Safe Harbor For Lenders-A Limited Content Message Under the New FDCPA

Many lenders are thinking about the new Fair Debt Collection Practices Act ("FDCPA"), currently scheduled to take effect November 30, 2021, and wondering how to implement it. One component of the new FDCPA is the “Safe Harbor for Limited Content Messages.”

Leaving a message for a consumer in default has always been tricky under the FDCPA. However, the new FDCPA provide a safe harbor in that a “limited content messages” (“LCM”) is not deemed a communication. Specifically, a LCM is: “A voicemail message for a consumer that includes all of the content described in §1006.2(j)(1), that may include any of the content described in § 1006.2(j)(2), and that includes no other content.” 12 CFR § 1006.2(j). “If a voicemail message includes content other than the specific items described, and such other content directly or indirectly conveys any information about a debt, the message is a communication” (i.e. not a LCM). Comment §1006.2(j)-1.

Under the Safe Harbor, a LCM is:

• A voicemail message for a consumer that includes all of the following: (1) A business name for the debt collector that does not indicate that the debt collector is in the debt collection business; (2) A request that the consumer reply to the message; (3) The name or names of one or more natural persons whom the consumer can contact to reply to the debt collector; and (4) A telephone number or numbers that the consumer can use to reply to the debt collector. See2(j)(1)
• A LCM may also include: (1) A salutation; (2) The date and time of the message; (3) Suggested dates and times for the consumer to reply to the message.; and (4) A statement that if the consumer replies, the consumer may speak to any of the company's representatives or associates.

The CFPB has also provided sample LCM messages as follows.

• “This is Robin Smith calling from ABC Inc. Please call me or Jim Johnson at 1-800-555-1212.”
• “Hi. This is Robin Smith calling from ABC, Inc. It is 4:15 PM on Wednesday, September 1. Please contact me or any of our representatives at 1-800-555-1212 today until 6:00 PM or any weekday from 8:00 AM to 6:00 PM Eastern time.”

Lenders should note the examples provided by the CFPB do not include the name of the consumer.

If you need help understanding your rights in the complicated world of lending, contact the experienced banking attorneys at Goosmann Law in our Sioux City, Sioux Falls, and Omaha offices.