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FTC, New York settle with debt collection schemer
On February 25, the FTC and the New York attorney general announced a settlement with an individual defendant who controlled a New York-based debt collection operation for allegedly violating the FTC Act, the FDCPA, and New York state law by using false or deceptive tactics to collect money from consumers. As previously covered by InfoBytes, the FTC and the New York AG filed a complaint against the operation in 2018, alleging that operation employees threatened consumers with arrest or lawsuits and sometimes falsely posed as law enforcement officials or attorneys. In addition, the FTC and New York AG claimed employees allegedly increased pressure on consumers by telling them they owed more than indicated in the operation’s records, using forms that showed both the actual balance owed by the consumer as well as a higher balance the collectors claimed the consumers owed—a practice known as “overbiffing.” Under the terms of the settlement, the defendant—who neither admitted nor denied the allegations—is permanently banned from participating in debt collection activities and “is prohibited from misleading consumers about any financial-related products” or services. The settlement also imposed a $1.7 million judgment, of which all but $30,000 is suspended due to the defendant’s inability to pay.
FTC gives annual ECOA summary to CFPB
On February 21, the FTC announced it recently provided the CFPB with its annual summary of work on ECOA-related policy issues, focusing specifically on the Commission’s activities with respect to Regulation B. The summary discusses, among other things, the following FTC research and policy development initiatives:
- The FTC continued its series of Hearings on Competition and Consumer Protection in the 21st Century. Session 12 of these hearings specifically focused on consumer privacy and “the use of big data in automated decision making and how . . . ECOA should inform the use of data collected from consumers.” Session 14 included a roundtable of state attorneys general and senior staff who addressed consumer protection issues related to “the impact of big data and algorithms on equal access to credit.”
- The FTC held a forum with a variety of business leaders, enforcement attorneys, and policymakers to discuss ECOA’s applicability to small business financing.
- The FTC held a consumer reporting workshop to discuss ECOA as well as (i) consumer report furnisher practices; (ii) making credit decisions based on fairness; and (iii) avoiding the use of a prohibited basis in extending credit.
- The FTC’s Military Task Force continued to work on military consumer protection issues, including military consumers’ rights to “various types of notifications as applicants for credit, including for adverse action, and information about the anti-discrimination provisions, in ECOA and Regulation B.”
- The FTC continued to participate in the Interagency Task Force on Fair Lending, along with the CFPB, DOJ, HUD, and federal banking regulatory agencies.
The summary also highlights FTC business and consumer education efforts on fair lending issues, as well as blog posts discussing the online marketplace for small business financing.
OCC releases January enforcement actions
On February 20, the OCC released a list of recent enforcement actions taken against national banks, federal savings associations, and individuals currently and formerly affiliated with such entities. The new enforcement actions include four civil money penalty orders, three cease and desist orders, five removal/prohibition orders, and a termination of an existing enforcement action. Included among the actions is a January 30 Consent Order to resolve the OCC’s claims that a New York-based bank engaged in Bank Secrecy Act/Anti-Money Laundering (BSA/AML) compliance program violations. According to the consent order, an OCC examination identified alleged deficiencies in the bank’s BSA/AML compliance program, including (i) failure to “assess and monitor high risk customer activity flowing to or from high risk jurisdictions”; (ii) deficient BSA/AML policies, procedures, systems and controls; (iii) inadequate suspicious activity monitoring and suspicious activity reporting (SAR) to FinCEN; (iv) deficient Customer Due Diligence processes, including failure to appoint a BSA officer; and (v) failure to sufficiently monitor or provide controls for increased wire and ACH transactions. The consent order requires the bank to, among other things, (i) appoint a compliance committee within 30 days; (ii) submit a written strategic plan to the OCC covering at least the next three years; (iii) appoint a “permanent, qualified, and experienced BSA Officer” with sufficient staff; (iv) create and adopt a “written program of internal control policies and procedures to provide for the compliance with the BSA”; and (v) adopt and deploy a “written system of internal controls and processes to ensure compliance with the requirements to file SARs.”
CFPB requests 14% increase for FY 2020
In February, CFPB Director Kathy Kraninger submitted a budget proposal seeking, among other things, a 13.7 percent increase for fiscal year (FY) 2020. Notably, the increase runs counter to President Trump’s FY 2019 and FY 2020 budgets, which sought budget cuts for the CFPB of $147 million and $23 million respectively (with a proposed $110 million budget cut for FY 2021). According to the Bureau’s budget proposal, the increase reflects costs associated with “recently approved staffing targets after the Bureau ended the hiring freeze previously in place since FY 2018 as well as additional funding for new initiatives in pursuit of the Bureau’s mission and strategic goals.” Included in these goals are budget increases to support (i) additional consumer education initiatives; (ii) “additional qualitative disclosure testing to evaluate consumer usability” related to the model validation notices that are currently under development as part of the Bureau’s proposed debt collection rule; (iii) field and economic laboratory studies intended to improve the understanding of issues related to consumer financial disclosures; (iv) processing and analyzing consumer complaints; and (v) “increased staffing levels in the Supervision, Enforcement, and Fair Lending program responsible for conducting examination activities.”
FHFA, CFPB release new dataset from National Survey of Mortgage Originations
On February 20, the FHFA and the CFPB announced the release of a new loan-level dataset collected through the National Survey of Mortgage Originations (NSMO). Since 2014, every quarter the FHFA and the CFPB send the NSMO survey to borrowers who recently obtained a mortgage to gather feedback on their experiences, perceptions, and future expectations of the mortgage market. This is the second public use file release of the compiled NSMO data and includes an additional year of mortgage data (2017) as well as information through the third quarter of 2019. The NSMO is a component of the National Mortgage Database, which the FHFA and the CFPB launched in 2012 to help regulators better understand mortgage market trends. The NSMO supports policymaking and research efforts and fulfills the mortgage survey and mortgage market monitoring requirements of the Housing and Economic Recovery Act and the Dodd-Frank Act.
CFPB symposium on consumer access to financial records set for February 26
On February 20, the CFPB announced that its fourth symposium, regarding Consumer Access to Financial Records and Section 1033 of the Dodd-Frank Act, will be held February 26 at 9:30 am EST. The event will be webcast on the Bureau’s website. According to the Bureau, Section 1033 “addresses consumers’ rights to access information about their financial accounts.” The symposium—featuring remarks from Director Kathy Kraninger and consisting of three panels of experts—will solicit a variety of perspectives on the current and future market for services based on consumer-authorized use of financial data. The first panel, moderated by Paul Watkins, Assistant Director in the Bureau’s Office of Innovation, will discuss the current landscape of holders of consumer data and the benefits and risks of consumer-authorized data access. The second panel will examine market developments in consumer-authorized data access and will be moderated by Will Wade-Gery, Senior Advisor in the Bureau’s Office of Innovation. The third panel will assess the future state of the market, as well as considerations for policymakers on safeguarding consumer data while ensuring consumers have continual access to their data. This panel will be moderated by Thomas Devlin, Managing Counsel in the Bureau’s Research, Markets and Regulation Division.
Find prior InfoBytes symposium coverage here.
House committee report urges large banks to release diversity data
On February 12, Maxine Waters, Chairwoman of the House Financial Services Committee, and Joyce Beatty, Chair of the Subcommittee on Diversity and Inclusion, released a majority staff report titled “Diversity and Inclusion: Holding America’s Large Banks Accountable,” which details diversity and inclusion data and policies collected from 44 of the nation’s largest banks. The information requested from the banks included, among other things, (i) “[e]mployee compensation by gender, race, and ethnicity”; (ii) demographic information about the banks’ boards; (iii) data regarding “staff and budget dedicated to diversity initiatives”; and (iv) “diversity policies and practices.” The committee staff found that boards of directors and senior employees at banks are not diverse, and that “[b]anks have limited spending and investments with diverse firms.” Additionally, it was found that “workforce diversity is more visible in entry level rather than executive and senior level positions.” The report recommended a number of avenues for banks to improve diversity and inclusion such as disclosing diversity data to the public and to regulators including bank board diversity. The report also suggested “[i]ncreased spending and investment with diverse” firms and vendors. According to the press release, Congressional legislative actions in these areas would “improve diversity and inclusion at America’s largest banks.”
U.S., EU discuss financial regulatory developments
On February 19, the U.S. Treasury Department issued a joint statement on the U.S. – EU Financial Regulatory Forum held February 11-12 in Washington, D.C. U.S. participants included officials from the Federal Reserve Board, CFTC, FDIC, SEC, OCC, and Treasury. Forum topics focused on five key themes: “(1) supervision and regulation of cross-border activities, particularly in the areas of derivatives and central clearing; (2) the importance of monitoring market developments, both in relation to financial assets classes, like leveraged loans and collateralized loan obligations, and reference rates, like the London Interbank Offered Rate; (3) implementation of international standards in banking and insurance; (4) regulatory issues presented by fintech/digital finance; and (5) EU regulations related to sustainable finance.”
Among other topics, participants discussed U.S. banking developments concerning prudential requirements for foreign banks, including tailoring standards based on risk; proposed amendments to the Volcker Rule; EU data protection rules; cross-border supervision and data flow in financial services; the transition period following the U.K.’s departure from the EU; and European Commission priorities such as preventing and combating money laundering and the financing of terrorism. Participants acknowledged the importance of fostering continued dialogue between the U.S. and the EU noting that, “[r]egular communication on supervisory and regulatory issues of mutual concern should foster financial stability, supervisory cooperation, investor protection, market integrity, and a level playing field.”
CFPB, South Carolina, and Arkansas file charges in pension-advance scheme
On February 20, the CFPB, the South Carolina Department of Consumer Affairs, and the Arkansas attorney general filed a complaint in the U.S. District Court for the District of South Carolina against a South Carolina-based company and two of its managing partners (defendants) for allegedly violating the Consumer Financial Protection Act and the South Carolina Consumer Protection Code by working with a series of broker companies that brokered contracts offering high-interest credit to disabled veterans and other consumers in exchange for the assignment of some of the consumers’ unpaid earnings, monthly pensions, or disability payments. Under federal law, agreements under which a person acquires the right to receive a veteran’s pension or disability payment are void, and South Carolina law—which governs these contracts—“prohibits sales of unpaid earnings and prohibits assignments of pensions as security on payment of a debt.”
The complaint alleges that the defendants substantially assisted broker companies that allegedly engaged in deceptive and unfair acts or practices through the marketing and administration of high-interest credit. (Covered by InfoBytes here.) The defendants’ alleged actions include: (i) “developing a pre-approval or risk-assessment process for the contracts and conducting underwriting”; (ii) “approving or denying consumers’ applications to enter into the transactions”; (iii) “directing and administering the execution of the contracts”; (iv) “serving as the payment processor for the initial lump-sum payment and fees”; and (v) “continuing to serve as the transactions’ payment processor, tracking and controlling the collection and distribution of consumers’ payments on the contracts.” In addition, the Bureau alleges, among other things, that the defendants provided substantial assistance to the broker companies’ deceptive misrepresentations that consumers could be subjected to criminal prosecution if they breached their contracts. In addition, the defendants also allegedly collected on contracts brokered by the broker companies that were void from inception “by initiating ACH debts to take payments from consumers’ bank accounts,” demanding payments through letters and other communications, and filing suit against consumers who failed to make payments.
The complaint seeks injunctive relief, restitution, damages, disgorgement, and civil money penalties.
CFPB issues Winter 2020 Supervisory Highlights
On February 14, the CFPB released its winter 2020 Supervisory Highlights, which details its supervisory and enforcement actions in the areas of student loan servicing, payday lending, debt collection, and mortgage servicing. The findings of the report, which are published to assist entities in complying with applicable consumer laws, cover examinations that generally were completed between April and August of 2019. Highlights of the examination findings include:
- Debt collection. The Bureau cited violations of the FDCPA’s requirement that debt collectors must, after the initial written communication, disclose that their communications are from a debt collector. The report also included the failure of some debt collectors to provide a written validation notice to consumers within five days after the debt collector initially contacts the consumer regarding the collection of a debt.
- Payday lending. The Bureau found violations of the CFPA, including among other things, lenders failing to apply consumer payments to their loan balances and treating the accounts as delinquent. The Bureau also found weaknesses in employee training that resulted in providing consumers with inaccurate annual percentage rates in violation of Regulation Z.
- Mortgage servicing. The Bureau pointed out that servicers had violated Regulation X by failing to provide written acknowledgement of receipt of consumer loss mitigation applications, including whether the applications were complete or incomplete, within five days of receipt. Servicers also failed to provide in writing a list of loss mitigation options for which the consumer was eligible within 30 days of receiving a complete loss mitigation application.
- Student loan servicing. The Bureau noted that after loans were transferred, some servicers billed incorrect monthly amounts to the consumers.
The report notes that in response to most examination findings, the companies have taken or are taking remedial and corrective actions, including by identifying and compensating impacted consumers and updating their policies and procedures to prevent future violations. Lastly, the report also highlights the Bureau’s recently issued rules and guidance.