MBA Petitions FCC for TCPA Exemption

The Mortgage Bankers Association filed a petition with the Federal Communications Commission, asking for an exemption for mortgage servicing calls from the prior express consent requirements of the Telephone Consumer Protection Act.

MBA is seeking this limited exception to continue to encourage communication with mortgage loan borrowers and early engagement with financially struggling homeowners.

“Outbound residential mortgage servicing calls are critical to ensure borrowers understand available options to avoid foreclosure and its financially damaging repercussions,” the petition said. “Given their importance and benefit to borrowers, these communications are mandated by multiple federal and state laws, regulations and requirements. However, residential mortgage servicers face uncapped statutory penalties for each call attempt made pursuant to these requirements.”

The petition ( — TCPA Petition for Exemption.pdf) notes following the financial crisis, many federal regulators, including the Consumer Financial Protection Bureau, the Federal Housing Finance Agency, FHA and Treasury Department, mandated protocols for reaching out to borrowers through outbound communications when a homeowner is delinquent. States enacted similar requirements.

These communications can provide the homeowner with critical information about their options to save their home,” MBA said. “In today’s environment, this often means through outbound calls or text messages to a consumer if the outreach is going to be effective.

“Unfortunately, MBA said, the TCPA can frustrate these communications by imposing the threat of significant liability for making outbound communications to cell phones. MBA noted Congress, in recognition of this, passed an amendment to the TCPA late last year exempting calls made to collect a debt owed to or guaranteed by the government from the prior express consent requirements. The FCC has promulgated a proposed rule in response to the amendment.

However, MBA noted his “federal debt” exemption, even if construed as broadly as possible, will not extend to all residential mortgage loans. MBA pointed out that FHFA recognized that a mortgage servicing exemption is appropriate and necessary to ensure that all borrowers are able to receive communications they need through a method likely to reach them; the FHFA comments on the FCC’s rule call for just such an exemption.

“This exemption will confirm that complying with borrower outreach requirements will not subject mortgage servicers to liability under the TCPA and will ensure that calls to borrowers are treated fairly under the TCPA, regardless of who may own or insure the mortgage at any given time,” the petition said. “The TCPA was not intended to obstruct effective communications between mortgage servicers and their borrowers.”