J. David Bennett, Esquire
Dear Mr. Bennett:
This is in response to your letter requesting a staff opinion regarding the Fair Debt Collection Practices Act ("FDCPA" or "Act"). I apologize for taking so long to answer your letter.
You state that your office assists Oregon homeowners, associations in collecting unpaid assessments. The Oregon Condominium Act permits a homeowners' association to gain super priority over a first mortgage holder with respect to some portions of unpaid assessments if the association follows certain statutory procedures. One of the procedures involves contacting the underlying mortgagee and notifying the mortgagee of the delinquency. You ask if such a notification would violate the FDCPA if made by a debt collector under the Act.
We have previously expressed the view that procedures required by statute as conditions precedent to the exercise of a statutory right constitute activities that are beyond the scope of the FDCPA. We do not believe that they are the sort of traditional debt collection activities that Congress intended to cover when it enacted the Act. (The enclosed staff interpretation letter to Karen S. Graham, dated May 8, 1987, addresses this issue in greater detail.) Notifying the underlying mortgagee of the consumer's delinquency is a condition precedent to the homeowners, association gaining super priority over first mortgage holders with regard to unpaid assessments. As such, we do not believe such a contact to be a collection activity covered by the Act.
The views expressed herein represent an informal staff opinion. As such, they are not binding on the Commission. They do, however, reflect the staff's current enforcement position.
Thomas E. Kane