By: Steven M. Williams and Alexander F. Barth
On April 16, 2021, the Consumer Finance Protection Bureau (CFPB) issued an Interim Final Rule which, effective May 3, 2021, requires all “debt collectors” pursuing an eviction to provide written notice to the tenant(s) of possible protections and rights provided by the CDC Eviction Moratorium.
“Debt collector” is defined in the Fair Debt Collection Practices Act as any person who regularly collects or attempts to collect debts owed or due or asserted to be owed or due to another. The term includes any creditor who, in the process of collecting his own debts, uses any name other than his own, which would indicate that a third person is collecting or attempting to collect such debts. While the Interim Final Rule does not impact communications from a landlord/owner, it does apply to all third parties, including attorneys, debt collection agencies, and property managers who are not the owners of the properties they manage but who are involved in the eviction process.
The CFPB has provided two versions of sample notice language in both English and Spanish. Debt collectors are not required to use this specific notice language and may craft their own notice provisions so long as the notice language complies with the Interim Final Order. The first sample advises tenants of the protections provided by the CDC Moratorium only. The second notice should be used to provide notice of both the CDC Moratorium and any state- or local-based eviction moratoriums or protections.
|Because of the global COVID-19 pandemic, you may be eligible for temporary protection from eviction under Federal law; or||Debido a la pandemia mundial de COVID-19, bajo la ley federal, usted puede ser elegible para protección temporal contra el desalojo bajo la ley federal.|
|Because of the global COVID-19 pandemic, you may be eligible for temporary protection from eviction under the laws of your State, territory, locality, or tribal area, or under Federal law.||Debido a la pandemia global del COVID-19, bajo las leyes del estado, territorio, localidad o área tribal donde viva, o bajo la ley federal, usted puede ser elegible para protección temporal contra el desalojo.|
Under the Interim Final Rule, the notice must be in writing and be clear and conspicuous. Phone calls and other electronic notifications, such as text messaging, are insufficient.
Because it can sometimes be unclear who is a debt collector and who is not, we recommend that the CFPB notice language be placed on all communications with a tenant, including all late rent notices, default notices, and notices to quit. If notice is not required prior to the eviction filing, the notice must be provided on the date that the eviction is filed.
Pursuant to the Interim Final Rule, a “debt collector” who evicts a tenant without providing notice of the protections available under the CDC Moratorium, or who misrepresents a tenant’s rights under the CDC Moratorium, is subject to civil causes of action and prosecution by federal and state authorities. Failure to comply with the Interim Final Rule also constitutes a violation of the Fair Debt Collection Practices Act.
We will continue to monitor the federal government’s actions regarding the CDC eviction moratoriums and provide updated information when available.
Steve Williams offers a full range of legal services to landlords, property managers, and other housing providers. He can be reached at 717.234.5530 and firstname.lastname@example.org.
Alex Barth is an associate in the Real Estate Group at Cohen Seglias. He can be reached at 267.238.4744 and email@example.com.