Unknown. Advisory opinion

4,269 words·~19 min read·/register/2023/05/01/2023-09171·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2023-05-01.xml --- 88 83 Monday, May 1, 2023 Contents Agency Agency for International Development NOTICES Meetings: Advisory Committee, 26516 2023-09172 Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Food Safety and Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26516-26517 2023-09125 Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: National Veterinary Services Laboratories; Bovine Spongiform Encephalopathy Surveillance Program, 26518 2023-09140 Pest Risk Analysis for the Importation of Fresh Ginseng Roots (Panax ginseng C.A. Mey.) from the Republic of Korea into the United States, 26517 2023-09136 Consumer Financial Protection Bureau of Consumer Financial Protection RULES Advisory Opinion: Fair Debt Collection Practices Act (Regulation F); Time-Barred Debt, 26475-26477 2023-09171 NOTICES Meetings:

Academic Research Council, 26528-26529 2023-08798 Combined Community Bank Advisory Council and Credit Union Advisory Council, 26527-26528 2023-08797 Consumer Advisory Board, 26528 2023-08796 Fiscal Bureau of the Fiscal Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Affidavit by Individual Surety, 26652-26653 2023-09187 Affidavit of Forgery for United States Bonds and Notes, 26650 2023-09186 Certificate of Identity, 26651-26652 2023-09164 Claim for Relief on Account of Loss, Theft, or Destruction of United States Registered Securities, 26649 2023-09166 Pools and Associations—Annual Letter, 26651 2023-09195 Report/Application for Relief on Account of Loss, Theft, or Destruction of U.S.

Bearer Securities (Individuals), 26650-26651 2023-09167 Report/Application for Relief on Account of Loss, Theft, or Destruction of United States Bearer Securities (Organizations), 26652 2023-09168 Special Form of Request for Payment of US Savings and Retirement Securities Where Use of a Detached Request is Authorized, 26650 2023-09165 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26546-26547, 26549-26551 2023-09087 2023-09088 Charter Amendments, Establishments, Renewals and Terminations:

Advisory Committee to the Director, 26548 2023-09071 Meetings, 26549 2023-09064 Meetings: Advisory Board on Radiation and Worker Health, Subcommittee for Procedure Reviews, National Institute for Occupational Safety and Health, 26544 2023-09072 Board of Scientific Counselors, National Center for Injury Prevention and Control, 26546 2023-09066 Board of Scientific Counselors, National Institute for Occupational Safety and Health, National Firefighter Registry Subcommittee, 26544-26545 2023-09065 Healthcare Infection Control Practices Advisory Committee, 26547-26548 2023-09063 Mine Safety and Health Research Advisory Committee, 26548-26549 2023-09068 Requests for Nominations:

Healthcare Infection Control Practices Advisory Committee, 26551 2023-09067 Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program: Proposed Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals; etc., 26658-27309 2023-07389 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26551-26552 2023-09142 Chemical Chemical Safety and Hazard Investigation Board NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 26520-26521 2023-09177 Civil Rights Civil Rights Commission NOTICES Meetings: Colorado Advisory Committee, 26521 2023-09073 Puerto Rico Advisory Committee, 26521-26522 2023-09116 Coast Guard Coast Guard PROPOSED RULES Lifejacket Approval Harmonization, 26514 C1-2023-06504 Safety Zone: Graduate Boat Parade, Sturgeon Bay, WI, 26512-26514 2023-09155 NOTICES Meetings: National Commercial Fishing Safety Advisory Committee, 26585-26586 2023-09135 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration Defense Department Defense Department RULES Operational Contract Support Outside the United States, 26477-26494 2023-09020 NOTICES Meetings:

Defense Science Board, 26529-26530 2023-09174 Education Department Education Department See National Assessment Governing Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Evaluation of Full-Service Community Schools: Early Implementation, 26533 2023-09091 Higher Education Emergency Relief Fund No Cost Extension Request Form, 26532-26533 2023-09185 Energy Department Energy Department See Federal Energy Regulatory Commission RULES Energy Conservation Program:

Test Procedure for Fans and Blowers, 27312-27394 2023-08696 PROPOSED RULES Energy Conservation Program: Standards for Residential Clothes Washers, 26511-26512 2023-09019 NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Paducah, 26534 2023-09122 Record of Decision: Alaska LNG Project LLC; Order Affirming and Amending DOE/FE Order No. 3643-A Following Partial Grant of Rehearing, 26533-26534 2023-09159 Magnolia LNG LLC; Order Amending Long-Term Authorization to Export Liquefied Natural Gas to Non-Free Trade Agreement Nations, 26534-26535 2023-09161 Environmental Protection Environmental Protection Agency RULES Pesticide Tolerance;

Exemptions, Petitions, Revocations, etc.: Starch, 1-Octenylbutanedioate, Aluminum salt; Dextrin, Hydrogen 1-Octenylbutanedioate; and Amylopectin, 2-Hydroxypropyl ether, Acid-, 26498-26502 2023-09090 Pesticide Tolerances: Poly (oxy-1,2-ethanediyl), a,a′-[[[4-[2-(4-methyl-2-benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[-hydroxy- in Pesticide Formulations; Exemption, 26495-26498 2023-09121 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

Disposal of Coal Combustion Residuals from Electric Utilities, 26537-26538 2023-09123 Production, Import, Export, Recycling, Destruction, Transhipment, and Feedstock Use of Ozone-Depleting Substances, 26539-26540 2023-09060 Final Allocations of Cross-State Air Pollution Rule Allowances from New Unit Set-Asides for 2022 Control Periods, 26538-26539 2023-08795 Federal Aviation Federal Aviation Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

National Air Tours Safety Standards, 26640 2023-09117 Meetings: Civil Aviation Noise Policy, 26641-26647 2023-09113 Property Release: Hillsboro Airport, Hillsboro, OR, 26640-26641 2023-09109 Federal Communications Federal Communications Commission PROPOSED RULES Petition for Reconsideration of Action in Rulemaking Proceeding, 26515 2023-09035 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26540-26543 2023-09081 2023-09082 2023-09083 2023-09084 Federal Election Federal Election Commission NOTICES Meetings;

Sunshine Act, 26543 2023-09271 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: FEMA Region II Community and Faith-Based Organizations, 26586-26587 2023-09189 Federal Energy Federal Energy Regulatory Commission NOTICES Application: Montana Department of Natural Resources and Conservation, 26536-26537 2023-09133 Combined Filings, 26535, 26537 2023-09132 2023-09134 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers;

Exemption Applications: Epilepsy and Seizure Disorders, 26647-26649 2023-09181 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cosmetic Labeling Requirements and Facility Registration and Cosmetic Product Listing Program, 26564-26566 2023-09178 Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statements; Draft Guidance for Industry, 26561-26562 2023-09176 Tradeoff Analysis of Prescription Drug Product Claims in Direct-to-Consumer and Healthcare Provider Promotion, 26552-26559 2023-09183 Establishment of a Public Docket:

Draft Pharmaceutical Quality/Chemistry Manufacturing and Controls Data Elements and Terminologies, 26567-26569 2023-09173 Guidance: S12 Nonclinical Biodistribution Considerations for Gene Therapy Products; International Council for Harmonisation, 26562-26563 2023-09179 Smoking Cessation and Related Indications: Developing Nicotine Replacement Therapy Drug Products, 26559-26561 2023-09170 Meetings: Science Forum 2023; Workshop, 26569 2023-09175 Request for Information: Food and Drug Administration Data and Technology Strategic Plan, 26566-26567 2023-09169 Food Safety Food Safety and Inspection Service NOTICES Meetings:

National Advisory Committee on Microbiological Criteria for Foods, 26518-26520 2023-09111 General Services General Services Administration NOTICES Revision to Foreign Gift Minimal Value; Correction, 26543-26544 2023-09069 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See Indian Health Service See National Institutes of Health See Substance Abuse and Mental Health Services Administration Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Housing Housing and Urban Development Department NOTICES Electronic Line of Credit Control System System Access Authorization Form Collection, 26587-26588 2023-09062 Indian Health Indian Health Service NOTICES Tribal Self-Governance Negotiation Cooperative Agreement Program, 26569-26577 2023-09097 Interior Interior Department See Land Management Bureau See National Park Service See Reclamation Bureau Internal Revenue Internal Revenue Service PROPOSED RULES Superfund Chemical Taxes;

Correction, 26512 2023-09003 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Advanced Manufacturing Production Credit, 26654 2023-09124 Meetings: Taxpayer Advocacy Panel Taxpayer Communications Project Committee, 26653 2023-09108 Taxpayer Advocacy Panel's Notices and Correspondence Project Committee, 26653 2023-09102 Taxpayer Advocacy Panel's Special Projects Committee, 26654-26655 2023-09103 Taxpayer Advocacy Panel's Tax Forms and Publications Project Committee, 26653 2023-09107 Taxpayer Advocacy Panel's Toll-Free Phone Lines Project Committee, 26653-26654 2023-09101 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews:

Initiation of Five-Year (Sunset) Reviews, 26522-26523 2023-09221 International Trade Com International Trade Commission NOTICES Complaint: Certain Blood Flow Restriction Devices with Rotatable Windlasses and Components Thereof, 26590-26592 2023-09115 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Automated Put Walls and Automated Storage and Retrieval Systems, Associated Vehicles, Associated Control Software, and Component Parts Thereof (II), 26592 2023-09163 Dioctyl Terephthalate from South Korea, 26598 2023-09137 Silicon Metal from China, 26595-26598 2023-09023 Stainless Steel Flanges from China and India, 26592-26595 2023-09026 Justice Department Justice Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Annual Surveys of Probation and Parole, 26598-26599 2023-09190 Labor Department Labor Department See Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Claim for Reimbursement of Benefit Payments and Claims Expense under the War Hazards Compensation Act, 26599-26600 2023-09119 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.:

Potential Environmental Effects from Maintaining Secretary Jewell's Coal Leasing Moratorium, 26588-26590 2023-08960 Assesment National Assessment Governing Board NOTICES Meetings, 26530-26532 2023-09114 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 26579-26582 2023-09094 2023-09126 2023-09127 National Center for Advancing Translational Sciences, 26577-26578 2023-09149 2023-09150 National Heart, Lung, and Blood Institute, 26580 2023-09092 National Institute of Biomedical Imaging and Bioengineering, 26577 2023-09131 National Institute of General Medical Sciences, 26581 2023-09128 National Institute of Mental Health, 26578 2023-09151 National Institute on Aging, 26577-26578, 26582-26583 2023-09095 2023-09098 2023-09100 National Institute on Deafness and Other Communication Disorders, 26579-26580 2023-09130 National Library of Medicine, 26580 2023-09152 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States:

Northeast Multispecies Fishery; Approval of 2023 and 2024 Sector Operations Plans and Allocation of 2023 Northeast Multispecies Annual Catch Entitlements, 26502-26510 2023-09143 NOTICES Meetings: Fisheries of the South Atlantic; Southeast Data, Assessment, and Review, 26524-26525 2023-09145 New England Fishery Management Council, 26523, 26525 2023-09146 2023-09147 Permits; Applications, Issuances, etc.: Endangered and Threatened Species; File No. 24016-01, 26523-26524 2023-09075 Requests for Nominations:

Science Advisory Board, 26525-26526 2023-09156 National Park National Park Service NOTICES Land Exchange: Virgin Islands National Park; Correction, 26590 2023-09158 National Telecommunications National Telecommunications and Information Administration NOTICES Introduction of Accountable Measures Regarding Access to Personal Information of .us Registrants, 26526-26527 2023-09180 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Environmental Assessments; Availability, etc.:

TMI-2 Solutions, LLC; Three Mile Island Nuclear Station, Unit No. 2, 26610-26612 2023-09154 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Application: Traylor Bros., Inc., 26600-26610 2023-09118 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Lavender Scare, 70th Anniversary (Proc. 10557), 26473-26474 2023-09258 EXECUTIVE ORDERS Armed Forces, U.S.; International Drug Trafficking, Authority To Order Ready Reserve to Active Duty to Address (EO 14097), 26471-26472 2023-09318 ADMINISTRATIVE ORDERS Foreign Assistance Act of 1961;

Delegation of Authority Under Section 506(a)(1) (Memorandum of April 19, 2023), 26467 2023-09297 James M. Inhofe National Defense Authorization Act for Fiscal Year 2023; Delegation of Authority Under Section 5948

(d)(Memorandum of April 25, 2023), 26469 2023-09299 Reclamation Reclamation Bureau NOTICES Meetings: Glen Canyon Dam Adaptive Management Work Group, 26590 2023-09157 Securities Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 26629 2023-09266 Self-Regulatory Organizations; Proposed Rule Changes: Cboe Exchange, Inc., 26621-26629 2023-09079 NYSE American, LLC, 26629-26636 2023-09080 2023-09086 NYSE Arca, Inc., 26612-26621, 26636-26639 2023-09077 2023-09078 2023-09085 Substance Substance Abuse and Mental Health Services Administration NOTICES List of Certified Laboratories and Instrumented Initial Testing Facilities that Meet Minimum Standards to Engage in Urine and Oral Fluid Drug Testing, 26583-26584 2023-09061 Supplemental Funding Opportunity: Fiscal Year 2023, 26584-26585 2023-09138 2023-09139 Surface Transportation Surface Transportation Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Classification Index Survey Form, 26639-26640 2023-09153 Exemption: Abandonment; CSX Transportation, Inc., Bronx County, NY, 26639 2023-09070 Transportation Department Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration Treasury Treasury Department See Bureau of the Fiscal Service See Internal Revenue Service Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 26658-27309 2023-07389 Part III Energy Department, 27312-27394 2023-08696 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription. 88 83 Monday, May 1, 2023 Rules and Regulations CONSUMER FINANCIAL PROTECTION BUREAU 12 CFR Part 1006 Fair Debt Collection Practices Act (Regulation F); Time-Barred Debt AGENCY: Consumer Financial Protection Bureau. ACTION: Advisory opinion. SUMMARY: The Consumer Financial Protection Bureau

(CFPB)is issuing this advisory opinion to affirm that the Fair Debt Collection Practices Act (FDCPA) and its implementing Regulation F prohibit a debt collector, as that term is defined in the statute and regulation, from suing or threatening to sue to collect a time-barred debt. Accordingly, an FDCPA debt collector who brings or threatens to bring a State court foreclosure action to collect a time-barred mortgage debt may violate the FDCPA and Regulation F. DATES: This advisory opinion is effective on May 1, 2023. FOR FURTHER INFORMATION CONTACT: Seth Caffrey, Courtney Jean, or Kristin McPartland, Senior Counsels, Office of Regulations at

(202)435-7700 or *https://reginquiries.consumerfinance.gov/.* If you require this document in an alternative electronic format, please contact *CFPB_Accessibility@cfpb.gov.* SUPPLEMENTARY INFORMATION: The CFPB is issuing this advisory opinion through the procedures for its Advisory Opinions Policy. 1 Refer to those procedures for more information. 1 85 FR 77987 (Dec. 3, 2020). I. Advisory Opinion A. Background Leading up to the 2008 financial crisis, many lenders originated mortgages to consumers without considering their ability to repay the loans. 2 These practices, which harmed millions of people, included in some cases originating products such as “piggyback” mortgages in which high-interest second mortgages were issued simultaneously with the origination of the first mortgage. One common piggyback mortgage product, known as an 80/20 loan, involved a first lien loan for 80 percent of the value of the home and a second lien loan for the remaining 20 percent of the valuation. Some consumers in these loans found themselves unable to make full payments on their first and second mortgages, and when housing prices began to decline in 2005, refinancing became more difficult. 3 2 *See generally* 78 FR 79730, 79732-33 (Dec. 31, 2013). 3 *Id.* at 79733. When a borrower defaults on a second mortgage, the mortgage holder may be able to initiate a foreclosure even if the borrower is current on the first mortgage. However, the second mortgage holder only receives proceeds from the foreclosure sale if there are any funds left after paying off the first mortgage. As a result, many second mortgage holders of piggyback loans, recognizing that a foreclosure would not generate enough money to cover even the first mortgage, charged their defaulted loans off as uncollectible and ceased communicating with the borrowers. Some sold the loans to debt buyers, often for pennies on the dollar. Such sales often occurred unbeknownst to borrowers, who continued to receive no communications regarding the loans. Many borrowers, having not received any notices or periodic statements for years, concluded that their second mortgages had been modified along with the first mortgage, discharged in bankruptcy, or forgiven. In recent years, as home prices have increased and borrowers have paid down their first mortgages, after years of silence, some borrowers are hearing from companies that claim to own or have the right to collect on their long-dormant second mortgages. 4 These companies often demand the outstanding balance on the second mortgage, plus fees and interest, and threaten to foreclose if the borrower does not or cannot pay. The CFPB is concerned about homeowners who survived the 2008 financial crisis but who are now facing foreclosure threats and other collection activity because of long-dormant second mortgages. These borrowers are often told that they face a choice between entering into onerous payment plans or losing their homes and the equity they have diligently built since the financial crisis. 4 *See generally* Michael Hill, *“Zombie Debt”: Homeowners face foreclosure on old mortgages,* Associated Press (Nov. 16, 2022), *https://apnews.com/article/business-mortgages-44b1ffad08a80b96a8630e091d1e96f2.* Because of the amount of time that has lapsed on these long-dormant loans, some have likely become time barred under State law. Time-barred debts are debts for which the applicable statute of limitations has expired. 5 Statutes of limitation are, typically, State laws that provide time limits for bringing suit on legal claims. 6 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. 7 In many jurisdictions, State court ( *i.e.,* judicial) foreclosure actions are subject to a statute of limitations. 5 *See* 86 FR 5766, 5776-77 (Jan. 19, 2021); 12 CFR 1006.26(a)(2). 6 *See* 86 FR at 5775-76; 12 CFR 1006.26(a)(1). 7 *See* 86 FR at 5777. The CFPB understands that some debt collectors collecting on long-dormant second mortgages may have filed or have threatened to file judicial foreclosure actions even though the underlying debt is time barred. The CFPB is issuing this advisory opinion to affirm that:

(1)the FDCPA and its implementing Regulation F prohibit a debt collector, as that term is defined in the statute and regulation, from suing or threatening to sue to collect a time-barred debt; and

(2)this prohibition applies even if the debt collector neither knows nor should know that the debt is time barred. Accordingly, an FDCPA debt collector who brings or threatens to bring a State court foreclosure action to collect a time-barred mortgage debt may violate the FDCPA and Regulation F. B. Coverage This advisory opinion applies to debt collectors as defined in section 803(6) of the FDCPA and implemented in Regulation F, 12 CFR 1006.2(i). C. Legal Analysis The FDCPA 8 and its implementing Regulation F 9 govern the conduct of “debt collectors” when they collect “debt.” The statute and regulation generally define a debt collector as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 10 Many individuals and entities that seek to collect defaulted mortgage loans, and many of the attorneys that bring foreclosure actions on their behalf, are FDCPA debt collectors. 8 15 U.S.C. 1692-1692p. 9 12 CFR part 1006. 10 15 U.S.C. 1692a(6); 12 CFR 1006.2(i). The statute and regulation also provide that, for purposes of section 808(6) and 12 CFR 1006.22(e), the term debt collector also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. *Id.* The FDCPA and Regulation F define “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 11 A consumer's payment obligation arising from a mortgage transaction primarily for personal, family, or household purposes, such as the purchase of the consumer's residence, falls within the plain language of this definition. 12 It follows that State court foreclosure proceedings often constitute the collection of “debt” under the FDCPA, 13 and debt collectors who engage in such debt collection activity are subject to the requirements and prohibitions of the FDCPA and Regulation F. 11 15 U.S.C. 1692a(5); 12 CFR 1006.2(h). 12 *See, e.g., Cohen* v. *Rosicki, Rosicki & Assocs., PC,* 897 F.3d 75, 83 (2d Cir. 2018). 13 *Id.* at 83-84. Regulation F prohibits a debt collector from suing or threatening to sue to collect a time-barred debt. 14 As the CFPB explained in finalizing this prohibition, “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.” 15 Regulation F's prohibition on suits and threats of suit on time-barred debt is subject to a strict liability standard. 16 That is, a debt collector who sues or threatens to sue to collect a time-barred debt violates the prohibition “even if the debt collector neither knew nor should have known that a debt was time barred.” 17 Accordingly, a debt collector who brings or threatens to bring a State court foreclosure action with respect to a time-barred mortgage debt may violate the FDCPA and Regulation F. This is true even if the debt collector neither knew nor should have known that the debt was time barred. 14 12 CFR 1006.26(b). 15 86 FR 5776, 5778 (Jan. 19, 2021). 16 *See id.* at 5777, 5781. 17 *Id.* at 5777. The CFPB also notes that a broad range of non-foreclosure debt collection-related activity, such as communicating with consumers about defaulted mortgages, can be covered by the FDCPA. FDCPA debt collectors undertaking such activity are subject to the other requirements and prohibitions of the statute and Regulation F when collecting debt 18 whether or not that debt is time-barred. These include, for example, the prohibition on debt collectors: falsely representing the character, amount, or legal status of any debt; 19 threatening to take any action that cannot legally be taken or that is not intended to be taken; 20 and selling, transferring for consideration, or placing for collection a debt that the debt collector knows or should know has been paid or settled or discharged in bankruptcy. 21 They also include, for example, the requirement that debt collectors: identify themselves as a debt collector in all communications with the consumer (except formal pleadings in connection with a legal action); 22 provide the consumer with validation information in certain circumstances; 23 and respond to consumer disputes adequately before continuing to collect. 24 Finally, even if an FDCPA debt collector engages only in actions necessary to undertake a nonjudicial foreclosure action, the debt collector is still subject to FDCPA section 808(6) 25 and Regulation F, 12 CFR 1006.22(e), 26 which generally prohibit taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if the debt collector has no present right or intention to do so. 27 18 *See* 15 U.S.C. 1692a(5); 12 CFR 1006.2(h). 19 15 U.S.C. 1692e(2)(a); 12 CFR 1006.18(b)(2). 20 15 U.S.C. 1692e(5); 12 CFR 1006.18(c)(1); 15 U.S.C. 1692f(6); 12 CFR 1006.22(e). 21 12 CFR 1006.30(b). 22 15 U.S.C. 1692e(11); 12 CFR 1006.18(e). 23 15 U.S.C. 1692g(a); 12 CFR 1006.34. 24 15 U.S.C. 1692g(b); 12 CFR 1006.38(d); 85 FR 76734, 76845-48 (Nov. 30, 2020). 25 15 U.S.C. 1692f(6). 26 *See* 15 U.S.C. 1692a(6); 12 CFR 1006.2(i)(1). 27 *See Obduskey* v. *McCarthy & Holthus LLP,* 139 S.Ct. 1029

(2019)(holding that a business engaged in no more than nonjudicial foreclosure proceedings is not a debt collector under FDCPA section 803(6), except for the limited purpose of FDCPA section 808(6)). Although not the focus of this advisory opinion, the CFPB also notes that entities selling or collecting on these second mortgages who are mortgage servicers may also be subject to certain requirements under the Real Estate Settlement Procedures Act, 28 the Truth in Lending Act, 29 and the CFPB's mortgage servicing regulations. 30 For example, unless an exemption applies, the CFPB's mortgage servicing regulations require servicers to provide periodic statements to consumers. 31 28 12 U.S.C. 2601 *et seq.* 29 15 U.S.C. 1601 *et seq.* 30 *See, e.g.,* 12 CFR 1024.33(b) (requiring a transferee and transferor servicer to provide a timely notice of transfer of servicing to the affected borrower), 12 CFR 1024.39 (requiring servicers to make early intervention contacts with delinquent borrowers), 12 CFR 1024.41 (requiring servicers to follow certain loss mitigation procedural requirements, including certain foreclosure-related protections). Note that small servicers, as defined in 12 CFR 1026.41(e)(4), are exempt from certain of these requirements. *See* 12 CFR 1024.30(b). 31 *See* 12 CFR 1026.41(a); *see also, e.g.,* 12 CFR 1026.41(e)(4) (exempting small servicers from this requirement) and 12 CFR 1026.41(e)(6) (exempting servicers from periodic statement requirements for certain charged-off loans but only if, among other conditions, the servicer sends a specific notice to the consumer and does not charge additional fees or interest on the account). II. Regulatory Matters This advisory opinion is issued under the CFPB's authority to interpret the FDCPA, including under section 1022(b)(1) of the Consumer Financial Protection Act of 2010, 32 which authorizes guidance as may be necessary or appropriate to enable the CFPB to administer and carry out the purposes and objectives of Federal consumer financial laws. 33 32 Dodd-Frank Wall Street Reform and Consumer Protection Act, *Public Law* 111-203, 124 Stat. 1376 (2010). 33 12 U.S.C. 5512(b)(1). An advisory opinion is a type of interpretive rule. As an interpretive rule, this advisory opinion is exempt from the notice-and-comment rulemaking requirements of the Administrative Procedure Act. 34 Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 35 The CFPB has also determined that this advisory opinion does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act. 36 34 5 U.S.C. 553(b). 35 5 U.S.C. 603(a), 604(a). 36 44 U.S.C. 3501-3521. Pursuant to the Congressional Review Act, 37 the CFPB will submit a report containing this interpretive rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to the rule's published effective date. The Office of Information and Regulatory Affairs has designated this interpretive rule as not a “major rule” as defined by 5 U.S.C. 804(2). 37 5 U.S.C. 801 *et seq.* Rohit Chopra, Director, Consumer Financial Protection Bureau. [FR Doc. 2023-09171 Filed 4-28-23; 8:45 am]

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