In Gutierrez v. Portfolio Recovery Assocs., No. CV 18-9890 DSF (RAOx), 2019 U.S. Dist. LEXIS 18553 (C.D. Cal. Feb. 1, 2019), Judge Fischer said that a debt collector does not bear exposure to a private FDCPA litigant when the debt collector acts pursuant to a consent decree with the CFPB.
The most persuasive argument is that because a consent decree between Defendant and the Consumer Finance Protection Bureau (CFPB) requires the language, that language [*3] cannot be the basis of a FDCPA claim. The FDCPA provides: No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the [CFPB], notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason. 15 U.S.C.A. § 1692k(e). The difficulty for Defendant is that the consent decree is not an official “advisory opinion” of the CFPB. In fact, the CFPB does not appear to issue advisory opinions.1 See Request for Information Regarding Bureau Guidance and Implementation Support, No. CFPB-2018-0013 (2018), https://files.consumerfinance.gov/f/documents/cfpb_rfi_guidance-and-implementation_032018.pdf (requesting public comment on adding advisory opinion process). A publicly available consent decree has a similar — if not stronger — effect as an advisory opinion regarding the conduct at issue. And there is no question that by agreeing to the language in the consent decree, the CFPB implicitly found that the language complied with the FDCPA. Nonetheless, it is not clear that the § 1692k(e) safe harbor applies. However, the Court finds that deferral [*4] to the CFPB’s interpretation of the FDCPA is appropriate here. Typically, “no deference [is] warranted to an agency interpretation of . . . Congress’ words.” Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 210 (2011). But this is not a typical scenario. Unlike most statutes, the FDCPA contains a safe harbor for compliance with agency advice regarding the meaning of the statute. 15 U.S.C. § 1692k(e). Because the CFPB does not operate as Congress may have envisioned, § 1692k(e) may not strictly apply, but the presence of the safe harbor strongly shows that Congress intended for the CFPB to have the power to exempt certain conduct from the scope of the FDCPA. So while the Court may not technically be bound by the statute to dismiss the claims against Defendant as it would be if the safe harbor applied, the CFPB’s determination that the language used by Defendant should actually be mandated convinces the Court that the FDCPA claim should be dismissed because the “will not sue” language does not violate the statute.