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Fair Debt Collection: 11.11.4.1 Generally

While new defense tactics continually arise, two longstanding and frequent strategies to attempt to derail class actions are: (1) to make offers of settlement or judgment to the class representatives individually prior to certification of the class in the hope of mooting their claim and (2) to file counterclaims. These topics, as well as the less frequent maneuver of seeking a ruling on the merits prior to class certification, are discussed immediately below.

Fair Debt Collection: 11.13.5 Tax Consequences of Attorney Fee Awards

An attorney fee award may have consequences for the consumer, even if the consumer hands over the full attorney fee award to the attorney. The general rule is that the fee award is taxable income to the consumer even in that case, although there are several exceptions that often apply.

Fair Debt Collection: § 1006.42 Sending required disclosures.

(a) Sending required disclosures—

(1) In general. A debt collector who sends disclosures required by the Act and this part in writing or electronically must do so in a manner that is reasonably expected to provide actual notice, and in a form that the consumer may keep and access later.

Official interpretation of 42(a)(1) In general.

Fair Debt Collection: § 1006.108 Exemption for State regulation.

(a) Exemption for State regulation. Any State may apply to the Bureau for a determination that, under the laws of that State, any class of debt collection practices within that State is subject to requirements that are substantially similar to those imposed under sections 803 through 812 of the Act (15 U.S.C. 1692a through 1692j) and the corresponding provisions of this part, and that there is adequate provision for State enforcement of such requirements.

Fair Debt Collection: I. Purpose and Definitions

(a) This appendix establishes procedures and criteria whereby States may apply to the Bureau for exemption of a class of debt collection practices within the applying State from the provisions of the Act and the corresponding provisions of this part as provided in section 817 of the Act (15 U.S.C. 1692o).

(b) For purposes of this appendix:

Fair Debt Collection: II. Application

Any State may apply to the Bureau pursuant to the terms of this appendix for a determination that the applicant State law contains requirements that, for a class of debt collection practices within that State, are substantially similar to the requirements that relevant Federal law imposes on that class of debt collection practices, and that the applicant State law contains adequate provision for State enforcement.

Fair Debt Collection: IV. Criteria for Determination

The Bureau will consider the criteria set forth below, and any other relevant information, in determining whether the applicant State law is substantially similar to relevant Federal law and whether there is adequate provision for enforcement of the applicant State law. In making that determination, the Bureau primarily will consider each provision of the applicant State law in comparison with each corresponding provision in relevant Federal law, and not the State law as a whole in comparison with the Act as a whole.

(a)

Fair Debt Collection: V. Public Comment

In connection with any application that has been filed in accordance with the requirements of parts II and III of this appendix and following initial review of the application, a proposed rule concerning the application for exemption will be published by the Bureau in the Federal Register, and a copy of such application will be made available for examination by interested persons during business hours at the Bureau of Consumer Financial Protection, 1700 G Street, NW, Washington, DC 20552.

Fair Debt Collection: VI. Exemption from Requirements

If the Bureau determines on the basis of the information before it that, under the applicant State law, a class of debt collection practices is subject to requirements substantially similar to those imposed under relevant Federal law and that there is adequate provision for State enforcement, the Bureau will exempt the class of debt collection practices in that State from the requirements of relevant Federal law and section 814 of the Act in the following manner and subject to the following conditions:

Fair Debt Collection: VII. Adverse Determination

(a) If, after publication of a proposed rule in the Federal Register as provided under part V of this appendix, the Bureau finds on the basis of the information before it that it cannot make a favorable determination in connection with the application, the Bureau will notify the appropriate State official of the facts upon which such findings are based and will afford that State authority a reasonable opportunity to submit additional materials that demonstrate the basis for granting an exemption.

Fair Debt Collection: VIII. Revocation of Exemption

(a) The Bureau reserves the right to revoke any exemption granted under the provisions of the Act or this part, if at any time it determines that the State law does not, in fact, impose requirements that are substantially similar to relevant Federal law or that there is not, in fact, adequate provision for State enforcement.

Fair Debt Collection: Appendix C to Part 1006—Issuance of Advisory Opinions

1. Advisory opinions. Any act done or omitted in good faith in conformity with any advisory opinion issued by the Bureau, including advisory opinions referenced in this appendix, provides the protection afforded under section 813(e) of the Act. The Bureau will amend this appendix periodically to incorporate references to advisory opinions that the Bureau issues.

Fair Debt Collection: Introduction

1. Official status. This commentary is the vehicle by which the Bureau of Consumer Financial Protection supplements Regulation F, 12 CFR part 1006. The provisions of the commentary are issued under the same authorities as the corresponding provisions of Regulation F and have been adopted in accordance with the notice-and-comment procedures of the Administrative Procedure Act (5 U.S.C. 553). Unless specified otherwise, references in this commentary are to sections of Regulation F or the Fair Debt Collection Practices Act, 15 U.S.C.

Fair Debt Collection: B.2.1 Overview

The FDCPA provides that debt collectors may rely upon a formal advisory opinion as a complete defense in a private suit.10 Appendix C of Regulation F (effective November 30, 2020) contains a list of advisory opinions issued by the CFPB.

Fair Debt Collection: B.3.1 Overview

The CFPB has issued several supervisory guidance documents related to debt collection and the FDCPA.16 These are summarized in this appendix, and the full text of these bulletins is reproduced as companion material to this treatise under “Primary Sources.”