Skip to main content
Menu Icon
Close

InfoBytes Blog

Financial Services Law Insights and Observations

Filter

Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.

  • New York enacts law covering collection of family member debts

    State Issues

    On December 28, the New York governor signed S3491A, which amends the state’s general business law to add a section prohibiting principal creditors and/or debt collection agencies from making any representations that a person is required to pay the debt of a family member in a way that contravenes the FDCPA or that misrepresent the person’s obligation to pay such debts. The amendment defines “debt collection agency” as “a person, firm or corporation engaged in business, the principal purpose of which is to regularly collect or attempt to collect debts: (a) owed or due or asserted to be owed or due to another; or (b) obtained by, or assigned to, such person, firm or corporation, that are in default when obtained or acquired by such person, firm or corporation.” The law is effective 90 days after enactment.

    State Issues State Legislation Debt Collection Vicarious Liability FDCPA

  • Colorado UCCC administrator issues guidance on alternative loan changes

    State Issues

    On January 4, the administrator of the Colorado Uniform Consumer Credit Code issued a memo providing introductory guidance on alternative charge loans in response to Proposition 111, which amends the state’s Deferred Deposit Loan Act (DDLA) and takes effect February 1. (See previous InfoBytes coverage here.) Among other things, Proposition 111 reduces the maximum annual percentage rate that may be charged on deferred deposits or payday loans to 36 percent, eliminates an alternative APR formula based on loan amount, prohibits lenders from charging origination and monthly maintenance fees, and amends the definition of an unfair or deceptive practice.

    The memo—issued in response to creditors currently offering loans under the DDLA who have expressed an interest in offering loans imposing the alternative charges allowed by Colo. Rev. Stat. § 5-2-214—explains that such alternative charges may only be charged if (i) the financed amount is $1000 or less; (ii) the minimum loan term is at least 90 days but no more than 12 months; (iii) installment payments are scheduled in substantially equal periodic intervals; (iv) Truth-In-Lending disclosures show the loan is unsecured; (v) a creditor has not taken any collateral as security for the loan, including a post-dated check or certain ACH authorization; (vi) an ACH agreement reached with a consumer is voluntary and not required by the loan; and (vii) the loan has not been refinanced more than three times in one year.

    State Issues Payday Lending Consumer Finance Interest Rate Usury ACH

  • Retailer settles multistate data breach investigation for $1.5 million

    State Issues

    On January 8, a national retailer reached a $1.5 million multistate settlement with 43 states and the District of Columbia to resolve an investigation following a 2013 data breach of customer payment card information. According to the Illinois Attorney General’s announcement, the retailer will implement provisions to prevent future breaches, such as (i) complying with Payment Card Industry Data Security Standard requirements; (ii) maintaining a system to collect and monitor network activity; (iii) updating software that maintains and safeguards personal information; and (iv) devaluing payment card information through the use of encryption and tokenization technology to obfuscate payment card data. The retailer must also retain a third-party professional responsible for conducting an information security assessment and report, as well as outlining corrective measures.

    State Issues Privacy/Cyber Risk & Data Security State Attorney General Credit Cards Data Breach Settlement

  • Fifteen states urge the 4th Circuit against allowing non-tribal payday lenders to receive tribal immunity

    State Issues

    On December 27, 2018, fifteen state Attorneys General filed an amici brief with the U.S. Court of Appeals for the 4th Circuit opposing the use of structures in which non-tribal payday lenders affiliate with tribal lenders to benefit from their tribal immunity and avoid state usury caps. The brief was filed in an appeal from a district court ruling, which held that a Michigan-based payday lender could not claim tribal immunity in a consumer class action because it could not prove it was an actual tribal entity. The Attorneys General argue that granting tribal immunity to non-tribal lenders would “bar enforcement of state consumer protection laws as well as, potentially, investigations into their activities.” The brief rejects the payday lender’s arguments that the plaintiff should bear the burden of negating “arm-of-the-tribe immunity” and instead urges the court to place the burden on the entity seeking the immunity. Allowing a non-tribal entity to benefit from sovereign immunity without “rigorous demonstration”, the Attorneys General argue, “may well undermine the purpose for tribal immunity” and “would have serious consequences for States’ ability to protect consumers.”

    The brief was filed by the District of Columbia and the States of Connecticut, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Pennsylvania, Vermont, and Virginia.

    State Issues State Attorney General Payday Lending Usury Interest Rate

  • Ohio mortgage servicers now required to register

    State Issues

    On December 19, 2018, the Ohio Governor signed Substitute House Bill 489 (HB 489), which amends the Ohio Residential Mortgage Lending Act (RMLA) to, among other things, require a person acting as mortgage servicer to obtain a Residential Mortgage Lending Act Certificate of Registration in the state, unless exempt from the RMLA. The amendments define a “mortgage servicer” as an entity that holds mortgage servicing rights, records mortgage payments on its books, or carries out other responsibilities under the mortgage agreement.

    HB 489 also revises the laws governing financial institution regulations and consumer protections. Specifically, it includes amendments which (i) provide some regulatory relief to state banks and credit unions concerning the frequency of examinations that meet certain conditions; (ii) enable requests for data analytics to be conducted on publicly available information regarding regulated state banks, credit unions, and consumer finance companies; and (iii) require that a specified notice be given to a debtor for certain collections related to defaulted debt secured by junior liens on residential properties.

    The amendments take effect 91 days after the bill is filed with the Ohio Secretary of State.

    State Issues State Legislation Licensing Mortgages Mortgage Servicing

  • Maryland appeals court holds HOAs may be vicariously liable under Maryland Consumer Protection Act

    State Issues

    On December 21, 2018, the Maryland Special Appeals Court held that a homeowners association (HOA) is not shielded from liability under the Maryland Consumer Protection Act (MCPA) simply because the law firm used by the HOA to collect certain debts is exempt from the law. According to the opinion, after an HOA was awarded a judgment of over $3,000 against homeowners for unpaid fines, the homeowners filed an action against the HOA asserting violations of the MCPA and the Maryland Consumer Debt Collection Act (MCDCA), and the HOA responded by filing a third-party complaint against its law firm, arguing the firm agreed to indemnify it. The lower court granted summary judgment in favor of the HOA on the MCPA claim, holding that because the statute specifically exempts attorneys, the HOA cannot be held vicariously liable under the statute. Additionally, among other things, the lower court held the homeowners improperly used the MCDCA to dispute the validity of the debt and granted the HOA judgment as a matter of law.

    The appellate court disagreed and held that the HOA is not shielded from liability under the MCPA solely because the law firm used to collect the debts is exempt from the statute. The court reasoned that a “debt collector should not be able to hire an attorney to engage in illegal debt collection practices on its behalf as a means of avoiding liability” under the MCPA. The court also vacated the lower court’s judgment in favor of the HOA on the MCDCA claims, concluding that the homeowners were challenging the HOA’s methods in filing liens in the collection of the debt, as opposed to disputing the validity of the debt itself.

    State Issues Courts Debt Collection Vicarious Liability

  • For-profit education company forgoes collection on almost $494 million in student loans

    State Issues

    On January 3, an Illinois-based for-profit education company settled with 49 state attorneys general, agreeing to forgo collection of nearly $494 million in debts owed by almost 180,000 students nationally. According to the Illinois Attorney General’s announcement, after a seven-year investigation into the company’s practices, the participating states allege that, among other things, the company (i) deceived students about the total costs of enrollment; (ii) failed to adequately disclose that certain programs lacked programmatic accreditation, which would negatively affect a student’s ability to get a license or employment in that field; and (iii) misled prospective students about post-graduate job rates. Under the settlement, the company has agreed to forgo collection of debts owed by students who either attended a company institution that closed before Jan. 1, 2019, or whose final day of attendance at two participating online institutions occurred on or before Dec. 31, 2013. In addition to the debt relief, the settlement also requires the company to, among other things, reform its recruiting and enrollment practices, including providing students with a single page disclosure that covers the (i) anticipated total direct cost; (ii) median debt for completers; (iii) programmatic cohort default rate; (iv) program completion rate; (v) notice concerning transferability of credits; (vi) median earnings for completers; and (vii) the job placement rate.

    State Issues State Attorney General Student Lending Debt Collection Debt Relief

  • Illinois authorizes higher verification fee under Payday Loan Reform Act

    State Issues

    On January 4, the Illinois governor signed HB 4873, which amends the state’s Payday Loan Reform Act (the Act) to increase from $1 to $3 the maximum verification fee that a certified consumer reporting service may charge a lender—and that the lender may pass on to the borrower—for verifying an installment payday loan as required by the Act. The increased verification fees may be charged beginning July 1, 2010. The verification fee paid by the borrower cannot exceed the fee paid by the lender.

    State Issues Payday Lending Fees Consumer Reporting Agency Lending

  • NYDFS, New York Attorney General reach $9 million settlement with student loan servicer

    State Issues

    On January 4, NYDFS and the New York Attorney General announced a joint $9 million settlement with a national student loan servicer to resolve allegations that the servicer, among other things, deceived student loan borrowers about their repayment options and steered them into higher-cost repayment plans. According to a press release issued by the Attorney General’s office, the servicer “steered distressed borrowers away from available income-based repayment plans towards other, more expensive options, thus costing them money and increasing their risk of default.” Additionally, the consent order alleges that the servicer misinformed borrowers—including servicemembers—about their repayment options, such as telling borrowers they were not eligible for Public Service Loan Forgiveness plans when they may have qualified after consolidating their loans. Furthermore, the servicer allegedly (i) improperly processed applications for income-based repayment; (ii) allocated underpayment for certain borrowers to maximize late fees; (iii) improperly processed payments; (iv) failed to accurately report information to credit reporting agencies; (v) failed to “properly recalculate monthly payments for servicemembers when adjusting their interest rates under the Servicemembers’ Civil Relief Act”; (vi) charged improper late fees; and (vii) did not provide borrowers notification of their eligibility for a co-signer release.

    The servicer, while neither admitting nor denying the findings alleged by NYDFS and the Attorney General, has agreed to pay $8 million in restitution to New York borrowers and a $1 million fine. Moreover, the servicer has agreed to stop servicing private and federal loans—with the exception of Perkins Loans—over the next five years.

    State Issues NYDFS Student Lending Settlement Student Loan Servicer Servicemembers SCRA State Attorney General

  • State Attorneys General fine national bank $575 million for incentive compensation, mortgage and auto lending practices

    State Issues

    On December 28, a national bank reached a $575 million multistate settlement with 50 states and the District of Columbia. Among other things, the settlement resolves allegations that have been the subject of previous litigation concerning the bank’s incentive compensation sales program (covered by InfoBytes here), as well as allegations involving certain practices related to mortgage rate-lock extension fees, auto loan force-placed insurance policies, and guaranteed asset/auto protection products. As previously covered by InfoBytes, the bank reached a settlement last year with the CFPB and the OCC to resolve allegations concerning its auto and mortgage lending practices, which were previously discontinued and for which voluntary consumer remediation was initiated by the bank.

    State Issues State Attorney General Incentive Compensation Settlement Force-placed Insurance Rate Lock

Pages

Upcoming Events