezes, and
rental assistance programs implemented
by State and local governments.127
These policies affect the number of
renters at risk of eviction under the
baseline.
The analysis of this interim final
rule’s benefits and costs separately
126 At a date subsequent to the publication of this
interim final rule, the CDC may decide to extend
the temporary protections beyond its scheduled
expiration on June 30, 2021. If extended, the
number of evictions delayed or prevented would
likely increase, and this would likely increase the
benefits to consumers and the costs to landlords,
residential property owners, and covered persons.
127 See, e.g., Eviction Lab, COVID–19 HOUSING
POLICY SCORECARD, https://evictionlab.org/
covid-policy-scorecard/ (last visited Apr. 1, 2021);
U.S. Dep’t of the Treasury, Emergency Rental
Assistance Program, https://home.treasury.gov/
policy-issues/cares/emergency-rental-assistanceprogram (last visited Apr. 1, 2021); Perkins Coie
LLP, COVID–19 Related Eviction and Foreclosure
Orders/Guidance 50-State Tracker (Mar. 29, 2021),
https://www.perkinscoie.com/en/news-insights/
covid-19-related-eviction-and-foreclosureordersguidance-50-state-tracker.html.
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examines consumers and covered
persons. Specifically, the analysis of the
costs and benefits associated with this
interim final rule examines the direct
and indirect effects on consumers, their
landlords and other residential property
owners, and debt collectors, as defined
by the FDCPA.
3. Benefits to Consumers
The interim final rule is intended to
help ensure that consumers who may
face an eviction proceeding as a result
of non-payment of rent are aware of
temporary eviction protections under
the CDC Order and are not misled about
their ineligibility for such protections.
Under the baseline, consumers who
are unaware of the CDC Order may be
removed from the property even though
they would have been eligible for the
Order’s protection had they taken
certain steps.128 Some consumers may
be unaware of the eviction protections
available under the CDC Order and
therefore may move out following
receipt of an eviction notice but before
a formal eviction action is filed or
judgment issued.129 Some consumers
may be falsely informed that they are
ineligible for the CDC Order’s
protections.
This interim final rule prohibits debt
collectors from filing an eviction action
in a jurisdiction in which the CDC
Order applies without disclosing to
certain consumers in writing that they
may be eligible for protections from
eviction. The interim final rule further
clarifies that debt collectors are
prohibited from falsely representing or
implying to a consumer that the
consumer is ineligible for temporary
protection from eviction under the CDC
Order. Therefore, this interim final rule
may help to ensure that consumers learn
about the CDC Order and take advantage
of its temporary protections when
appropriate. In turn, the interim final
rule may reduce physical removals that
the CDC Order is intended to prevent.
Accordingly, this interim final rule may
subsequently reduce the number of
consumers who become homeless or are
128 Minority renters, renters with lower income,
and renters with lower educational attainment are
more likely to be behind on rent payments than
other consumers and therefore face a greater risk of
eviction. Based on Census Household Pulse Survey
data from March 2021, about 12 percent of White
renters reported being behind on their rent,
compared to 20 to 22 percent of non-White renters.
About 19 percent of renters with pre-tax income
less than $35,000 reported being behind on their
rent, compared to about 12 percent for consumers
with income between $35,000 and $75,000. Of
renters without a high school degree, over 26
percent reported being behind on rent, compared to
17 percent for renters with a high school degree and
7 percent for renters with a college degree.
129 See supra note 55.
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required to move into a congregate or
shared living setting, the related spread
of COVID–19, and other related negative
economic as well as health and safety
consequences.130
Number of Consumers Directly Affected
The Bureau expects that the
consumers who will be most directly
affected by the interim final rule are
those in jurisdictions in which the CDC
order applies who would receive
eviction notices or be the subject of a
covered eviction action between the
effective date of this interim final rule
and June 30, 2021. These renters may
not currently be aware of the temporary
protection from eviction under the CDC
Order. This interim final rule would
prohibit a debt collector from filing a
covered eviction action against a
consumer without disclosing to the
consumer that the consumer may be
eligible for temporary protection from
eviction under the CDC Order.131 The
disclosure must be provided on the date
that the debt collector provides the
consumer with an eviction notice or, if
no eviction notice is required by
applicable law, on the date that the
eviction action is filed.
Ideally, an analysis of the benefits and
costs of this interim final rule would
separately include quantitative
information on eviction notices,
eviction filings, and physical removals,
both under the baseline and with the
disclosure mandated by this interim
final rule. However, the Bureau does not
have sufficient data to estimate the
number of eviction notices issued by
debt collectors or the number of
physical removals that occurred in
either the period before the beginning of
the pandemic or since. The Bureau has
some limited data on eviction filings,
which may not speak to effects on other
covered eviction actions or physical
removals of the CDC Order or the
interim final rule.
Of the 27 cities for which data on
eviction filings are available from the
Eviction Lab, 16 did not have an active
local moratorium one month prior to the
130 86
FR 16731, 16734 (Mar. 31, 2021).
renters may also benefit if landlords
choose to delay eviction proceedings as a result of
the required disclosure. The Bureau does not have
the data to measure what fraction of landlords of
renters potentially covered by the CDC Order’s
eviction moratorium would choose not to initiate an
eviction proceeding as a result of this interim final
rule. As discussed below, the Bureau expects that
the direct costs of providing the disclosure are not
large. However, if landlords or residential property
owners anticipate that consumers are more likely to
be covered by the CDC Order as a result of the
required disclosure, then the interim final rule may
reduce their incentive to initiate eviction
proceedings.
131 Some
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effective date of the CDC Order.132
Analyzing trends in eviction filings
among these cities, the data suggest that
the CDC Order standing alone did not
have an immediate and measurable
effect on the rate of eviction filings.
Eviction filings in the five weeks
following the effective date of the CDC
Order continued at rates that were
similar to or higher than those
immediately before.133
From the analysis of eviction filings
around the effective date of the CDC
Order, the finding that filings did not
decline does not necessarily imply that
physical removals did not decline.
However, it does imply that if eviction
filings continue at recent rates, many
consumers will receive a disclosure and
may be directly affected by this interim
final rule. In the first 11 weeks of 2021,
there were approximately 5,000 eviction
filings per week in the 27 cities for
which the Eviction Lab has made data
available. Using the Eviction Lab’s
historical annual data, between 2000
and 2016 these 27 cities accounted for
a roughly constant fraction of 5 percent
of eviction filings nationally.
To estimate the number of consumers
that would receive the disclosure and
may be affected by this interim final
rule, the Bureau makes two
assumptions. First, the Bureau assumes
that, absent this interim final rule, the
rate of weekly eviction filings would
continue to be about 5,000 per week in
the 27 cities. Second, the Bureau
assumes that the share of evictions
accounted for nationally in the 27 cities
is 5 percent, the same as the share
between 2000 and 2016. Under these
two assumptions, the Bureau estimates
that at publication of this interim final
rule, there are roughly 100,000 eviction
filings per week, nationally. The interim
final rule only applies to jurisdictions
where the CDC Order applies; the
Bureau does not have a comprehensive
catalog of jurisdictions where more
protective moratoria apply. Somewhat
fewer households would be subject to
an eviction filing and would receive the
disclosure to the extent filings were
132 These cities are Charleston, SC; Cincinnati,
OH; Cleveland, OH; Columbus, OH; Fort Worth, TX;
Gainesville, FL; Greenville, FL; Houston, TX;
Jacksonville, FL; Kansas City, MO; Memphis, TN;
Milwaukee, WI; New York, NY; St. Louis, MO;
Tampa, FL; and Wilmington, DE.
133 Specifically, there were 20,741 eviction filings
in those 16 cities over the period beginning August
23, 2020 and ending August 29, 2020. Between
September 6, 2020 and October 10, 2020, there were
22,011 eviction filings. While evictions generally
increased through the summer of 2020, the effective
date of the CDC Order does not appear to coincide
with a discrete change in the number of eviction
filings. This finding is consistent with an analysis
conducted by the GAO. See GAO Report, supra note
61.
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made by debt collectors in a jurisdiction
where the CDC Order applies.134
Somewhat more households may
receive a disclosure accompanying
another covered eviction action.
Nevertheless, the Bureau does not have
data to estimate what fraction of those
households would invoke eviction
protections absent this interim final
rule.
Direct Benefits: Evictions Delayed or
Prevented
This interim final rule directly
benefits consumers if it delays or
prevents consumers who are eligible for
temporary eviction protection under the
CDC Order from physical removal from
housing. For instance, a physical
removal may be delayed but not
prevented if consumers invoke their
eviction protections but are nevertheless
evicted following the expiration of the
CDC Order. An eviction may be
prevented entirely if, during the
moratorium period, consumers who are
delinquent on rent become current,
possibly through use of rental assistance
funds made available through the
Department of Treasury’s Emergency
Rental Assistance Program, and are not
evicted after June 30, 2021. Delaying or
preventing evictions results in
important health benefits during the
COVID–19 pandemic, which is the
motivation for the CDC Order.135
Despite the CDC eviction moratorium,
data available to the Bureau indicate
that evictions have continued.136 By
134 The Bureau also does not have data to estimate
the number of renters who would receive the
required disclosure because the person providing
the eviction notice or filing is a debt collector
covered by the interim final rule. Some landlords
or residential property owners may represent
themselves in court, in which case the interim final
rule likely would not apply. However, the Bureau
understands that a large majority of landlords or
residential property owners hire an attorney to
conduct eviction proceedings on their behalf and
that, therefore, the interim final rule would apply
to most eviction proceedings to which the CDC
Order would apply between the effective date and
June 30, 2021. See Peterson & McKitrick, supra note
39 (finding that in August 2020, nearly two-thirds
of eviction filings in Utah appear to have been filed
by one law firm); Ivry, supra note 39 (‘‘Philadelphia
landlords were represented by legal counsel in 82
percent of eviction cases from 2015 to 2020,
according to a study by Community Legal Services
. . . In Kansas City, 1.3 percent of tenants were
represented from 2006 to 2016, while 84 percent of
landlords had lawyers, according to the KC Eviction
Project.’’).
135 See 86 FR 16731, 16737 (Mar. 31, 2021). The
CDC Director has determined that ‘‘extending the
temporary halt in evictions . . . constitutes a
reasonable measure . . . to prevent the further
spread of COVID–19 throughout the United States.’’
Id.
136 Data from Eviction Lab show that there have
been approximately 5,000 eviction filings per week
in 27 cities in the first 11 weeks of 2021. See
https://evictionlab.org/eviction-tracking/ (last
visited Apr. 12, 2021).
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requiring debt collectors to provide a
written disclosure about the CDC Order
and by clarifying that debt collectors are
prohibited from making
misrepresentations about consumers’
ineligibility for eviction protection, this
interim final rule may prevent or delay
evictions between the effective date and
June 30, 2021.
The number of physical removals that
will be delayed or prevented as a result
of this interim final rule is uncertain,
and the Bureau is not aware of data that
could help to estimate it. The number of
evictions that might be prevented by the
interim final rule depends on: (1) The
number of consumers who will receive
an eviction notice or be subject to an
eviction action for non-payment of rent
between the effective date and June 30,
2021; (2) the share of those consumers
who will receive the disclosure (i.e., be
covered by the interim final rule); and
(3) the extent to which the disclosure
causes consumers who receive it to avail
themselves of the temporary protection
afforded under the CDC Order when
they otherwise would not have. As
discussed above, there may be as many
as 800,000 renters at risk of eviction
between the effective date of the interim
final rule and June 30, 2021. The Bureau
does not have data to estimate how
many of these renters would receive the
required disclosure under the interim
final rule and meet the criteria for
protection under the CDC Order.137 This
number depends, among other things,
on whether the source of eviction risk
is non-payment of rent and whether, if
evicted, these renters likely would
become homeless or would be required
to move into a congregate or shared
living setting.
The number of evictions prevented by
the interim final rule also depends on
the effectiveness of the disclosure. For
renters receiving the required
disclosure, its effect depends on
whether they are already aware of the
CDC Order and, if they are not, on
whether the renters read, understand,
and act on the disclosure. The
effectiveness of a disclosure depends on
factors including consumers’
comprehension of the disclosure,
consumers’ beliefs in the authenticity of
the disclosure, and consumers’ receipt
of the disclosure at a time when they
can act on its information.138 Existing
137 See
supra note 134.
Bureau is aware of evidence that many
tenants may not have knowledge of the CDC Order.
Stakeholders, including consumer advocates and
legal aid organizations, have expressed concerns to
the Bureau that many consumers at risk of eviction
either do not know about the CDC Order or are
uncertain about what steps they must take to avail
themselves of the CDC Order’s eviction protections.
138 The
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studies of the effectiveness of
disclosures in other settings suggest that
a disclosure’s effectiveness may be
limited, depending on how effectiveness
is measured and the context of the
disclosure.139 Here, the fact that the
interim final rule not only requires a
disclosure but also prohibits certain
misrepresentations by debt collectors
about consumer ineligibility for
protection under the CDC moratorium
may increase the effectiveness of the
disclosure.140
To the extent that the interim final
rule does delay or prevent evictions that
would otherwise take place prior to June
30, 2021, it will benefit consumers by
reducing their exposure to the risk of
COVID–19 infection, disease, and death.
The Bureau cannot quantify the change
in exposure to COVID–19, nor the
economic cost of COVID–19-related
morbidity and mortality.141 Recent
research suggests that eviction moratoria
that predate the current CDC
moratorium were associated with
significant reductions in the number of
COVID–19 infections and deaths.142
Notably, a GAO report analyzing the effectiveness
of COVID–19 eviction moratoria found that some
renters may not fully understand how to use the
CDC moratorium or complete the required
declaration.
139 See Alicia Chin & Dustin H. Beckett, Don’t
watch me read: How mere presence and mandatory
waiting periods affect consumer attention to
disclosures, Behavioural Pub. Policy (Jan. 28, 2019),
https://www.cambridge.org/core/journals/
behavioural-public-policy/article/abs/dont-watchme-read-how-mere-presence-and-mandatorywaiting-periods-affect-consumer-attention-todisclosures/D429B9196FC7C1DEAEB1C4ED609
A0E7F. See also Mark A. LeBoeuf, Jessica M.
Choplin, & Debra Pogrund Stark, Eye See What You
Are Saying: Testing Conversational Influences on
the Information Gleaned from Home-Loan
Disclosure Forms, Journal of Behavioral Decision
Making (May 17, 2015), https://
onlinelibrary.wiley.com/doi/full/10.1002/bdm.1881.
140 The extent to which the disclosure may affect
whether consumers obtain the CDC Order’s eviction
protections may depend on a number of factors. For
example, consumers who expect that they will
continue to be unable to make rental payments may
choose to seek new housing before they have an
opportunity to see the disclosure. The disclosure’s
design and timing as well as consumers’ economic
circumstances may also affect whether the
disclosure would change behavior. The Bureau is
not aware of research quantifying the extent to
which factors such as these might limit the effect
of the disclosure.
141 Among other data, morbidity and mortality
estimates would require health, demographic, and
employment data on the population of households
that would benefit from the disclosures mandated
by this interim final rule.
142 See Kay Jowers & Christopher Timmins et al.,
Housing Precarity & the COVID–19 Pandemic:
Impacts of Utility Disconnection and Eviction
Moratoria on Infections and Deaths Across US
Counties (Jan. 2021), https://www.nber.org/papers/
w28394 (estimating that eviction moratoria are
associated with a 3.8 percent reduction in COVID–
19 infections and a 11 percent reduction in deaths).
See also Kathryn M. Leifheit & Sabriya L. Linton et
al., Expiring Eviction Moratoriums and COVID–19
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These reductions occurred while few
U.S. adults had been vaccinated and
were due in large part to the continued
ability of renters to practice social
distancing and good hygiene.
Potentially affected renters are those
who would be evicted before June 30,
2021 under the baseline where the
Bureau does not issue this interim final
rule.
This interim final rule may decrease
COVID–19-related risk for several
reasons. First, consumers who have not
been evicted and transitioned to a
shared living situation or homelessness
may be better able to practice social
distancing and good hygiene, one
primary hypothesis for the effectiveness
of pandemic-related eviction moratoria
in recent academic research. Second,
even if this interim final rule only
delays eviction, renters will face the
housing challenges of eviction—
including limited ability to social
distance—later, in a period expected to
have increased herd immunity and
lower COVID–19 case prevalence. It also
means that these renters will have more
opportunity to become vaccinated
before being exposed to higher-risk
environments such as those associated
with group housing.143 As such, the
Bureau expects that renters who
experience delayed eviction as a result
of the interim final rule will be at a
lower overall risk of infection.
Nevertheless, the Bureau is not aware of
data that may help to estimate the
number of COVID–19-related infections
and deaths prevented as a result of this
interim final rule with any degree of
precision.
Consumers whose eviction is delayed
or prevented by the interim final rule
may also benefit directly in other ways
Incidence and Mortality (Nov. 30, 2020), https://
papers.ssrn.com/sol3/papers.cfm?abstract_
id=3739576 (cited by CDC in its Order, 86 FR
16731, 16734 n.32 (Mar. 30, 2021), estimating that
lifting eviction moratoria was associated with
approximately 434,000 excess COVID–19 cases and
11,000 excess deaths nationally).
143 As of the publication of the interim final rule,
the United States has currently fully vaccinated
roughly 20 percent of the adult population, is
administering roughly 3 million vaccine doses per
day, and is on pace to reach 4 million doses per
day by April 30, 2021. See How the Vaccine Rollout
Is Going in Your County and State, https://
www.nytimes.com/interactive/2020/us/covid-19vaccine-doses.html (Apr. 11, 2021). See also Press
Briefing by White House COVID–19 Response Team
and Public Health Officials (Apr. 5, 2021), https://
www.whitehouse.gov/briefing-room/press-briefings/
2021/04/05/press-briefing-by-white-house-covid-19response-team-and-public-health-officials-24/. At
this pace, more than a third of adults will be
vaccinated by this interim final rule’s effective date.
At 4 million doses per day, between May 1 and June
30, another 240 million doses and 120 million more
adults will be vaccinated, suggesting that more than
three quarters of Americans will be vaccinated
before the expiration of the CDC Order.
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from decreased housing insecurity.
Evictions impose direct costs associated
with moving and may disrupt the lives
of consumers. Evicted consumers are
subject to uncertain and unstable
environments and often find housing
with family, in temporary group
housing, or even become homeless.144
Notably, researchers have even
hypothesized that the acute stress
associated with evictions may explain
negative health outcomes in children
whose mothers experienced eviction
while pregnant.145 To the extent that
eviction is delayed by the CDC Order,
consumers may further benefit from the
delay by having the opportunity to make
plans in anticipation of being removed
from housing. Some consumers may
also be able to take advantage of rental
assistance programs and stay in their
homes beyond June 30, 2021. However,
that benefit may be reduced if
consumers accrue additional rental
debt, since the CDC Order does not stop
unpaid rent from accruing. The Bureau
does not have data that can be used to
estimate the cost of the stresses
associated with eviction-related housing
insecurity.
Indirect Benefits
As described previously, the potential
direct beneficiaries of this interim final
rule are consumers who would be
removed from their residence for nonpayment of rent but who, because of the
interim final rule, acquire information
about the CDC Order and utilize the
Order’s temporary protection against
eviction. However, consumers may also
indirectly benefit from this interim final
rule. Although the Bureau does not have
data with which to quantify the
magnitude of these additional indirect
144 86
FR 16731, 16734 (Mar. 31, 2021).
Himmelstein & Matthew Desmond,
Association of Eviction with Adverse Birth
Outcomes Among Women in Georgia, 2000 to 2016,
JAMA Pediatrics (Mar. 1, 2021), https://
jamanetwork.com/journals/jamapediatrics/
fullarticle/2776776. The physical and mental health
consequences of physical removal are likely to be
greater for larger households with children and for
consumers without health insurance. See Matthew
Desmond & Rachel Tolbert Kimbro, Eviction’s
Fallout: Housing, Hardship, and Health, Social
Forces (Feb. 24, 2015), https://scholar.harvard.edu/
files/mdesmond/files/
desmondkimbro.evictions.fallout.sf2015_2.pdf, and
Matthew Desmond, Evicting Children, Social Forces
(May 17, 2013), https://scholar.harvard.edu/files/
mdesmond/files/social_forces-2013-desmond-30327.pdf. There is evidence that these groups are more
likely to be at risk of eviction. Based on Census
Household Pulse Survey data from March 2021,
about 21 percent of renter households that include
children under 18 were behind on their rent,
compared to about 11 percent of other households.
About 25 percent of renters without health
insurance reported being behind on rent, compared
to about 13 percent of renters with health
insurance.
145 Gracie
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benefits, where possible, the Bureau
describes describe some of these
indirect benefits below.
The CDC Order’s eviction moratorium
is premised, in part, on the prediction
that eviction limits consumers’ ability to
follow adequate social distancing
recommendations. Eviction potentially
forces consumers into shared living
situations, housing with friends and
family, or homelessness; these
circumstances may expose evicted
consumers to increased risk of COVID–
19 infection.146
In turn, evicted consumers themselves
may expose broader populations of
consumers to COVID–19 infection.
When evicted consumers move, they
may spread COVID–19 to individuals in
their new housing situations and the
community at large.147
Thus, even if this interim final rule’s
effect on evictions and the resulting
direct reduction of renters’ exposure to
COVID–19 infection is relatively small,
the effects on public health could be
significant more broadly. Nevertheless,
the Bureau does not have data required
to ascertain how evictions affect the
direct and indirect risks of COVID–19
infection.
4. Benefits and Costs to Landlords
Landlords and residential property
owners (collectively in this section,
‘‘landlords’’) generally are not debt
collectors and therefore generally will
not be covered by the interim final
rule.148 However, landlords will be
indirectly affected by the interim final
rule to the extent that they employ debt
collectors to provide eviction notices or
engage in in eviction actions. The
Bureau does not have data to reliably
estimate the number of landlords that
employ debt collectors for evictionrelated activities but understands that in
some jurisdictions a majority of eviction
filings are made by attorneys (who in
many cases are FDCPA-covered debt
collectors).149
Landlords may benefit along with the
general population from the interim
final rule’s direct and indirect effects,
146 See 86 FR 16731, 16737 (Mar. 31, 2021). The
CDC Director has determined that ‘‘extending the
temporary halt in evictions . . . constitutes a
reasonable measure . . . to prevent the further
spread of COVID–19 throughout the United States.’’
Id.
147 See id. at 16734–35.
148 In addition to the CDC Order, landlords and
residential property owners also may be affected by
other government policies undertaken in response
to the COVID–19 pandemic, such as eviction
moratoria imposed by State or local governments.
This interim final rule does not address such
government policies and the costs and benefits of
those interventions are not considered in this
interim final rule.
149 See NCBA, supra note 42.
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especially those related to health.
However, landlords bear costs of
evictions that are delayed or prevented
as a result of this interim final rule.
Specifically, the disclosure required
by this interim final rule may cause
consumers to invoke their protections
under the CDC Order and prevent or
delay physical removal from housing
despite landlords serving eviction
notices or filing eviction lawsuits.
Delaying physical removal has different
effects on landlords than preventing
physical removal. To understand why,
suppose that this interim final rule
causes a consumer to invoke eviction
protections. First, consider the case in
which protections under the CDC Order
only delay physical removal for nonpayment of rent until after June 30,
2021. In that case, the landlord may be
delayed in replacing lost rental revenue
streams, meaning that the landlord
would lose some rental income from
their property. Landlords may not be
able to recover this income through
subsequent collection efforts.150 Second,
consider the case in which protections
under the CDC Order prevent physical
removal for non-payment of rent
altogether, because the delay permits
renters to become current on rent prior
to the completion of an eviction
proceeding. For instance, renters’
economic situations may improve, or
they may benefit from rental assistance
programs such as the Department of
Treasury’s Emergency Rental Assistance
Program. In this case, the landlord’s
revenue may not be lost, only delayed.
Relative to the baseline where the renter
is removed, the landlord bears the cost
of a late payment but may avoid costs
associated with replacing the renter.151
Landlords are generally unable to
predict whether renters fall into the first
or second category above. If they were
able to, they may not take eviction
actions against the latter category
because the cost of a delayed payment
may be small relative to the cost of
replacing the renter.152 To the extent
150 It may be difficult for landlords to recover
unpaid rent owed by consumers who eventually
vacate the property, for example, because it is
difficult for landlords or their agents to locate
consumers who have moved and because those
consumers may not have funds from which they
can pay amounts owed.
151 Landlords, especially smaller ones, may rely
on rental income to service other debt or liabilities.
If the interim final rule interrupts rental income by
causing renters to invoke eviction protections,
landlords may bear additional costs associated with
becoming delinquent or defaulting on other debts.
However, mortgage forbearance programs in the
baseline may help landlords mitigate some of those
costs.
152 The opportunity costs of eviction may be
exacerbated by external factors. For example, the
landlord may be liquidity constrained, the unit may
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that this interim final rule prevents
evictions, it may offset some of the
economic costs to landlords caused by
delayed evictions.
The Bureau is unaware of data that
would allow it to estimate the lost
revenue that landlords would
experience as a result of this interim
final rule. Specifically, the Bureau does
not have data to estimate which renters
would invoke their protections under
the CDC Order, which renters would be
able to eventually become current on
their rent, or the rent of their respective
rental units.
5. Benefits and Costs to Covered Persons
Debt collectors who engage in
eviction-related activities on behalf of
landlords may be subject to three costs
as a result of this interim final rule. First
is the direct cost of providing the
required disclosure. The Bureau does
not have direct evidence on costs of
eviction notices but believes that the
cost associated with providing the
required disclosure is negligible, given
that: (1) The disclosure requires at most
one additional printed page; (2) the
disclosure is required in connection
with a notice that already must be
provided to the consumer; and (3) the
disclosure does not need to be
customized to the specific consumer.153
Even for larger debt collectors that serve
automated eviction notices en masse,
the Bureau does not anticipate large
costs associated with including a
disclosure that does not include
consumer-specific information.
Second, debt collectors may incur
one-time costs to train staff and update
systems to ensure that the disclosure is
provided and to demonstrate
compliance. These costs are unlikely to
be large, given that the disclosure
requirement is tied to existing legal
processes that already require debt
collectors to comply with State, local, or
court rules. Debt collectors are likely to
already have systems in place to ensure
that renters are provided with certain
information required by the relevant
jurisdiction at the time of the disclosure.
Debt collectors in certain jurisdictions
may also incur a one-time legal or
compliance cost associated with
determining the CDC Order’s interaction
with applicable State, local, territorial,
be rent controlled, or the local rental market may
experience extremely high demand.
153 The Bureau has previously estimated that debt
collectors face estimated ongoing printing and
mailing costs from providing validation notices to
consumers of $0.50 to $0.80 per notice. See 86 FR
5848 (Jan. 19, 2021). The Bureau anticipates that
such costs will be significantly lower here, in
particular because the notice can be provided with
other required notices, reducing postage costs
associated with the required notice.
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or tribal eviction moratoria, in the event
they did not already do so since the
CDC Order initially went into effect.
Third, debt collectors who represent
landlords as attorneys in eviction
actions may collect decreased legal fees
to the extent that the required disclosure
leads to a decrease in eviction filings.
As described in greater detail above, this
interim final rule may lead to both
delayed and prevented evictions. In the
case of a delayed eviction, attorneys’
legal fees may be delayed until after the
expiration of the moratorium on June
30, 2021. The Bureau does not
anticipate that the cost of a months-long
delay is substantial. In the case of
prevented evictions, attorneys would
lose legal fees, a benefit to landlords.
B. Potential Impact on Depository
Institutions and Credit Unions With $10
Billion or Less in Total Assets, as
Described in Section 1026
Depository institutions and credit
unions with $10 billion or less in total
assets are not covered under this interim
final rule and are not expected to be
directly impacted.
C. Potential Impact on Consumers in
Rural Areas and on Access by
Consumers to Consumer Financial
Products or Services
Generally, rural areas are
characterized by having fewer renters,
which would imply fewer evictions by
itself. However, the Bureau does not
have data that would allow it to
evaluate how the benefits and costs
detailed above would differ in rural
areas, especially those related to health.
In part because of the temporary
nature of the interim final rule’s effects,
the Bureau does not expect that this
interim final rule will materially affect
access by consumers to consumer
financial products or services.
VIII. Regulatory Flexibility Act
Analysis
The Regulatory Flexibility Act
(RFA) 154 does not apply to a rulemaking
where general notice of proposed
rulemaking is not required.155 As noted
previously, the Bureau has determined
that it is unnecessary to publish a
general notice of proposed rulemaking
for this interim final rule. Accordingly,
the RFA’s requirements relating to an
initial and final regulatory flexibility
analysis do not apply.
IX. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA),156 Federal agencies are
154 5
U.S.C. 601 et seq.
U.S.C. 603(a), 604(a).
156 44 U.S.C. 3501 et seq.
155 5
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generally required to seek approval from
the Office of Management and Budget
(OMB) for information collection
requirements prior to implementation.
Under the PRA, the Bureau may not
conduct or sponsor, and,
notwithstanding any other provision of
law, a person is not required to respond
to, an information collection unless the
information collection displays a valid
control number assigned by OMB.
The interim final rule amends 12 CFR
part 1006 (Regulation F), which
implements the FDCPA. This interim
final rule adds a new disclosure
requirement and the Bureau is
requesting a new OMB control number
for this disclosure requirement.
Under the interim final rule, the
Bureau temporarily requires debt
collectors to make certain disclosures in
connection with an eviction proceeding.
These information collections are
required to provide benefits for
consumers and will be mandatory.
Because the Bureau does not collect any
information, no issue of confidentiality
arises. The likely respondents are forprofit businesses that are FDCPA debt
collectors.
The collections of information
contained in this interim final rule, and
identified as such, have been submitted
to OMB for review under section
3507(d) of the PRA. A complete
description of the information collection
requirement, including the burden
estimation methods, is provided in the
information collection request (ICR)
supporting statement that the Bureau
has submitted to OMB under the
requirements of the PRA. The Bureau
will publish a separate notice in the
Federal Register when these
information collections have been
approved by OMB.
Please send your comments to the
Office of Information and Regulatory
Affairs, OMB, Attention: Desk Officer
for the Bureau of Consumer Financial
Protection. Send these comments by
email to oira_submission@omb.eop.gov
or by fax to (202) 395–6974. If you wish
to share your comments with the
Bureau, please send a copy of these
comments as described in the Addresses
section above. The ICR submitted to
OMB requesting approval under the
PRA for the information collection
requirements contained herein is
available at www.regulations.gov as well
as on OMB’s public-facing docket at
www.reginfo.gov.
Title of Collection: Debt Collection
Practices in Connection with the Global
COVID–19 Pandemic (Regulation F).
OMB Control Number: 3170–00xx.
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21179
Type of Review: Request for a new
OMB Control Number. Affected Public:
Private Sector.
Estimated Number of Respondents:
500.157
Estimated Total Annual Burden
Hours: 3,000.
The Bureau has a continuing interest
in the public’s opinion of its collections
of information. At any time, comments
regarding the burden estimate, or any
other aspect of the information
collection, including suggestions for
reducing the burden, may be sent to the
Consumer Financial Protection Bureau
(Attention: PRA Office), 1700 G Street
NW, Washington, DC 20552, or by email
to CFPB_PRA@cfpb.gov.
Where applicable, the Bureau will
display the control number assigned by
OMB to any documents associated with
any information collection requirements
adopted in this interim final rule.
X. Congressional Review Act
Pursuant to the Congressional Review
Act,158 the Bureau will submit a report
containing this interim final rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to the
interim final rule’s published effective
date. The Office of Information and
Regulatory Affairs has designated this
interim final rule as a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). As discussed
in part IV, the Bureau finds that there
is good cause for the interim final rule
to take effect without prior notice and
comment. Accordingly, this interim
final rule may take effect at such time
as the Bureau determines.159
XI. Signing Authority
The Acting Director of the Bureau,
David Uejio, having reviewed and
approved this document, is delegating
the authority to electronically sign this
document to Laura Galban, a Bureau
Federal Register Liaison, for purposes of
publication in the Federal Register.
List of Subjects in 12 CFR Part 1006
Administrative practice and
procedure, Consumer protection, Credit,
Debt collection, Intergovernmental
relations.
157 The Bureau shares enforcement authority
under the FDCPA with the Federal Trade
Commission. To avoid double-counting, the Bureau
allocates to itself half of the estimated paperwork
burden under the interim final rule by dividing the
burden hours even between the agencies. However,
since the Bureau has joint authority over the
respondents themselves, the Bureau retains the
entity count of all affected respondents as shown
above.
158 5 U.S.C. 801 et seq.
159 5 U.S.C. 808(2).
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Authority and Issuance
For the reasons set forth in the
preamble, the Bureau amends
Regulation F, 12 CFR part 1006, as set
forth below:
PART 1006—FAIR DEBT COLLECTION
PRACTICES ACT (REGULATION F)
1. The authority citation for part 1006
is revised to read as follows:
■
Authority: 12 U.S.C. 5512; 15 U.S.C.
1692l(d), 1692o.
2. Subpart B, consisting of § 1006.9, is
added to read as follows:
■
Subpart B—Rules for Debt Collectors
Subject to the Fair Debt Collection
Practices Act
§ 1006.9 Debt Collection Practices in
Connection with the Global COVID–19
Pandemic.
(a) Purpose and coverage. The
purpose of this subpart is to eliminate
certain abusive debt collection practices
by debt collectors related to the global
COVID–19 pandemic, to ensure that
debt collectors who refrain from using
such abusive debt collection practices
are not competitively disadvantaged,
and to promote consistent State action
to protect consumers against such debt
collection abuses. This subpart applies
to debt collectors, as defined in FDCPA
section 803(6), 15 U.S.C. 1692(a)(6),
other than a person excluded from
coverage by section 1029(a) of the
Consumer Financial Protection Act of
2010, title X of the Dodd-Frank Act, 12
U.S.C. 5519(a).
(b) Definitions. For purposes of this
subpart, the following definitions apply:
(1) The terms consumer, debt, and
debt collector have the same meaning
given to them in FDCPA section 803, 15
U.S.C. 1692a.
(2) The term CDC Order means the
order issued by the Centers for Disease
Control and Prevention titled
Temporary Halt in Residential Evictions
to Prevent the Further Spread of
COVID–19 (86 FR 16731 (Mar. 31,
2021)), as extended by the Centers for
Disease Control and Prevention.
(3) The term eviction notice means the
earliest of any written notice that the
laws of any State, locality, territory, or
tribal area require to be provided to a
consumer before an eviction action
against the consumer may be filed.
(c) Prohibitions. During the effective
period of the CDC Order, a debt
collector collecting a debt in any
jurisdiction in which the CDC Order
applies must not, in connection with the
collection of that debt:
(1) File an eviction action for nonpayment of rent against a consumer to
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whom the CDC Order reasonably might
apply without disclosing to that
consumer clearly and conspicuously in
writing, on the date that the debt
collector provides the consumer with an
eviction notice or, if no eviction notice
is required by applicable law, on the
date that the eviction action is filed, that
the consumer may be eligible for
temporary protection from eviction
under the CDC Order; or
(2) Falsely represent or imply to a
consumer that the consumer is
ineligible for temporary protection from
eviction under the CDC Order.
■ 3. Supplement I to part 1006 is added
to read as follows:
Supplement I to Part 1006—Official
Interpretations
Introduction
1. Official status. This commentary is
the vehicle by which the Bureau of
Consumer Financial Protection
supplements Regulation F, 12 CFR part
1006. The provisions of the commentary
are issued under the same authorities as
the corresponding provisions of
Regulation F and have been adopted in
accordance with the notice-andcomment procedures of the
Administrative Procedure Act (5 U.S.C.
553). Unless specified otherwise,
references in this commentary are to
sections of Regulation F or the Fair Debt
Collection Practices Act (FDCPA) (15
U.S.C. 1692 et seq.). No commentary is
expected to be issued other than by
means of this Supplement I.
Subpart B—Rules for Debt Collectors
Subject to the Fair Debt Collection
Practices Act
Section 1006.9—Debt Collection
Practices in Connection With the Global
COVID–19 Pandemic
9(b) Definitions.
9(b)(3).
1. Examples. Section 1006.9(b)(3)
defines eviction notice as the earliest of
any written notice that the laws of any
State, locality, territory, or tribal area
require to be provided to a consumer
before an eviction action against the
consumer may be filed. The term
eviction notice includes, for example,
notices to quit, notices to pay rent or
quit, and notices to terminate tenancy.
9(c) Prohibitions.
9(c)(1).
1. Eviction action for non-payment of
rent. Section 1006.9(c)(1) provides that,
during the effective period of the CDC
Order, a debt collector collecting a debt
in any jurisdiction in which the CDC
Order applies must not file an eviction
action for non-payment of rent against a
consumer to whom the CDC Order
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reasonably might apply without making
the disclosure described in
§ 1006.9(c)(1). A debt collector does not
file an eviction action for non-payment
of rent if the debt collector files the
eviction action based solely on the
consumer engaging in one or more of
the following actions: Criminal activity
while on the premises; threatening the
health or safety of other residents;
damaging or posing an immediate and
significant risk of damage to property;
violating any applicable building code,
health ordinance, or similar regulation
relating to health and safety; or violating
any other contractual obligation, other
than the timely payment of rent or
similar housing-related payment
(including non-payment or late payment
of fees, penalties, or interest).
2. Reasonably might apply. Section
1006.9(c)(1) requires a debt collector to
provide the disclosure described in
§ 1006.9(c)(1) to any consumer to whom
the CDC Order reasonably might apply.
A consumer to whom the CDC Order
reasonably might apply is a consumer
who reasonably might be eligible to be
a covered person as defined in the CDC
Order. A consumer is not reasonably
eligible to be a covered person if the
debt collector has knowledge that a
consumer is not eligible for protection
under the CDC Order. However, nothing
in § 1006.9(c)(1) prohibits a debt
collector from providing the disclosure
to a consumer even if the consumer
might not reasonably be eligible to be a
covered person. A debt collector
therefore may comply with the
requirement to provide the disclosure to
any consumer to whom the CDC Order
reasonably might apply by, for example,
providing the disclosure to each
consumer against whom the debt
collector files an eviction action for nonpayment of rent. A debt collector does
not violate FDCPA sections 807 (15
U.S.C. 1692e) or 808 (15 U.S.C. 1692f)
merely because the debt collector
provides the disclosure to consumers as
described in this comment 9(c)(1)–2
even if the consumer is not reasonably
eligible to be a covered person.
3. Provision of disclosure. Section
1006.9(c)(1) requires a debt collector to
disclose to the consumer, on the date
that the debt collector provides the
consumer with an eviction notice or, if
no eviction notice is required by
applicable law, on the date that the
eviction action is filed, that the
consumer may be eligible for temporary
protection from eviction under the CDC
Order. A debt collector may satisfy this
requirement by, for example, delivering
the disclosure to the address that is the
subject of eviction proceedings; the debt
collector is not required to ensure that
E:\FR\FM\22APR1.SGM
22APR1
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Rules and Regulations
the consumer actually receives the
disclosure. A debt collector may, but is
not required to, provide the disclosure
at the same time that the debt collector
provides the consumer with any
eviction notice or serves the consumer
with any eviction action. For example,
a debt collector may, but is not required
to, include the disclosure in an
envelope either on or with the eviction
notice or in the same mailing in which
the debt collector serves the consumer
with an eviction action.
4. Frequency of disclosure. Section
1006.9(c)(1) does not require a debt
collector to provide the disclosure
described in § 1006.9(c)(1) more than
once. However, nothing in § 1006.9(c)(1)
prohibits a debt collector from
providing the disclosure more than
once, such as in each subsequent
communication with the consumer. In
addition, a debt collector does not
violate FDCPA sections 807 (15 U.S.C.
1692e) or 808 (15 U.S.C. 1692f) merely
because the debt collector provides the
disclosure more than once.
5. Sample language. Section
1006.9(c)(1) requires a debt collector to
disclose that the consumer may be
eligible for temporary protection from
eviction under the CDC Order.
i. A debt collector may use, but is not
required to use, the following language
to satisfy § 1006.9(c)(1): ‘‘Because of the
global COVID–19 pandemic, you may be
eligible for temporary protection from
eviction under Federal law. Learn the
steps you should take now: visit
www.cfpb.gov/eviction or call a housing
counselor at 800–569–4287.’’ A debt
collector does not violate FDCPA
sections 807 (15 U.S.C. 1692e) or 808
(15 U.S.C. 1692f) merely because the
debt collector provides the sample
language in this comment 9(c)(1)–5.i to
a consumer in a jurisdiction in which
the CDC Order does not apply.
ii. Alternatively, a debt collector may
use, but is not required to use, the
following language to satisfy
§ 1006.9(c)(1): ‘‘Because of the global
COVID–19 pandemic, you may be
eligible for temporary protection from
eviction under the laws of your State,
territory, locality, or tribal area, or under
Federal law. Learn the steps you should
take now: visit www.cfpb.gov/eviction or
call a housing counselor at 800–569–
4287.’’ A debt collector does not violate
FDCPA sections 807 (15 U.S.C. 1692e)
or 808 (15 U.S.C. 1692f) merely because
the debt collector provides the sample
language in this comment 9(c)(1)–5.ii to
a consumer in a jurisdiction in which
only the CDC Order applies or in which
the CDC Order does not apply.
6. Clear and conspicuous. A debt
collector must provide the disclosure
VerDate Sep<11>2014
16:23 Apr 21, 2021
Jkt 253001
described in § 1006.9(c)(1) clearly and
conspicuously in writing. Clear and
conspicuous means readily
understandable. The location and type
size also must be readily noticeable and
legible to consumers, although no
minimum type size is mandated.
Dated: April 16, 2021.
Laura Galban,
Federal Register Liaison, Bureau of Consumer
Financial Protection.
[FR Doc. 2021–08303 Filed 4–21–21; 8:45 am]
BILLING CODE 4810–AM–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2020–1116; Project
Identifier AD–2020–00784–E; Amendment
39–21524; AD 2021–09–10]
RIN 2120–AA64
Airworthiness Directives; Pratt &
Whitney Turbofan Engines
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
The FAA is superseding
Airworthiness Directive (AD) 2012–04–
15 for all Pratt & Whitney (PW) JT9D–
3A, JT9D–7, JT9D–7A, JT9D–7AH,
JT9D–7F, JT9D–7H, JT9D–7J, JT9D–7Q,
JT9D–7Q3, JT9D–7R4D, JT9D–7R4D1,
JT9D–7R4E, JT9D–7R4E1, JT9D–7R4E4,
JT9D–7R4G2, JT9D–7R4H1, JT9D–20,
JT9D–20J, JT9D–59A, and JT9D–70A
(JT9D) model turbofan engines. AD
2012–04–15 required revisions to the
Airworthiness Limitations Section
(ALS) of the manufacturer’s Instructions
for Continued Airworthiness (ICA) to
include required enhanced inspection of
selected critical life-limited parts at
each piece-part opportunity. AD 2012–
04–15 also required additional revisions
to the ALS of the manufacturer’s ICA for
JT9D model turbofan engines. This AD
requires revising the required
inspections of selected critical lifelimited parts specified in the ALS of the
manufacturer’s ICA and, for air carriers,
to the existing continuous airworthiness
air carrier maintenance program
(CAMP). The FAA is issuing this AD to
address the unsafe condition on these
products.
DATES: This AD is effective May 27,
2021.
ADDRESSES:
SUMMARY:
Examining the AD Docket
You may examine the AD docket at
https://www.regulations.gov by
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
21181
searching for and locating Docket No.
FAA–2020–1116; or in person at Docket
Operations between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays. The AD docket contains this
final rule, any comments received, and
other information. The address for
Docket Operations is U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT:
Nicholas Paine, Aviation Safety
Engineer, ECO Branch, FAA, 1200
District Avenue, Burlington, MA 01803;
phone: (781) 238–7742; fax: (781) 238–
7199; email: nicholas.j.paine@faa.gov.
SUPPLEMENTARY INFORMATION:
Background
The FAA issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 to supersede AD 2012–04–15,
Amendment 39–16971 (77 FR 15939,
March 19, 2012), (AD 2012–04–15). AD
2012–04–15 applied to all PW JT9D
model turbofan engines. The NPRM
published in the Federal Register on
December 15, 2020 (85 FR 81162). The
NPRM was prompted by the need to
require enhanced inspection of selected
critical life-limited parts of PW JT9D
model turbofan engines. Since the FAA
issued AD 2012–04–15, PW identified
errors in the list of mandatory
inspections to add to the ALS. During
review of the AD, PW found that AD
2012–04–15 did not include eddy
current inspections of the fan hubs.
Additionally, PW identified duplicate
inspections of the HPT Stage 2 disk tie
rod and web cooling holes. In the
NPRM, the FAA proposed to require
revising the required inspections of
selected critical life-limited parts
specified in the ALS of the
manufacturer’s ICA and, for air carriers,
to the existing CAMP. The FAA is
issuing this AD to address the unsafe
condition on these products.
Discussion of Final Airworthiness
Directive
Comments
The FAA received comments from
two commenters. The commenters were
Atlas Air Inc. (Atlas Air) and Boeing
Commercial Airplanes (Boeing). The
following presents the comments
received on the NPRM and the FAA’s
response to each comment.
Request To Add Missing Figure Label
Atlas Air requested that the FAA add
the figure label to paragraph (g),
Required Actions, of this AD.
E:\FR\FM\22APR1.SGM
22APR1
Agencies
[Federal Register Volume 86, Number 76 (Thursday, April 22, 2021)]
[Rules and Regulations]
[Pages 21163-21181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08303]
========================================================================
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
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Rules
and Regulations
[[Page 21163]]
BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Part 1006
[Docket No. CFPB-2021-0008]
RIN 3170-AA41
Debt Collection Practices in Connection With the Global COVID-19
Pandemic (Regulation F)
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Interim final rule; request for public comment.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is
issuing this interim final rule to amend Regulation F, which implements
the Fair Debt Collection Practices Act (FDCPA) and currently contains
the procedures for State application for exemption from the provisions
of the FDCPA. The interim final rule addresses certain debt collector
conduct associated with an eviction moratorium issued by the Centers
for Disease Control and Prevention (CDC) in response to the global
COVID-19 pandemic. The interim final rule requires that debt collectors
provide written notice to certain consumers of their protections under
the CDC eviction moratorium and prohibit misrepresentations about
consumers' ineligibility for protection under such moratorium.
DATES: This interim final rule is effective on May 3, 2021. Comments
must be received on or before May 7, 2021.
ADDRESSES: You may submit comments, identified by Docket No. CFPB-2021-
0008, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include Docket
No. CFPB-2021-0008 in the subject line of the message.
Hand Delivery/Mail/Courier: Comment Intake, Bureau of
Consumer Financial Protection, 1700 G Street NW, Washington, DC 20552.
Please note that due to circumstances associated with the COVID-19
pandemic, the Bureau discourages the submission of comments by hand
delivery, mail, or courier.
Instructions: The Bureau encourages the early submission of
comments. All submissions should include the agency name and docket
number for this rulemaking. Because paper mail in the Washington, DC
area and at the Bureau is subject to delay, and in light of
difficulties associated with mail and hand deliveries during the COVID-
19 pandemic, commenters are encouraged to submit comments
electronically. In general, all comments received will be posted
without change to https://www.regulations.gov. In addition, once the
Bureau's headquarters reopens, comments will be available for public
inspection and copying at 1700 G Street NW, Washington, DC 20552, on
official business days between the hours of 10 a.m. and 5 p.m. Eastern
Time. At that time, you can make an appointment to inspect the
documents by telephoning 202-435-7275.
All comments, including attachments and other supporting materials,
will become part of the public record and subject to public disclosure.
Proprietary information or sensitive personal information, such as
account numbers, Social Security numbers, or names of other
individuals, should not be included. Comments will not be edited to
remove any identifying or contact information.
FOR FURTHER INFORMATION CONTACT: Seth Caffrey, Courtney Jean, Adam
Mayle, Kristin McPartland, or Michael Silver, Senior Counsels, Office
of Regulations, at 202-435-7700 or https://reginquiries.consumerfinance.gov/. If you require this document in an
alternative electronic format, please contact
[email protected].
SUPPLEMENTARY INFORMATION:
I. Summary of the Interim Final Rule
The Bureau issues this interim final rule to address certain debt
collector conduct associated with an eviction moratorium issued by the
CDC. This interim final rule applies to debt collectors, as that term
is defined in the FDCPA. The FDCPA establishes broad consumer
protections and prohibits debt collectors from engaging in harassment
or abuse, making false or misleading representations, or engaging in
unfair practices in debt collection.
On March 29, 2021, the CDC extended an existing agency order that
imposes an eviction moratorium that generally limits the circumstances
in which certain persons may be evicted from residential property. The
Bureau is concerned that consumers are not aware of their protections
under the CDC Order's eviction moratorium and that FDCPA-covered debt
collectors may be engaging in eviction-related conduct that violates
the FDCPA.
This interim final rule amends Regulation F, which implements the
FDCPA, to require debt collectors to provide written notice to certain
consumers of their protections under the CDC Order's eviction
moratorium and to clarify that certain misrepresentations are
prohibited. More specifically, Sec. 1006.9 prohibits certain acts by
debt collectors that undermine the purpose and effectiveness of the CDC
Order's eviction moratorium to prevent the further spread of COVID-19.
Section 1006.9(a) and (b) sets forth the purpose and coverage of
subpart B and defines certain terms used in the subpart, and Sec.
1006.9(c) identifies the prohibited acts. The Bureau is adopting Sec.
1006.9 pursuant to its authority under FDCPA section 814(d) to write
rules with respect to the collection of debts by debt collectors and,
with respect to Sec. 1006.9(c), pursuant to its authority to interpret
FDCPA sections 807 and 808.
II. Background
A. The FDCPA
In 1977, Congress passed the FDCPA \1\ to eliminate abusive debt
collection practices by debt collectors, to ensure that those debt
collectors who refrain from using abusive debt collection practices are
not competitively disadvantaged, and to promote consistent State action
to protect consumers against debt collection abuses.\2\ The statute was
a response to ``abundant evidence of the use of abusive, deceptive, and
unfair debt collection practices by many debt
[[Page 21164]]
collectors.'' \3\ According to Congress, these practices ``contribute
to the number of personal bankruptcies, to marital instability, to the
loss of jobs, and to invasions of individual privacy.'' \4\ Among other
things, the FDCPA establishes broad consumer protections and prohibits
debt collectors from engaging in harassment or abuse,\5\ making false
or misleading representations,\6\ and engaging in unfair practices in
debt collection.\7\
---------------------------------------------------------------------------
\1\ 15 U.S.C. 1692 et seq.
\2\ 15 U.S.C. 1692e.
\3\ 15 U.S.C. 1692a.
\4\ Id.
\5\ 15 U.S.C. 1692d.
\6\ 15 U.S.C. 1692e.
\7\ 15 U.S.C. 1692f.
---------------------------------------------------------------------------
The FDCPA, in general, applies to debt collectors as that term is
defined under the statute.\8\ The Bureau has authority under the FDCPA
to prescribe substantive rules with respect to the collection of debts
by debt collectors.\9\ This interim final rule amends existing
Regulation F, 12 CFR part 1006.\10\
---------------------------------------------------------------------------
\8\ The FDCPA generally provides that a debt collector is ``any
person who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be
owed or due another.'' 15 U.S.C. 1692a(6). FDCPA section 803(6) also
sets forth several exclusions from the general definition. Id.
\9\ 15 U.S.C. 1692l(d).
\10\ Independent of this interim final rule, the Bureau has
published two final rules that revise Regulation F, 12 CFR part
1006, which implements the FDCPA. See 85 FR 76734 (Nov. 30, 2020);
86 FR 5766 (Jan. 19, 2021). The original effective date for these
final rules was November 30, 2021. Id. The Bureau has proposed
extending the effective dates for these final rules to January 29,
2022. See Bureau of Consumer Fin. Prot., CFPB Proposes Delay of
Effective Date for Recent Debt Collection Rules (Apr. 7, 2021),
https://www.consumerfinance.gov/about-us/newsroom/cfpb-proposes-delay-of-effective-date-for-recent-debt-collection-rules/.
---------------------------------------------------------------------------
B. COVID-19 Pandemic and CDC Order
On January 31, 2020, the Department of Health and Human Services
declared a public health emergency for the entire United States to aid
the nation's healthcare community in responding to the 2019 novel
coronavirus (COVID-19) pandemic.\11\ By the end of August 2020, there
were over 5,500,000 COVID-19 cases identified in the United States and
over 174,000 deaths related to the disease.\12\
---------------------------------------------------------------------------
\11\ Press Release, U.S. Dep't of Health & Human Servs.,
Secretary Azar Declares Public Health Emergency for United States
for 2019 Novel Coronavirus (Jan. 31, 2020), https://www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-emergency-us-2019-novel-coronavirus.html.
\12\ 85 FR 55292, 55292 (Sept. 4, 2020).
---------------------------------------------------------------------------
On September 4, 2020, the CDC published an agency order (CDC Order
or Order) entitled ``Temporary Halt in Residential Evictions To Prevent
the Further Spread of COVID-19.'' \13\ Citing the historic threat to
public health posed by the COVID-19 pandemic, the CDC, pursuant to
section 361 of the Public Health Service Act, issued an eviction
moratorium that generally limits the circumstances in which certain
persons may be evicted from residential property.\14\ According to the
CDC, eviction moratoria help protect public health in several ways.
First, eviction moratoria encourage self-isolation by people who become
ill or who are at risk for severe illness from COVID-19 due to an
underlying medical condition.\15\ Second, eviction moratoria allow
State and local authorities to more easily implement stay-at-home and
social distancing directives to mitigate the community spread of COVID-
19.\16\ Third, eviction moratoria limit the likelihood of individuals
moving into close quarters in congregate or shared living settings,
such as homeless shelters, which then puts individuals at higher risk
of contracting COVID-19.\17\
---------------------------------------------------------------------------
\13\ Id.
\14\ See id.; see also 42 U.S.C. 264 and its implementing
regulation 42 CFR 70.2.
\15\ 86 FR 16731, 16733 (Mar. 31, 2021).
\16\ Id.
\17\ Id. at 16734.
---------------------------------------------------------------------------
The CDC Order initially was set to expire on December 31, 2020.\18\
The CDC Order has been extended three times and currently is set to
expire on June 30, 2021.\19\ In the most recent extension on March 29,
2021, the CDC emphasized the continued threat to public health posed by
COVID-19. The CDC stated that, as of March 25, 2021, over 29,700,000
cases had been identified in the United States and there were over
540,000 deaths due to the disease.\20\ Further, the CDC stated that,
although transmission of COVID-19 has decreased since a peak in January
2021, the number of cases per day has remained almost twice as high as
the initial peak in April 2020 and transmission rates are similar to
the second peak in July 2020.\21\ The CDC stated in its most recent
extension of the Order that despite higher rates of vaccine coverage,
the relaxing of community mitigation efforts may continue to expose
vulnerable populations to higher-than-average infection rates.\22\ The
Order also described the global emergence of new variants of the virus
that studies have shown are more easily transmitted and may increase
mortality.\23\
---------------------------------------------------------------------------
\18\ 85 FR 55292, 55297 (Sept. 4, 2020).
\19\ Section 502 of title V, Division N of the Consolidated
Appropriations Act, 2021, Public Law 116-260, 134 Stat. 1182, 2078
(2020), extended the original Order until January 31, 2021. On
January 29, 2021, following an assessment of the ongoing pandemic,
the CDC Director renewed the CDC Order until March 31, 2021. 86 FR
8020 (Feb. 3, 2021). On March 29, 2021, the CDC Director extended
the CDC Order until June 30, 2021. 86 FR 16731 (Mar. 31, 2021).
\20\ Id. at 16732.
\21\ See id.
\22\ See id. at 16732-33.
\23\ See id.
---------------------------------------------------------------------------
The CDC Order generally prohibits a landlord, owner of a
residential property, or other person with a legal right to pursue
eviction or possessory action from evicting for non-payment of rent any
person protected by the CDC Order \24\ from any residential property in
any jurisdiction in which the CDC Order applies.\25\ This prohibition
applies, without limitation, to an agent or attorney acting on behalf
of a landlord or owner of the residential property.\26\ To be a
``covered person'' under the CDC Order's eviction moratorium, a person
must submit a written declaration under penalty of perjury attesting to
certain eligibility criteria generally establishing that, because of
the person's financial situation, the person is unable to make full
rental payments and, if evicted, likely would become homeless or would
be required to move into a congregate or shared living setting.\27\
---------------------------------------------------------------------------
\24\ The CDC Order defines those individuals who are covered by
the CDC Order as ``covered persons,'' but this interim final rule
generally refers to such persons as ``persons protected by the CDC
Order'' for simplicity.
\25\ Id. at 16732 n.3.
\26\ Id.
\27\ Id. at 16734.
---------------------------------------------------------------------------
The CDC Order defines ``evict'' and ``eviction'' as any action by a
landlord or owner of a residential property--which also includes an
agent or attorney acting on behalf of the landlord or the owner of the
residential property--or any other person with a legal right to pursue
eviction or a possessory action, to remove or cause the removal of a
person protected by the CDC Order from a residential property.\28\ The
CDC Order does not cover foreclosure on a home mortgage.\29\ The CDC
Order does not apply in any State, local, territorial, or tribal area
with a moratorium on residential evictions that provides the same or
greater level of public-health protection than the requirements listed
in the CDC Order.\30\ Moreover, the CDC Order does not preclude
evictions unrelated to the non-payment of rent.\31\
[[Page 21165]]
The CDC Order does not bar a landlord, residential property owner, or
their representative, including an attorney, from filing an eviction
action in court, but it does prohibit the physical removal of a person
from the property if the person meets the criteria and submits the
declaration.\32\ Since the person must file a declaration to obtain
this protection, however, a person must first be aware that the CDC
Order exists and may apply to them.
---------------------------------------------------------------------------
\28\ Id. at 16732.
\29\ Id.
\30\ Id. at 16736.
\31\ Specifically, the CDC Order does not preclude evictions
based on a tenant, lessee, or resident: (1) Engaging in criminal
activity while on the premises; (2) threatening the health or safety
of other residents; (3) damaging or posing an immediate and
significant risk of damage to property; (4) violating any applicable
building code, health ordinance, or similar regulation relating to
health and safety; or (5) violating any other contractual
obligation, other than the timely payment of rent or similar
housing-related payment (including non-payment or late payment of
fees, penalties, or interest). Id. at 16733.
\32\ Centers for Disease Control & Prevention, FREQUENTLY ASKED
QUESTIONS (Apr. 13, 2021), https://www.cdc.gov/coronavirus/2019-ncov/downloads/Eviction-Moratoria-Order-FAQs-02012021-508.pdf (CDC
Order FAQs).
---------------------------------------------------------------------------
To respond to the public health threat posed by the COVID-19
pandemic, Federal, State, and local governments have taken a variety of
actions, including restrictions on travel, stay-at-home orders, and
mask requirements.\33\ In addition to the CDC Order's eviction
moratorium, governments have established other eviction moratoria to
alleviate the economic and public health consequences of the COVID-19
pandemic. For instance, section 4024 of the Coronavirus Aid, Relief,
and Economic Security Act (CARES Act) \34\ provided a temporary
moratorium on eviction filings as well as other protections for tenants
in certain rental properties with Federal assistance or federally
related financing. State and local governments have also implemented
temporary eviction moratoria, rent freezes, and rental assistance
programs.\35\
---------------------------------------------------------------------------
\33\ 86 FR 16731, 16733 (Mar. 31, 2021).
\34\ CARES Act section 4024, Public Law 116-136, 134 Stat. 281,
492 (2020).
\35\ See, e.g., Eviction Lab, COVID-19 HOUSING POLICY SCORECARD,
https://evictionlab.org/covid-policy-scorecard/ (last visited Apr.
1, 2021); U.S. Dep't of the Treasury, Emergency Rental Assistance
Program, https://home.treasury.gov/policy-issues/cares/emergency-rental-assistance-program (last visited Apr. 1, 2021); Perkins Coie
LLP, COVID-19 Related Eviction and Foreclosure Orders/Guidance 50-
State Tracker (Mar. 29, 2021), https://www.perkinscoie.com/en/news-insights/covid-19-related-eviction-and-foreclosure-ordersguidance-50-state-tracker.html.
---------------------------------------------------------------------------
In the wake of the COVID-19 pandemic, the Bureau has taken numerous
steps to protect and assist consumers facing possible eviction and
housing insecurity.\36\ On March 29, 2021, the Bureau's Acting Director
and the Federal Trade Commission's Acting Chairwoman issued a joint
statement regarding their agencies' work to help stop illegal evictions
and protect American consumers facing economic hardship due to COVID-
19.\37\ This interim final rule aims to complement this and other
efforts the Bureau has initiated since the onset of the COVID-19
pandemic to assist consumers and to protect those most vulnerable to
harms arising from violations of Federal consumer financial protection
law.
---------------------------------------------------------------------------
\36\ See generally Bureau of Consumer Fin. Prot., Help for
homeowners and renters during the coronavirus national emergency,
https://www.consumerfinance.gov/coronavirus/mortgage-and-housing-assistance/ (updated Mar. 25, 2021); and Protections for renters
during COVID-19, https://www.consumerfinance.gov/coronavirus/mortgage-and-housing-assistance/rent-protections-covid-19 (last
visited Apr. 10, 2021). On April 5, 2021, the Bureau issued a notice
of proposed rulemaking to amend Regulation X to establish a
temporary COVID-19 emergency pre-foreclosure review period until
December 31, 2021, for principal residences to help ensure that
borrowers affected by the COVID-19 pandemic have an opportunity to
be evaluated for loss mitigation before the initiation of
foreclosure. 86 FR 18840 (Apr. 9, 2021).
\37\ Press Release, Bureau of Consumer Fin. Prot., CFPB Acting
Director Uejio & FTC Acting Chairwoman Slaughter Issue Joint
Statement on Preventing Illegal Evictions (Mar. 29, 2021), https://www.consumerfinance.gov/about-us/newsroom/cfpb-acting-director-uejio-and-ftc-acting-chairwoman-slaughter-issue-joint-statement-on-preventing-illegal-evictions/.
---------------------------------------------------------------------------
C. Rental Evictions and Debt Collectors
When a consumer becomes delinquent on rental payments, landlords,
residential property owners, or their agents (which may include
attorneys acting on their behalf) typically seek to bring the
consumer's account current. Landlords, residential property owners, or
their agents may engage in oral or written communication with tenants
and may arrange payment schedules or reduced payments.\38\ The Bureau
understands that a significant number of landlords and residential
property owners hire debt collectors for pre-eviction collections.
---------------------------------------------------------------------------
\38\ This interim final rule generally uses the terms ``tenant''
and ``renter'' interchangeably.
---------------------------------------------------------------------------
If efforts to resolve the unpaid rent are not successful, a
landlord, residential property owner, or their agent may seek to evict
the tenant from the property. In order to remove a tenant from the
property through legal process, the landlord, residential property
owner, or their agent typically must first provide notice to the tenant
of their intent to evict and, if the tenant does not bring the account
current or leave the premises, then file an eviction action in court,
often with a claim of back rent. These eviction processes are governed
primarily by State or local law. While some landlords or residential
property owners may represent themselves in court, the Bureau
understands that a large segment of landlords or residential property
owners hire an attorney to conduct eviction proceedings on their
behalf.\39\
---------------------------------------------------------------------------
\39\ Eric. S. Peterson & Cathy McKitrick et al., Landlords evict
hundreds of Utah renters each month despite a ban during the
pandemic, The Salt Lake Tribune (Dec. 12, 2020), https://www.sltrib.com/news/2020/12/12/landlords-evict-hundreds/ (finding
that in August 2020, nearly two-thirds of eviction filings in Utah
appear to have been filed by one law firm) (Peterson & McKitrick);
Bob Ivry, Down and Out in Eviction Court, The American Prospect
(Mar. 18, 2021), https://prospect.org/infrastructure/housing/down-and-out-in-eviction-court/ (``Philadelphia landlords were
represented by legal counsel in 82 percent of eviction cases from
2015 to 2020, according to a study by Community Legal Services . . .
. In Kansas City, 1.3 percent of tenants were represented from 2006
to 2016, while 84 percent of landlords had lawyers, according to the
KC Eviction Project.'') (Ivry).
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FDCPA section 803(5) defines ``debt'' as any obligation or alleged
obligation of a consumer to pay money arising out of a transaction in
which the money, property, insurance or services which are the subject
of the transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to judgment.
A consumer's unpaid residential rent would typically fall within the
FDCPA's definition of debt because it is an obligation of a consumer to
pay money arising out of a transaction for personal, family, or
household purposes. FDCPA section 803(6) generally defines ``debt
collector'' as any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is
the collection of any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be
owed or due another.\40\ Attorneys who regularly engage in debt
collection activity, even when that activity consists of litigation,
are debt collectors as defined in the FDCPA.\41\ Therefore, attorneys
who engage in eviction proceedings on behalf of landlords or
residential property owners to collect unpaid residential rent may be
[[Page 21166]]
``debt collectors'' as defined by the FDCPA.\42\
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\40\ FDCPA section 803(6)'s definition of ``debt collector''
also includes any creditor who, in the process of collecting its own
debts, uses any name other than the creditor's own which would
indicate that a third person is collecting or attempting to collect
such debts.
\41\ See Heintz v. Jenkins, 514 U.S. 291, 299 (1995) (holding
that ``attorneys who `regularly' engage in consumer-debt-collection
activity'' are subject to the FDCPA, ``even when that activity
consists of litigation''). In reaching this conclusion, the Supreme
Court discussed the history of the FDCPA, which contained an express
exemption for lawyers until Congress repealed the exemption in its
entirety in 1986 ``without creating a narrower, litigation-related
exemption to fill the void.'' Id. at 294-95.
\42\ According to the National Creditors Bar Association, 52
percent of their members practice in the area of landlord and tenant
law, https://www.creditorsbar.org/about-ncba (last visited Apr. 3,
2021) (NCBA).
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D. COVID-19 Pandemic Impacts on Renters, Evictions, and Debt Collectors
The COVID-19 pandemic has had extraordinarily widespread and
adverse effects on the economy. Since the start of the COVID-19
pandemic, employment has fallen dramatically in response to public
health measures and diminishing consumer demand.\43\ Renters have been
particularly impacted by these economic trends. Renters are more likely
than homeowners to have become unemployed or experienced decreasing
income during the COVID-19 pandemic.\44\ In addition, renters tend to
have less savings than homeowners and are therefore more vulnerable to
economic shocks.\45\ By the end of 2020, 8.8 million rental households
were behind in their rental obligations.\46\ The average delinquent
rental household owed more than $5,000.\47\ Even as the economy and the
labor market have begun to improve in 2021, substantial rental debt
remains.\48\
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\43\ Lauren Bauer & Kristen Broady et al., Ten facts about
COVID-19 and the U.S. economy, Brookings Inst. (Sept. 17, 2020),
https://www.brookings.edu/research/ten-facts-about-covid-19-and-the-u-s-economy/.
\44\ JPMorgan Chase Inst., Renters v. Homeowners: Income and
Liquid Asset Trends during COVID-19, (Mar. 2021), https://www.jpmorganchase.com/institute/research/household-debt/renters-homeowners-income-and-liquid-asset-trends-during-covid-19.
\45\ Id.
\46\ Bureau of Consumer Fin. Prot., Housing insecurity and the
COVID-19 pandemic, at 17 (Mar. 2021), https://files.consumerfinance.gov/f/documents/cfpb_Housing_insecurity_and_the_COVID-19_pandemic.pdf (CFPB Housing
Insecurity Report).
\47\ Id. at 17.
\48\ The Federal Reserve Bank of Philadelphia estimated that
renters owed $11 billion in rent in March 2021. See Federal Reserve
Bank of Philadelphia, Household Rental Debt During COVID-19: UPDATE
FOR 2021, at 8 (Mar. 2021), https://www.philadelphiafed.org/community-development/housing-and-neighborhoods/household-rental-debt-during-covid-19-update-for-2021 (Household Rental Debt During
COVID-19); see also Urban Inst., Many People are Behind on Rent. How
Much Do They Owe? (Feb. 24, 2021), https://www.urban.org/urban-wire/many-people-are-behind-rent-how-much-do-they-owe (analyzing three
estimates of back rent owed by U.S. households in January 2021 that
ranged from $8.4 billion to $52.6 billion).
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The COVID-19 pandemic, furthermore, has disproportionately impacted
the housing security of minority and low-income households. Black and
Hispanic households have been significantly more likely than other
types of households to accrue rental debt.\49\ As of December 2020,
households with incomes below $75,000 were more than twice as likely to
be behind on rental obligations than households with incomes above
$75,000.\50\
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\49\ As of December 2020, Black and Hispanic households were
more than twice as likely to report being behind on their rental
payments as White households. See U.S. Census Bureau, Census
Household Pulse Survey, Week 21 (December 9-December 21) (Jan. 6,
2021), https://www.census.gov/data/tables/2020/demo/hhp/hhp21.html
(Census Household Pulse Survey). As of March 2021, 7.8 percent of
Hispanic/Latino households and 5.8 percent of Black households had
rental debt, compared to 4.4 percent of White households. See
Household Rental Debt During COVID-19, supra note 48, at 8.
\50\ Census Household Pulse Survey, supra note 49.
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Individuals and families who are at risk of losing their housing
because of delinquent rent face dire personal and financial
consequences. As the Bureau explained in the CFPB Housing Insecurity
Report, families that do not have access to safe, affordable, and
stable housing (also referred to as housing insecurity) face the
prospects of homelessness as well as a host of other negative outcomes,
such as higher rates of depression, higher rates of suspension and
expulsion from school, and increased risks of chronic health
conditions. In the midst of a global pandemic, housing insecurity can
make it difficult for renters to comply with public health measures
such as quarantining or restricting the number of close contacts.\51\
Federal, State, and local eviction moratoria have slowed the pace of
evictions, but thousands of renters are still evicted weekly.\52\
According to the CFPB Housing Insecurity Report, as of December 2020, 9
percent of renters reported that it was likely they would be evicted in
the next two months.\53\ Approximately 16 percent of Black renters and
11 percent of Hispanic renters who were surveyed expressed this
belief.\54\ Data on eviction rates also suggests that minority renters
are particularly vulnerable to eviction.\55\
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\51\ CFPB Housing Insecurity Report, supra note 46, at 3.
\52\ Id. at 14.
\53\ Id. at 15. This finding is consistent with other research
on consumers' views about housing precarity. According to a study by
the Mortgage Bankers Association, 2.3 million tenants said they feel
at risk of eviction or would be forced to move in the next 30 days.
Mortg. Bankers Ass'n, MBA RIHA Study Reveals Progress, but 5 Million
Renters and Homeowners Missed December Payments (Feb. 8, 2021),
https://www.mba.org/2021-press-releases/february/mba-riha-study-reveals-progress-but-5-million-renters-and-homeowners-missed-december-payments.
\54\ CFPB Housing Insecurity Report, supra note 46, at 15.
\55\ Reinvestment Fund, Evictions in Philadelphia: Race (and
Place) Matters, at 2 (Feb. 2021), https://www.reinvestment.com/wp-content/uploads/2021/02/ReinvestmentFund_PHL-Evictions-Race-and-Place-Matters.pdf (between 2018 and 2019, Black and Hispanic
Philadelphians experienced an annual eviction filing rate of 8.8
percent and 5.2 percent, respectively, compared to 3.1 percent of
White Philadelphians); Jane Place Neighborhood Sustainability
Initiative, Unequal Burden, Unequal Risk: Households Headed by Black
Women Experience Highest Rates of Eviction, at 6, https://www.jpnsi.org/evictions (last visited Apr. 1, 2021) (from September
2019 to March 2020, 82.2 percent of tenants facing evictions in New
Orleans were Black).
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In addition to formal evictions, informal evictions can occur
outside the judicial eviction process. Evidence suggests that informal
evictions may be common.\56\ Tenants may preemptively move out of
rental housing to avoid an eviction filing, which may have negative
consequences for the tenant whether or not the filing ultimately leads
to physical removal.\57\ Tenants may take this preemptive step, for
example, to prevent the mere possibility of having an eviction judgment
on their records because subsequent landlords may refuse to rent to
tenants with an eviction history. This practice is sometimes referred
to as ``self-eviction.'' \58\ Such
[[Page 21167]]
losses of rental housing may be comparable to evictions from the
perspective of consumers, even if they are not evident in eviction
filing statistics. Moreover, preliminary findings from one university
research study indicate that informal evictions have increased during
the COVID-19 pandemic, including situations where renters received
texts, emails, or verbal communication from landlords telling them to
leave; arrived home to find their doors locked or possessions removed;
or moved even though they recognized their legal right to challenge the
landlord's action, out of fear that the landlord would make their
living situation difficult if they refused to leave.\59\
---------------------------------------------------------------------------
\56\ See Matthew Desmond & Tracey Shollenberger, Forced
Displacement From Rental Housing: Prevalence and Neighborhood
Consequences, Demography, vol. 52, no. 5, at 1751-72 (Aug. 2015),
www.jstor.org/stable/43697545 (survey in Milwaukee between 2011 and
2013 found that informal evictions were twice as frequent as formal
evictions) (Desmond & Shollenberger); Sophie Collyer & Lily Bushman-
Copp, Forced Moves and Eviction in New York City, Robin Hood (May
2019), https://www.robinhood.org/uploads/2019/08/HOUSING-REPORT_8.5.pdf (study found that half of evictions in New York City
resulted from forced moves, which include informal evictions).
\57\ Desmond & Shollenberger, supra note 56, at 1751-72; Hous.
Action Ill. & Lawyers' Comm. for Better Hous., Prejudged: The Stigma
of Eviction Records (Mar. 2018), https://lcbh.org/sites/default/files/resources/Prejudged-Eviction-Report-2018.pdf; Reinvestment
Fund, Resolving Landlord-Tenant Disputes: An Analysis of Judgments
by Agreement in Philadelphia's Eviction Process (May 2020), https://www.reinvestment.com/wp-content/uploads/2020/05/ReinvestmentFund_Report-2020_PHL-Evictions-Judgments-by-Agreement-Landlord-Court.pdf.
\58\ As an Eviction Lab report notes, ``[m]any tenants may move
out before the eviction case concludes, even if they would qualify
for protection under the eviction moratorium. Data from before the
pandemic show that many tenants leave without the case going to
court, perhaps aware that the vast majority of cases end with
decisions in the landlord's favor. At the same time, just the
presence of a filing on a tenant's record can prevent that tenant
from accessing safe and healthy rental housing in the future.''
https://evictionlab.org/moratorium-extended-evictions-continue/
(last visited Apr. 7, 2021). Furthermore, according to a legal
services organization, ``[t]he consequences of eviction records go
far beyond temporary displacement and loss of shelter. Eviction
records mean loss of housing subsidy vouchers, ineligibility for
other public housing programs, and being screened out of private
housing, leading to dangerous cycles of poverty and instability.''
Cmty. Legal Servs. of Phila., Breaking the Record: Dismantling the
Barriers Eviction Records Place on Housing Opportunities, at 1 (Nov.
2020), https://www.phillytenant.org/breaking-the-record-dismantling-the-barriers-eviction-records-place-on-housing-opportunities/. See
also Eric S. Peterson & Ria Agarwal et al., Renters can be haunted
by past evictions or debt claims even if they never made it to
court, The Salt Lake Tribune (Feb. 22, 2021), https://www.sltrib.com/news/2021/02/22/renters-can-be-haunted-by/.
\59\ Univ. of Washington Graduate Sch., Informal evictions are
on the rise during the pandemic, with people of color most at risk
for housing insecurity (Mar. 11, 2021), https://www.grad.washington.edu/student-alumni-profiles/informal-evictions-are-on-the-rise-during-the-pandemic-with-people-of-color-most-at-risk-for-housing-insecurity/ (`` `If a landlord wants to evict a
tenant and they're really intent on doing it, they are probably
going to accomplish it without serving a formal eviction notice,'
said Matt Fowle, one of the researchers of the study . . . .
`Tenants perceive that they have less power now compared to
landlords than they did before the pandemic.' '').
---------------------------------------------------------------------------
That consumers may be unaware of their eligibility for temporary
protection under the CDC Order and potentially other moratoria may
explain the continuing rates of formal and informal evictions during
the COVID-19 pandemic. Stakeholders, including consumer advocates and
legal aid organizations, have expressed concerns to the Bureau that
many consumers at risk of eviction either do not know about the CDC
Order or, if they are aware of it, they may be under the mistaken
impression that the Order's protections automatically apply or they
otherwise may be uncertain about what steps they must take to avail
themselves of the CDC Order's eviction protections.\60\
---------------------------------------------------------------------------
\60\ Letter to President Biden, Director Walensky, Secretary
Fudge, and Secretary Vilsack from thousands of National and
Multistate Organizations (Mar. 15, 2021), https://nlihc.org/sites/default/files/Eviction-Moratorium-Letter_March.15.2021.pdf
(asserting that corporate and other landlords continue to evict
tenants before tenants know about the moratorium protections or by
finding reasons for eviction other than nonpayment of rent and
urging, among other policy suggestions, that the Federal government
at minimum require landlords to provide notice to renters of their
rights under the CDC moratorium); Natalie Campisi, Government
Extends Eviction Moratorium For 3 Months. Here's What Renters Should
Do, Forbes (Mar. 29, 2021), https://www.forbes.com/advisor/personal-finance/what-renters-should-do-when-eviction-moratorium-ends/ (``
`One of the problems with the CDC moratorium is that tenants need to
know it exists and they need to apply for it--many renters don't
realize this is an option,' says Marcus Roth, development director
at the Coalition on Homelessness and Housing in Ohio. Unlike the
eviction moratorium in the CARES Act, the CDC order is not
automatic, which might have contributed to the lack of awareness for
many tenants.'').
---------------------------------------------------------------------------
A Government Accountability Office (GAO) report analyzing the
effectiveness of COVID-19 eviction moratoria found that some renters
may not fully understand that they have to take action to become
protected under the CDC Order's eviction moratorium, and others may not
understand all of the required steps, including how to submit the
required declaration.\61\ The GAO report included a comparison of
jurisdictions subject to both the CDC Order and State or local
moratoria with jurisdictions where only the CDC Order applied and found
that the jurisdictions without separate State or local moratoria
experienced larger increases in eviction filings. The GAO noted that,
although comprehensive information does not exist on renter awareness
of the CDC Order's protections, the increasing rate of eviction filings
and the apparent need for State and local measures targeted at
increasing awareness of the CDC Order's protections suggest that some
renters and property owners may be unaware of the CDC Order or its
requirements.\62\ The GAO noted that ``clear, accurate, and timely
information'' is ``essential to keep the public informed during the
COVID-19 pandemic.'' \63\ The GAO concluded that, as the COVID-19
pandemic persists, potentially millions of renters and property owners
will continue to experience financial challenges, and that while the
CDC Order provides some measure of relief to struggling renters, some
renters facing eviction may be unaware of and unable to exercise the
moratorium, and therefore unnecessarily evicted.\64\
---------------------------------------------------------------------------
\61\ See Gov't Accountability Office, Covid-19 Housing
Protections: Moratoriums Have Helped Limit Evictions, but Further
Outreach Is Needed, at 1 (Mar. 15, 2021), https://www.gao.gov/products/gao-21-370 (GAO Report).
\62\ Id. at 17.
\63\ Id. at 1.
\64\ Id. at 30.
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The Bureau also is aware of reports that even when renters are
aware of the CDC Order and attempt to exercise their rights under the
Order to halt evictions, they may be falsely informed that they are
ineligible for temporary protection from eviction under the CDC Order
or otherwise may be discouraged from submitting a declaration that
could trigger a ``covered person'' designation under the CDC Order.\65\
Numerous public reports and Bureau outreach with consumer advocates,
legal aid organizations, and other stakeholders also suggest that
parties to the eviction process may be engaged in other conduct in
violation of Federal, State, or local eviction moratoria.\66\
---------------------------------------------------------------------------
\65\ According to a study by the National Housing Law Project,
91 percent of tenants surveyed reported illegal evictions in their
area during the pandemic, which included allegedly false statements
that properties were not covered by eviction moratoria. See Nat'l
Hous. Law Project, Stopping COVID-19 Eviction Survey Results (July
2020), https://www.nhlp.org/wp-content/uploads/Evictions-Survey-Results-2020.pdf. See also Peterson & McKitrick, supra note 39.
\66\ See, e.g., Press Release, Washington State Office of the
Attorney General, AG FERGUSON FILES LAWSUIT AGAINST NATIONAL
SORORITY FOR CHARGING AND THREATENING UW STUDENTS IN VIOLATION OF
EVICTION MORATORIUM (Jan. 25, 2021), https://www.atg.wa.gov/news/news-releases/ag-ferguson-files-lawsuit-against-national-sorority-charging-and-threatening-uw; Annie Nova, The CDC banned evictions.
Tens of thousands have still occurred, CNBC (Jan. 14, 2021), https://www.cnbc.com/2020/12/05/why-home-evictions-are-still-happening-despite-cdc-ban.html; Ashley Balcerzak, NJ renters still being
locked out by landlords despite COVID eviction freeze (Mar. 11,
2021), https://www.northjersey.com/story/news/2021/03/11/nj-rental-assistance-covid-eviction-freeze-ignored-some-landlords/6892203002/;
Sophie Nieto-Munoz, N.J. announces new measures to protect tenants
from illegal lockouts during eviction moratorium (Apr. 5, 2021),
https://www.nj.com/coronavirus/2021/04/nj-announces-new-measures-to-protect-tenants-from-illegal-lockouts-during-eviction-moratorium.html (noting that a spokesman for the New Jersey Attorney
General said that the office ``has received 17 written complaints
regarding landlords illegally evicting tenants since April 2020 . .
. but stressed there are likely many, many more'' and that ``the
Volunteer Justice Lawyers say there have been hundreds across the
state, with illegal evictions ramping up since the fall''). The
Bureau has not independently verified the allegations described in
public news reports and stakeholder outreach.
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Consumer advocacy groups, legal aid organizations, housing
organizations, faith groups, and other stakeholders have expressed
concerns to the Bureau that debt collectors under the FDCPA are not
abiding by the CDC Order.\67\ This feedback includes, among other
things, allegations that debt collectors have engaged in eviction-
related conduct that in their view violates the
[[Page 21168]]
FDCPA.\68\ The Bureau has engaged in informal outreach with such groups
and with industry participants.\69\
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\67\ For example, a variety of consumer advocate, legal aid
organization, civil rights organization, faith group, and other
stakeholders urged the Bureau and FTC to explore use of FDCPA and
Federal Trade Commission Act authorities, among other authorities,
to take ``immediate'' action to ``prevent or limit imminent rental
evictions,'' noting that, ``[w]hile the CDC eviction moratorium has
been helpful, it still leaves many families unprotected, it has been
inconsistently implemented, and some landlords have used
questionable and sometimes abusive tactics to evade it.'' Letter
from Nat'l Consumer Law Ctr. et al., to Acting Bureau Director David
Uejio & Fed. Trade Comm'n Acting Chair Rebecca K. Slaughter (Mar. 3,
2021), https://www.nclc.org/images/pdf/special_projects/covid-19/CFPB_FTC_Moratorium_Ltr.pdf.
\68\ Consumer advocates and legal aid organizations have
reported, among other conduct, instances (which the Bureau has not
independently verified) of landlords' attorneys refusing to accept a
signed tenant declaration when presented with one or advising
landlords to have their property managers tell tenants who present a
signed declaration that they are not eligible under the CDC Order as
means of avoiding compliance with the CDC Order.
\69\ Apart from this rulemaking, the Bureau will continue to
monitor debt collector conduct with respect to the eviction process
for any potential consumer harm or compliance concerns and consider
taking additional action at a later time if needed.
---------------------------------------------------------------------------
The Bureau has concluded that consumer harms associated with
evictions during the COVID-19 pandemic necessitate immediate action,
specifically pertaining to the activity of debt collectors who are
involved in the evictions process during the pendency of the CDC Order.
For these reasons and the reasons discussed below, the Bureau is
amending Regulation F in this interim final rulemaking to require
certain debt collectors to provide written notice to certain consumers
of their protections under the CDC Order's eviction moratorium and
prohibit certain misrepresentations.
The Bureau believes that this rulemaking is appropriate during the
COVID-19 pandemic, which presents extraordinary circumstances.\70\ The
Bureau will evaluate comments received on the interim final rule to
determine whether it is appropriate to revise the amendments. The
Bureau also will continue to monitor the market to assess consumers'
experiences under the interim final rule.
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\70\ See also part IV.
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As part of this rulemaking, the Bureau consulted with, or offered
to consult with, the appropriate prudential regulators and other
Federal agencies.
III. Legal Authority
The Bureau is issuing this interim final rule pursuant to its
authority under FDCPA section 814(d), which provides that the Bureau
``may prescribe rules with respect to the collection of debts by debt
collectors,'' as defined in the FDCPA.\71\ In particular, as discussed
in part V, the provisions of this interim final rule are based on an
interpretation of FDCPA sections 807 and 808. A debt collection rule
published by the Bureau in November 2020 (the November 2020 Final Rule)
provides an overview of how the Bureau interprets FDCPA sections 807
and 808.\72\
---------------------------------------------------------------------------
\71\ 15 U.S.C. 1692l(d).
\72\ See 85 FR 76734, 76739-41 (Nov. 30, 2020).
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FDCPA section 807 generally prohibits a debt collector from
``us[ing] any false, deceptive, or misleading representation or means
in connection with the collection of any debt.'' \73\ Then, ``[w]ithout
limiting the general application of the foregoing,'' section 807 lists
16 examples of conduct that violate that section.\74\ Similarly, FDCPA
section 808 prohibits a debt collector from ``us[ing] unfair or
unconscionable means to collect or attempt to collect any debt.'' \75\
Then, ``[w]ithout limiting the general application of the foregoing,''
FDCPA section 808 lists eight examples of conduct that violate that
section.\76\ Consistent with the approach in the November 2020 Final
Rule,\77\ the Bureau interprets FDCPA sections 807 and 808 in light of:
(1) The FDCPA's language and purpose; (2) the general types of conduct
prohibited by those sections and, where relevant, the specific examples
enumerated in those sections; and (3) judicial decisions.
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\73\ 15 U.S.C. 1692e.
\74\ 15 U.S.C. 1692e(1)-(16).
\75\ 15 U.S.C. 1692f.
\76\ 15 U.S.C. 1692f(1)-(8).
\77\ See 85 FR 76734, 76738-41 (Nov. 30, 2020).
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By their plain terms, FDCPA sections 807 and 808 make clear that
their examples of prohibited conduct do not ``limit[ ] the general
application'' of those sections' general prohibitions. The FDCPA's
legislative history is consistent with this understanding,\78\ as are
opinions by courts that have addressed this issue.\79\ Accordingly, the
Bureau may interpret the general provisions of FDCPA sections 807 and
808 to prohibit conduct that the specific examples in FDCPA sections
807 and 808 do not address if the conduct violates the general
prohibitions. In addition, the Bureau uses the specific examples to
inform its understanding of the general prohibitions. The Bureau also
interprets FDCPA sections 807 and 808 in light of the significant body
of existing court decisions interpreting those sections, which provide
instructive examples of collection practices that are not addressed by
the specific prohibitions in those sections but that nonetheless run
afoul of the FDCPA's general prohibitions in sections 807 and 808.\80\
Consistent with the majority of courts, the Bureau interprets FDCPA
sections 807 and 808 to incorporate an objective, ``unsophisticated''
or ``least sophisticated'' consumer standard.\81\ Finally, courts have
found that a debt collector collecting back rent is subject to the
FDCPA, including the statute's prohibitions on deception and
unfairness.\82\
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\78\ See, e.g., S. Rep. No. 382, 95th Cong., 1st Sess. 4 (1977),
reprinted in 1977 U.S.C.C.A.N. 1695, 1698 (``[T]his bill prohibits
in general terms any harassing, unfair, or deceptive collection
practice. This will enable the courts, where appropriate, to
proscribe other improper conduct which is not specifically
addressed.''). Courts have also cited legislative history in noting
that, ``in passing the FDCPA, Congress identified abusive collection
attempts as primary motivations for the Act's passage.'' Hart v. FCI
Lender Servs., Inc., 797 F.3d 219, 226 (2d Cir. 2015).
\79\ See, e.g., Stratton v. Portfolio Recovery Assocs., LLC, 770
F.3d 443, 450 (6th Cir. 2014) (``[T]he listed examples of illegal
acts are just that--examples.'').
\80\ 85 FR 76734, 76740 (Nov. 30, 2020).
\81\ Id.; 84 FR 23274, 23282-83 (May 21, 2019).
\82\ See, e.g., Romea v. Heiberger & Assocs., 163 F.3d 111, 115-
16 (2d Cir. 1998) (``[U]nder the FDCPA, back rent is debt.'');
Lipscomb v. The Raddatz Law Firm, P.L.L.C., 109 F. Supp. 3d 251,
258-59 (D.D.C. 2015) (concluding that ``the FDCPA applies where
eviction proceedings include an attempt to recover back rent'').
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IV. Administrative Procedure Act
Under the Administrative Procedure Act (APA),\83\ notice and
opportunity for public comment are not required if the Bureau for good
cause finds that notice and public comment are impracticable,
unnecessary, or contrary to the public interest.\84\ Similarly,
publication of this interim final rule at least 30 days before its
effective date is not required where the Bureau has identified good
cause for a different effective date.\85\
---------------------------------------------------------------------------
\83\ 5 U.S.C. 551 et seq., 701 et seq.
\84\ 5 U.S.C. 553(b)(B).
\85\ 5 U.S.C. 553(d)(3).
---------------------------------------------------------------------------
The Bureau finds that prior notice and public comment are
impracticable and contrary to the public interest in consideration of
the public health emergency caused by the COVID-19 pandemic and its
effects on consumers. In particular, renters may be vulnerable to the
negative economic impacts of the pandemic, which include an elevated
risk of eviction, and the immediate health and safety consequences that
are likely to ensue.\86\ Citing the continuing health and safety risks
posed by the COVID-19 pandemic, the CDC Order, as extended on March 29,
2021, maintains the eviction moratorium until June 30, 2021. As the CDC
Order extension noted, although COVID-19 transmission has decreased
since a peak in January 2021, the current number of cases per day
remains almost twice as high as the initial peak in April 2020 and
transmission rates are similar to the second peak in July 2020.\87\
Since the CDC Order's eviction moratorium went into effect in September
2020, some
[[Page 21169]]
debt collectors have engaged in evicting consumers from residential
properties.
---------------------------------------------------------------------------
\86\ See also 86 FR 16731, 16737 (Mar. 31, 2021) (in describing
how it would be impracticable to provide notice and comment, the CDC
wrote in the extension of the CDC Order that, ``The rapidly changing
nature of the pandemic requires not only that CDC act swiftly, but
also deftly to ensure that its actions are commensurate with the
threat.'').
\87\ See id. at 16732.
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As discussed more fully in parts II and V, the Bureau has become
aware in the months following the initial institution of the CDC
Order's eviction moratorium that consumers who interact with these debt
collectors may not be aware of their protections under the CDC Order
and the steps they must take to avail themselves of such
protections.\88\ As explained below, the failure of debt collectors to
disclose these protections can violate the FDCPA with immediate
consequences to health and safety. At the same time, debt collectors
who otherwise might disclose these protections may lack clear direction
about how to do so to comply with the FDCPA. The Bureau also
understands that some debt collectors may be engaging in
misrepresentations regarding consumers' ineligibility for the CDC
Order's protections. These challenges have emerged only after the CDC
Order initially took effect, and the eviction moratorium effectuated by
the CDC Order has recently been extended for a limited period. To
provide necessary protection for consumers, particularly in light of
the health and safety consequences of eviction, as well as clarity for
debt collectors, it is critical that the interim final rule take effect
as soon as practicable.
---------------------------------------------------------------------------
\88\ See, e.g., GAO Report, supra note 61, at 1.
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For similar reasons, the Bureau also finds that delaying this
rulemaking to allow for prior public comment would be contrary to the
public interest, because the interim final rule is necessary to avoid
the harm to consumers and to address the lack of clarity for debt
collectors that would result if the interim final rule did not take
effect a short time after issuance. By identifying a practice that
violates the FDCPA and identifying the means by which a debt collector
may comply with the FDCPA while engaging in certain actions related to
residential evictions, the interim final rule will benefit consumers
while minimizing the burden on debt collectors.
For these reasons, the Bureau also finds that there is good cause
for this interim final rule to be effective less than 30 days after
publication, to ensure that this interim final rule is effective on May
3, 2021 and for the duration of the CDC Order's effective period and
any extension thereof.
V. Section-by-Section Analysis
Subpart B--Rules for Debt Collectors Subject to the Fair Debt
Collection Practices Act
Section 1006.9 Debt Collection Practices in Connection With the Global
COVID-19 Pandemic
Section 1006.9 prohibits certain debt collection practices by debt
collectors related to the global COVID-19 pandemic. More specifically,
Sec. 1006.9 prohibits certain acts by debt collectors that, by
interfering with consumers' ability to protect themselves from eviction
pursuant to the CDC Order, undermine the purpose of the CDC Order's
eviction moratorium to prevent the further spread of COVID-19. Section
1006.9(a) and (b) sets forth the purpose and coverage of subpart B and
defines certain terms used in the subpart, and Sec. 1006.9(c)
identifies the prohibited acts. The Bureau is adopting Sec. 1006.9
pursuant to its authority under FDCPA section 814(d) to write rules
with respect to the collection of debts by debt collectors and, with
respect to Sec. 1006.9(c), pursuant to its authority to interpret
FDCPA sections 807 and 808.
9(a) Purpose and Coverage
Section 1006.9(a) identifies the purpose of subpart B of part 1006
and is consistent with FDCPA section 802, which sets forth the purpose
of the FDCPA.\89\ Pursuant to section 802, the purpose of the FDCPA is
to eliminate abusive debt collection practices by debt collectors, to
ensure that debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to
promote consistent State action to protect consumers against debt
collection abuses. Section 1006.9(a) thus provides that the purpose of
subpart B is to eliminate certain abusive debt collection practices by
debt collectors related to the global COVID-19 pandemic, to ensure that
debt collectors who refrain from using such abusive debt collection
practices are not competitively disadvantaged, and to promote
consistent State action to protect consumers against such debt
collection abuses.
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\89\ 15 U.S.C. 1692(e).
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Section 1006.9(a) also identifies the coverage of subpart B.
Section 1006.9(a) provides that subpart B applies to debt collectors,
as defined in FDCPA section 803(6),\90\ other than a person excluded
from coverage by section 1029(a) of the Dodd-Frank Wall Street Reform
and Consumer Protection Act (Dodd-Frank Act).\91\ Section 1006.9(a)
reflects the Bureau's FDCPA rulemaking authority as set forth in FDCPA
section 814(d).\92\
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\90\ 15 U.S.C. 1692a(6).
\91\ Public Law 113-203, 124 Stat. 1376, 2004 (2010) (12 U.S.C.
5519(a)).
\92\ FDCPA section 814(d) provides, in part, that the Bureau may
not prescribe rules under the FDCPA with respect to motor vehicle
dealers as described in section 1029(a) of the Dodd-Frank Act. 15
U.S.C. 1692l(d). Any motor vehicle dealers who are FDCPA-covered
debt collectors still need to comply with the FDCPA.
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9(b) Definitions
9(b)(1)
Section 1006.9(b)(1) provides that the terms ``consumer,''
``debt,'' and ``debt collector'' have the meaning given to them in
FDCPA section 803.\93\ FDCPA section 803(3) defines ``consumer'' as any
natural person obligated or allegedly obligated to pay any debt.\94\
FDCPA section 803(5) defines ``debt'' as any obligation or alleged
obligation of a consumer to pay money arising out of a transaction in
which the money, property, insurance or services which are the subject
of the transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to
judgment.\95\ A consumer's unpaid residential rent would typically fall
within the FDCPA's definition of debt because it is an obligation of a
consumer to pay money arising out of a transaction for personal,
family, or household purposes.\96\ FDCPA section 803(6) generally
defines ``debt collector'' as any person who uses any instrumentality
of interstate commerce or the mails in any business the principal
purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another. FDCPA section 803(6)'s
definition of ``debt collector'' also includes any creditor who, in the
process of collecting its own debts, uses any name other than the
creditor's own which would indicate that a third person is collecting
or attempting to collect such debts.
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\93\ 15 U.S.C. 1692a.
\94\ 15 U.S.C. 1692a(3).
\95\ 15 U.S.C. 1692a(5).
\96\ See, e.g., Romea, 163 F.3d at 115-16 (``[U]nder the FDCPA,
back rent is debt.''); Lipscomb, 109 F. Supp. 3d at 258-59
(concluding that ``the FDCPA applies where eviction proceedings
include an attempt to recover back rent'').
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9(b)(2)
Section 1006.9(b)(2) provides that the term ``CDC Order'' means the
order issued by the CDC titled Temporary Halt in Residential Evictions
to Prevent the Further Spread of COVID-19, as
[[Page 21170]]
extended by the CDC.\97\ As explained in part II, the CDC Order
generally prohibits a landlord, owner of a residential property, or
other person with a legal right to pursue eviction or possessory action
from evicting for non-payment of rent any covered person from any
residential property in any jurisdiction in which the Order applies
during the effective period of the Order.\98\ The CDC Order will remain
in effect until June 30, 2021, unless extended, modified, or rescinded.
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\97\ 86 FR 16731 (Mar. 31, 2021). In the event the CDC further
extends the CDC Order, the Bureau expects that the requirements and
prohibitions in this interim final rule will continue to apply until
the expiration of any such extension.
\98\ This prohibition applies, without limitation, to an agent
or attorney acting on behalf of a landlord or owner of the
residential property. Id. at 16732 n.3.
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9(b)(3)
Section 1006.9(b)(3) provides that the term ``eviction notice''
means the earliest of any written notice that the laws of any State,
locality, territory, or tribal area require to be provided to a
consumer before an eviction action against the consumer may be filed.
Not all jurisdictions require such a notice, and some jurisdictions may
require more than one. The definition clarifies that, for purposes of
this interim final rule, the term eviction notice refers to the
earliest of any such notice that must be provided. Jurisdictions that
do require such a notice may refer to the notice using different
names.\99\ The definition of eviction notice is meant to encompass all
such required notices, regardless of the names by which those notices
are known. Thus, comment 9(b)(3)-1 clarifies that the term eviction
notice includes, for example, notices to quit, notices to pay rent or
quit, and notices to terminate tenancy. As explained in the section-by-
section analysis of Sec. 1006.9(c)(1), a debt collector who provides a
consumer with an eviction notice while the CDC Order is in effect may
be required at that time to disclose to the consumer certain
information about the CDC Order.
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\99\ See, e.g., Ala. Code 35-9A-421 (``Noncompliance with rental
agreement; failure to pay rent.''); Ariz. Rev. Stat. Ann. 33-1368
(``Noncompliance with rental agreement by tenant; failure to pay
rent; utility discontinuation; liability for guests; definition.'');
DC Code Ann. 42-3505.01(a) (providing that ``[a]ll notices to vacate
shall contain a statement detailing the reasons for the eviction'');
Fla. Stat. Ann. 83.56(3) (``Termination of rental agreement.''); 735
Ill. Comp. Stat. 5/9-209 (``Demand for rent--eviction action.'');
Kan. Stat. Ann. 58-2564(b) (``Material noncompliance by tenant;
notice; termination of rental agreement; limitations; nonpayment of
rent; remedies.''); N.C. Gen. Stat. 42-3 (``Term forfeited for
nonpayment of rent.''); Tex. Prop. Code Ann. 24.005 (``Notice to
Vacate Prior to Filing Eviction Suit.''); Vt. Stat. Ann. tit. 9,
4467 (``Termination of tenancy; notice.''); Wis. Stat. Ann. 704.17
(``Notice terminating tenancies for failure to pay rent or other
breach by tenant.'').
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9(c) Prohibitions
Section 1006.9(c) prohibits certain deceptive and unfair acts by
debt collectors. As discussed further below, Sec. 1006.9(c)(1)
generally prohibits debt collectors from filing an eviction action
against a consumer to whom the CDC Order reasonably might apply without
disclosing that the consumer may be eligible for temporary protection
from eviction under the CDC Order. Section 1006.9(c)(2) prohibits debt
collectors from falsely representing or implying to a consumer that the
consumer is not eligible for temporary protection from eviction under
the CDC Order.
The prohibitions in Sec. 1006.9(c) apply only if certain initial
conditions are satisfied. First, because this interim final rule is
designed to address deceptive and unfair debt collection practices with
respect to the CDC Order, the prohibitions apply only during the
effective period of the CDC Order, and only in jurisdictions in which
the CDC Order is effective. As already noted, the CDC Order is set to
expire on June 30, 2021, unless extended, modified, or rescinded. The
CDC Order does not apply in any State, local, territorial, or tribal
area with a moratorium on residential evictions that provides the same
or greater level of public-health protection than the requirements
listed in the CDC Order.\100\
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\100\ 86 FR 16731, 16736 (Mar. 31, 2021). See also CDC Order
FAQs, supra note 32. State, local, territorial, and tribal moratoria
are discussed further in the section-by-section analysis of Sec.
1006.9(c)(1).
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Second, the prohibitions in Sec. 1006.9(c) apply only to a debt
collector's conduct in connection with the collection of a debt. That
is because the Bureau is adopting Sec. 1006.9(c) pursuant to its
authority to interpret FDCPA sections 807 and 808, which prohibit
certain conduct by debt collectors in connection with the collection of
a debt.\101\
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\101\ As discussed elsewhere in this interim final rule, FDCPA
section 807 generally prohibits debt collectors from using any
false, deceptive, or misleading representation or means in
connection with the collection of any debt, and FDCPA section 808
generally prohibits debt collectors from using unfair or
unconscionable means to collect or attempt to collect any debt.
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9(c)(1)
According to the CDC, an eviction moratorium--like quarantine,
isolation, and social distancing--can be an effective public-health
measure to prevent the spread of COVID-19.\102\ Evicted renters must
move, which can increase the risk of COVID-19 spread, particularly
given that, according to the CDC, a large number of evicted renters may
move into close quarters in shared housing or become homeless.\103\ In
addition, according to the CDC, the risk of eviction for non-payment of
rent is related to factors such as suffering a job loss, having limited
financial resources, low income, or high out-of-pocket medical
expenses.\104\ As noted in part II, to qualify for the CDC Order's
eviction moratorium, a person must submit a written declaration under
penalty of perjury attesting to certain eligibility criteria generally
establishing that, because of the person's financial situation, the
person is unable to make full rental payments and, if evicted, likely
would become homeless or would be required to move into a congregate or
shared living setting.\105\
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\102\ 86 FR 16731, 16733 (Mar. 31, 2021).
\103\ Id. at 16734-35.
\104\ Id. at 16731 n.2.
\105\ Id. at 16731-32.
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Based on informal outreach to consumer advocates and other
stakeholders discussed in part II, and the GAO report discussed in part
II,\106\ the Bureau understands that many consumers are unaware that
they may be temporarily protected from eviction for nonpayment of rent
under the CDC Order, or, if they are aware of the Order, they may
believe its protections apply automatically or may not otherwise
understand the steps needed to avail themselves of such protections.
Consumers who are unaware of the CDC Order cannot evaluate whether they
qualify for protection under the eligibility criteria set forth in the
Order. Consumers who assume the protections apply automatically or do
not understand the steps needed to exercise their protections may fail
to take such necessary steps, including submitting a declaration. As a
result, some consumers who otherwise might be permitted to remain in
their homes during the pendency of the CDC Order may be evicted because
they fail to claim such protection or may choose to leave before being
evicted (i.e., either before any eviction action is filed, or after an
eviction action is filed but before any physical eviction takes place).
And, as discussed in the CDC Order, evictions can undermine public
health by contributing to the spread of COVID-19. Requiring debt
collectors to disclose the existence of the CDC Order to certain
consumers in certain circumstances will help to address these harms by
increasing the likelihood that
[[Page 21171]]
consumers will become aware of the Order, and that consumers eligible
for protection under the Order will take the steps necessary to obtain
and invoke that protection.
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\106\ See GAO Report, supra note 61, at 1 (describing how
``clear, accurate, and timely information'' is ``essential to keep
the public informed'' during the COVID-19 pandemic).
---------------------------------------------------------------------------
For these reasons, Sec. 1006.9(c)(1) provides that, during the
effective period of the CDC Order, a debt collector collecting a debt
in any jurisdiction in which the Order applies must not, in connection
with the collection of that debt, file an eviction action for non-
payment of rent against a consumer to whom the CDC Order reasonably
might apply without disclosing to that consumer clearly and
conspicuously in writing, on the date that the debt collector provides
the consumer with an eviction notice or, if no eviction notice is
required by applicable law, on the date that the eviction action is
filed, that the consumer may be eligible for temporary protection from
eviction under the CDC Order.
Section 1006.9(c)(1) specifies that a debt collector must provide
the disclosure only if the debt collector files an eviction action for
non-payment of rent by the consumer. A debt collector who files an
eviction action unrelated to the payment of rent would typically not be
acting ``in connection with the collection of a debt,'' which is
required for the FDCPA to apply. The disclosure requirement is
consistent in this respect with the CDC Order, which specifies that the
Order does not preclude evictions based on certain conduct by a tenant,
lessee, or resident unrelated to the non-payment of rent. Specifically,
the CDC Order does not preclude evictions based on a tenant, lessee, or
resident: (1) Engaging in criminal activity while on the premises; (2)
threatening the health or safety of other residents; (3) damaging or
posing an immediate and significant risk of damage to property; (4)
violating any applicable building code, health ordinance, or similar
regulation relating to health and safety; (5) or violating any other
contractual obligation, other than the timely payment of rent or
similar housing-related payment (including non-payment or late payment
of fees, penalties, or interest).\107\
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\107\ 86 FR 16731, 16736 (Mar. 31, 2021).
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Comment 9(c)(1)-1 clarifies that a debt collector does not file an
action to evict a consumer for non-payment of rent if the debt
collector files the action based solely on the consumer engaging in one
or more of the actions specified in the CDC Order as unrelated to the
payment of rent. If a debt collector files an eviction action for non-
payment of rent and other reasons unrelated to non-payment, the
disclosure requirement applies. For ease of reference, this interim
final rule refers to an eviction action that meets all of the
conditions of Sec. 1006.9(c)(1) (i.e., filed by a debt collector
during the effective period of the CDC Order, in a jurisdiction in
which the Order applies, and for nonpayment of rent against a consumer
to whom the Order reasonably might apply) as an ``eviction action.''
Section 1006.9(c)(1) requires debt collectors to provide the
disclosure only to consumers to whom the CDC Order reasonably might
apply. Comment 9(c)(1)-2 clarifies that a consumer to whom the CDC
Order reasonably might apply is a consumer who reasonably might be
eligible to be a covered person as defined in the CDC Order.\108\
Comment 9(c)(1)-2 also clarifies that a consumer is not reasonably
eligible to be a covered person if the debt collector has knowledge
that the consumer is not eligible for protection under the CDC Order.
If a particular consumer would not actually qualify for temporary
eviction protection under the CDC Order, then there is likely no
deception or unfairness to cure, no consumer benefit from receiving a
disclosure about the Order, and no reason to cause debt collectors to
incur the expense of providing such a disclosure.
---------------------------------------------------------------------------
\108\ See supra note 24.
---------------------------------------------------------------------------
The Bureau recognizes that, given the multiple factual assertions
to which a consumer must attest in the declaration before the
protections of the CDC Order attach, in many circumstances it will be
difficult for a debt collector to identify the consumers to whom the
CDC Order reasonably might apply. Accordingly, Sec. 1006.9(c)(1) does
not require a debt collector to make an individualized determination as
to a consumer's eligibility for protection under the CDC Order in
connection with providing the disclosure. Comment 9(c)(1)-2 clarifies
that nothing in Sec. 1006.9(c)(1) prohibits a debt collector from
providing the disclosure to a consumer even if the consumer might not
reasonably be eligible to be a covered person. In addition, comment
9(c)(1)-2 clarifies that a debt collector may comply with the Sec.
1006.9(c)(1) disclosure requirement by, for example, providing the
disclosure to each consumer against whom the debt collector files an
eviction action for non-payment of rent.\109\ Comment 9(c)(1)-2 also
clarifies that a debt collector does not violate FDCPA sections 807 or
808 merely because the debt collector provides the disclosure to
consumers as described in comment 9(c)(1)-2 even if the consumer is not
reasonably eligible to be a covered person.
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\109\ For example, under the interim final rule, if a debt
collector concludes that the CDC Order would not reasonably apply to
a particular consumer, the debt collector need not provide the
disclosure to that consumer. However, the debt collector also would
not violate the interim final rule if the debt collector provided
the disclosure to that consumer out of an abundance of caution. More
generally, a debt collector would not violate the interim final rule
if the debt collector provided the disclosure to a consumer against
whom the debt collector files a covered eviction action without
making an individualized determination whether the CDC Order is
reasonably likely to apply to that consumer.
---------------------------------------------------------------------------
Given that eligibility under the CDC Order depends on the
consumer's personal circumstances and actions, the Bureau expects that,
in most situations involving non-payment of rent, a debt collector will
not know whether a consumer reasonably might be eligible for protection
under the Order. The Bureau therefore expects that most debt collectors
will provide the disclosure to most or all consumers to whom they
provide an eviction notice for non-payment of rent or against whom they
file an eviction action for non-payment of rent. The Bureau notes that
Sec. 1006.9(c)(1) requires debt collectors to disclose to consumers
that the consumers ``may'' be eligible for temporary protection from
eviction under the CDC Order. The Bureau believes that, in this
context, the disclosure does not convey, impliedly or expressly, that
the debt collector has determined that the consumer is eligible for
protection under the CDC Order. Accordingly, nothing in the disclosure
constitutes legal advice, and a debt collector does not violate the
FDCPA by providing the disclosure to a consumer to whom the protection
is not reasonably likely to apply or to whom the protection does not
ultimately apply.
Section 1006.9(c)(1) requires a debt collector to provide the
disclosure on the date that the debt collector provides the consumer
with an eviction notice or, if no eviction notice is required by
applicable law, on the date that the eviction action is filed.\110\
Formal notices and court filings are likely to command a consumer's
attention and crystallize the threat of eviction. Thus, requiring debt
collectors to provide the disclosure on the same date as they provide
these documents helps ensure that consumers receive information about
the CDC Order when that information may be especially salient to
[[Page 21172]]
them and they may be most likely to act on that information.
Information about the CDC Order may be especially salient and important
to a consumer when the consumer receives an eviction notice. Consumers
who believe they qualify for protection under the CDC Order and receive
the disclosure at that time may be less likely to leave the property of
their own accord in the mistaken belief that the debt collector can
physically evict them.\111\ For consumers who do not receive an
eviction notice, information about the CDC Order may be especially
salient and important when an eviction action is filed. As noted above,
the CDC Order does not prohibit the filing of eviction actions; the
Order prohibits only the actual, physical removal of persons covered by
the Order from their homes.\112\ Thus, a consumer who receives the
disclosure at the time an eviction action is filed will still be able
to take action to obtain the CDC Order's protection before the harm the
Order addresses (i.e., physical removal) takes place.\113\
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\110\ If, as of the date this interim final rule takes effect, a
debt collector has provided the consumer an eviction notice but not
yet filed an eviction action, the debt collector would comply by
providing the disclosure on the date that the eviction action is
filed.
\111\ See part II.D for discussion of informal evictions.
\112\ See CDC Order FAQs, supra note 32.
\113\ If the landlord or the property manager rather than the
debt collector provides the eviction notice, Sec. 1006.9(c)(1)
requires the debt collector to provide the disclosure on the date
that the debt collector files the eviction action--even if the
landlord or the property manager separately disclosed the existence
of the CDC Order.
---------------------------------------------------------------------------
Section 1006.9(c)(1) requires a debt collector to disclose to the
consumer on the same date that--but not necessarily at the same time
as--the debt collector provides the consumer with an eviction notice or
files an eviction action. Accordingly, comment 9(c)(1)-3 clarifies that
a debt collector may satisfy this requirement by, for example,
delivering the disclosure to the address that is the subject of
eviction proceedings; the debt collector is not required to ensure that
the consumer actually receives the disclosure. Delivering the
disclosure to the address that is the subject of the eviction
proceedings, particularly if provided with the notice of eviction or
eviction filing, makes it highly likely that the consumer will receive
the disclosure. In light of this, requiring debt collectors to ensure
that consumers actually receive the disclosure would be unduly
burdensome for debt collectors. The Bureau also notes that the FDCPA's
disclosure requirements generally do not require debt collectors to
ensure actual receipt.\114\
---------------------------------------------------------------------------
\114\ See 15 U.S.C. 1692g.
---------------------------------------------------------------------------
Additionally, the Bureau recognizes that, to minimize costs, a debt
collector may wish to provide the disclosure at the same time that the
debt collector provides the consumer with an eviction notice or serves
the consumer with an eviction action. The Bureau does not believe that
this would reduce the effectiveness of the disclosure for consumers.
Therefore, comment 9(c)(1)-3 clarifies that a debt collector may
provide the disclosure at the same time that the debt collector
provides the consumer with any eviction notice or serves the consumer
with any eviction action. For example, a debt collector may, but is not
required to, include the disclosure in an envelope either on or with
the eviction notice or in the same mailing in which the debt collector
serves the consumer with an eviction action.\115\
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\115\ In the case of eviction actions, service of process often
happens shortly after filing, so providing the disclosure at the
time of service still ensures that consumers receive the disclosure
when information about the CDC Order is likely to be relevant to
them.
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Comment 9(c)(1)-4 clarifies that Sec. 1006.9(c)(1) does not
require a debt collector to provide the disclosure more than once.
Nevertheless, the Bureau also believes that a consumer who has been
provided the disclosure once would not be harmed by receiving the
disclosure again. Accordingly, comment 9(c)(1)-4 also clarifies that
nothing in Sec. 1006.9(c)(1) prohibits a debt collector from providing
the disclosure more than once, such as in each subsequent communication
with the consumer. Comment 9(c)(1)-4 further clarifies that, in
addition, a debt collector does not violate FDCPA sections 807 or 808
merely because the debt collector provides the disclosure more than
once.
As noted, Sec. 1006.9(c)(1) requires the debt collector to
disclose that the consumer may be eligible for temporary protection
from eviction under the CDC Order. Comment 9(c)(1)-5 provides sample
language that a debt collector may use to comply with this disclosure
requirement. The sample language alerts consumers to the possibility of
protection from eviction, prompts them to take follow-up steps, and
directs them to further resources available on the Bureau's website and
by telephone through the Department of Housing and Urban Development's
Housing Counseling Program. Specifically, comment 9(c)(1)-5.i provides
sample language that a debt collector may use to comply with this
disclosure requirement if the debt collector is disclosing that the
consumer may be eligible for temporary protection from eviction solely
under the CDC Order. The sample language in comment 9(c)(1)-5.i states:
``Because of the global COVID-19 pandemic, you may be eligible for
temporary protection from eviction under Federal law. Learn the steps
you should take now: visit www.cfpb.gov/eviction or call a housing
counselor at 800-569-4287.'' \116\ Comment 9(c)(1)-5.i also clarifies
that a debt collector does not violate FDCPA sections 807 or 808 merely
because the debt collector provides the sample language in comment
9(c)(1)-5.i to a consumer in a jurisdiction in which the CDC Order does
not apply.
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\116\ Section 1006.9(c)(1) requires a debt collector to disclose
that the consumer may be eligible for temporary protection from
eviction under the CDC Order. The Bureau believes that consumers may
be more familiar with the term ``Federal law'' than the term ``CDC
Order,'' particularly given the Bureau's concern that consumers may
be unaware of the CDC Order's existence. To aid consumer
comprehension, the sample language in comment 9(c)(1)-5 therefore
uses the term ``Federal law.''
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The Bureau recognizes that the CDC Order does not apply in any
State, local, territorial, or tribal area with a moratorium on
residential evictions that provides the same or greater level of
public-health protection than the CDC Order.\117\ Section 1006.9(c)(1)
does not require debt collectors collecting debts in such jurisdictions
to disclose such protections, but debt collectors may nevertheless wish
to do so.\118\ The Bureau also recognizes that a debt collector may be
uncertain about whether the CDC Order or a State, local, territorial,
or tribal moratorium applies in a particular jurisdiction because it
may be unclear whether the CDC Order is more protective than any such
moratorium. As a result, a debt collector may wish to disclose that the
consumer may be eligible for temporary protection from eviction under
the CDC Order or under State, local, territorial, or tribal law.
Comment 9(c)(1)-5.ii provides alternative sample language that a debt
collector may use to make such a disclosure while satisfying Sec.
1006.9(c)(1). The sample language in
[[Page 21173]]
comment 9(c)(1)-5.ii states: ``Because of the global COVID-19 pandemic,
you may be eligible for temporary protection from eviction under the
laws of your State, territory, locality, or tribal area, or under
Federal law. Learn the steps you should take now: visit www.cfpb.gov/eviction or call a housing counselor at 800-569-4287.'' Comment
9(c)(1)-5.ii also clarifies that a debt collector does not violate
FDCPA sections 807 or 808 merely because the debt collector provides
the sample language in comment 9(c)(1)-5.ii to a consumer in a
jurisdiction in which only the CDC Order applies or in which the CDC
Order does not apply.
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\117\ 86 FR 16731, 16736 (Mar. 31, 2021).
\118\ In light of the large number of potential State, local,
territorial, and tribal moratoria, the Bureau has not made a finding
in this interim final rule that it is unfair or deceptive under the
FDCPA for a debt collector in a jurisdiction in which such a
moratorium applies to file an eviction action against a consumer
without disclosing that moratorium to the consumer. Nevertheless, a
debt collector's failure to disclose such information to a consumer
may violate the FDCPA's prohibitions on deception or unfairness (or
both) for the same reasons discussed in this interim final rule with
respect to the failure to disclose the CDC Order, particularly if
State, local, territorial, or tribal law offers greater protection
than the CDC Order. Providing the disclosure in comment 9(c)(1)-5.ii
likely cures any deception or unfairness under FDCPA sections 807 or
808 that would arise from the failure to disclose a more protective
State, local, territorial, or tribal law. Nothing in Sec.
1006.9(c)(1) affects a debt collector's obligation to provide any
moratorium-related disclosure required by State, local, territorial,
or tribal law.
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Section 1006.9(c)(1) requires the debt collector to make the
disclosure clearly and conspicuously in writing. Requiring debt
collectors to provide the disclosure to consumers clearly and
conspicuously and in writing rather than electronically (such as by
email) increases the likelihood in the context of eviction during the
global COVID-19 pandemic that consumers will actually receive and
understand the disclosure, since the Bureau expects that most debt
collectors will provide the disclosure to the address that is the
subject of eviction proceedings. Requiring debt collectors to provide
the disclosure to consumers clearly and conspicuously and in writing
rather than orally (such as during a telephone call) increases the
likelihood that consumers will retain the disclosure, refer back to it
if necessary, and act upon it if appropriate. Comment 9(c)(1)-6
clarifies that clear and conspicuous means readily understandable. In
addition, the comment clarifies that the location and type size also
must be readily noticeable and legible to consumers, although no
minimum type size is mandated.
The Bureau is finalizing Sec. 1006.9(c)(1) as an interpretation of
FDCPA sections 807 and 808, pursuant to its authority under FDCPA
section 814(d) to prescribe rules with respect to the collection of
debts by debt collectors. FDCPA section 807 generally prohibits debt
collectors from using any false, deceptive, or misleading
representation or means in connection with the collection of any debt.
In addition, FDCPA section 807(2)(A) specifically prohibits falsely
representing the character, amount, or legal status of any debt; FDCPA
section 807(4) specifically prohibits representing or implying that
non-payment of a debt will result in, among other things, the seizure
or sale of any property unless such action is lawful and the debt
collector or creditor intends to take such action; and FDCPA section
807(5) specifically prohibits threatening to take any action that
cannot legally be taken or that is not intended to be taken.
Because of the continuing health and safety risks posed by the
COVID-19 pandemic, the CDC Order provides temporary protection to
certain consumers against whom a covered eviction action is filed. A
debt collector who nevertheless files a covered eviction action against
a consumer may explicitly or implicitly represent to the consumer that
the consumer is not eligible, and could not become eligible, for
protection under the CDC Order.\119\ This representation is false or
misleading when made to consumers who are eligible, or could become
eligible, for protection under the CDC Order (such as if they submitted
a declaration). Further, such a misrepresentation is similar to a false
representation of the character and legal status of a debt, which FDCPA
section 807(2)(A) specifically prohibits. It is also similar to a false
representation that non-payment will result in the seizure or sale of
property. And it is similar to a threat to take an action that cannot
legally be taken, which FDCPA section 807(5) specifically prohibits.
The disclosure required by Sec. 1006.9(c)(1) corrects this false
representation by informing consumers that temporary protection from
eviction may be available under the CDC Order.
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\119\ Similarly, as the Bureau and many courts have recognized,
the filing of a legal action to collect a time-barred debt
explicitly or implicitly misrepresents to the consumer that the debt
is legally enforceable. See 86 FR 5766, 5778 (Jan. 19, 2021).
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FDCPA section 808 generally prohibits a debt collector from using
unfair or unconscionable means to collect or attempt to collect any
debt. In addition, FDCPA section 808(6)(C) specifically prohibits a
debt collector from taking or threatening to take any nonjudicial
action to effect dispossession or disablement of property if the
property is exempt by law from such dispossession or disablement. As
explained above, the Bureau believes that many consumers are unaware
that they may be temporarily protected under the CDC Order from
eviction for non-payment of rent. As also explained above, the Bureau
believes that lack of awareness about the CDC Order, including that the
protections are not automatic and the requirement that the consumer
provide a declaration, causes some consumers who would be eligible for
such temporary protection to forgo it. For such consumers--and for
public health more broadly--this harm is significant. Furthermore,
evicting a consumer who would have been protected under the CDC Order,
had the consumer known about the CDC Order, is similar to taking an
action to effect dispossession of property that is exempt from such
dispossession. For these reasons, the Bureau concludes that a debt
collector violates FDCPA section 808's prohibition on unfairness by
filing a covered eviction action against a consumer without disclosing
to the consumer clearly and conspicuously in writing, on the date that
the debt collector provides the consumer with an eviction notice or, if
no eviction notice is required by applicable law, on the date that the
eviction action is filed that the consumer may be eligible for
temporary protection from eviction under the CDC Order.
9(c)(2)
The Bureau understands, based on informal outreach to consumer
advocates and other stakeholders, that some debt collectors may have
falsely represented or implied to consumers that those consumers are
ineligible for protection under the CDC Order.\120\ False statements
about a consumer's ineligibility for protection under the CDC Order may
cause an eligible consumer to forgo that protection, possibly leading
to the consumer's departure or eviction from residential property in
which the consumer otherwise would have been entitled to remain for the
duration of the CDC Order's eviction moratorium. Such departures or
evictions can contribute to the spread of COVID-19 by forcing consumers
to move, often into close quarters in shared or congregate housing
settings.\121\
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\120\ For example, as described in part II, consumer advocates
and legal aid organizations have reported, among other conduct,
instances (which the Bureau has not independently verified) of
landlord attorneys refusing to accept a signed tenant declaration
when presented with one or advising landlords to have their property
managers tell tenants who present a signed declaration that they are
not eligible under the CDC Order.
\121\ 86 FR 16731, 16734-35 (Mar. 31, 2021).
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For these reasons, Sec. 1006.9(c)(2) provides that, during the
effective period of the CDC Order, a debt collector collecting a debt
in any jurisdiction in which the Order applies must not, in connection
with the collection of that debt, falsely represent or imply to a
consumer that the consumer is ineligible for temporary protection from
eviction under the CDC Order. The Bureau is finalizing Sec.
1006.9(c)(2) as an interpretation of FDCPA section 807, pursuant to its
authority under FDCPA section 814(d) to prescribe rules with respect to
the collection of debts by debt collectors. As noted above, FDCPA
section 807
[[Page 21174]]
generally prohibits debt collectors from using any false, deceptive, or
misleading representation or means in connection with the collection of
any debt. A debt collector who, in connection with the collection of a
debt, falsely represents or implies to a consumer that the consumer is
ineligible for protection under the CDC Order uses false, deceptive, or
misleading means to collect the debt. Such activity therefore violates
FDCPA section 807.
Supplement I to Part 1006--Official Interpretations
The interim final rule adds Supplement I to Regulation F to publish
official interpretations of the regulation (i.e., commentary). Comment
I-1 explains that the commentary is the Bureau's vehicle for
supplementing Regulation F and that the provisions of the commentary
are issued under the same authorities as the corresponding provisions
of Regulation F and in accordance with the notice-and-comment
procedures of the APA.
VI. Effective Date
This interim final rule is effective on May 3, 2021. Although this
interim final rule is being issued without notice and opportunity for
comment for the good cause reasons described in part IV above (i.e.,
the vulnerability of renters to the negative economic impacts of the
pandemic, the risk of eviction, and the health and safety consequences
that may ensue), the interim final rule will impose a new disclosure
requirement on debt collectors. Consequently, debt collectors may need
some time to become aware of the new disclosure requirement and
implement it into their processes and systems to the extent they are
engaged in the evictions process. The Bureau does not believe that a
lengthy compliance period is necessary, however, in view of the
disclosure's short length and simplicity, and because the disclosure
does not need to be customized to the specific consumer.\122\ The
Bureau also plans on engaging in robust regulatory implementation and
consumer education efforts to increase stakeholder awareness of the
interim final rule. The compliance period thus balances these
considerations.
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\122\ In addition, the Bureau notes that debt collectors may,
but are not required to, comply with the interim final rule's
disclosure requirement before the effective date.
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VII. Dodd-Frank Act Section 1022(b) Analysis
A. Overview
In developing this interim final rule, the Bureau has considered
the potential benefits, costs, and impacts as required by section
1022(b)(2)(A) of the Dodd-Frank Act.\123\ Specifically, section
1022(b)(2)(A) of the Dodd-Frank Act requires the Bureau to consider the
potential benefits and costs of a regulation to consumers and covered
persons, including the potential reduction of access by consumers to
consumer financial products or services, the impact on depository
institutions and credit unions with $10 billion or less in total assets
as described in section 1026 of the Dodd-Frank Act, and the impact on
consumers in rural areas. The Bureau consulted with appropriate
prudential regulators and other Federal agencies regarding the
consistency of this interim final rule with prudential, market, or
systemic objectives administered by such agencies, as required by
section 1022(b)(2)(B) of the Dodd-Frank Act.
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\123\ 12 U.S.C. 5512(b)(2)(A).
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This interim final rule amends Regulation F, which implements the
FDCPA. The interim final rule addresses certain debt collector conduct
associated with an eviction moratorium issued by the CDC in response to
the COVID-19 pandemic. The amendments would require that debt
collectors provide written notice to certain consumers of their
protections under the CDC Order and prohibit misrepresentations about
consumers' ineligibility for protection under such moratorium.
This interim final rule's purpose is to prevent debt collectors
from making false or misleading representations or engaging in unfair
practices associated with the eviction moratorium issued by the CDC. As
stated above, the CDC Order generally prohibits consumers protected by
the CDC Order from physical removal from residential property for non-
payment of rent. To be covered by the CDC Order, a person must submit a
written declaration under penalty of perjury attesting to certain
eligibility criteria generally establishing that, because of the
person's financial situation, the person is unable to make full rental
payments and, if evicted, would likely become homeless or would be
required to move into a congregate or shared living setting.
Despite the eviction moratorium, physical removals of consumers
from residential property have continued, potentially including
consumers who may have been eligible for protection under the CDC
Order. As discussed above, the GAO found that some renters may not
fully understand that they have to take action to become protected
under the CDC Order's eviction moratorium, and others may not
understand all of the required steps, including how to submit the
required declaration.\124\ The GAO concluded that, as the COVID-19
pandemic persists, potentially millions of renters and property owners
will continue to experience financial challenges, and that while the
CDC Order provides some measure of relief to struggling renters, some
renters facing eviction may be unaware of and unable to exercise the
moratorium, and therefore unnecessarily evicted.\125\ This interim
final rule prohibits debt collectors, in certain circumstances, from
filing an eviction action for non-payment of rent against a consumer to
whom the CDC Order reasonably might apply without disclosing to that
consumer in writing that the consumer may be eligible for temporary
protection from eviction under the CDC Order. The interim final rule
also clarifies that debt collectors, in certain circumstances, must not
falsely represent or imply to a consumer that the consumer is
ineligible for temporary protection from eviction under the CDC Order.
Therefore, this interim final rule may increase awareness of the CDC
Order for consumers who do not know about the CDC Order or who do not
understand the specific steps needed to avail themselves of the CDC
Order's temporary protections. This, in turn, may encourage consumers
to invoke the CDC Order's protections and subsequently reduce the
number of physical removals that the CDC Order is intended to prevent.
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\124\ See GAO Report, supra note 61, at 1.
\125\ Id. at 30.
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1. Data and Evidence
The discussion below relies on publicly available sources,
including reports published by the Bureau. These sources form the basis
for the Bureau's consideration of the likely impacts of the interim
final rule. To the extent possible, the Bureau provides estimates of
the potential benefits and costs to consumers, covered persons, and
landlords and residential property owners of this interim final rule
given available data. However, the data with which to quantify the
potential costs, benefits, and impacts of the interim final rule are
generally limited.
For the purpose of this analysis, the Bureau uses, among other
sources, publicly available data on eviction filings provided by the
Eviction Lab at Princeton University. The Bureau analyzed two datasets
from the Eviction Lab. The Eviction Lab Eviction Tracking System (ETS)
collects records of eviction case filings weekly for 27 cities
[[Page 21175]]
across the United States. The Bureau analyzed data from those 27 cities
through March 20, 2021. Second, the Bureau analyzed Eviction Lab data
from 2000 to 2016 that counts eviction filings nationally.
However, the Bureau does not have sufficient data that would allow
it to reliably estimate the national quantity of other relevant aspects
of the eviction process, such as eviction notices or the physical
removal of consumers from residential property. As explained below, a
more complete characterization of the benefits and costs of this
interim final rule requires a full catalog of eviction-related events
and the economic circumstances of the affected consumers. The Bureau is
not aware of the existence of such data.
In light of these data limitations, the analysis below generally
includes a qualitative discussion of the benefits, costs, and impacts
of the interim final rule, rather than a quantitative analysis. General
economic principles and the Bureau's expertise in consumer financial
markets, together with the limited data that are available, provide
insight into these benefits, costs, and impacts.
2. Description of the Baseline
The Bureau considers the benefits, costs, and impacts of the
interim final rule against a current law baseline that assumes the
Bureau takes no action. Under the baseline, the CDC Order continues to
be in effect until June 30, 2021.\126\ The assumed baseline assumes
that rental assistance remains available to eligible consumers through
the Department of Treasury's Emergency Rental Assistance Program along
with eviction moratoria, rent freezes, and rental assistance programs
implemented by State and local governments.\127\ These policies affect
the number of renters at risk of eviction under the baseline.
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\126\ At a date subsequent to the publication of this interim
final rule, the CDC may decide to extend the temporary protections
beyond its scheduled expiration on June 30, 2021. If extended, the
number of evictions delayed or prevented would likely increase, and
this would likely increase the benefits to consumers and the costs
to landlords, residential property owners, and covered persons.
\127\ See, e.g., Eviction Lab, COVID-19 HOUSING POLICY
SCORECARD, https://evictionlab.org/covid-policy-scorecard/ (last
visited Apr. 1, 2021); U.S. Dep't of the Treasury, Emergency Rental
Assistance Program, https://home.treasury.gov/policy-issues/cares/emergency-rental-assistance-program (last visited Apr. 1, 2021);
Perkins Coie LLP, COVID-19 Related Eviction and Foreclosure Orders/
Guidance 50-State Tracker (Mar. 29, 2021), https://www.perkinscoie.com/en/news-insights/covid-19-related-eviction-and-foreclosure-ordersguidance-50-state-tracker.html.
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The analysis of this interim final rule's benefits and costs
separately examines consumers and covered persons. Specifically, the
analysis of the costs and benefits associated with this interim final
rule examines the direct and indirect effects on consumers, their
landlords and other residential property owners, and debt collectors,
as defined by the FDCPA.
3. Benefits to Consumers
The interim final rule is intended to help ensure that consumers
who may face an eviction proceeding as a result of non-payment of rent
are aware of temporary eviction protections under the CDC Order and are
not misled about their ineligibility for such protections.
Under the baseline, consumers who are unaware of the CDC Order may
be removed from the property even though they would have been eligible
for the Order's protection had they taken certain steps.\128\ Some
consumers may be unaware of the eviction protections available under
the CDC Order and therefore may move out following receipt of an
eviction notice but before a formal eviction action is filed or
judgment issued.\129\ Some consumers may be falsely informed that they
are ineligible for the CDC Order's protections.
---------------------------------------------------------------------------
\128\ Minority renters, renters with lower income, and renters
with lower educational attainment are more likely to be behind on
rent payments than other consumers and therefore face a greater risk
of eviction. Based on Census Household Pulse Survey data from March
2021, about 12 percent of White renters reported being behind on
their rent, compared to 20 to 22 percent of non-White renters. About
19 percent of renters with pre-tax income less than $35,000 reported
being behind on their rent, compared to about 12 percent for
consumers with income between $35,000 and $75,000. Of renters
without a high school degree, over 26 percent reported being behind
on rent, compared to 17 percent for renters with a high school
degree and 7 percent for renters with a college degree.
\129\ See supra note 55.
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This interim final rule prohibits debt collectors from filing an
eviction action in a jurisdiction in which the CDC Order applies
without disclosing to certain consumers in writing that they may be
eligible for protections from eviction. The interim final rule further
clarifies that debt collectors are prohibited from falsely representing
or implying to a consumer that the consumer is ineligible for temporary
protection from eviction under the CDC Order. Therefore, this interim
final rule may help to ensure that consumers learn about the CDC Order
and take advantage of its temporary protections when appropriate. In
turn, the interim final rule may reduce physical removals that the CDC
Order is intended to prevent. Accordingly, this interim final rule may
subsequently reduce the number of consumers who become homeless or are
required to move into a congregate or shared living setting, the
related spread of COVID-19, and other related negative economic as well
as health and safety consequences.\130\
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\130\ 86 FR 16731, 16734 (Mar. 31, 2021).
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Number of Consumers Directly Affected
The Bureau expects that the consumers who will be most directly
affected by the interim final rule are those in jurisdictions in which
the CDC order applies who would receive eviction notices or be the
subject of a covered eviction action between the effective date of this
interim final rule and June 30, 2021. These renters may not currently
be aware of the temporary protection from eviction under the CDC Order.
This interim final rule would prohibit a debt collector from filing a
covered eviction action against a consumer without disclosing to the
consumer that the consumer may be eligible for temporary protection
from eviction under the CDC Order.\131\ The disclosure must be provided
on the date that the debt collector provides the consumer with an
eviction notice or, if no eviction notice is required by applicable
law, on the date that the eviction action is filed.
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\131\ Some renters may also benefit if landlords choose to delay
eviction proceedings as a result of the required disclosure. The
Bureau does not have the data to measure what fraction of landlords
of renters potentially covered by the CDC Order's eviction
moratorium would choose not to initiate an eviction proceeding as a
result of this interim final rule. As discussed below, the Bureau
expects that the direct costs of providing the disclosure are not
large. However, if landlords or residential property owners
anticipate that consumers are more likely to be covered by the CDC
Order as a result of the required disclosure, then the interim final
rule may reduce their incentive to initiate eviction proceedings.
---------------------------------------------------------------------------
Ideally, an analysis of the benefits and costs of this interim
final rule would separately include quantitative information on
eviction notices, eviction filings, and physical removals, both under
the baseline and with the disclosure mandated by this interim final
rule. However, the Bureau does not have sufficient data to estimate the
number of eviction notices issued by debt collectors or the number of
physical removals that occurred in either the period before the
beginning of the pandemic or since. The Bureau has some limited data on
eviction filings, which may not speak to effects on other covered
eviction actions or physical removals of the CDC Order or the interim
final rule.
Of the 27 cities for which data on eviction filings are available
from the Eviction Lab, 16 did not have an active local moratorium one
month prior to the
[[Page 21176]]
effective date of the CDC Order.\132\ Analyzing trends in eviction
filings among these cities, the data suggest that the CDC Order
standing alone did not have an immediate and measurable effect on the
rate of eviction filings. Eviction filings in the five weeks following
the effective date of the CDC Order continued at rates that were
similar to or higher than those immediately before.\133\
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\132\ These cities are Charleston, SC; Cincinnati, OH;
Cleveland, OH; Columbus, OH; Fort Worth, TX; Gainesville, FL;
Greenville, FL; Houston, TX; Jacksonville, FL; Kansas City, MO;
Memphis, TN; Milwaukee, WI; New York, NY; St. Louis, MO; Tampa, FL;
and Wilmington, DE.
\133\ Specifically, there were 20,741 eviction filings in those
16 cities over the period beginning August 23, 2020 and ending
August 29, 2020. Between September 6, 2020 and October 10, 2020,
there were 22,011 eviction filings. While evictions generally
increased through the summer of 2020, the effective date of the CDC
Order does not appear to coincide with a discrete change in the
number of eviction filings. This finding is consistent with an
analysis conducted by the GAO. See GAO Report, supra note 61.
---------------------------------------------------------------------------
From the analysis of eviction filings around the effective date of
the CDC Order, the finding that filings did not decline does not
necessarily imply that physical removals did not decline. However, it
does imply that if eviction filings continue at recent rates, many
consumers will receive a disclosure and may be directly affected by
this interim final rule. In the first 11 weeks of 2021, there were
approximately 5,000 eviction filings per week in the 27 cities for
which the Eviction Lab has made data available. Using the Eviction
Lab's historical annual data, between 2000 and 2016 these 27 cities
accounted for a roughly constant fraction of 5 percent of eviction
filings nationally.
To estimate the number of consumers that would receive the
disclosure and may be affected by this interim final rule, the Bureau
makes two assumptions. First, the Bureau assumes that, absent this
interim final rule, the rate of weekly eviction filings would continue
to be about 5,000 per week in the 27 cities. Second, the Bureau assumes
that the share of evictions accounted for nationally in the 27 cities
is 5 percent, the same as the share between 2000 and 2016. Under these
two assumptions, the Bureau estimates that at publication of this
interim final rule, there are roughly 100,000 eviction filings per
week, nationally. The interim final rule only applies to jurisdictions
where the CDC Order applies; the Bureau does not have a comprehensive
catalog of jurisdictions where more protective moratoria apply.
Somewhat fewer households would be subject to an eviction filing and
would receive the disclosure to the extent filings were made by debt
collectors in a jurisdiction where the CDC Order applies.\134\ Somewhat
more households may receive a disclosure accompanying another covered
eviction action. Nevertheless, the Bureau does not have data to
estimate what fraction of those households would invoke eviction
protections absent this interim final rule.
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\134\ The Bureau also does not have data to estimate the number
of renters who would receive the required disclosure because the
person providing the eviction notice or filing is a debt collector
covered by the interim final rule. Some landlords or residential
property owners may represent themselves in court, in which case the
interim final rule likely would not apply. However, the Bureau
understands that a large majority of landlords or residential
property owners hire an attorney to conduct eviction proceedings on
their behalf and that, therefore, the interim final rule would apply
to most eviction proceedings to which the CDC Order would apply
between the effective date and June 30, 2021. See Peterson &
McKitrick, supra note 39 (finding that in August 2020, nearly two-
thirds of eviction filings in Utah appear to have been filed by one
law firm); Ivry, supra note 39 (``Philadelphia landlords were
represented by legal counsel in 82 percent of eviction cases from
2015 to 2020, according to a study by Community Legal Services . . .
In Kansas City, 1.3 percent of tenants were represented from 2006 to
2016, while 84 percent of landlords had lawyers, according to the KC
Eviction Project.'').
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Direct Benefits: Evictions Delayed or Prevented
This interim final rule directly benefits consumers if it delays or
prevents consumers who are eligible for temporary eviction protection
under the CDC Order from physical removal from housing. For instance, a
physical removal may be delayed but not prevented if consumers invoke
their eviction protections but are nevertheless evicted following the
expiration of the CDC Order. An eviction may be prevented entirely if,
during the moratorium period, consumers who are delinquent on rent
become current, possibly through use of rental assistance funds made
available through the Department of Treasury's Emergency Rental
Assistance Program, and are not evicted after June 30, 2021. Delaying
or preventing evictions results in important health benefits during the
COVID-19 pandemic, which is the motivation for the CDC Order.\135\
---------------------------------------------------------------------------
\135\ See 86 FR 16731, 16737 (Mar. 31, 2021). The CDC Director
has determined that ``extending the temporary halt in evictions . .
. constitutes a reasonable measure . . . to prevent the further
spread of COVID-19 throughout the United States.'' Id.
---------------------------------------------------------------------------
Despite the CDC eviction moratorium, data available to the Bureau
indicate that evictions have continued.\136\ By requiring debt
collectors to provide a written disclosure about the CDC Order and by
clarifying that debt collectors are prohibited from making
misrepresentations about consumers' ineligibility for eviction
protection, this interim final rule may prevent or delay evictions
between the effective date and June 30, 2021.
---------------------------------------------------------------------------
\136\ Data from Eviction Lab show that there have been
approximately 5,000 eviction filings per week in 27 cities in the
first 11 weeks of 2021. See https://evictionlab.org/eviction-tracking/ (last visited Apr. 12, 2021).
---------------------------------------------------------------------------
The number of physical removals that will be delayed or prevented
as a result of this interim final rule is uncertain, and the Bureau is
not aware of data that could help to estimate it. The number of
evictions that might be prevented by the interim final rule depends on:
(1) The number of consumers who will receive an eviction notice or be
subject to an eviction action for non-payment of rent between the
effective date and June 30, 2021; (2) the share of those consumers who
will receive the disclosure (i.e., be covered by the interim final
rule); and (3) the extent to which the disclosure causes consumers who
receive it to avail themselves of the temporary protection afforded
under the CDC Order when they otherwise would not have. As discussed
above, there may be as many as 800,000 renters at risk of eviction
between the effective date of the interim final rule and June 30, 2021.
The Bureau does not have data to estimate how many of these renters
would receive the required disclosure under the interim final rule and
meet the criteria for protection under the CDC Order.\137\ This number
depends, among other things, on whether the source of eviction risk is
non-payment of rent and whether, if evicted, these renters likely would
become homeless or would be required to move into a congregate or
shared living setting.
---------------------------------------------------------------------------
\137\ See supra note 134.
---------------------------------------------------------------------------
The number of evictions prevented by the interim final rule also
depends on the effectiveness of the disclosure. For renters receiving
the required disclosure, its effect depends on whether they are already
aware of the CDC Order and, if they are not, on whether the renters
read, understand, and act on the disclosure. The effectiveness of a
disclosure depends on factors including consumers' comprehension of the
disclosure, consumers' beliefs in the authenticity of the disclosure,
and consumers' receipt of the disclosure at a time when they can act on
its information.\138\ Existing
[[Page 21177]]
studies of the effectiveness of disclosures in other settings suggest
that a disclosure's effectiveness may be limited, depending on how
effectiveness is measured and the context of the disclosure.\139\ Here,
the fact that the interim final rule not only requires a disclosure but
also prohibits certain misrepresentations by debt collectors about
consumer ineligibility for protection under the CDC moratorium may
increase the effectiveness of the disclosure.\140\
---------------------------------------------------------------------------
\138\ The Bureau is aware of evidence that many tenants may not
have knowledge of the CDC Order. Stakeholders, including consumer
advocates and legal aid organizations, have expressed concerns to
the Bureau that many consumers at risk of eviction either do not
know about the CDC Order or are uncertain about what steps they must
take to avail themselves of the CDC Order's eviction protections.
Notably, a GAO report analyzing the effectiveness of COVID-19
eviction moratoria found that some renters may not fully understand
how to use the CDC moratorium or complete the required declaration.
\139\ See Alicia Chin & Dustin H. Beckett, Don't watch me read:
How mere presence and mandatory waiting periods affect consumer
attention to disclosures, Behavioural Pub. Policy (Jan. 28, 2019),
https://www.cambridge.org/core/journals/behavioural-public-policy/article/abs/dont-watch-me-read-how-mere-presence-and-mandatory-waiting-periods-affect-consumer-attention-to-disclosures/D429B9196FC7C1DEAEB1C4ED609A0E7F. See also Mark A. LeBoeuf, Jessica
M. Choplin, & Debra Pogrund Stark, Eye See What You Are Saying:
Testing Conversational Influences on the Information Gleaned from
Home-Loan Disclosure Forms, Journal of Behavioral Decision Making
(May 17, 2015), https://onlinelibrary.wiley.com/doi/full/10.1002/bdm.1881.
\140\ The extent to which the disclosure may affect whether
consumers obtain the CDC Order's eviction protections may depend on
a number of factors. For example, consumers who expect that they
will continue to be unable to make rental payments may choose to
seek new housing before they have an opportunity to see the
disclosure. The disclosure's design and timing as well as consumers'
economic circumstances may also affect whether the disclosure would
change behavior. The Bureau is not aware of research quantifying the
extent to which factors such as these might limit the effect of the
disclosure.
---------------------------------------------------------------------------
To the extent that the interim final rule does delay or prevent
evictions that would otherwise take place prior to June 30, 2021, it
will benefit consumers by reducing their exposure to the risk of COVID-
19 infection, disease, and death. The Bureau cannot quantify the change
in exposure to COVID-19, nor the economic cost of COVID-19-related
morbidity and mortality.\141\ Recent research suggests that eviction
moratoria that predate the current CDC moratorium were associated with
significant reductions in the number of COVID-19 infections and
deaths.\142\ These reductions occurred while few U.S. adults had been
vaccinated and were due in large part to the continued ability of
renters to practice social distancing and good hygiene. Potentially
affected renters are those who would be evicted before June 30, 2021
under the baseline where the Bureau does not issue this interim final
rule.
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\141\ Among other data, morbidity and mortality estimates would
require health, demographic, and employment data on the population
of households that would benefit from the disclosures mandated by
this interim final rule.
\142\ See Kay Jowers & Christopher Timmins et al., Housing
Precarity & the COVID-19 Pandemic: Impacts of Utility Disconnection
and Eviction Moratoria on Infections and Deaths Across US Counties
(Jan. 2021), https://www.nber.org/papers/w28394 (estimating that
eviction moratoria are associated with a 3.8 percent reduction in
COVID-19 infections and a 11 percent reduction in deaths). See also
Kathryn M. Leifheit & Sabriya L. Linton et al., Expiring Eviction
Moratoriums and COVID-19 Incidence and Mortality (Nov. 30, 2020),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3739576 (cited
by CDC in its Order, 86 FR 16731, 16734 n.32 (Mar. 30, 2021),
estimating that lifting eviction moratoria was associated with
approximately 434,000 excess COVID-19 cases and 11,000 excess deaths
nationally).
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This interim final rule may decrease COVID-19-related risk for
several reasons. First, consumers who have not been evicted and
transitioned to a shared living situation or homelessness may be better
able to practice social distancing and good hygiene, one primary
hypothesis for the effectiveness of pandemic-related eviction moratoria
in recent academic research. Second, even if this interim final rule
only delays eviction, renters will face the housing challenges of
eviction--including limited ability to social distance--later, in a
period expected to have increased herd immunity and lower COVID-19 case
prevalence. It also means that these renters will have more opportunity
to become vaccinated before being exposed to higher-risk environments
such as those associated with group housing.\143\ As such, the Bureau
expects that renters who experience delayed eviction as a result of the
interim final rule will be at a lower overall risk of infection.
Nevertheless, the Bureau is not aware of data that may help to estimate
the number of COVID-19-related infections and deaths prevented as a
result of this interim final rule with any degree of precision.
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\143\ As of the publication of the interim final rule, the
United States has currently fully vaccinated roughly 20 percent of
the adult population, is administering roughly 3 million vaccine
doses per day, and is on pace to reach 4 million doses per day by
April 30, 2021. See How the Vaccine Rollout Is Going in Your County
and State, https://www.nytimes.com/interactive/2020/us/covid-19-vaccine-doses.html (Apr. 11, 2021). See also Press Briefing by White
House COVID-19 Response Team and Public Health Officials (Apr. 5,
2021), https://www.whitehouse.gov/briefing-room/press-briefings/2021/04/05/press-briefing-by-white-house-covid-19-response-team-and-public-health-officials-24/. At this pace, more than a third of
adults will be vaccinated by this interim final rule's effective
date. At 4 million doses per day, between May 1 and June 30, another
240 million doses and 120 million more adults will be vaccinated,
suggesting that more than three quarters of Americans will be
vaccinated before the expiration of the CDC Order.
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Consumers whose eviction is delayed or prevented by the interim
final rule may also benefit directly in other ways from decreased
housing insecurity. Evictions impose direct costs associated with
moving and may disrupt the lives of consumers. Evicted consumers are
subject to uncertain and unstable environments and often find housing
with family, in temporary group housing, or even become homeless.\144\
Notably, researchers have even hypothesized that the acute stress
associated with evictions may explain negative health outcomes in
children whose mothers experienced eviction while pregnant.\145\ To the
extent that eviction is delayed by the CDC Order, consumers may further
benefit from the delay by having the opportunity to make plans in
anticipation of being removed from housing. Some consumers may also be
able to take advantage of rental assistance programs and stay in their
homes beyond June 30, 2021. However, that benefit may be reduced if
consumers accrue additional rental debt, since the CDC Order does not
stop unpaid rent from accruing. The Bureau does not have data that can
be used to estimate the cost of the stresses associated with eviction-
related housing insecurity.
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\144\ 86 FR 16731, 16734 (Mar. 31, 2021).
\145\ Gracie Himmelstein & Matthew Desmond, Association of
Eviction with Adverse Birth Outcomes Among Women in Georgia, 2000 to
2016, JAMA Pediatrics (Mar. 1, 2021), https://jamanetwork.com/journals/jamapediatrics/fullarticle/2776776. The physical and mental
health consequences of physical removal are likely to be greater for
larger households with children and for consumers without health
insurance. See Matthew Desmond & Rachel Tolbert Kimbro, Eviction's
Fallout: Housing, Hardship, and Health, Social Forces (Feb. 24,
2015), https://scholar.harvard.edu/files/mdesmond/files/desmondkimbro.evictions.fallout.sf2015_2.pdf, and Matthew Desmond,
Evicting Children, Social Forces (May 17, 2013), https://scholar.harvard.edu/files/mdesmond/files/social_forces-2013-desmond-303-27.pdf. There is evidence that these groups are more likely to
be at risk of eviction. Based on Census Household Pulse Survey data
from March 2021, about 21 percent of renter households that include
children under 18 were behind on their rent, compared to about 11
percent of other households. About 25 percent of renters without
health insurance reported being behind on rent, compared to about 13
percent of renters with health insurance.
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Indirect Benefits
As described previously, the potential direct beneficiaries of this
interim final rule are consumers who would be removed from their
residence for non-payment of rent but who, because of the interim final
rule, acquire information about the CDC Order and utilize the Order's
temporary protection against eviction. However, consumers may also
indirectly benefit from this interim final rule. Although the Bureau
does not have data with which to quantify the magnitude of these
additional indirect
[[Page 21178]]
benefits, where possible, the Bureau describes describe some of these
indirect benefits below.
The CDC Order's eviction moratorium is premised, in part, on the
prediction that eviction limits consumers' ability to follow adequate
social distancing recommendations. Eviction potentially forces
consumers into shared living situations, housing with friends and
family, or homelessness; these circumstances may expose evicted
consumers to increased risk of COVID-19 infection.\146\
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\146\ See 86 FR 16731, 16737 (Mar. 31, 2021). The CDC Director
has determined that ``extending the temporary halt in evictions . .
. constitutes a reasonable measure . . . to prevent the further
spread of COVID-19 throughout the United States.'' Id.
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In turn, evicted consumers themselves may expose broader
populations of consumers to COVID-19 infection. When evicted consumers
move, they may spread COVID-19 to individuals in their new housing
situations and the community at large.\147\
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\147\ See id. at 16734-35.
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Thus, even if this interim final rule's effect on evictions and the
resulting direct reduction of renters' exposure to COVID-19 infection
is relatively small, the effects on public health could be significant
more broadly. Nevertheless, the Bureau does not have data required to
ascertain how evictions affect the direct and indirect risks of COVID-
19 infection.
4. Benefits and Costs to Landlords
Landlords and residential property owners (collectively in this
section, ``landlords'') generally are not debt collectors and therefore
generally will not be covered by the interim final rule.\148\ However,
landlords will be indirectly affected by the interim final rule to the
extent that they employ debt collectors to provide eviction notices or
engage in in eviction actions. The Bureau does not have data to
reliably estimate the number of landlords that employ debt collectors
for eviction-related activities but understands that in some
jurisdictions a majority of eviction filings are made by attorneys (who
in many cases are FDCPA-covered debt collectors).\149\
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\148\ In addition to the CDC Order, landlords and residential
property owners also may be affected by other government policies
undertaken in response to the COVID-19 pandemic, such as eviction
moratoria imposed by State or local governments. This interim final
rule does not address such government policies and the costs and
benefits of those interventions are not considered in this interim
final rule.
\149\ See NCBA, supra note 42.
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Landlords may benefit along with the general population from the
interim final rule's direct and indirect effects, especially those
related to health. However, landlords bear costs of evictions that are
delayed or prevented as a result of this interim final rule.
Specifically, the disclosure required by this interim final rule
may cause consumers to invoke their protections under the CDC Order and
prevent or delay physical removal from housing despite landlords
serving eviction notices or filing eviction lawsuits. Delaying physical
removal has different effects on landlords than preventing physical
removal. To understand why, suppose that this interim final rule causes
a consumer to invoke eviction protections. First, consider the case in
which protections under the CDC Order only delay physical removal for
non-payment of rent until after June 30, 2021. In that case, the
landlord may be delayed in replacing lost rental revenue streams,
meaning that the landlord would lose some rental income from their
property. Landlords may not be able to recover this income through
subsequent collection efforts.\150\ Second, consider the case in which
protections under the CDC Order prevent physical removal for non-
payment of rent altogether, because the delay permits renters to become
current on rent prior to the completion of an eviction proceeding. For
instance, renters' economic situations may improve, or they may benefit
from rental assistance programs such as the Department of Treasury's
Emergency Rental Assistance Program. In this case, the landlord's
revenue may not be lost, only delayed. Relative to the baseline where
the renter is removed, the landlord bears the cost of a late payment
but may avoid costs associated with replacing the renter.\151\
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\150\ It may be difficult for landlords to recover unpaid rent
owed by consumers who eventually vacate the property, for example,
because it is difficult for landlords or their agents to locate
consumers who have moved and because those consumers may not have
funds from which they can pay amounts owed.
\151\ Landlords, especially smaller ones, may rely on rental
income to service other debt or liabilities. If the interim final
rule interrupts rental income by causing renters to invoke eviction
protections, landlords may bear additional costs associated with
becoming delinquent or defaulting on other debts. However, mortgage
forbearance programs in the baseline may help landlords mitigate
some of those costs.
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Landlords are generally unable to predict whether renters fall into
the first or second category above. If they were able to, they may not
take eviction actions against the latter category because the cost of a
delayed payment may be small relative to the cost of replacing the
renter.\152\ To the extent that this interim final rule prevents
evictions, it may offset some of the economic costs to landlords caused
by delayed evictions.
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\152\ The opportunity costs of eviction may be exacerbated by
external factors. For example, the landlord may be liquidity
constrained, the unit may be rent controlled, or the local rental
market may experience extremely high demand.
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The Bureau is unaware of data that would allow it to estimate the
lost revenue that landlords would experience as a result of this
interim final rule. Specifically, the Bureau does not have data to
estimate which renters would invoke their protections under the CDC
Order, which renters would be able to eventually become current on
their rent, or the rent of their respective rental units.
5. Benefits and Costs to Covered Persons
Debt collectors who engage in eviction-related activities on behalf
of landlords may be subject to three costs as a result of this interim
final rule. First is the direct cost of providing the required
disclosure. The Bureau does not have direct evidence on costs of
eviction notices but believes that the cost associated with providing
the required disclosure is negligible, given that: (1) The disclosure
requires at most one additional printed page; (2) the disclosure is
required in connection with a notice that already must be provided to
the consumer; and (3) the disclosure does not need to be customized to
the specific consumer.\153\ Even for larger debt collectors that serve
automated eviction notices en masse, the Bureau does not anticipate
large costs associated with including a disclosure that does not
include consumer-specific information.
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\153\ The Bureau has previously estimated that debt collectors
face estimated ongoing printing and mailing costs from providing
validation notices to consumers of $0.50 to $0.80 per notice. See 86
FR 5848 (Jan. 19, 2021). The Bureau anticipates that such costs will
be significantly lower here, in particular because the notice can be
provided with other required notices, reducing postage costs
associated with the required notice.
---------------------------------------------------------------------------
Second, debt collectors may incur one-time costs to train staff and
update systems to ensure that the disclosure is provided and to
demonstrate compliance. These costs are unlikely to be large, given
that the disclosure requirement is tied to existing legal processes
that already require debt collectors to comply with State, local, or
court rules. Debt collectors are likely to already have systems in
place to ensure that renters are provided with certain information
required by the relevant jurisdiction at the time of the disclosure.
Debt collectors in certain jurisdictions may also incur a one-time
legal or compliance cost associated with determining the CDC Order's
interaction with applicable State, local, territorial,
[[Page 21179]]
or tribal eviction moratoria, in the event they did not already do so
since the CDC Order initially went into effect.
Third, debt collectors who represent landlords as attorneys in
eviction actions may collect decreased legal fees to the extent that
the required disclosure leads to a decrease in eviction filings. As
described in greater detail above, this interim final rule may lead to
both delayed and prevented evictions. In the case of a delayed
eviction, attorneys' legal fees may be delayed until after the
expiration of the moratorium on June 30, 2021. The Bureau does not
anticipate that the cost of a months-long delay is substantial. In the
case of prevented evictions, attorneys would lose legal fees, a benefit
to landlords.
B. Potential Impact on Depository Institutions and Credit Unions With
$10 Billion or Less in Total Assets, as Described in Section 1026
Depository institutions and credit unions with $10 billion or less
in total assets are not covered under this interim final rule and are
not expected to be directly impacted.
C. Potential Impact on Consumers in Rural Areas and on Access by
Consumers to Consumer Financial Products or Services
Generally, rural areas are characterized by having fewer renters,
which would imply fewer evictions by itself. However, the Bureau does
not have data that would allow it to evaluate how the benefits and
costs detailed above would differ in rural areas, especially those
related to health.
In part because of the temporary nature of the interim final rule's
effects, the Bureau does not expect that this interim final rule will
materially affect access by consumers to consumer financial products or
services.
VIII. Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act (RFA) \154\ does not apply to a
rulemaking where general notice of proposed rulemaking is not
required.\155\ As noted previously, the Bureau has determined that it
is unnecessary to publish a general notice of proposed rulemaking for
this interim final rule. Accordingly, the RFA's requirements relating
to an initial and final regulatory flexibility analysis do not apply.
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\154\ 5 U.S.C. 601 et seq.
\155\ 5 U.S.C. 603(a), 604(a).
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IX. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA),\156\ Federal
agencies are generally required to seek approval from the Office of
Management and Budget (OMB) for information collection requirements
prior to implementation. Under the PRA, the Bureau may not conduct or
sponsor, and, notwithstanding any other provision of law, a person is
not required to respond to, an information collection unless the
information collection displays a valid control number assigned by OMB.
---------------------------------------------------------------------------
\156\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
The interim final rule amends 12 CFR part 1006 (Regulation F),
which implements the FDCPA. This interim final rule adds a new
disclosure requirement and the Bureau is requesting a new OMB control
number for this disclosure requirement.
Under the interim final rule, the Bureau temporarily requires debt
collectors to make certain disclosures in connection with an eviction
proceeding. These information collections are required to provide
benefits for consumers and will be mandatory. Because the Bureau does
not collect any information, no issue of confidentiality arises. The
likely respondents are for-profit businesses that are FDCPA debt
collectors.
The collections of information contained in this interim final
rule, and identified as such, have been submitted to OMB for review
under section 3507(d) of the PRA. A complete description of the
information collection requirement, including the burden estimation
methods, is provided in the information collection request (ICR)
supporting statement that the Bureau has submitted to OMB under the
requirements of the PRA. The Bureau will publish a separate notice in
the Federal Register when these information collections have been
approved by OMB.
Please send your comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for the Bureau of
Consumer Financial Protection. Send these comments by email to
[email protected] or by fax to (202) 395-6974. If you wish to
share your comments with the Bureau, please send a copy of these
comments as described in the Addresses section above. The ICR submitted
to OMB requesting approval under the PRA for the information collection
requirements contained herein is available at www.regulations.gov as
well as on OMB's public-facing docket at www.reginfo.gov.
Title of Collection: Debt Collection Practices in Connection with
the Global COVID-19 Pandemic (Regulation F).
OMB Control Number: 3170-00xx.
Type of Review: Request for a new OMB Control Number. Affected
Public: Private Sector.
Estimated Number of Respondents: 500.\157\
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\157\ The Bureau shares enforcement authority under the FDCPA
with the Federal Trade Commission. To avoid double-counting, the
Bureau allocates to itself half of the estimated paperwork burden
under the interim final rule by dividing the burden hours even
between the agencies. However, since the Bureau has joint authority
over the respondents themselves, the Bureau retains the entity count
of all affected respondents as shown above.
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Estimated Total Annual Burden Hours: 3,000.
The Bureau has a continuing interest in the public's opinion of its
collections of information. At any time, comments regarding the burden
estimate, or any other aspect of the information collection, including
suggestions for reducing the burden, may be sent to the Consumer
Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW,
Washington, DC 20552, or by email to [email protected].
Where applicable, the Bureau will display the control number
assigned by OMB to any documents associated with any information
collection requirements adopted in this interim final rule.
X. Congressional Review Act
Pursuant to the Congressional Review Act,\158\ the Bureau will
submit a report containing this interim final rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to the interim final
rule's published effective date. The Office of Information and
Regulatory Affairs has designated this interim final rule as a ``major
rule'' as defined by 5 U.S.C. 804(2). As discussed in part IV, the
Bureau finds that there is good cause for the interim final rule to
take effect without prior notice and comment. Accordingly, this interim
final rule may take effect at such time as the Bureau determines.\159\
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\158\ 5 U.S.C. 801 et seq.
\159\ 5 U.S.C. 808(2).
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XI. Signing Authority
The Acting Director of the Bureau, David Uejio, having reviewed and
approved this document, is delegating the authority to electronically
sign this document to Laura Galban, a Bureau Federal Register Liaison,
for purposes of publication in the Federal Register.
List of Subjects in 12 CFR Part 1006
Administrative practice and procedure, Consumer protection, Credit,
Debt collection, Intergovernmental relations.
[[Page 21180]]
Authority and Issuance
For the reasons set forth in the preamble, the Bureau amends
Regulation F, 12 CFR part 1006, as set forth below:
PART 1006--FAIR DEBT COLLECTION PRACTICES ACT (REGULATION F)
0
1. The authority citation for part 1006 is revised to read as follows:
Authority: 12 U.S.C. 5512; 15 U.S.C. 1692l(d), 1692o.
0
2. Subpart B, consisting of Sec. 1006.9, is added to read as follows:
Subpart B--Rules for Debt Collectors Subject to the Fair Debt
Collection Practices Act
Sec. 1006.9 Debt Collection Practices in Connection with the Global
COVID-19 Pandemic.
(a) Purpose and coverage. The purpose of this subpart is to
eliminate certain abusive debt collection practices by debt collectors
related to the global COVID-19 pandemic, to ensure that debt collectors
who refrain from using such abusive debt collection practices are not
competitively disadvantaged, and to promote consistent State action to
protect consumers against such debt collection abuses. This subpart
applies to debt collectors, as defined in FDCPA section 803(6), 15
U.S.C. 1692(a)(6), other than a person excluded from coverage by
section 1029(a) of the Consumer Financial Protection Act of 2010, title
X of the Dodd-Frank Act, 12 U.S.C. 5519(a).
(b) Definitions. For purposes of this subpart, the following
definitions apply:
(1) The terms consumer, debt, and debt collector have the same
meaning given to them in FDCPA section 803, 15 U.S.C. 1692a.
(2) The term CDC Order means the order issued by the Centers for
Disease Control and Prevention titled Temporary Halt in Residential
Evictions to Prevent the Further Spread of COVID-19 (86 FR 16731 (Mar.
31, 2021)), as extended by the Centers for Disease Control and
Prevention.
(3) The term eviction notice means the earliest of any written
notice that the laws of any State, locality, territory, or tribal area
require to be provided to a consumer before an eviction action against
the consumer may be filed.
(c) Prohibitions. During the effective period of the CDC Order, a
debt collector collecting a debt in any jurisdiction in which the CDC
Order applies must not, in connection with the collection of that debt:
(1) File an eviction action for non-payment of rent against a
consumer to whom the CDC Order reasonably might apply without
disclosing to that consumer clearly and conspicuously in writing, on
the date that the debt collector provides the consumer with an eviction
notice or, if no eviction notice is required by applicable law, on the
date that the eviction action is filed, that the consumer may be
eligible for temporary protection from eviction under the CDC Order; or
(2) Falsely represent or imply to a consumer that the consumer is
ineligible for temporary protection from eviction under the CDC Order.
0
3. Supplement I to part 1006 is added to read as follows:
Supplement I to Part 1006--Official Interpretations
Introduction
1. Official status. This commentary is the vehicle by which the
Bureau of Consumer Financial Protection supplements Regulation F, 12
CFR part 1006. The provisions of the commentary are issued under the
same authorities as the corresponding provisions of Regulation F and
have been adopted in accordance with the notice-and-comment procedures
of the Administrative Procedure Act (5 U.S.C. 553). Unless specified
otherwise, references in this commentary are to sections of Regulation
F or the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. 1692 et
seq.). No commentary is expected to be issued other than by means of
this Supplement I.
Subpart B--Rules for Debt Collectors Subject to the Fair Debt
Collection Practices Act
Section 1006.9--Debt Collection Practices in Connection With the Global
COVID-19 Pandemic
9(b) Definitions.
9(b)(3).
1. Examples. Section 1006.9(b)(3) defines eviction notice as the
earliest of any written notice that the laws of any State, locality,
territory, or tribal area require to be provided to a consumer before
an eviction action against the consumer may be filed. The term eviction
notice includes, for example, notices to quit, notices to pay rent or
quit, and notices to terminate tenancy.
9(c) Prohibitions.
9(c)(1).
1. Eviction action for non-payment of rent. Section 1006.9(c)(1)
provides that, during the effective period of the CDC Order, a debt
collector collecting a debt in any jurisdiction in which the CDC Order
applies must not file an eviction action for non-payment of rent
against a consumer to whom the CDC Order reasonably might apply without
making the disclosure described in Sec. 1006.9(c)(1). A debt collector
does not file an eviction action for non-payment of rent if the debt
collector files the eviction action based solely on the consumer
engaging in one or more of the following actions: Criminal activity
while on the premises; threatening the health or safety of other
residents; damaging or posing an immediate and significant risk of
damage to property; violating any applicable building code, health
ordinance, or similar regulation relating to health and safety; or
violating any other contractual obligation, other than the timely
payment of rent or similar housing-related payment (including non-
payment or late payment of fees, penalties, or interest).
2. Reasonably might apply. Section 1006.9(c)(1) requires a debt
collector to provide the disclosure described in Sec. 1006.9(c)(1) to
any consumer to whom the CDC Order reasonably might apply. A consumer
to whom the CDC Order reasonably might apply is a consumer who
reasonably might be eligible to be a covered person as defined in the
CDC Order. A consumer is not reasonably eligible to be a covered person
if the debt collector has knowledge that a consumer is not eligible for
protection under the CDC Order. However, nothing in Sec. 1006.9(c)(1)
prohibits a debt collector from providing the disclosure to a consumer
even if the consumer might not reasonably be eligible to be a covered
person. A debt collector therefore may comply with the requirement to
provide the disclosure to any consumer to whom the CDC Order reasonably
might apply by, for example, providing the disclosure to each consumer
against whom the debt collector files an eviction action for non-
payment of rent. A debt collector does not violate FDCPA sections 807
(15 U.S.C. 1692e) or 808 (15 U.S.C. 1692f) merely because the debt
collector provides the disclosure to consumers as described in this
comment 9(c)(1)-2 even if the consumer is not reasonably eligible to be
a covered person.
3. Provision of disclosure. Section 1006.9(c)(1) requires a debt
collector to disclose to the consumer, on the date that the debt
collector provides the consumer with an eviction notice or, if no
eviction notice is required by applicable law, on the date that the
eviction action is filed, that the consumer may be eligible for
temporary protection from eviction under the CDC Order. A debt
collector may satisfy this requirement by, for example, delivering the
disclosure to the address that is the subject of eviction proceedings;
the debt collector is not required to ensure that
[[Page 21181]]
the consumer actually receives the disclosure. A debt collector may,
but is not required to, provide the disclosure at the same time that
the debt collector provides the consumer with any eviction notice or
serves the consumer with any eviction action. For example, a debt
collector may, but is not required to, include the disclosure in an
envelope either on or with the eviction notice or in the same mailing
in which the debt collector serves the consumer with an eviction
action.
4. Frequency of disclosure. Section 1006.9(c)(1) does not require a
debt collector to provide the disclosure described in Sec.
1006.9(c)(1) more than once. However, nothing in Sec. 1006.9(c)(1)
prohibits a debt collector from providing the disclosure more than
once, such as in each subsequent communication with the consumer. In
addition, a debt collector does not violate FDCPA sections 807 (15
U.S.C. 1692e) or 808 (15 U.S.C. 1692f) merely because the debt
collector provides the disclosure more than once.
5. Sample language. Section 1006.9(c)(1) requires a debt collector
to disclose that the consumer may be eligible for temporary protection
from eviction under the CDC Order.
i. A debt collector may use, but is not required to use, the
following language to satisfy Sec. 1006.9(c)(1): ``Because of the
global COVID-19 pandemic, you may be eligible for temporary protection
from eviction under Federal law. Learn the steps you should take now:
visit www.cfpb.gov/eviction or call a housing counselor at 800-569-
4287.'' A debt collector does not violate FDCPA sections 807 (15 U.S.C.
1692e) or 808 (15 U.S.C. 1692f) merely because the debt collector
provides the sample language in this comment 9(c)(1)-5.i to a consumer
in a jurisdiction in which the CDC Order does not apply.
ii. Alternatively, a debt collector may use, but is not required to
use, the following language to satisfy Sec. 1006.9(c)(1): ``Because of
the global COVID-19 pandemic, you may be eligible for temporary
protection from eviction under the laws of your State, territory,
locality, or tribal area, or under Federal law. Learn the steps you
should take now: visit www.cfpb.gov/eviction or call a housing
counselor at 800-569-4287.'' A debt collector does not violate FDCPA
sections 807 (15 U.S.C. 1692e) or 808 (15 U.S.C. 1692f) merely because
the debt collector provides the sample language in this comment
9(c)(1)-5.ii to a consumer in a jurisdiction in which only the CDC
Order applies or in which the CDC Order does not apply.
6. Clear and conspicuous. A debt collector must provide the
disclosure described in Sec. 1006.9(c)(1) clearly and conspicuously in
writing. Clear and conspicuous means readily understandable. The
location and type size also must be readily noticeable and legible to
consumers, although no minimum type size is mandated.
Dated: April 16, 2021.
Laura Galban,
Federal Register Liaison, Bureau of Consumer Financial Protection.
[FR Doc. 2021-08303 Filed 4-21-21; 8:45 am]
BILLING CODE 4810-AM-P