Consumer Financial Protection Bureau Announces Proposal to Overhaul the Debt Collection Market at Hearing in California

On July 28, 2016, the Consumer Financial Protection Bureau (“CFPB”) and Director Richard Cordray announced at a field hearing in Sacramento, California the CFPB’s proposals to overhaul the $13.7 billion dollar debt collection market, affecting about 70 million consumers nationwide.

The CFPB will be proposing new regulations for third-party debt collectors and others covered by the Fair Debt Collection Practices Act (“FDCPA”), including many debt buyers. It published a 117-page outline discussing its research process and the proposals under consideration. With these proposals, the CFPB’s goal is “cleaning up the integrity” of the debt collection process. As such, these proposals target all aspects of the debt collection lifecycle, focusing on accuracy in debt collection, and limiting permissible contact by the debt collectors to the consumer. Specifically, the CFPB made proposals to the following areas for which it will propose new regulations: Continue Reading

CFPB Releases Latest Supervisory Highlights Focused on Mortgage Servicing

bigstock-Show-me-money-26933555The Consumer Financial Protection Bureau released their 11th edition of Supervisory highlights, a special edition with a direct warning to mortgage servicers.  The report typically shares findings and examination observations in various areas of oversight like student loan servicing, mortgage origination and debt collection.  However this edition focuses on mortgage servicing technology; loss mitigation acknowledgement notices; loss mitigation offers; loan modification denial notices; policies and procedures; and servicing transfers. The warning is specific to failed technology that continues to be used by some mortgage servicers that has already harmed consumers placing a servicer in violation of CFPB’s servicing rules. Richard Cordray is quoted in the release with this stern warning, “There are no excuses for not following federal rules.”

The full release is available here

Regulating the Unknown: The FTC Seeks to Understand the Past, Present and Future of Financial Technology

finance iStock_000019092935_LargeOver the past 10 years, advances in technology have changed the way people live their lives. No longer must a person leave her home to purchase clothing, groceries or even a car. The marketplace for retail goods has migrated online, and, it appears, the financial industry is not far behind.

Recently, many companies have emerged that strive to efficiently and effectively utilize technology to provide consumers with capital that has historically been unavailable. And with a 100 percent increase between 2014 and 2015 in the amount of unsecured consumer credit originated by just the top two of these “online marketplace lenders,” they appear to be succeeding.

This success, however, has triggered the scrutiny of regulatory agencies, including the U.S. Department of Treasury and the Federal Trade Commission (“FTC”). To better understand how online marketplace lenders operate, what efforts online marketplace lenders are taking to protect their customers and how existing regulations impact the overall online marketplace lending industry, the FTC has initiated a series of forums focused on financial technology, the first of which was held on June 9, 2016. Continue Reading

CFPB Announces Dollar Threshold Adjustments to the Truth in Lending Act

bigstock-Show-me-money-26933555The Consumer Financial Protection Bureau (CFPB) recently released a final rule amending the dollar thresholds in Regulation Z, which implements the Truth in Lending Act (TILA). The CFPB’s final rule has two primary effects. First, the final rule adjusts select dollar amounts in accordance with the annual change reflected in the Consumer Price Index – a 1.1 percent increase, effective June 1, 2016. These changes simply apply the method formerly established in Regulation Z for determining adjustments to select threshold dollar amounts. Second, the final rule corrects a calculation error in the previous rule with respect to the safe harbor in the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act) for a subsequent violation penalty fee.

Adjustments to threshold amounts impact several provisions that amend TILA, including the CARD Act, the Home Ownership and Equity Protection Act of 1994 (HOEPA), and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

For open-end consumer credit plans under the CARD Act, no changes occur with respect to the threshold that triggers the requirements to disclose minimum interest charges for the first violation penalty fee. The safe harbor remains $27. The subsequent violation penalty fee, however, is increased by $1 and is now $38. This change is made to correct a miscalculation in the previous rule, and, unlike the other amendments, takes effect immediately. Continue Reading

CFPB Releases Expansive Payday Lending Rule

The Consumer Financial Protection Bureau (CFPB) released its much anticipated proposed rule aimed at ending what it calls “payday lending debt cycles.” The 1,334-page rule will require small-dollar lenders to undertake comprehensive steps to ensure that the consumer has the ability to repay the short-term or high-cost installment loan. This proposed rule would be the first set of federally promulgated rules aimed at short-term lenders.

According to CFPB Director Richard Cordray, “the Consumer Bureau is proposing strong protections aimed at ending payday debt traps. Too many borrowers seeking a short-term cash fix are saddled with loans they cannot afford and sink into long-term debt. It’s much like getting into a taxi just to ride across town and finding yourself stuck in a ruinously expensive cross-country journey. By putting in place mainstream, commonsense lending standards, our proposal would prevent lenders from succeeding by setting up borrowers to fail.”

The more stringent underwriting requirements under the so-called full-payment test would require lenders to determine up front whether consumers can afford to repay their loans without reborrowing. Under this new test, lenders would have to know the borrower’s income and determine whether the borrower could still meet certain personal financial obligations such as purchasing food and paying for utilities. Further, lenders would be required to pull the consumer’s credit report to verify the amount of outstanding loans and required payments. An exception to the full-payment test would be loans made under the “principal payoff option,” for loans under $500, in which the lender could offer a borrower up to two extensions of the loan, but only if the borrower pays off at least one-third of the principal with each extension. Continue Reading

CFPB Takes Enforcement Action Against Loan Officer for Alleged Mortgage Fee Kickback Scheme

Yesterday, the Consumer Financial Protection Bureau (CFPB) announced the issuance of a consent decree with a former mortgage loan officer arising out of alleged violations of the Real Estate Settlement Procedures Act’s (RESPA) anti-kickback laws and Dodd-Frank’s prohibition on unfair, deceptive or abusive acts or practices (UDAAP). The officer was required to pay an $85,000 fine and was prohibited from working in the mortgage industry for one year.

According to the consent decree, the officer, while working at a Wells Fargo branch in Beverly Hills, California, had an arrangement with an escrow company “in which they manipulated escrow fees, at [the officer’s] direction, by shifting them among loans in order to structure a no-cost mortgage transaction.” (Consent Decree at ¶ 8). In essence, the officer would ask for certain borrowers’ closing costs to be lowered in cases where those borrowers’ costs would have exceeded the credit available to them under the bank’s guidelines, and the escrow company would in turn raise fees on other customers to recoup its losses. (Id. at ¶ 10). As a result of this arrangement, the officer was found to have increased the number of loans he could close (and thus, commissions and bonuses paid to him). The scheme also resulted in him referring settlement-services business to the escrow company. Continue Reading

PayPal Reaches Settlement With Texas Over Venmo Privacy and Security Disclosures

phone 183992313Venmo is a peer-to-peer mobile payments service that PayPal acquired in 2013. Users can transfer money to another person using a mobile or web application (e.g., send money to a friend to split the cost of dinner). On May 20, 2016, Texas Attorney General Ken Paxton announced that Texas had entered into an Assurance of Voluntary Compliance agreement with PayPal to resolve its investigation of Venmo regarding potential violations of Texas’ Deceptive Trade Practices – Consumer Protection Act. The resolution involved a $175,000 payment by PayPal and a commitment to implement certain business practices. There was no admission of wrongdoing and no allegations of actual harm to any individual. Read more >>

CFPB to Announce Small-dollar Lending Rule on June 2

bigstock-Show-me-money-26933555On May 18, 2016, the Consumer Financial Protection Bureau (CFPB) announced that it will hold a field hearing in Kansas City, Missouri, on June 2 regarding small-dollar lending, commonly referred to as payday lending. It is widely speculated that the CFPB will announce the long-awaited payday lending rules, which would be the first federal regulation for this industry, which is currently primarily regulated by the states.  Continue Reading

Supreme Court Unanimously Rejects FDCPA Claim Against Private Attorneys Collecting Debt for State Attorney General

debt manOn May 16, 2016, in Sheriff v. Gillie, Case No. 15-338, the Supreme Court reversed a decision of the Sixth Circuit holding that private attorneys contracted by a state attorney general’s office to collect debt owed to state agencies or instrumentalities violated the Fair Debt Collection Practices Act (FDCPA) by sending collection letters on state letterhead (a practice authorized and directed by the attorney general’s office). In Ohio, the state attorney general is responsible for collecting debts owed to state agencies or instrumentalities once those debts are certified to the AG’s office. (Slip op. at 3-4). The state retained private attorneys to act as “special counsel” to the attorney general for purposes of that collection, and the attorneys sent letters, on state letterhead, to debtors seeking to collect on the past-due amounts. (Id.).

The plaintiffs, consumers who received dunning letters from private attorneys for debt owed to state agencies, brought a class action in the Southern District of Ohio alleging violations of the FDCPA. In particular, the plaintiffs alleged that the use of the attorney general’s letterhead on letters authored by private attorneys violated two subsections of the act’s prohibition on false, deceptive or misleading collection practices: “[t]he use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of … any State,” 15 U.S.C. 1692(e)(9), and “the use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.” Id. at 1692(e)(14). In the district court, the state intervened and sought a declaratory judgment that (1) its letterhead practice did not violate the FDCPA and (2) that special counsel acting in that capacity were state “officers” statutorily excluded from the scope of debt collectors covered by the FDCPA under 15 U.S.C. 1692a(6)(C). The district court granted summary judgment to the state, siding with the state on both issues. Continue Reading

Supreme Court Holds That Plaintiffs Must Allege Concrete and Particularized Injury To Have Standing To Assert FCRA Claim

Today, the U.S. Supreme Court decided Robins v. Spokeo, Inc., which addressed the question of whether a plaintiff has satisfied Article III’s injury-in-fact standing requirement by alleging a statutory violation but no concrete injury. Our sister blog, the Data Privacy Monitor, provides initial coverage here. Stay tuned as we analyze this important ruling which could have broad-ranging implications for class actions arising under statutory causes of action.