# Debt Collection Practices (Regulation F) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-28422 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 19, 2021 - **Citation:** 86 FR 5766 ## Text BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1006 [Docket No. CFPB-2019-0022] RIN 3170-AA41 Debt Collection Practices (Regulation F) AGENCY: Bureau of Consumer Financial Protection. ACTION: Final rule; official interpretation. SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is issuing this final rule to revise Regulation F, which implements the Fair Debt Collection Practices Act (FDCPA). The final rule governs certain activities by debt collectors, as that term is defined in the FDCPA. Among other things, the final rule clarifies the information that a debt collector must provide to a consumer at the outset of debt collection communications, prohibits debt collectors from bringing or threatening to bring a legal action against a consumer to collect a time-barred debt, and requires debt collectors to take certain actions before furnishing information about a consumer's debt to a consumer reporting agency. DATES: This rule is effective on November 30, 2021. FOR FURTHER INFORMATION CONTACT: Joel Singerman, Counsel, or Dania Ayoubi, Joseph Baressi, Seth Caffrey, Brandy Hood, David Jacobs, Courtney Jean, Adam Mayle, Kristin McPartland, Michael Silver, Senior Counsels, Office of Regulations, at 202-435-7700. If you require this document in an alternative electronic format, please contact CFPB_Accessibility@cfpb.gov. SUPPLEMENTARY INFORMATION: I. Summary of the Final Rule The Bureau is finalizing amendments to Regulation F, 12 CFR part 1006, which implements the FDCPA. 1 The amendments prescribe Federal rules governing the activities of debt collectors, as that term is defined in the FDCPA (debt collectors or FDCPA debt collectors). The final rule clarifies the information that a debt collector must provide to a consumer at the outset of debt collection communications and provides a model validation notice containing such information. The final rule also addresses consumer protection concerns related to passive collections ( i.e., the practice of furnishing information about a debt to a consumer reporting agency before communicating with the consumer about the debt) and the collection of debt that is beyond the statute of limitations ( i.e., time-barred debt). On November 30, 2020, the Bureau published a final rule in the Federal Register that focused on debt collection communications and related practices by debt collectors (November 2020 Final Rule). The November 2020 Final Rule reserved certain sections of Regulation F in anticipation of this final rule. 1 15 U.S.C. 1692 et seq. As discussed in the November 2020 Final Rule, in 1977, Congress passed the FDCPA 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 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 2 15 U.S.C. 1692(e). 3 15 U.S.C. 1692(a). 4 Id. The FDCPA established specific consumer protections, enabling consumers to establish controls on when and how debt collectors contact them, establishing privacy protections surrounding the collection of debts, and protecting consumers from certain collection practices. The FDCPA also established broad consumer protections, prohibiting harassment or abuse, false or misleading representations, and unfair practices. In the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), Congress provided the Bureau with authority under the FDCPA to prescribe substantive rules with respect to the collection of debts by debt collectors. The Bureau issues this final rule, like the November 2020 Final Rule, to implement and interpret the FDCPA. A. Coverage and Organization of the Final Rule The final rule is based primarily on the Bureau's authority to issue rules to implement the FDCPA and, consequently, covers debt collectors, as that term is defined in the FDCPA. As revised in the November 2020 Final Rule, Regulation F contains four subparts. Subpart A contains generally applicable provisions, such as definitions that apply throughout the regulation. Subpart B contains rules for FDCPA debt collectors. Subpart C is reserved for any future debt collection rulemakings. Subpart D contains certain miscellaneous provisions. This final rule adds additional provisions in subparts A, B, and D. B. Scope of the Final Rule FDCPA section 809(a) requires that a debt collector send a written notice containing certain information about the debt and actions the consumer may take in response (the validation notice) to a consumer within five days of the initial communication, unless such validation information was provided in the initial communication or the consumer has paid the debt. 5 The final rule clarifies the information about the debt and the consumer's rights with respect to the debt that a debt collector must provide to a consumer at the outset of debt collection communications, including (if applicable) on a validation notice. The final rule also requires a debt collector to provide prompts that a consumer can use to dispute the debt, request information about the original creditor, or take certain other actions. The final rule provides a safe harbor for compliance with these disclosure requirements for debt collectors who use the model validation notice or certain variations of the notice. 5 15 U.S.C. 1692g(a). The final rule also prohibits a debt collector from suing or threatening to sue a consumer to collect time-barred debt. In addition, the final rule prohibits a debt collector from furnishing information about a debt to a consumer reporting agency before engaging in specific outreach to the consumer about the debt. The final rule also addresses certain other disclosure-focused provisions, such as clarifying how a debt collector may respond to a consumer's request for original-creditor information if the original creditor is the same as the current creditor. Additionally, the final rule interprets the definition of consumer under the FDCPA to include deceased natural persons and, relatedly, provides that, if a debt collector knows or should know that the a consumer is deceased, and the debt collector has not previously provided the validation information to the deceased consumer, the debt collector must provide that information to a person who is authorized to act on behalf of the deceased consumer's estate. II. Background A. Debt Collection Market Background A consumer debt is commonly understood to be a consumer's obligation to pay money to another person or entity. Sometimes a debt arises out of a closed-end loan. Other times, a debt arises from a consumer's use of an open-end line of credit, commonly a credit card. And in other cases, a debt arises from a consumer's purchase of goods or services with payment due thereafter. Often there is an agreed-upon payment schedule or date by which the consumer must repay the debt. For a variety of reasons, consumers sometimes are unable or unwilling to make payments when they are due. Collection efforts may directly recover some or all of the overdue amounts owed to debt owners and thereby may indirectly help to keep consumer credit available and more affordable to consumers. 6 Collection activities also can lead to repayment plans or debt restructuring that may provide consumers with additional time to make payments or resolve their debts on more manageable terms. 7 6 See Bureau of Consumer Fin. Prot., Fair Debt Collection Practices Act: CFPB Annual Report 2013, at 9 (Mar. 20, 2013), https://www.consumerfinance.gov/data-research/research-reports/annual-report-on-the-fair-debt-collection-practices-act/ (2013 FDCPA Annual Report). 7 See id. The November 2020 Final Rule provides an extensive overview of the debt collection market (including the roles of creditors, third-party debt collectors, debt buyers, and a variety of service providers in the market), methods of debt collection, and consumer protection concerns in debt collection. 8 Below the Bureau summarizes information regarding debt collection methods and consumer protection concerns specifically related to the topics addressed in this final rule. 8 See 85 FR 76734, 76735-37 (Nov. 30, 2020). B. Debt Collection Methods If a consumer's payment obligations remain unmet, a creditor may send the account to a third-party debt collector to recover on the debt in the third-party debt collector's name. A creditor typically stops communicating with a consumer once responsibility for an account has moved to a third-party debt collector. Active debt collection efforts typically begin with the debt collector attempting to locate the consumer, usually by identifying a valid telephone number or mailing address, so that the debt collector can establish contact with the consumer. Once a debt collector has obtained contact information for a consumer, the debt collector typically will seek to communicate with the consumer to obtain payment on some or all of the debt. As already noted, FDCPA section 809(a) generally requires a debt collector to provide certain information to a consumer either at the time that, or shortly after, the debt collector first communicates with the consumer in connection with the collection of a debt. The required information includes: (1) Certain details about the debt, such as the amount of the debt and the name of the creditor to whom the debt is owed; and (2) a description of consumer protections, such as the consumer's rights to dispute the debt and to request information about the original creditor. A debt collector may send a validation notice containing the required information as the initial communication to the consumer or send the required information in a validation notice within five days after the initial communication. Currently, validation notices include little or no information about the debt beyond the information specifically listed in FDCPA section 809(a). This information may not be sufficient for the consumer to recognize the debt, particularly if, for example, the amount owed has changed over time due to interest, fees, payment, or credits, or if the debt collector has changed since an original collection attempt. A debt collector may tailor the collection strategy depending on a variety of factors, including the size and age of the debt and the debt collector's assessment of the likelihood of obtaining money from the consumer. For example, rather than engage in active debt collection efforts by affirmatively locating and contacting consumers, some debt collectors collecting relatively small debts—such as many medical, utility, and telecommunications debts—report the debts to consumer reporting agencies and then wait for consumers to contact them after discovering the debts on their consumer reports. 9 9 Bureau of Consumer Fin. Prot., Consumer Credit Reports: A Study of Medical and Non-Medical Collections, at 35-36 (Dec. 2014), http://files.consumerfinance.gov/f/201412_cfpb_reports_consumer-credit-medical-and-non-medical-collections.pdf (CFPB Medical Debt Report). As discussed in the November 2020 Final Rule, a debt owner may also try to recover on a debt through litigation. 10 And debt collectors sometimes attempt to collect debt for which the applicable statute of limitations has expired. The length of the limitations period for debt collection claims usually varies by State and debt type; most limitations periods are between three and six years, although some are as long as 15 years. Currently, in most States, expiration of the statute of limitations, if raised by the consumer as an affirmative defense, precludes the debt collector from recovering on the debt through litigation, but it does not extinguish the debt itself. If the debt is not extinguished, a debt collector may use non-litigation means, such as letters and telephone calls, to collect a time-barred debt, as long as those means do not violate the FDCPA or other laws. 11 10 See 85 FR 76735, 76736 (Nov. 30, 2020). 11 See 85 FR 12672, 12672-73 (Mar. 3, 2020). C. Consumer Protection Concerns As discussed in the November 2020 Final Rule, each year consumers submit tens of thousands of complaints about debt collection to Federal regulators. 12 A significant proportion of those complaints involve debts that consumers believe they do not owe, which may be because the debt is being collected in error or because the consumer does not recognize the debt. Consumers also file thousands of private actions each year against debt collectors who allegedly have violated the FDCPA, including many cases alleging violations related to the validation notice. Since the Bureau began operations in 2011, it has brought numerous debt collection cases against third-party debt collectors, alleging both FDCPA violations and unfair, deceptive, or abusive debt collection acts or practices in violation of the Dodd-Frank Act. 13 In many of these cases, the Bureau has obtained civil penalties, monetary compensation for consumers, and other relief. In its supervisory work, the Bureau similarly has identified many FDCPA violations during examinations of debt collectors. Over the past decade, the Federal Trade Commission (FTC) and State regulators also have brought numerous additional actions against debt collectors for violating Federal and State debt collection and consumer protection laws. 12 See, e.g., Bureau of Consumer Fin. Prot., Fair Debt Collection Practices Act: CFPB Annual Report 2020, at 13 (Mar. 2020), https://files.consumerfinance.gov/f/documents/cfpb_fdcpa_annual-report-congress_03-2020.pdf (2020 FDCPA Annual Report); Fed. Trade Comm'n, 2019 Consumer Sentinel Network Databook, at 7 (Jan. 2020), https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book-2019/consumer_sentinel_network_data_book_2019.pdf; Bureau of Consumer Fin. Prot., Fair Debt Collection Practices Act: CFPB Annual Report 2019, at 15-16 (Mar. 2019), https://files.consumerfinance.gov/f/documents/cfpb_fdcpa_annual-report-congress_03-2019.pdf (2019 FDCPA Annual Report); Fed. Trade Comm'n, 2018 Consumer Sentinel Network Databook, at 4, 7 (Feb. 2019), https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book-2018/consumer_sentinel_network_data_book_2018_0.pdf; Bureau of Consumer Fin. Prot., Fair Debt Collection Practices Act: CFPB Annual Report 2018, at 14-15 (Mar. 2018), https://files.consumerfinance.gov/f/documents/cfpb_fdcpa_annual-report-congress_03-2018.pdf (2018 FDCPA Annual Report); Fed. Trade Comm'n, 2017 Consumer Sentinel Network Databook, at 3, 6 (Mar. 2018), https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book-2017/consumer_sentinel_data_book_2017.pdf; Bureau of Consumer Fin. Prot., 2017 Fair Debt Collection Practices Act: CFPB Annual Report 2017, at 15-16 (Mar. 2017), https://files.consumerfinance.gov/f/documents/201703_cfpb_Fair-Debt-Collection-Practices-Act-Annual-Report.pdf (2017 FDCPA Annual Report); Fed. Trade Comm'n, Consumer Sentinel Network Data Book for January-December 2016, at 3, 6 (Mar. 2017), https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book-january-december-2016/csn_cy-2016_data_book.pdf. 13 See, e.g., Stipulated Final Judgment and Consent Order, Consumer Fin. Prot. Bureau v. Encore Capital Grp., Inc., 3:20-cv-01750 (S.D. Cal. Oct. 15, 2020), https://www.courtlistener.com/recap/gov.uscourts.casd.686719/gov.uscourts.casd.686719.5.1.pdf; Consent Order, In re Asset Recovery Assocs., 2019-BCFP-0009 (Aug. 28, 2019), https://www.consumerfinance.gov/documents/7938/cfpb_asset-recovery-associates_consent-order_2019-08.pdf; Consent Order, In re Encore Capital Grp., Inc., 2015-CFPB-0022 (Sept. 9, 2015), http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf; Consent Order, In re Portfolio Recovery Assocs., LLC, 2015-CFPB-0023 (Sept. 9, 2015), http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf; Complaint, Consumer Fin. Prot. Bureau v. Nat'l Corrective Grp., Inc., 1:15-cv-00899-RDB (D. Md. Mar. 30, 2015), http://files.consumerfinance.gov/f/201503_cfpb_complaint-national-corrective-group.pdf. D. FDCPA and Dodd-Frank Act Protections for Consumers Federal and State governments historically have sought to protect consumers from harmful debt collection practices. From 1938 to 1977, the Federal government primarily protected consumers through FTC enforcement actions against debt collectors who engaged in unfair or deceptive acts or practices in violation of section 5 of the FTC Act. 14 When Congress enacted the FDCPA in 1977, it found that “[e]xisting laws and procedures for redressing . . . injuries [were] inadequate to protect consumers.” 15 Congress found that “[t]here [was] abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors” and that these practices “contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” 16 14 15 U.S.C. 45. 15 15 U.S.C. 1692(b). 16 15 U.S.C. 1692(a). The FDCPA was enacted, in part, “to eliminate abusive debt collection practices by debt collectors, [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.” 17 Among other things, the FDCPA: (1) Prohibits debt collectors from engaging in harassment or abuse, making false or misleading representations, and engaging in unfair practices in debt collection; (2) restricts debt collectors' communications with consumers and others; and (3) requires debt collectors to provide consumers with disclosures concerning the debts they owe or allegedly owe. 17 15 U.S.C. 1692(e). The FDCPA, in general, applies to debt collectors as that term is defined under the statute. As discussed further in the section-by-section analysis of § 1006.2(i) of the November 2020 Final Rule, the FDCPA generally provides that a debt collector is any person: (1) Who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts ( i.e., the “principal purpose” prong), or (2) who regularly collects, or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another ( i.e., the “regularly collects” prong). FDCPA section 803(6) also sets forth several exclusions from the general definition. Until the creation of the Bureau, no Federal agency was authorized to issue regulations to implement the substantive provisions of the FDCPA. Courts have issued opinions providing differing interpretations of various FDCPA provisions, and there is considerable uncertainty with respect to how the FDCPA applies to communication technologies that have developed since 1977. The Dodd-Frank Act amended the FDCPA to provide the Bureau with authority to “prescribe rules with respect to the collection of debts by debt collectors.” 18 18 FDCPA section 814(d), 15 U.S.C. 1692 l (d). III. Summary of the Rulemaking Process A. The November 2020 Final Rule The Bureau issued the November 2020 Final Rule to finalize certain provisions of the proposed rule that the Bureau published in the Federal Register on May 21, 2019, to amend Regulation F. 19 Specifically, the November 2020 Final Rule primarily addressed debt collection communications and related practices by debt collectors. The November 2020 Final Rule reserved certain sections of Regulation F in anticipation of this final rule. 19 See 84 FR 23274 (May 21, 2019). B. The 2019 Proposal and 2020 Supplemental Proposal As noted, on May 21, 2019, the Bureau published a proposed rule (the May 2019 proposal or proposal) in the Federal Register to amend Regulation F. 20 The proposal provided a 90-day comment period that would have closed on August 19, 2019. To allow interested persons more time to consider and submit their comments, the Bureau issued an extension of the comment period until September 18, 2019. 21 In response to the May 2019 proposal, the Bureau received more than 14,000 comments from consumers, consumer groups, members of Congress, other government agencies, creditors, debt collectors, industry trade associations, and others. As discussed below, the Bureau has considered those comments in deciding to issue this final rule. 20 Id. 21 84 FR 37806 (Aug. 2, 2019). As relevant to this final rule, in the May 2019 proposal, the Bureau proposed to implement and interpret FDCPA section 809(a) and (b) regarding the information that debt collectors must provide to consumers at the outset of debt collection communications and debt collectors' obligations to respond to consumers' disputes and requests for original-creditor information, including if the consumer obligated or allegedly obligated to pay the debt has died. The Bureau also proposed to prohibit debt collectors from bringing or threatening to bring a legal action against a consumer to collect a debt that the debt collector knows or should know is a time-barred debt. And the Bureau proposed to prohibit debt collectors from furnishing information regarding a debt to a consumer reporting agency before communicating with the consumer about the debt. On February 21, 2020, the Bureau released a supplemental notice of proposed rulemaking to amend Regulation F to require debt collectors to make certain disclosures when collecting time-barred debts (the February 2020 proposal). 22 The February 2020 proposal provided a 60-day comment period that would have closed on May 4, 2020. To allow interested persons more time to consider and submit their comments, the Bureau issued two extensions of the comment period, the first until June 5, 2020, and the second until August 4, 2020. 23 In response to the February 2020 proposal, the Bureau received approximately 90 comments from consumers, consumer groups, members of Congress, other government agencies, creditors, debt collectors, industry trade associations, and others. As discussed below, the Bureau has considered those comments in adopting this final rule. 22 See 85 FR 12672 (Mar. 3, 2020). 23 See 85 FR 17299 (Mar. 27, 2020) (first extension); 85 FR 30890 (May 21, 2020) (second extension). C. Consumer Testing The Bureau has undertaken two rounds of qualitative disclosure testing and one round of quantitative disclosure testing, all of which have informed this final rule. First, as discussed in more detail in the May 2019 proposal, the Bureau in 2014 contracted with a third-party vendor, Fors Marsh Group (FMG), to assist with developing, and to conduct qualitative consumer testing of the model validation notice. 24 This initial qualitative testing included focus group testing, cognitive testing, and usability testing conducted by FMG. 25 Through the testing, the Bureau sought insight into consumers' understanding of debt collection protections and how consumers would interact with the forms if the forms were incorporated into a final rule. Specific findings from the consumer testing are discussed in more detail in part V where relevant. In conjunction with the release of the May 2019 proposal, the Bureau made available a report prepared by FMG regarding the focus group testing, 26 the cognitive testing, 27 the usability testing, 28 and a report prepared by FMG summarizing the focus group testing, cognitive testing, and usability testing. 29 24 The Bureau also tested a statement of consumer rights disclosure, but the Bureau decided not to propose to require debt collectors to provide such a disclosure to consumers. Instead, the Bureau proposed in the May 2019 proposal to require certain debt collectors to provide with the validation information a statement referring consumers to a Bureau-provided website that would describe certain consumer protections in debt collection. See the section-by-section analysis of § 1006.34(c)(3)(iv). Because the Bureau did not propose to require debt collectors to provide consumers with a statement of consumer rights disclosure, the Bureau did not summarize testing related to that disclosure in the May 2019 proposal. 25 See 84 FR 23274, 23279 (May 21, 2019). 26 See generally Fors Marsh Grp., Debt Collection Focus Groups (Aug. 2014), https://files.consumerfinance.gov/f/documents/cfpb_debt-collection_fmg-focus-group-report.pdf (FMG Focus Group Report). The focus group testing was conducted in accordance with OMB control number 3170-0022, Generic Information Collection Plan for the Development and/or Testing of Model Forms, Disclosures, Tools, and Other Similar Related Materials. 27 See generally Fors Marsh Grp., Debt Collection Cognitive Interviews (n.d.), https://files.consumerfinance.gov/f/documents/cfpb_debt-collection_fmg-cognitive-report.pdf (FMG Cognitive Report). The cognitive testing was conducted in accordance with OMB control number 3170-0022, Generic Information Collection Plan for the Development and/or Testing of Model Forms, Disclosures, Tools, and Other Similar Related Materials. 28 See generally Fors Marsh Grp., Debt Collection User Experience Study (Feb. 2016), https://files.consumerfinance.gov/f/documents/cfpb_debt-collection_fmg-usability-report.pdf (FMG Usability Report). Like the other testing, the usability testing was conducted in accordance with OMB control number 3170-0022, Generic Information Collection Plan for the Development and/or Testing of Model Forms, Disclosures, Tools, and Other Similar Related Materials. 29 See generally Fors Marsh Grp., Debt Collection Validation Notice Research: Summary of Focus Groups, Cognitive Interviews, and User Experience Testing (Feb. 2016), https://files.consumerfinance.gov/f/documents/cfpb_debt-collection_fmg-summary-report.pdf (FMG Summary Report). Second, to obtain additional information about consumer comprehension and decision-making in response to sample debt collection disclosures relating to time-barred debt, in 2017 the Bureau contracted with ICF International, Inc. (ICF) to conduct a web survey of approximately 8,000 individuals possessing a broad range of demographic characteristics. 30 This quantitative testing concluded in late September 2019, and, in conjunction with the release of the February 2020 proposal, the Bureau 31 and ICF 32 published detailed reports summarizing the testing methodology and results. The February 2020 proposal provides an extensive overview of the quantitative testing. 33 30 OMB approved the Bureau's request to conduct the survey on May 7, 2019. See Office of Information & Regulatory Affairs, Office of Mgmt. & Budget, ICR—OIRA Conclusion, https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201902-3170-001# (last visited Feb. 18, 2020). 31 See Bureau of Consumer Fin. Prot., Disclosure of Time-Barred Debt and Revival: Findings from the CFPB's Quantitative Disclosure Testing (Feb. 2020), https://files.consumerfinance.gov/f/documents/cfpb_debt-collection-quantitative-disclosure-testing_report.pdf (CFPB Quantitative Testing Report). 32 See ICF Int'l, Inc., Quantitative Survey Testing of Model Disclosure Clauses and Forms for Debt Collection: Methodology Report (Jan. 21, 2020), https://files.consumerfinance.gov/f/documents/cfpb_icf_debt-survey_methodology-report.pdf. 33 See 85 FR 12672, 12676-77 (Mar. 3, 2020). Third, to further evaluate the effectiveness of the model validation notice, the Bureau contracted with FMG again in 2019 to conduct an additional round of qualitative testing. Because of the COVID-19 pandemic, FMG conducted this consumer testing by telephone, completing 51 one-on-one usability interviews between October 5 and October 15, 2020. The qualitative testing showed, among other things, that 80 percent of participants shared positive initial reactions to the model validation notice and indicated that the information in the notice was clear and available actions were obvious. In addition, 88 percent of participants rated the overall model validation notice as “very easy” or “easy” to understand, and no participants rated the notice as “difficult” or “very difficult” to understand. Finally, 77 percent of participants answered correctly over 90 percent of the time when, after reviewing the notice, they were asked to answer certain questions about information included on the notice. In conjunction with release of this final rule, the Bureau is making available a report prepared by FMG regarding the qualitative testing. 34 34 See generally Fors Marsh Grp., Consumer Financial Protection Bureau (CFPB) Usability Testing Report: Model Validation Notice (Nov. 20, 2020), https://files.consumerfinance.gov/f/documents/cfpb_model-validation-notice_report_2020-12.pdf (November 2020 Qualitative Testing Report). D. Other Outreach 35 35 The preamble to the May 2019 proposal includes a more thorough discussion of the outreach the Bureau conducted prior to issuing the proposal. See 84 FR 23274, 23278-80 (May 21, 2019). In November 2013, the Bureau began the rulemaking process with the publication of an Advance Notice of Proposed Rulemaking (ANPRM) regarding debt collection. 36 As discussed in the May 2019 proposal, the ANPRM sought information about a wide variety of both first- and third-party debt collection practices. The Bureau received more than 23,000 comments in response to the ANPRM, which the Bureau considered when developing the proposals. 36 78 FR 67848 (Nov. 12, 2013). To better understand the operational costs of debt collection firms, including law firms, the Bureau also surveyed debt collection firms and vendors and published a report based on that study in July 2016 (CFPB Debt Collection Operations Study or Operations Study). 37 The Operations Study focused on understanding how debt collection firms obtain information about delinquent consumer accounts and attempt to collect on those accounts. 37 See generally Bureau of Consumer Fin. Prot., Study of Third-Party Debt Collection Operations (July 2016), https://www.consumerfinance.gov/documents/755/20160727_cfpb_Third_Party_Debt_Collection_Operations_Study.pdf (CFPB Debt Collection Operations Study). In August 2016, the Bureau convened a Small Business Review Panel (Small Business Review Panel or Panel) with the Chief Counsel for Advocacy of the Small Business Administration (SBA) and the Administrator of the Office of Information and Regulatory Affairs with the Office of Management and Budget (OMB). 38 As part of this process, the Bureau prepared an outline of proposals under consideration and the alternatives considered (Small Business Review Panel Outline or Outline), 39 which the Bureau posted on its website for review by the small entity representatives participating in the Panel process and by the general public. The Panel gathered information from the small entity representatives and made findings and recommendations regarding the potential compliance costs and other impacts on those entities of the proposals under consideration. Those findings and recommendations are set forth in the Small Business Review Panel Report, which is part of the administrative record in this rulemaking and is available to the public. 40 The Bureau considered these findings and recommendations in preparing the proposals and this final rule. 38 The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), as amended by section 1100G(a) of the Dodd-Frank Act, requires the Bureau to convene a Small Business Review Panel before proposing a rule that may have a substantial economic impact on a significant number of small entities. See Public Law 104-121, tit. II, 110 Stat. 857 (1996) (as amended by the Small Business and Work Opportunity Act of 2007, Public Law. 110-28, tit. VIII, subtit. C, sec. 8302, 121 Stat. 204 (2007)). 39 Bureau of Consumer Fin. Prot., Small Business Review Panel for Debt Collector and Debt Buyer Rulemaking: Outline of Proposals Under Consideration and Alternatives Considered (July 28, 2016), https://files.consumerfinance.gov/f/documents/20160727_cfpb_Outline_of_proposals.pdf (Small Business Review Panel Outline). The Bureau also gathered feedback on the Small Business Review Panel Outline from other stakeholders, members of the public, and the Bureau's Consumer Advisory Board and Community Bank Advisory Council. 40 Bureau of Consumer Fin. Prot., U.S. Small Bus. Admin. & Office of Mgmt. & Budget, Final Report of the Small Business Review Panel on the CFPB's Proposals Under Consideration for the Debt Collector and Debt Buying Rulemaking (Oct. 2016), https://files.consumerfinance.gov/f/documents/cfpb_debt-collector-debt-buyer_SBREFA-report.pdf (Small Business Review Panel Report). The Bureau has also met on many occasions with various stakeholders, including consumer advocates, debt collection trade associations, industry participants, academics with expertise in debt collection, Federal prudential regulators, and other Federal and State consumer protection regulators. The Bureau also received a number of comments specific to the debt collection rulemaking in response to its Request for Information Regarding the Bureau's Adopted Regulations and New Rulemaking Authorities 41 and its Request for Information Regarding the Bureau's Inherited Regulations and Inherited Rulemaking Authorities; 42 the Bureau considered these comments in developing the proposals and this final rule. In addition, the Bureau has engaged in general outreach, speaking at consumer advocate and industry events and visiting consumer organizations and industry stakeholders. The Bureau has provided other regulators with information about the proposals and this final rule, has sought their input, and has received feedback that has helped the Bureau to prepare this final rule. 41 83 FR 12286 (Mar. 21, 2018). 42 83 FR 12881 (Mar. 26, 2018). Under the Dodd-Frank Act, the Bureau is required to conduct an assessment of significant rules within five years of the rule's effective date. The Bureau anticipates that this final rule may be significant and therefore may require an assessment within five years of the rule's effective date. The Bureau is preparing now for this possible assessment. Specifically, the Bureau is considering how best to obtain information now to serve as a baseline for evaluation of the costs, benefits, and other effects of the final rule. The Bureau expects to collect data and other information from consumers, debt collectors, and other stakeholders to understand whether the rule is achieving its goals under the FDCPA and the Dodd-Frank Act, and to help the Bureau measure the costs and benefits of the rule. Topics of data collection could include: whether consumers are better able to identify a debt when receiving validation information after the rule compared to before the rule; whether debt collectors are receiving higher or lower rates of consumer disputes after the rule compared to before the rule; whether greater clarity about FDCPA requirements helps reduce litigation related to the validation notice after the rule compared to before the rule; and costs of the rule, both anticipated and unexpected, for consumers or for industry. The Bureau expects to conduct outreach in 2021 to explore how best to obtain such data, including potentially through surveying consumers or firms or by collecting operational data. IV. Legal Authority The Bureau is issuing this final rule primarily pursuant to its authority under the FDCPA and the Dodd-Frank Act. As amended by the Dodd-Frank Act, FDCPA section 814(d) provides that the Bureau “may prescribe rules with respect to the collection of debts by debt collectors,” as defined in the FDCPA. 43 Section 1022(a) of the Dodd-Frank Act provides that “[t]he Bureau is authorized to exercise its authorities under Federal consumer financial law to administer, enforce, and otherwise implement the provisions of Federal consumer financial law.” 44 Section 1022(b)(1) of the Dodd-Frank Act provides that the Director may prescribe rules and issue orders and guidance, as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof. 45 “Federal consumer financial law” includes title X of the Dodd-Frank Act and the FDCPA. 46 No provisions in this final rule are based on section 1031 of the Dodd-Frank Act. 47 43 15 U.S.C. 1692 l (d). As noted, the Bureau is the first Federal agency with authority to prescribe substantive debt collection rules under the FDCPA. Prior to the Dodd-Frank Act's grant of rulemaking authority to the Bureau, no agency had authority to issue substantive rules with respect to the collection of debts by debt collectors under the FDCPA, but the FTC published various materials providing guidance on the FDCPA. The FTC's materials have informed the Bureau's rulemaking and, if relevant to particular provisions, are discussed in part V. 44 12 U.S.C. 5512(a). 45 12 U.S.C. 5512(b)(1). 46 12 U.S.C. 5481(12)(H), (14). 47 The Bureau proposed to rely on its Dodd-Frank Act section 1031 authority (relating to unfair, deceptive, or abusive acts or practices in connection with consumer financial products or services) to support two interventions in the May 2019 proposal. The Bureau has not finalized any provisions of this final rule (or, as discussed in the November 2020 Final Rule, of that final rule), pursuant to its authority under Dodd-Frank Act section 1031. These and other authorities are discussed in greater detail in parts IV.A through C below. Part IV.A discusses the Bureau's authority under sections 806 through 808 of the FDCPA. Parts IV.B through C discuss the Bureau's relevant authorities under the Dodd-Frank Act. A. FDCPA Sections 806 Through 808 As discussed in part V, the Bureau is finalizing several provisions, in whole or in part, pursuant to its authority to interpret FDCPA sections 806 through 808, which set forth general prohibitions on, and requirements relating to, debt collectors' conduct and are accompanied by non-exhaustive lists of examples of unlawful conduct. The November 2020 Final Rule provides an overview of how the Bureau interprets FDCPA sections 806 through 808. FDCPA section 806 generally prohibits a debt collector from “engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 48 Then, “[w]ithout limiting the general application of the foregoing,” it lists six examples of conduct that violate that section. 49 Similarly, 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.” 50 Then, “[w]ithout limiting the general application of the foregoing,” section 807 lists 16 examples of conduct that violate that section. 51 Finally, FDCPA section 808 prohibits a debt collector from “us[ing] unfair or unconscionable means to collect or attempt to collect any debt.” 52 Then, “[w]ithout limiting the general application of the foregoing,” FDCPA section 808 lists eight examples of conduct that violate that section. 53 Consistent with the approach in the November 2020 Final Rule 54 and as proposed in the May 2019 proposal, 55 the Bureau interprets FDCPA sections 806 through 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. 56 48 15 U.S.C. 1692d. 49 15 U.S.C. 1692d(1)-(6). 50 15 U.S.C. 1692e. 51 15 U.S.C. 1692e(1)-(16). 52 15 U.S.C. 1692f. 53 15 U.S.C. 1692f(1)-(8). 54 See 85 FR 76734, 76738 (Nov. 30, 2020). 55 84 FR 23274, 23281-82 (May 21, 2019). 56 Where the Bureau prescribes requirements pursuant only to its authority to implement and interpret sections 806 through 808 of the FDCPA, the Bureau does not take a position on whether such practices also would constitute an unfair, deceptive, or abusive act or practice under section 1031 of the Dodd-Frank Act. In particular, the Bureau notes that, by their plain terms, FDCPA sections 806 through 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, 57 as are opinions by courts that have addressed this issue. 58 Accordingly, the Bureau may interpret the general provisions of FDCPA sections 806 to 808 to prohibit conduct that the specific examples in FDCPA sections 806 through 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 806 through 808 in light of the significant body of existing court decisions interpreting those sections, including, where applicable, cases discussing the collection of time-barred debt. 59 Finally, consistent with the majority of courts, the Bureau interprets FDCPA sections 806 through 808 to incorporate an objective, “unsophisticated” or “least sophisticated” consumer standard. 60 57 See, e.g., S. Rep. No. 382, 95th Cong., 1st Sess. 2, 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1698 (S. Rep. No. 382) (“[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). 58 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.”). 59 Id. See, e.g., Holzman v. Malcolm S. Gerald & Assocs., 920 F.3d 1264 (11th Cir. 2019); Tatis v. Allied Interstate, LLC, 882 F.3d 422 (3d Cir. 2018); Pantoja v. Portfolio Recovery Assocs., LLC, 852 F.3d 679 (7th Cir. 2017), cert. denied, 138 S. Ct. 736 (2018); Daugherty v. Convergent Outsourcing Inc., 836 F.3d 507 (5th Cir. 2016); Buchanan v. Northland Grp., Inc., 776 F.3d 393 (6th Cir. 2015); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1020 (7th Cir. 2014). 60 85 FR 76734, 76740 (Nov. 30, 2020); 84 FR 23274, 23282-83 (May 21, 2019). B. Dodd-Frank Act Section 1032 Dodd-Frank Act section 1032(a) provides that the Bureau may prescribe rules to ensure that the features of any consumer financial product or service, “both initially and over the term of the product or service,” are “fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances.” 61 Under Dodd-Frank Act section 1032(a), the Bureau is empowered to prescribe rules regarding the disclosure of the “features” of consumer financial products and services generally. Accordingly, the Bureau may prescribe rules containing disclosure requirements even if other Federal consumer financial laws do not specifically require disclosure of such features. Dodd-Frank Act section 1032(c) provides that, in prescribing rules pursuant to Dodd-Frank Act section 1032, the Bureau “shall consider available evidence about consumer awareness, understanding of, and responses to disclosures or communications about the risks, costs, and benefits of consumer financial products or services.” 62 The Bureau is finalizing §§ 1006.34 and 1006.38 based in part on its authority under Dodd-Frank Act section 1032. 61 12 U.S.C. 5532(a). 62 12 U.S.C. 5532(c). C. Other Authorities Under the Dodd-Frank Act Section 1022(b)(1) of the Dodd-Frank Act provides that the Bureau's Director “may prescribe rules and issue orders and guidance, as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof.” 63 “Federal consumer financial laws” include the FDCPA and title X of the Dodd-Frank Act. 64 Section 1022(b)(2) of the Dodd-Frank Act prescribes certain standards for rulemaking that the Bureau must follow in exercising its authority under Dodd-Frank Act section 1022(b)(1). 65 See part VII for a discussion of the Bureau's standards for rulemaking under Dodd-Frank Act section 1022(b)(2). 63 12 U.S.C. 5512(b)(1). 64 12 U.S.C. 5481(14). 65 12 U.S.C. 5512(b)(2). V. Section-by-Section Analysis Subpart A—General Section 1006.1 Authority, Purpose, and Coverage 1(c) Coverage In the November 2020 Final Rule, the Bureau adopted § 1006.1(c)(1) to specify that, except as provided in § 1006.108 and appendix A, Regulation F applies to debt collectors, as defined in § 1006.2(i), 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)). 66 The Bureau also noted that it was not finalizing, as part of the November 2020 Final Rule, proposed § 1006.1(c)(2), which provided that certain provisions of Regulation F applied to debt collectors only when they were collecting consumer financial product or service debt, as defined in § 1006.2(f). The Bureau explained that it was not finalizing § 1006.1(c)(2) as part of the November 2020 Final Rule because all of the provisions of that final rule apply to debt collectors as defined in § 1006.2(i). The Bureau nevertheless reserved § 1006.1(c)(2) so that the Bureau could clarify which provisions of this final rule, if any, apply to debt collectors only if they are collecting debt related to a consumer financial product or service. 66 85 FR 76734, 76742 (Nov. 30, 2020). For the reasons discussed in the section-by-section analysis of § 1006.34, two provisions of that section (§ 1006.34(c)(2)(iii) and (3)(iv)) apply to debt collectors only if they are collecting debt related to a consumer financial produce or service as defined in § 1006.2(f). Therefore, the Bureau is finalizing § 1006.1(c)(2) to provide that certain provisions of Regulation F apply to debt collectors only if they are collecting debt related to a consumer financial product or service as defined in § 1006.2(f), and to specify that those provisions are § 1006.34(c)(2)(iii) and (3)(iv). Section 1006.2 Definitions 2(e) Consumer FDCPA section 803(3) defines a consumer as any natural person obligated or allegedly obligated to pay any debt. 67 The Bureau proposed § 1006.2(e) to implement this definition and to interpret it to include a deceased natural person who is obligated or allegedly obligated to pay a debt. 68 The Bureau explained that this interpretation would ensure that individuals trying to resolve a deceased consumer's debts have the same legal right to receive the validation notice, and to dispute the debt and request information about the original creditor, as the deceased consumer would have had. 67 15 U.S.C. 1692a(3). 68 See 84 FR 23274, 23288 (May 21, 2019). As the Bureau noted in the November 2020 Final Rule, the Bureau received a number of comments regarding its proposal to interpret the term consumer to include deceased natural persons. The Bureau also noted that it had proposed that interpretation, in large part, to facilitate delivery of validation notices under proposed § 1006.34 if the consumer obligated, or allegedly obligated, on the debt has died. Further, the Bureau noted that it planned to address comments received regarding that interpretation, and to determine whether to finalize that interpretation, as part of this final rule. Thus, as finalized in the November 2020 Final Rule, § 1006.2(e) provides that the term consumer means any natural person obligated or allegedly obligated to pay any debt. 69 The Bureau now addresses comments received regarding its proposal to interpret the definition to include deceased natural persons. 69 For the reasons discussed in the November 2020 Final Rule, § 1006.2(e) as finalized in that rule also provides that, for purposes of § 1006.6, the term consumer includes the persons described in § 1006.6(a). To account for any revisions adopted in this final rule, it also specifies that the Bureau may further define the term in Regulation F to clarify its application when the consumer is deceased. See 85 FR 76734, 76744-45, 76888 (Nov. 30, 2020). Several commenters supported the Bureau's proposed interpretation. One industry commenter stated that, in the decedent debt context, the person acting on behalf of a deceased consumer's estate should have the same rights regarding validation notices and disputes as the consumer would have had if the consumer were still living. Another industry commenter reported that many debt collectors currently attempt to treat deceased consumers as “consumers” under the FDCPA and explained that the proposal would provide additional clarity that would benefit both consumers and debt collectors in resolving the debts of deceased consumers. A group of consumer advocates supported clarifying the rights of executors, administrators, and personal representatives regarding validation notices and disputes. However, as discussed below, these consumer advocate commenters opposed the proposed interpretation and suggested a different way to address the issue. Other commenters opposed interpreting the term consumer to include deceased natural persons who are obligated or allegedly obligated to pay a debt. One industry commenter asserted that the proposed interpretation would serve no purpose because deceased consumers lacked privacy interests. A trade group commenter stated that no evidence of confusion existed in the decedent debt context, and that the Bureau's interpretation would expand the class of individuals entitled to sue debt collectors for violations of the FDCPA and the final rule. Finally, a group of consumer advocates suggested that the Bureau's interpretation was unnecessary because proposed comments 34(a)(1)-1 and 38-1 would clarify that a person who is authorized to act on behalf of the deceased consumer's estate operates as the consumer for purposes of §§ 1006.34(a)(1) and 1006.38. 70 These commenters also stated that, if the Bureau were attempting to change the class of individuals who may bring civil actions against debt collectors, the FDCPA already allows any “person” to bring such claims. 70 See the section-by-section analyses of §§ 1006.34 and 1006.38. For the reasons discussed below, the Bureau is revising § 1006.2(e), as set forth in the November 2020 Final Rule, to clarify that the definition of consumer includes deceased natural persons. As explained in the May 2019 proposal, the FDCPA does not specify whether a consumer, as defined in section 803(3), includes a deceased consumer (or whether a natural person, as that term is used in section 803(3), includes a deceased natural person). 71 Because the definition of consumer in FDCPA section 803(3) is silent with respect to deceased consumers, other FDCPA provisions that refer to a debt collector's obligations to a consumer lack clarity in the decedent debt context. For example, FDCPA provisions requiring debt collectors to provide validation information, and to respond to disputes and requests for original-creditor information, do not address situations in which the person obligated or allegedly obligated to pay the debt is deceased. Uncertainty surrounding these provisions increases the risk of consumer harm in the decedent debt context. Specifically, without validation information and an opportunity to dispute the debt, individuals trying to resolve debts in a deceased consumer's estate will lack information needed to determine whether they are being asked to pay the right debt, in the right amount, and to the right debt collector, and, consequently, whether they should assert dispute rights. 71 See 84 FR 23274, 23288 (May 21, 2019). Accordingly, to increase clarity and to decrease the risk of consumer harm, the Bureau is revising § 1006.2(e) to provide that the term consumer means any natural person, whether living or deceased, obligated or allegedly obligated to pay any debt. The Bureau also is revising § 1006.2(e) to delete the statement that the Bureau may further define the term to clarify its application when the consumer is deceased, since this final rule contains that further definition. 72 Relatedly, the Bureau is finalizing the commentary to §§ 1006.34(a)(1) and 1006.38 that clarifies that a person who is authorized to act on behalf of the deceased consumer's estate, such as the executor, administrator, or personal representative, operates as the consumer for purposes of §§ 1006.34(a)(1) and 1006.38. 72 In the proposal, the Bureau explained that its interpretation was “consistent with a modern trend in the law that favors recognizing, as a default, the continued existence of a natural person after death.” 84 FR 23274, 23288 (May 21, 2019). Consumer advocates pointed out that the authority cited for this proposition comes from contexts other than the FDCPA. But these commenters do not explain why this fact undermines the existence of the trend described by the Bureau. Regarding the comment that deceased consumers have no privacy rights, the Bureau disagrees. In its Policy Statement on Decedent Debt, the FTC prohibited debt collectors from openly referring to a deceased consumer's debts in communications with third parties, instead adopting an approach that “balance[d] the legitimate needs of the collector with the privacy interests of the decedent.” 73 In the November 2020 Final Rule, the Bureau took a similar approach regarding location communications for decedent debt. 74 73 Fed. Trade Comm'n, Statement of Policy Regarding Communications in Connection with the Collection of Decedents' Debts at 44921 (July 27, 2011), https://www.ftc.gov/sites/default/files/documents/federal_register_notices/statement-policy-regarding-communications-connection-collection-decedents-debts-policy-statement/110720fdcpa.pdf (FTC Policy Statement on Decedent Debt). 74 See 85 FR 76734, 76797-00, 76890, 76900 (Nov. 30, 2020). Moreover, interpreting the term consumer in § 1006.2(e) to include deceased natural persons is supported by more than concern for a decedent's privacy; it also clarifies debt collector's obligations to a consumer and, in turn, to those authorized to act on the consumer's behalf, if the consumer has died. This includes clarifying a debt collector's obligations under the FDCPA's provisions, as implemented in this final rule and in the November 2020 Final Rule, regarding validation information and disputes and requests for original-creditor information, which help to ensure that consumers are not paying the wrong debt, in the wrong amount, to the wrong debt collector. This interpretation also clarifies the application of § 1006.22(f)(4), which the Bureau adopted in the November 2020 Final Rule to prohibit debt collectors from communicating or attempting to communicate with a person in connection with the collection of a debt through a social media platform if the communication or attempt to communicate is viewable by the general public or the person's social media contacts. 75 In adopting that provision, the Bureau discussed that a consumer advocate commenter had stated that the Bureau should broaden the prohibition to apply to deceased consumers, such that debt collectors would be prohibited from posting publicly about a deceased consumer's alleged debt on the consumer's social media page. The consumer advocate commenter stated that a debt collector's only reason for doing so would be to pressure surviving relatives to pay the debt, either to protect the deceased consumer's reputation or out of a sense of moral obligation. 76 75 See id. at 76836-39, 76892. 76 See id. at 76836-39. In finalizing § 1006.22(f)(4) in the November 2020 Final Rule, Bureau noted that the prohibition applied to communications and attempts to communicate with “a person,” and that person, as defined in § 1006.2(k), includes a consumer. The Bureau again noted that it had received a number of comments regarding its proposal to interpret the term consumer to include deceased natural persons and that it would address such comments in this final rule. In determining to revise § 1006.2(e) to include a deceased natural person who is obligated or allegedly obligated to pay a debt, the Bureau thus also clarifies that the prohibition in § 1006.22(f)(4) includes deceased consumers. The Bureau disagrees with the industry commenter that there is no evidence of confusion about the definition of consumer in the decedent debt context. As explained above, the FDCPA's current lack of clarity in the decedent debt context creates uncertainty in several situations arising during the collection of debts belonging to deceased consumers. Therefore, the Bureau determines that additional clarity will improve the debt collection system for all parties. Nor does § 1006.2(e) expand the class of potential plaintiffs who may bring suit under the FDCPA and Regulation F, as an industry commenter alleged. The civil liability provision of the FDCPA already creates liability for violations committed against any person. 77 As noted in the proposal, the trend in the law has been to recognize, as a default, the continued existence of a natural person after death for purposes of bringing civil actions, particularly for remedial statutes like the FDCPA. 78 This commenter did not explain how the Bureau's interpretation would result in a lawsuit by someone other than a “person” under the statute. 77 15 U.S.C. 1692k. 78 See 84 FR 23274, 23288 (May 21, 2019). Finally, the Bureau disagrees, as suggested by certain commenters, that the commentary to §§ 1006.34(a)(1) and 1006.38 (final comments 34(a)(1)-1 and 38-3) provide adequate clarity without interpreting the term consumer to include deceased natural persons. In fact, interpreting the term consumer to include deceased natural persons is a necessary predicate to provide that the persons identified in those comments operate as the consumer for purposes of the requirements relating to validation information, disputes, and requests for original-creditor information. Commenters raised additional issues related to § 1006.2(e). A few industry commenters suggested that the Bureau's proposed interpretation was inconsistent with the Bureau's mortgage servicing rules regarding successors in interest. One trade group commenter stated that allowing any individual authorized to act on behalf of a deceased consumer's estate to meet Regulation F's definition of consumer under § 1006.2(e) will complicate and potentially impede the existing successor in interest process under Regulations X and Z. The commenter explained that, under proposed comment 34(a)(1)-1, mortgage servicers who are also debt collectors under Regulation F would have to send validation information to the person authorized to act on behalf of the deceased consumer's estate but would not be able to send foreclosure-related disclosures required under State law to the same person, unless that person had assumed ownership of the obligation. The commenter also suggested that, under proposed comment 38-1, debt collectors would be required to focus resources on verifying the identify of an individual asserting to be a person authorized to act on behalf of the deceased consumer's estate, which would take away from legitimate efforts to respond to disputes and requests for original-creditor information. Another trade group commenter stated that the clarification in proposed comment 34(a)(1)-1 to send the validation notice to the person authorized to act on behalf of the deceased consumer's estate if the debt collector knows or should know that the consumer is deceased would, unlike the Bureau's mortgage servicing rules, appear to create an affirmative obligation for mortgage servicers to track down information about potential successors in interest and cloud requirements for mortgage servicers under Regulation X. For this reason, a third trade group commenter suggested that, if a required notice must be sent and no individual has come forward as a potential or confirmed successor in interest, the Bureau should permit mortgage servicers to address a validation notice to the deceased consumer or “the estate of” the deceased consumer rather than require a search for an individual to whom to address the notice. As the Bureau has previously explained, while many mortgage servicers are not subject to the FDCPA, mortgage servicers that acquired a mortgage loan at the time that it was in default may be subject to the FDCPA with respect to that mortgage loan. 79 As discussed below, the Bureau concludes that including a deceased natural person who is obligated or allegedly obligated to pay a debt within the definition of consumer under § 1006.2(e) is not inconsistent with the Bureau's mortgage servicing rules on successors in interest. Although one commenter asserted that finalizing this definition as proposed would complicate and potentially impede the existing successor in interest process, the commenter failed to explain why that would be the case and the Bureau does not believe that to be the case. 79 See 85 FR 76734, 76758 (Nov. 30, 2020); 81 FR 71977, 71978 (Oct. 19, 2016). Regarding delivery of validation information, as discussed below, comment 34(a)(1)-1 clarifies that, if a debt collector knows or should know that a consumer is deceased, and if the debt collector has not previously provided the validation information to the deceased consumer, then in such circumstances, to comply with § 1006.34(a)(1), a debt collector must provide the validation information to an individual whom the debt collector identifies by name and who is authorized to act on behalf of the deceased consumer's estate. 80 A person who is authorized to act on behalf of a deceased consumer's estate may include the executor, administrator, or personal representative. However, as discussed in the November 2020 Final Rule, for purposes of Regulations X and Z, a successor in interest is, in general, a person to whom an ownership interest either in a property securing a mortgage loan subject to subpart C of Regulation X, or in a dwelling securing a closed-end consumer credit transaction under Regulation Z, is transferred under specified circumstances including, for example, after a consumer's death or as part of a divorce. 81 Therefore, a person who is authorized to act on behalf of a deceased consumer's estate for purposes of Regulation F may or may not also be a successor in interest under Regulations X and Z, depending on whether an ownership interest in a property securing a mortgage loan or a dwelling securing a closed-end consumer credit transaction is transferred to that person under the circumstances specified in Regulations X and Z. 82 80 See the section-by-section analysis of § 1006.34(a)(1). 81 See 85 FR 76734, 76758-59 (Nov. 30, 2020). See also 12 CFR 1024.31, 1026.2(a)(27)(i). A confirmed successor in interest, in turn, means a successor in interest once a mortgage servicer has confirmed the successor in interest's identity and ownership interest in the property that secures the mortgage loan or in the dwelling. See 12 CFR 1024.31, 1026.2(a)(27)(ii). 82 12 CFR 1024.31, 1026.2(a)(27). Comment 34(a)(1)-1 provides debt collectors clarity regarding to whom the validation information must be provided in the narrow circumstance in which the debt collector knows or should know that a consumer is deceased and the debt collector has not previously provided the validation information to the deceased consumer. According to the comment, under these circumstances, a debt collector who is collecting the debt of a deceased consumer must determine who is authorized to act on behalf of a deceased consumer's estate. These efforts, however, do not create an affirmative obligation under the Bureau's mortgage servicing rule for a mortgage servicer that is subject to the FDCPA with respect to a mortgage loan to seek out potential successors in interest within the meaning of the mortgage servicing rules. Under the mortgage servicing rules, a mortgage servicer is not required to conduct a search for potential successors in interest if the mortgage servicer has not received actual notice of their existence. 83 If, in the course of determining who is authorized to act on behalf of a deceased consumer's estate for purposes of § 1006.34(a)(1), a mortgage servicer receives actual notice of the existence of a potential successor in interest, the mortgage servicer must, as required under Regulation X, maintain policies and procedures reasonably designed to ensure that the servicer can retain this information and promptly facilitate communication with the potential successor in interest. 84 However, because a mortgage servicer that is subject to the FDCPA with respect to a mortgage loan may comply with both this final rule and the applicable successor in interest provisions under Regulations X and Z, the Bureau concludes there is no conflict with the mortgage servicing rules. Additionally, nothing in this final rule is intended to alter the successor in interest provisions in Regulations X and Z or to impose additional requirements under Regulations X and Z. 83 12 CFR 1024.38(b)(1)(vi); comment 38(b)(1)(vi)-1. 84 Id. The general servicing policies, procedures, and requirements in 12 CFR 1024.38 do not apply to a mortgage servicer that qualifies as a small servicer pursuant to 12 CFR 1026.41(e). See 12 CFR 1024.30(b)(1). In response to the commenter's concern regarding the burdens under comment 38-1 of determining who is authorized to act on behalf of a deceased consumer's estate before responding to a dispute or request for original-creditor information, the potential burdens associated with responding to such incoming disputes and requests will be significantly reduced once a debt collector has procedures in place to make that threshold determination or has already made that determination for purposes of providing the validation information as described in comment 34(a)(1)-1. The Bureau declines to adopt the suggestion to allow mortgage servicers to address a validation notice to the deceased consumer or to “the estate of” the deceased consumer. As discussed in the proposal, the Bureau shares the view of the FTC, which stated in its Policy Statement on Decedent Debt that individuals who lack the authority to resolve the estate but who wish to be helpful are likely to open communications addressed to the decedent's estate, or to an unnamed executor or administrator, which makes such communications insufficiently targeted to a consumer with whom the debt collector may generally discuss the debt. 85 The Bureau, therefore, shares the view of the FTC that “communication[s] addressed to the decedent's estate, or an unnamed executor or administrator, [are] location communication[s] and must not refer to the decedent's debts.” 86 Accordingly, comment 34(a)(1)-1 specifies that a debt collector must provide the validation information to an individual that the debt collector identifies by name who is authorized to act on behalf of the deceased consumer's estate. 85 See 84 FR 23274, 23334 (May 21, 2019). 86 FTC Policy Statement on Decedent Debt, supra note 73, at 44920. A group of consumer advocates stated that certain other provisions of the Bureau's proposal, such as § 1006.14(e)'s prohibition on publishing lists of consumers who allegedly refuse to pay debts and § 1006.18(b)(1)(iv)'s prohibition on falsely representing or implying that the consumer committed any crime or other conduct in order to disgrace the consumer, should apply to deceased consumers. But, these commenters claimed, other provisions, like § 1006.6(b)(1)'s restrictions on communicating at inconvenient times or places, were nonsensical as applied to deceased consumers. Therefore, these commenters argued, the Bureau's interpretation in proposed § 1006.2(e) was overbroad. The Bureau acknowledges that there may be certain provisions in the November 2020 Final Rule and in this final rule that refer to a consumer that simply will be inapplicable in the context of a deceased consumer. 87 Nevertheless, as consumer advocates acknowledged, other provisions that refer to a consumer will apply to deceased consumers. For example, as discussed above, interpreting the term consumer in § 1006.2(e) to include deceased natural persons means that, as applied to § 1006.22(f)(4), debt collectors are prohibited from posting publicly about a deceased consumer's alleged debt on a deceased consumer's public-facing social media page. In situations that are currently unclear, such as delivery of validation information, the final rule adopts commentary clarifying debt collectors' obligations. 87 For example, § 1006.6(b) restricts, among other things, the times at which debt collectors can communicate or attempt to communicate with consumers. See 85 FR 76734, 76889 (Nov. 30, 2020). To the extent that “communicate” includes having a conversation, the Bureau believes it is obvious that this prohibition is simply inapplicable in the case of a deceased consumer (but does apply to having a conversation with the executor or administrator of the consumer's estate). This group of consumer advocates also recommended that the Bureau require debt collectors to provide a validation notice to the person authorized to act on behalf of the deceased consumer's estate even if validation information already was provided to the consumer. These commenters also asked the Bureau to provide that the validation period starts from the date the person authorized to act on behalf of the deceased consumer's estate receives the validation notice, and to require debt collectors to respond to disputes and requests for original-creditor information submitted by this person, even if a response already was provided to the consumer. The Bureau declines to adopt these suggestions because the Bureau finds that, in the scenario described, the debt collector has already satisfied the debt collector's obligations to the consumer as set forth in FDCPA section 809 and §§ 1006.34 and 1006.38. Depending on the facts, the debt collector could be required to provide a validation notice or dispute response to the person authorized to act on behalf of the deceased consumer's estate, 88 but the Bureau declines to require debt collectors to do so in all cases. Nevertheless, the Bureau notes that debt collectors who voluntarily provide validation notices after a consumer dies (as some industry commenters reported is done), and who, in doing so, start a new validation period, do not thereby violate the FDCPA or Regulation F. 88 See the section-by-section analysis of § 1006.34(b)(5). For the reasons discussed above, and pursuant to its authority under FDCPA section 814(d) to prescribe rules with respect to the collection of debts by debt collectors, the Bureau is finalizing § 1006.2(e) as proposed to interpret the definition of consumer in FDCPA section 803(3) to mean any natural person, whether living or deceased, who is obligated or allegedly obligated to pay any debt. 2(f) Consumer Financial Product or Service As discussed in the November 2020 Final Rule, the Bureau proposed § 1006.2(f) to define consumer financial product or service debt to mean any debt related to any consumer financial product or service, as consumer financial product or service is defined in section 1002(5) of the Dodd-Frank Act. 89 As also discussed in the November 2020 Final Rule, the Bureau did not finalize § 1006.2(f) as part of that rulemaking because the Bureau did not finalize in that rulemaking any provisions for which the definition in proposed § 1006.2(f) would have been relevant. 89 85 FR 76734, 76745 (Nov. 30, 2020). For the reasons discussed in the section-by-section analyses of §§ 1006.1(c) and 1006.34, the Bureau is adopting in this final rule two provisions (§ 1006.34(c)(2)(iii) and (3)(iv)) that apply to debt collectors only if they are collecting debt related to a consumer financial product or service. This includes, for example, debt collectors collecting debts related to consumer mortgage loans or credit cards. 90 To facilitate compliance with those provisions, the Bureau is adopting § 1006.2(f) to provide that consumer financial product or service has the meaning in section 1002(5) of the Dodd-Frank Act (12 U.S.C. 5481(5)). 90 See 84 FR 23274, 23286 (May 21, 2019). The Bureau notes that it originally proposed § 1006.2(f) to define the term “consumer financial product or service debt.” However, because the relevant defined term in the Dodd-Frank Act is “consumer financial product or service,” and because certain commenters observed that including two definitions of the term “debt” in the rule would be confusing, the Bureau is finalizing § 1006.2(f) to provide that the defined term in the rule is “consumer financial product or service” and that the term has the same meaning given to it in section 1002(5) of the Dodd-Frank Act. Subpart B—Rules for FDCPA Debt Collectors Section 1006.26 Collection of Time-Barred Debts The May 2019 proposal and the February 2020 proposal both addressed the collection of time-barred debt. In the May 2019 proposal, the Bureau proposed to define several terms (proposed § 1006.26(a)) and to prohibit debt collectors from bringing or threatening to bring legal actions against consumers to collect certain time-barred debts (proposed § 1006.26(b)). In the February 2020 proposal, the Bureau proposed to require debt collectors to provide disclosures if collecting certain time-barred debts (proposed § 1006.26(c)). The February 2020 proposal also included model language and forms that debt collectors could use to comply with the proposed disclosure requirements. In the November 2020 Final Rule, the Bureau noted that it planned to address its proposals regarding time-barred debt in this final rule, and the Bureau reserved § 1006.26 for that purpose. After considering the comments received in response to both the May 2019 and February 2020 proposals, the Bureau is now finalizing proposed § 1006.26(a) and (b) with modifications as described below. The Bureau is not finalizing proposed § 1006.26(c). 26(a) Definitions Proposed § 1006.26(a) defined two terms not defined in the FDCPA: Statute of limitations and time-barred debt. The Bureau proposed to define these terms to facilitate compliance with proposed § 1006.26(b) and (c). As discussed below, the Bureau is finalizing § 1006.26(a) as proposed. The Bureau is finalizing § 1006.26(a) pursuant to its authority under FDCPA section 814(d) to prescribe rules with respect to the collection of debts by debt collectors. 26(a)(1) Statute of Limitations Proposed § 1006.26(a)(1) defined the term statute of limitations to mean the period prescribed by applicable law for bringing a legal action against the consumer to collect a debt. 91 91 See 84 FR 23274, 23327-28 (May 21, 2019). Statutes of limitation, which typically are established by State law, provide time limits for bringing suit on legal claims. As the Bureau explained in the May 2019 proposal, statutes of limitation serve several purposes. 92 First, statutes of limitations advance a defendant's interest in repose. That is, they reflect a legislative judgment that it is “unjust to fail to put the adversary on notice to defend within a specified period of time.” 93 Second, statutes of limitations eliminate stale claims. That is, they protect defendants and the courts from having to deal with cases in which “the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.” 94 Third, statutes of limitations provide “certainty about a plaintiff's opportunity for recovery and a defendant's potential liabilities.” 95 For debt collection claims, the length of the applicable statute of limitations often varies by State and, within each State, by debt type. Although most statutes of limitations applicable to debt collection claims are between three and six years, some are as long as 15 years. 92 See generally Rotella v. Wood, 528 U.S. 549, 555 (2000) (identifying “the basic policies of all limitations provisions” as “repose, elimination of stale claims, and certainty”). 93 United States v. Kubrick, 444 U.S. 111, 117 (1979). 94 Id. 95 Young v. United States, 535 U.S. 43, 47 (2002) (quoting Rotella, 528 U.S. at 555). Several commenters addressed proposed § 1006.26(a)(1). One industry commenter confirmed that the proposed definition of statute of limitations comported with debt collectors' understanding of the term. A number of other industry commenters requested that the Bureau modify the definition to account for the fact that it can be challenging to determine the applicable statute of limitations in certain circumstances. For example, two industry commenters requested that the Bureau clarify that, in determining the applicable statute of limitations, a debt collector need only conduct a reasonable investigation based on objectively ascertainable facts, and that a debt collector would only be charged with knowing that the statute of limitations has expired if the law is clearly established. The commenters also requested that the Bureau more specifically define certain elements of the term statute of limitations to lessen the burden on debt collectors of determining whether a debt is time barred. For example, they suggested defining “applicable law” as the law of the jurisdiction where the consumer resides or is believed to reside at the time collections begin, or the law of the jurisdiction in which the consumer signed any underlying contract. Commenters suggested that these changes would make it easier for a debt collector to determine the statute of limitations applicable to a particular debt while protecting a debt collector from liability when it is difficult determine the exact date on which a debt becomes time barred. The Bureau is finalizing § 1006.26(a)(1) as proposed. As industry commenters confirmed, the definition of statute of limitations in § 1006.26(a)(1) is consistent with debt collectors' understanding of the term. The Bureau declines to modify the definition to identify the type of investigation a debt collector must or should undertake to ascertain the applicable statute of limitations. The Bureau also declines to define the term “applicable law” in the manner requested by commenters. The Bureau recognizes that, in some cases, it can be challenging and costly for a debt collector to determine what statute of limitations applies to a legal action against the consumer to collect a particular debt, and that, in some cases, the commenters' suggestions could reduce those challenges and costs. The Bureau declines, however, to address the challenges and costs associated with determining whether a debt is time barred by modifying the definition of statute of limitations, a term with a meaning widely understood by debt collectors, or by defining new terms. Comments relating to the difficulty of determining whether a debt is time barred are discussed further in the section-by-section analysis of § 1006.26(b). 26(a)(2) Time-Barred Debt Proposed § 1006.26(a)(2) defined the term time-barred debt to mean a debt for which the applicable statute of limitations has expired. 96 96 See 84 FR 23274, 23328 (May 21, 2019). As the Bureau explained in the May 2019 proposal, many debt collectors already determine whether the statute of limitations applicable to a debt has expired. Some do so to comply with State and local disclosure laws that require them to inform consumers when debts are time barred. 97 Others do so to assess whether they can sue to collect the debt, which may affect their collection strategy. In addition, the information that debt buyers generally receive when bidding on and purchasing debts, and the information that other debt collectors generally receive at placement, may allow them to determine whether the applicable statute of limitations has expired. 98 97 See, e.g., Cal. Civ. Code sec. 1788.52(d)(3); Conn. Gen. Stat. sec. 36a-805(a)(14); Mass. Code Regs., tit. 940, § 7.07(24); N.M. Code. R. sec. 12.2.12.9(A); N.Y. Comp. Codes R. & Regs., tit. 23, sec. 1.3; New York City, N.Y., Rules, tit. 6, sec. 2-191(a); W. Va. Code sec. 46a-2-128(f). 98 See Fed. Trade Comm'n, The Structure and Practices of the Debt Buying Industry, at 49 (Jan. 2013), https://www.ftc.gov/sites/default/files/documents/reports/structure-and-practices-debt-buying-industry/debtbuyingreport.pdf (FTC Debt Buying Report) (“The data the Commission received from debt buyers suggests that debt buyers usually are likely to know or be able to determine whether the debts on which they are collecting are beyond the statute of limitations.”). Similarly, the majority of respondents to the Bureau's Debt Collection Operations Study reported always or often receiving certain information and documentation that may be relevant to determining whether a debt is time barred, such as debt balance at charge off, account agreement documentation, and billing statements. See CFPB Debt Collection Operations Study, supra note 37, at 23. Several commenters addressed proposed § 1006.26(a)(2). An industry commenter confirmed that the proposed definition comported with debt collectors' understanding of the term. Two other industry commenters expressed concern that the term time-barred debt may imply that a debt collector has no right at all to collect the debt, whereas in most jurisdictions a debt's time-barred status only limits the debt collector's right to recover on the debt through a lawsuit. Several industry commenters expressed concern that the proposal seemed to contemplate that a debt is a single amount that becomes time barred at a single moment in time and noted that not all debts operate in that manner. For example, these commenters stated that an installment loan could become time barred on a rolling basis depending on when each installment was due. In addition, according to some commenters, a legal action to collect a debt may be based on more than one legal theory or involve more than one cause of action, and each theory or cause of action may be subject to a different statute of limitations. Similarly, according to some commenters, certain secured debts may be subject to more than one method of suit and more than one statute of limitations. For example, these commenters asserted, in some States a mortgagee may choose whether to pursue a remedy at law on the note, a remedy in equity on the mortgage, or both, and the statute of limitations applicable to these claims may differ. Relatedly, one industry commenter asked the Bureau to clarify that debt collectors are not prohibited from taking legal action to enforce a lien even if a claim on the underlying obligation is time barred. Alternatively, the commenter asked the Bureau to clarify that the requirements of proposed § 1006.26 would apply only when all causes of action associated with the underlying note and with the security instrument are time barred. 99 99 Another commenter seeking clarification on the scope of proposed § 1006.26(b) asserted that in rem enforcement of a security instrument is not inherently debt collection. The Bureau notes that § 1006.26, like the rest of this final rule, applies only to FDCPA debt collectors. The Supreme Court recently held that a business engaged in no more than nonjudicial foreclosure proceedings is not an FDCPA debt collector, except for the limited purpose of FDCPA section 808(6). See Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019). FDCPA section 808(6) specifically prohibits taking or threatening to take any nonjudicial action in certain circumstances, such as where there is no present right to possession through an enforceable security instrument. The Bureau is finalizing § 1006.26(a)(2) as proposed. As industry commenters confirmed, the definition of time-barred debt in § 1006.26(a)(2) is consistent with debt collectors' understanding of the term. In response to commenters' concerns that the term time-barred debt might imply that a debt collector has no right to collect the debt, the Bureau notes that, in most jurisdictions, as commenters observed and as is discussed in the section-by-section analysis of § 1006.26(b), a debt is not extinguished when the statute of limitations expires. Rather, in these jurisdictions, a debt collector still may collect the debt using non-litigation means, such as telephone calls and letters, and the Bureau's use of the term time-barred debt neither changes that fact nor is meant to imply otherwise. With respect to industry commenters' concern about debts for which multiple statutes of limitation may be relevant, the Bureau notes that a debt is a time-barred debt under § 1006.26(a)(2) if the applicable statute of limitations has expired. The applicable statute of limitations depends on the specific legal action the debt collector takes or represents that it will take. For some debts, such as certain installment loans and secured debts, it may be the case that one claim associated with a debt is time barred while another claim associated with the debt is not. In such a case, the prohibitions in § 1006.26(b) apply to the time-barred claim only. 26(b) Legal Actions and Threats of Legal Actions Prohibited The Bureau proposed § 1006.26(b) to prohibit a debt collector from bringing or threatening to bring a legal action against a consumer to collect a debt that the debt collector knows or should know is a time-barred debt. 100 In response to comments, the Bureau is finalizing proposed § 1006.26(b) with two principal changes. First, the Bureau is not adopting the proposed knows-or-should-know standard; instead, a debt collector may violate final § 1006.26(b) even if the debt collector neither knew nor should have known that a debt was time barred. Second, consistent with the Supreme Court's decision in Midland Funding, LLC v. Johnson, the final rule clarifies that the prohibitions in § 1006.26(b) do not apply to proofs of claim filed in bankruptcy proceedings. 101 100 See 84 FR 23274, 23328-29 (May 21, 2019). 101 137 S. Ct. 1407 (2017). Prohibitions As the Bureau explained in the May 2019 proposal, in most States the expiration of the applicable statute of limitations, if raised by the consumer as an affirmative defense, precludes the debt collector from recovering on the debt using judicial processes, but it does not extinguish the debt itself. 102 In other words, in most States a debt collector may use non-litigation means to collect a time-barred debt, as long as those means do not violate the FDCPA or other laws. If a debt collector does sue to collect a time-barred debt, and if the consumer proves the expiration of the statute of limitations as an affirmative defense, the court will dismiss the suit. 102 See generally Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1411-12 (2017) (noting that under “the law of many States . . . a creditor has the right to payment of a debt even after the limitations period expires,” and collecting State laws). In Mississippi and Wisconsin, however, debts are extinguished when the applicable statute of limitations expires. See Miss. Code Ann. sec. 15-1-3 (“The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy.”); Wis. Stat. Ann. sec. 893.05 (“When the period within which an action may be commenced on a Wisconsin cause of action has expired, the right is extinguished as well as the remedy.”). Suits and threats of suit on time-barred debts can harm consumers in multiple ways. A debt collector's threat to sue on a time-barred debt may prompt some consumers to pay or prioritize that debt over others in the mistaken belief that doing so is necessary to avoid litigation. In some jurisdictions, a consumer's payment on or acknowledgement of a debt can revive the debt collector's right to sue for the entire amount, opening the consumer to new legal liability. 103 Similarly, suits on time-barred debts may lead to judgments against consumers on claims for which those consumers had meritorious defenses, including defenses based on the statute of limitations. Few consumers who are sued for allegedly unpaid debts—whether time barred or not—actually defend themselves in court, and those who do often are unrepresented. As a result, the vast majority of judgments on unpaid debts, including on time-barred debts, are default judgments, entered solely on the representations contained in the debt collector's complaint. 104 103 Revival extinguishes the consumer's right to raise the expiration of the statute of limitations as an affirmative defense to litigation; that is, it revives the debt collector's right to sue to collect the debt. Although State revival laws vary, there are generally several circumstances in which revival occurs. First, in some States, a consumer's partial payment on a time-barred debt revives the debt collector's right to sue. Second, in some States, a consumer's written acknowledgement of a time-barred debt revives the debt collector's right to sue. Third, a consumer's oral acknowledgement of a time-barred debt may revive the debt collector's right to sue in some States. See, e.g., Lima v. Schmidt, 595 So. 2d 624, 631 (La. 1992) (“Our courts have consistently held that renunciation must be clear, direct, and absolute and manifested by words or actions of the party in whose favor prescription has run.”) (citations omitted); 22 Tenn. Pract. Contract Law and Practice § 12:88 (rev. Aug. 2020) (“[T]he defendant may revive a plaintiff's remedy that has been barred by the statute of limitations. This event can occur either when the defendant expressly promises to pay a debt or when the defendant acknowledges the debt and expresses a willingness to pay it . . . . The expression of a defendant's willingness to pay might be implied from the words or action of a debtor . . . .”) (citations and internal quotation marks omitted). 104 See FTC Debt Buying Report, supra note 98, at 45 (observing that “90 percent or more of consumers sued in [debt collection actions] do not appear in court to defend,” which “creates a risk that consumer will be subject to a default judgment on a time-barred debt”); Peter A. Holland, The One Hundred Billion Dollar Problem in Small Claims Court: Robo-Signing and Lack of Proof in Debt Buyer Cases, 6 J. Bus. & Tech. L. 259, 265 (2011) (“In the majority of debt buyer cases, the courts grant the debt buyer a default judgment because the consumer has failed to appear for trial . . . . Debtors who do receive notice usually appear without legal representation.”); CFPB Debt Collection Operations Study, supra note 37, at 18 (observing that respondents reported obtaining default judgments in 60 to 90 percent of their filed suits); cf. Kimber v. Fed. Fin. Corp., 668 F. Supp. 1480, 1478 (M.D. Ala. 1987) (“Because few unsophisticated consumers would be aware that a statute of limitations could be used to defend against lawsuits based on stale debts, such consumers would unwittingly acquiesce to such lawsuits. And, even if the consumer realizes that she can use time as a defense, she will more than likely still give in rather than fight the lawsuit because she must still expend energy and resources and subject herself to the embarrassment of going into court to present the defense; this is particularly true in light of the costs of attorneys today.”). Consumer and consumer advocate commenters generally supported the prohibitions in proposed § 1006.26(b). Many of these commenters also argued that, to prevent deception, the Bureau should prohibit the collection of time-barred debt altogether, even though the Bureau did not propose such a prohibition in the May 2019 proposal or the February 2020 proposal. The Bureau certainly supports measures to prevent deception because of the harm it causes to consumers. However, the Bureau concludes that is not necessary to ban the collection of time-barred debt to prevent potential deception. As discussed in the February 2020 proposal, the Bureau's quantitative testing generally indicates that disclosures, in certain situations, can be effective in curing the potential deception associated with the collection of time-barred debt. 105 The Bureau concludes that a prohibition on the collection of time-barred debt would impose significant burden on debt collectors to identify such debts and would decrease the value of time-barred debts to little or nothing; a debt has little or no value if the owner cannot collect the debt either in litigation or outside of litigation. The Bureau declines to impose such extraordinarily large costs because much less costly measures—namely, disclosures—can be effective in preventing potential deception. 105 See 85 FR 12672, 12677-79 (Mar. 3, 2020). Moreover, the Bureau emphasizes that prohibiting the collection of time-barred debt when doing so is unnecessary to prevent potential deception is inconsistent with the First Amendment limitations on the Bureau's authority to ban commercial speech. Courts have held that a debt collector who asks a consumer to pay a debt is engaging in commercial speech. 106 Prohibiting the collection of time-barred debt therefore would restrict commercial speech. The Supreme Court has held that restrictions on commercial speech are permissible when they: (1) Are supported by a substantial government interest; (2) directly advance that interest; and (3) are no more extensive than necessary to serve that interest. 107 If the potential deception associated with the collection of time-barred debt can be cured by a disclosure, then prohibiting the collection of time-barred debt would impose a restriction that is more extensive than necessary. 108 As noted above, the Bureau's quantitative testing generally indicates that, in certain situations involving the collection of time-barred debt, disclosures can be effective in curing potential deception. Therefore, the Bureau declines to finalize a prohibition on the collection of time-barred debt. 106 See, e.g., ACA Int'l v. Healey, 457 F. Supp. 3d 17, 25-26 (D. Mass. 2020); Stover v. Fingerhut Direct Mktg., 709 F. Supp. 2d 473, 479 (S.D. W.Va. 2009). 107 See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980). 108 In re R.M.J., 455 U.S. 191, 203 (1982); see also Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999). In addition to consumers and consumer advocates, several industry commenters, Federal agency staff, and one local government commenter expressed support for the proposed prohibitions. Commenters who supported the proposed prohibitions asserted that suits and threats of suit on time-barred debts may induce consumers to make payments they otherwise would not make. Some consumer advocate commenters noted that these payments can revive the debt collector's right to sue in certain jurisdictions. Additionally, consumer advocate commenters asserted that consumers often assume that the mere filing of a lawsuit means that they owe the debt, that the amount owed is accurately stated, and that the debt collector has the legal right to collect the debt, whereas in fact the debt collector may lack support for its claims. These commenters also asserted that consumers generally lack the knowledge and resources to defend their rights in court, and, as a consequence, many claims result in default judgments on debts that were not legally enforceable. Consumer advocate commenters also provided anecdotes and pointed to recent enforcement actions to show that debt collectors continue to sue and threaten to sue on time-barred debt. 109 One industry commenter who supported elements of proposed § 1006.26(b) acknowledged that proposed § 1006.26(b) is consistent with long-standing FDCPA case law. 109 See, e.g., Consent Order ¶¶ 65-69, In re Encore Capital Grp., Inc., No. 2015-CFPB-0022 (Sept. 9, 2015), http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf; Consent Order ¶¶ 56-59, In re Portfolio Recovery Assocs. LLC, No. 2015-CFPB-0023 (Sept. 9, 2015), http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf; see also Complaint ¶¶ 30-35, Bureau of Consumer Fin. Prot. v. Encore Capital Grp., Inc., No. 2020CV1750 (S.D. Cal. Sept. 8, 2020), https://www.consumerfinance.gov/documents/9167/cfpb_encore-capital-group-et-al_complaint_2020-08.pdf. Several industry commenters who opposed proposed § 1006.26(b) argued that the Bureau should not prohibit suits and threats of suit on time-barred debt because, in most jurisdictions, expiration of the statute of limitations does not prohibit a debt collector from bringing suit but rather provides the consumer with an affirmative defense to liability. According to these commenters, proposed § 1006.26(b) would effectively preempt State affirmative defense laws by making expiration of the statute of limitations a total bar to suit, thereby interfering with debt collectors' right to legal recourse under State law. Relatedly, an industry commenter argued that State courts are capable of addressing situations in which a debt collector sues to collect a time-barred debt, including by dismissing the debt collector's claim and awarding sanctions if appropriate. Another industry commenter asserted that consumers should be responsible for tracking the legal obligations associated with their debts, and that it would be unduly burdensome to require debt collectors to determine whether a debt is time barred, particularly for debt collectors who are small businesses. Some industry commenters argued that the Bureau lacks the authority to prohibit suits and threats of suit on time-barred debts. For example, several industry commenters argued that proposed § 1006.26(b) exceeds the Bureau's authority because, in their view, nothing in the FDCPA permits the Bureau to preempt State laws relating to debt collection or access to courts or establishes a Federal role in determining State law defenses. Similarly, one industry commenter asserted that proposed § 1006.26(b) contradicts the Federal Rules of Civil Procedure and State-law equivalents and abridges a debt collector's right to petition the courts. The commenter pointed to Federal Rule of Civil Procedure 11, pursuant to which an attorney's claims, defenses, and other legal contentions must be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. According to this commenter, the proposed prohibitions conflict with Rule 11 and its equivalents by discouraging debt collectors from filing legitimate lawsuits that argue in good faith for the modification or reversal of existing law. Final § 1006.26(b) prohibits a debt collector from bringing or threatening to bring a legal action against a consumer to collect a time-barred debt. A debt collector who sues or threatens to sue a consumer to collect a time-barred debt explicitly or implicitly misrepresents to the consumer that the debt is legally enforceable, and that misrepresentation is material to consumers because it may affect their conduct with regard to the collection of that debt, including whether to pay it. 110 The Bureau's consumer testing suggests that consumers often are uncertain about their rights concerning time-barred debt. 111 Consumers sued or threatened with suit on a time-barred debt generally do not recognize that the debt is time barred, that time-barred debts are unenforceable in court, or that they must raise the expiration of the statute of limitations as an affirmative defense. 110 See, e.g., Kimber, 668 F. Supp. at 1489 (“By threatening to sue Kimber on her alleged debt . . . FFC implicit[ly] represented that it could recover in a lawsuit, when in fact it cannot properly do so.”). 111 See FMG Focus Group Report, supra note 26, at 9-10; FMG Cognitive Report, supra note 27, at 36-37; FMG Summary Report, supra note 29, at 35-36; see also Fed. Trade Comm'n, Repairing a Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration at iii, 26 (July 2010), https://www.ftc.gov/sites/default/files/documents/reports/federal-trade-commission-bureau-consumer-protection-staff-report-repairing-broken-system-protecting/debtcollectionreport.pdf (FTC Litigation Report). The prohibitions in final § 1006.26(b) generally are consistent with the current state of the law. Multiple courts have held that suits and threats of suit on time-barred debt violate the FDCPA, reasoning that such practices violate FDCPA section 807's prohibition on false or misleading representations, FDCPA section 808's prohibition on unfair practices, or both. 112 The FTC also has concluded that the FDCPA bars actual and threatened suits on time-barred debt. 113 In addition, the prohibitions in final § 1006.26(b) generally are consistent with current industry practice. For example, a number of industry commenters stated they do not sue or threaten to sue on time-barred debt as a matter of policy, and one trade group commenter stated that it requires its members to refrain from suing or threatening to sue on time-barred debts. 112 See, e.g., Pantoja v. Portfolio Recovery Assocs., LLC, 852 F.3d 679, 683-84 (7th Cir. 2017); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1020 (7th Cir. 2014); Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1079 (7th Cir. 2013); Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 33 (3d Cir. 2011) (per curiam); Goins v. JBC & Assocs., P.C., 352 F. Supp. 2d 262, 273 (D. Conn. 2005); Kimber, 668 F. Supp. at 1487-89. 113 FTC Litigation Report, supra note 111, at 23. The Bureau recognizes that, in most jurisdictions, expiration of the statute of limitations provides the consumer with an affirmative defense to liability, but it does not bar a debt collector from bringing suit. The Bureau concludes, however, that consumers are unlikely to know whether the applicable statute of limitations has expired or that the expiration of the statute of limitations provides an affirmative defense. Suits and threats of suit on time-barred debts therefore imply to the least sophisticated consumer not simply that the debt collector may sue or has sued the consumer but also that the debt collector's claim is legally enforceable. For time-barred debts, this is misleading because expiration of the statute of limitations provides the consumer with a complete defense. 114 Accordingly, the Bureau concludes that bringing or threatening to bring a legal action to collect a time-barred debt is a deceptive practice under FDCPA section 807 even if expiration of the statute of limitations is an affirmative defense rather than a categorical bar to suit. 114 See, e.g., Goins, 352 F. Supp. 2d at 272 (holding that, although the statute of limitations is an affirmative defense, threatening to bring suit on time-barred debt “can at best be described as a `misleading' representation, in violation of § 1692e,” because the statute of limitations is a complete defense to any suit). As explained below, the Bureau is finalizing § 1006.26(b) as an interpretation of FDCPA section 807's prohibition on deception; such an interpretation is squarely within the Bureau's authority under FDCPA section 814(d) to prescribe rules with respect to the collection of debts by debt collectors. Contrary to commenters' claims, § 1006.26(b) does not preempt State laws relating to when a debt collector may bring a lawsuit in State court. Rather, it provides that a debt collector who sues or threatens to sue a consumer to collect a time-barred debt violates the FDCPA even if applicable State law permits the suit. In addition, contrary to commenters' assertions, § 1006.26(b) does not exceed the Bureau's authority by regulating access to the courts or litigation activities. Debt collectors have repeatedly argued that they cannot be held liable under the FDCPA for actions taken in litigation because, for example, the United States Constitution allows debt collectors to petition the courts, or because the Federal Rules of Civil Procedure (or their State equivalents) allow debt collectors to argue for the modification or reversal of existing law. Many courts have rejected such arguments, generally reasoning that the FDCPA unquestionably applies to litigation activities. 115 The fact that expiration of a State's statute of limitations may not extinguish a debt under State law or bar a lawsuit in State court unless an affirmative defense is raised and proven does not render the FDCPA's prohibition on using deceptive or misleading representations or means in debt collection inapplicable. There is nothing unusual about the proposition that some behavior permitted by State law may nevertheless violate Federal law. Moreover, nothing in § 1006.26(b) prohibits a debt collector from bringing a legal action against a consumer in which the debt collector argues for an extension, modification, or reversal of existing law or the establishment of new law—including a legal action in which the debt collector argues that a debt is not time barred. Debt collectors remain free to do so. But a debt collector who brings such an action may violate § 1006.26(b) if a court ultimately determines that the debt was time barred. 115 See, e.g., Aguilar v. LVNV Funding LLC, No. 2:19-cv-105, 2019 WL 3369706, at *3-4 (M.D. Fla. July 26, 2019); Tobing v. Parker McCay, P.A., No. 3:17-cv-00474, 2018 WL 2002799, at *9 (D.N.J. Apr. 30, 2018); Consumer Fin. Prot. Bureau v. Frederick J. Hanna & Assocs., P.C., 114 F. Supp. 3d 1342, 1359-61 (N.D. Ga. 2015); Johnson v. Riddle, 305 F.3d 1107, 1118 (10th Cir. 2002). Liability Standard Proposed § 1006.26(b) would have prohibited a debt collector from bringing or threatening to bring a legal action against a consumer to collect a time-barred debt only if the debt collector knew or should have known the debt was time barred. In proposing a knows-or-should-know standard, the Bureau explained that determining whether a debt is time barred may involve analyzing which State law applies, which statute of limitations applies, when the statute of limitations began to run, and whether the statute of limitations has been tolled or reset. In many cases, a debt collector will know, or will be able to readily determine, whether the statute of limitations has expired. In some instances, however, a debt collector may be genuinely uncertain even after undertaking a reasonable investigation, such as if the case law in a State is unclear as to which statute of limitations applies to a particular type of debt. The proposed knows-or-should-know standard was meant to address this concern by not imposing liability on a debt collector if it had no way of knowing that a particular debt was time barred. But the Bureau also acknowledged that it sometimes may be difficult to determine whether a knows-or-should-know standard has been met. Such uncertainty could increase litigation costs and make it difficult for consumers and government agencies to bring actions against debt collectors. To address this concern, the Bureau sought comment on an alternative strict liability standard pursuant to which a debt collector would be liable for suing or threatening to sue on a time-barred debt even if the debt collector neither knew nor should have known that the debt was time barred. Industry commenters generally did not support a strict liability standard. These commenters generally agreed that it can be difficult for a debt collector to determine whether a debt is time barred and asserted that holding debt collectors strictly liable for good faith errors would be unduly harsh. These commenters stated, for example, that determining the applicable statute of limitations and whether it has expired may require analyzing a variety of factual and legal questions specific to the debt, and that, in many cases, a debt collector may reach the wrong conclusion even after undertaking a reasonable investigation and analysis. Industry commenters asserted that debt collectors may be unable to reliably determine the statute of limitations before filing suit because the law is unclear, because some information relevant to the analysis may be unavailable, or both. Some industry commenters also asserted that the analysis may change over time. For example, according to these commenters, a consumer's decision to move to a different State after signing a loan agreement could affect a debt collector's analysis of which State law applies and whether the statute of limitations has been tolled. As another example, an industry commenter stated that, in certain jurisdictions, the statute of limitations applicable to mortgage debt is in flux because of unprecedented access by consumers to loss mitigation and an increase in bankruptcy filings in the wake of the foreclosure crisis. Several industry commenters also expressed concern that debt collectors who are not attorneys may have particular difficulty making an accurate time-barred debt determination. For these reasons, industry commenters asserted that a strict liability standard, which would leave no room for error, would expose debt collectors to liability even though it would be challenging or very costly in many circumstances to determine if a debt is time barred. Some industry commenters supported the proposed knows-or-should-know standard. These commenters generally asserted that the proposed standard would help debt collectors avoid liability for good-faith mistakes in determining whether a debt is time barred—something industry commenters argued is important given the complexity and uncertainty of certain time-barred debt analyses. One industry commenter asserted that the proposed standard also would adequately protect consumers from harm. However, several industry commenters who expressed general support for the proposed standard also asked the Bureau to provide additional guidance, including examples of circumstances in which a debt collector neither knows nor should know that a debt is time barred. Not all industry commenters supported the proposed knows-or-should-know standard. Some industry commenters argued that the proposed standard was vague and subjective and could increase litigation risk rather than mitigating it. Other industry commenters asked the Bureau to clarify that the knows-or-should-know standard depends on the specific understanding and sophistication of the particular debt collector. They asserted, for example, that what an attorney debt collector knows or should know about a debt's time-barred status may differ from what a non-attorney debt collector knows or should know. Some industry commenters who opposed the proposed knows-or-should-know standard offered alternative standards. For example, several industry commenters recommended that the Bureau finalize a reasonable investigation standard such that a debt collector who sued or threatened to sue to collect a time-barred debt would not be liable if the debt collector undertook a reasonable investigation before doing so. Similarly, some industry commenters argued that a debt collector who acts in good faith should not be liable for suits and threats of suit on time-barred debts. Other industry commenters suggested that the Bureau finalize a liability standard akin to qualified immunity such that a debt collector who sued or threatened to sue to collect a time-barred debt would not be liable unless the applicable statute of limitations was clearly established. Other industry commenters suggested that the Bureau finalize an actual knowledge standard such that a debt collector who sued or threatened to sue on a time-barred debt would be liable only if the debt collector knew the debt was time barred. Some commenters suggested that the Bureau finalize various safe harbors for debt collectors. For example, industry commenters recommended safe harbors for debt collectors collecting debts of a certain age and for debt collectors who rely on information provided by the creditor. Other industry commenters suggested that a debt collector who maintains and follows reasonable procedures for determining whether a debt is time barred should receive a safe harbor from liability in the event that the debt collector inadvertently sues or threatens to sue on a time-barred debt. One industry commenter requested that the Bureau specifically confirm that FDCPA section 813(c)'s bona fide error defense would apply to violations of § 1006.26(b). Other commenters, including consumers, consumer advocates, academics, some members of Congress, a group of State Attorneys General, and several local governments, urged the Bureau to adopt a strict liability standard. Although some of these commenters acknowledged that determining whether a debt is time barred can be complicated, 116 others argued that determining whether a debt is time barred is relatively straightforward in most cases. One commenter suggested that, if the Bureau finalizes the proposed knows-or-should-know standard, the Bureau should clarify that in most cases a debt collector will know (or should know) whether the statute of limitations has run because in most cases debt collectors have the necessary information to make the determination. 116 A group of academic commenters challenged the Bureau's assertion that debt buyers generally receive enough information to determine whether a debt is time barred. These commenters noted that fewer than half of respondents to the Bureau's industry survey reported receiving account agreement documentation or billing statements, information that the commenters believed would help a debt collector calculate the applicable statute of limitations and whether it has expired. Some consumer advocate commenters who argued for a strict liability standard stated that it would incentivize debt collectors to determine whether a debt is time barred before threatening or filing suit. Some consumer advocate commenters suggested that this would help reduce the consumer protection risks associated with the collection of time-barred debt, including the risk that consumers may be unable to adequately protect their rights in court and the risk that consumers may make a payment on the debt under the misimpression that the debt is legally enforceable, which could revive the debt collector's right to sue. Some commenters expressed concern that the proposed knows-or-should-know standard would not adequately incentivize debt collectors to determine the time-barred status of debts. Around two dozen members of Congress asserted that finalizing a knows-or-should-know standard without additional protections could encourage willful ignorance on the part of a debt collector about the time-barred status of a debt. A group of State Attorneys General and some consumer advocate commenters similarly argued that a knows-or-should-know standard would promote willful ignorance by debt collectors. A number of commenters, including consumer advocate commenters and a group of State Attorneys General, advocated a strict liability standard because, in their view, debt collectors generally have more resources and expertise and better access to information than consumers. These commenters generally asserted that it would often be difficult for a consumer to establish that a debt was time barred and that the debt collector knew or should have known that fact. Many of these commenters also argued that the proposed knows-or-should-know standard was inconsistent with the FDCPA (which some commenters described as a strict liability statute) and with FDCPA section 807's prohibition on deception (which does not include a knowledge element). Some commenters pointed out that, because FDCPA section 813(c) provides debt collectors with a bona fide error defense to liability in certain circumstances, a strict liability standard would not expose debt collectors to undue liability. Commenters also argued that the proposed knows-or-should-know standard was inconsistent with case law imposing or implying a strict liability standard when evaluating claims that a debt collector sued or threatened to sue to collect a time-barred debt. Several commenters agreed with the Bureau that a strict liability standard generally would reduce ambiguity and be easier to enforce than the proposed knows-or-should-know standard. Federal government agency staff encouraged the Bureau to consider further whether a knows-or-should-know standard would place an unnecessary burden on law enforcement agencies. The Bureau is not finalizing the proposed knows-or-should-know standard and is instead finalizing a strict liability standard. Although determining whether a debt is time barred can be challenging or costly in certain circumstances, the Bureau concludes that the proposed knows-or-should-know standard is generally inconsistent with FDCPA section 807, which does not include an exception or exclusion for debt collectors whose deceptive statements are unintentional or for whom ensuring that a statement is not deceptive is burdensome. 117 The Bureau also concludes that a strict liability standard is more consistent with FDCPA section 807's prohibition on deception, as well as case law imposing or implying such a standard when evaluating claims under FDCPA section 807 generally and claims related to suits and threats of suit on time-barred debt specifically. 118 117 For the same reasons, the Bureau concludes that the alternative standards proposed by industry commenters—including, for example, an actual knowledge standard, a reasonable-investigation standard, or a clearly-established-law standard—are generally inconsistent with FDCPA section 807. 118 See, e.g., Pantoja, v. Portfolio Recovery Assocs., LLC, 852 F.3d 679, 683 (7th Cir. 2017); Buchanan v. Northland Grp., Inc., 776 F.3d 393, 399 (6th Cir. 2015); Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1083-84 (7th Cir. 2013); Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1176 (9th Cir. 2006); Gearing v. Check Brokerage Corp., 233 F.3d 469, 472 (7th Cir. 2000). Moreover, the Bureau notes that a knows-or-should-know standard could, in some circumstances, shift the risk that a claim is deceptive from debt collectors to consumers. As explained above, suits and threats of suit on time-barred debt can cause consumer harm. In a case in which it is difficult or costly to determine whether a debt is time barred, a knows-or-should-know standard could allow debt collectors to avoid liability for causing such harm. In other consume [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-28422. Public record. Not legal advice.