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FTC sues for-profit university for deceptive and illegal practices
On December 27, 2023, the FTC filed a suit in the U.S. District Court of Arizona against a for-profit university for allegedly deceiving students, misrepresenting the university as a nonprofit entity, and committing telemarking abuses. The FTC sued under the FTC Act and Telemarketing Sales Rule (TSR). The complaint alleges that the university in question is a for-profit institution operating as a publicly traded entity, but nonetheless marketed itself as a “nonprofit” university. The complaint further alleges that the university misled students about the cost of its “accelerated” doctoral programs and used abusive telemarketing calls to try to boost enrollment. According to the FTC, the university called those who requested not to be called by the university, as well as consumers on the National Do Not Call Registry. The FTC asserts five claims against the university. The first two counts allege violations of Section 5(a) of the FTC Act for deceptive representations about its non-profit status and for falsely advertising its doctoral programs. The last three counts allege violations of the TSR predicated on deceptive telemarketing acts or practices, contacting those who have requested to not be contacted, and calling people on the National Do Not Call Registry.
FCC adopts updated data breach notification rules
On December 21, 2023, the FCC announced it adopted an updated data breach notifications rule. The rule was formerly designed to protect consumers against pretexting, “a practice in which a scammer pretends to be a particular customer or other authorized person to obtain access to that customer’s call detail or other private communications records.” As previously covered by InfoBytes, the FCC promulgated its notice of proposed rulemaking in January 2023. The rule has been updated to expand the data breach notification requirements to, among other things: (i) cover different categories of personally identifiable information that carriers hold; (ii) expand the definition of “breach” to cover unintended disclosures of consumer information, except in situations where such information is obtained in good faith by an employee or representative of a carrier or telecommunications relay service (“TRS”) provider, and where there’s no improper use or further disclosure of that information; (iii) require TRS providers and carriers to notify the FCC, FBI, and U.S. Secret Service as soon as practicable and no later than seven business days after the reasonable determination of a breach; (iv) no longer require TRS providers and carriers to notify consumers of a data breach if they reasonably determine no harm to consumers is reasonably likely; and (v) no longer require carriers to follow a mandatory waiting period to notify consumers of a breach. FCC Chairwoman Jessica Rosenworcel said in her statement that the update to the data breach policy is the first in 16 years and that under the Communications Act, “carriers have a duty to protect the privacy and security of consumer data.” The rule was adopted on December 13, 2023.
FDIC proposes revisions to call reports
On December 27, 2023, the FDIC published its proposed revisions to the reporting forms and instructions for Call Reports and the FFIEC 002 report in a financial institution letter under the auspices of the FFIEC. Call Reports are also known as Consolidated Reports of Condition and Income, a set of financial reporting standards that banks in the U.S. must file with a regulatory agency. The proposed revisions are currently open for public comment until February 26, 2024.
The changes affect Call Reports FFIEC 031, FFIEC 041, and FFIEC 051, as well as the Report of Assets and Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 002). The FFIEC’s proposed changes encompass reporting on (i) loans to non-depository financial institutions, (ii) structured financial products, and (iii) long-term debt requirements. The proposed changes are found in more detail in the Federal Register, and state detailed revisions for each FFIEC form. The changes will go into effect on June 30, 2024.
Treasury opens comment period for financial inclusion initiatives
On December 22, 2023, the Treasury released its request for information to develop a national strategy for financial inclusion. Financial inclusion is loosely defined by the Treasury as expanding accessibility, developing financial security, and expanding opportunities for Americans to build wealth, including closing the racial wealth gap among underserved communities, where “discrimination… [has] resulted in significant disparities in access to… financial products and services across… communities, including low-income and low-wealth communities and [minority groups].” The Treasury’s initiative fulfills its requirements from the Financial Services and General Government Appropriations Act portion of the 2022 omnibus spending bill known as the Consolidated Appropriations Act, 2023, and will help the Treasury advance its strategic vision for financial inclusion and create a roadmap for any future actions. The Treasury offers its request for information to identify opportunities through “policy, government programs, financial products and services, technology, and other tools and market infrastructure.” Comments can be submitted here and will be open until February 20, 2024.
California Appellate Court overturns ruling on FDCPA
On December 18, a California Court of Appeal overturned a lower court’s dismissal of a case involving claims under the federal FDCPA and California’s Rosenthal Fair Debt Collection Practices Act (Rosenthal Act). The appellate court found the lower court had erred in dismissing the case pursuant to California’s anti-SLAPP statute, which provides a mechanism for early dismissal of meritless lawsuits arising from protected communicative activities.
The dismissal arises from a class action filed in 2021, alleging that the defendant debt collector – who had filed an action to collect on a defaulted student loan – lacked the documents necessary to collect or enforce the loan, and thus violated the FDCPA and the Rosenthal Act. The complaint also claimed the collector violated California’s Unfair Competition Law (UCL) by engaging in “prohibited unlawful, unfair, fraudulent, deceptive, untrue, and misleading acts and practices as part of its direct and indirect collection and attempted collection of debts that have previously been adjudicated.” The complaint referenced a 2017 CFPB consent order with the defendant, previously covered by InfoBytes here, where the consent order involved allegations that the collector had filed lawsuits against consumers for private student loan debt that it could not prove was owed or that was outside the applicable statute of limitations.
In response to the complaint, the defendant debt collector filed a demurrer and an anti-SLAPP motion. While the lower court granted the anti-SLAPP motion, the appellate court reversed, concluding that the plaintiff’s claims were not barred by the litigation privilege. The appellate court found that the lower court had “only considered the litigation privilege in considering the probability that [the plaintiff] would prevail on her claims,” and did not consider the public interest exception to California’s anti-SLAPP law (which provides that the anti-SLAPP law does not apply to actions brought solely in the public interest or on behalf of the general public if certain conditions are met). The appellate court directed the trial court to determine whether the plaintiff met her burden of demonstrating a probability of prevailing on the merits of her claims and to consider the public interest exception.
Banking regulators update “small bank” definitions
On December 20, the Fed and the FDIC announced changes to the 2024 asset-size thresholds used to define “intermediate small bank” and “small bank” under the CRA. To qualify as an “intermediate small bank,” a bank must have assets of at least $391 million as of December 31 in both prior two calendar years, and less than $1.564 billion as of December 31 in either of the prior two calendar years. To qualify as a “small bank,” a bank must have had assets of less than $1.564 billion as of December 31 in either of the prior two calendar years. These increases are based on a 4.06% increase in the applicable consumer price index and the thresholds will take effect beginning January 1, 2024.
CFPB, DOJ sue developer over predatory lending
On December 20, the CFPB and the DOJ issued a press release announcing the filing of a complaint against four affiliated Texas-based entities (collectively, the “developer”) alleging bait-and-switch land sales and predatory financing. The agencies claim the developer violated ECOA and FHA by targeting thousands of Spanish-speaking borrowers with predatory seller financing. The complaint also alleges the developer misrepresented or omitted material information regarding the seller-financed flood-prone lots having “the infrastructure necessary to connect water, sewer, and electrical services pre-installed,” and regarding flood risk. The complaint also claims that the developer did not provide purchasers with a property report before the purchaser entered into the subject agreement. Further, according to the complaint, the developer marketed the lots primarily in Spanish, but required borrowers to sign important transactional documents written in English only. The action also includes claims brought under other laws and regulations. Notably, this is the first federal court lawsuit the CFPB has brought under the Interstate Land Sales Full Disclosure Act of 1968 (ILSA).
FFIEC agencies release 2022 CRA data
On December 20, FFIEC members released the 2022 CRA data on small business, small farm, and community development lending. (See fact sheet here and data table here.) The 711 lenders that provided the data reported they originated or purchased 8.9 million small-business loans totaling $284.6 billion. The total number of loans originated or purchased by reporting lenders decreased by 5.8 percent and the dollar amount of these small business loans originated decreased by 24.8 percent from 2021. Concerning community development lending activity, the agencies reported that based on data compiled from 633 banks, lending activity decreased by 1% from 2021 in terms of total dollar amount.
CFPB posts blog entry analyzing cash-out refinancing
On December 18, the CFPB posted a blog entry regarding cash-out refinance mortgages and their borrowers between 2013 to 2023. According to the entry, which noted reflects the authors’ views, and not those of the CFPB, refinance mortgage originations decreased amid 2022’s rapid interest rate hikes, and notably favored cash-out refinances over non-cash-out options. Cash-out refinances involve borrowing significantly more than the amount owed on an existing mortgage, often used for diverse purposes like debt settlement or home improvements. Despite reduced volumes due to rising rates, the post noted that cash-out refinances are “worth monitoring” since they were considered one of the factors that contributed to the 2008 financial crisis.
Analyzing loans from 2013 to 2023 from data in the National Mortgage Database, the blog entry revealed some insights into delinquencies. Some of the findings include: (i) cash-out refinances held a larger share of all refinances when interest rates rose; (ii) borrowers opting for cash-out refinances typically had lower income and lower credit scores compared to those pursuing different refinancing avenues; (iii) borrowers with stronger credit scores showed minimal serious delinquencies irrespective of the refinancing type; and (iv) borrowers with lower credit scores showed similar two-year delinquency rates for both cash-out and non-cash-out refinancing, except for borrowers in 2017, a year marked by rising interest rates and lower credit scores for cash-out borrowers. Based on this last finding, the blog post noted that there may be increased delinquencies among cash-out refinances originated in 2022, a year with similar interest rate increases and decrease in cash-out borrowers’ credit score.
Fannie Mae announces updates to the servicing guide
On December 20, Fannie Mae issued SVC-2023-06, announcing updates made to its Servicing Guide. The updates include new financial reporting requirements requiring large non-depository sellers/servicers to submit a Mortgage Banker’s Financial Reporting Short Form (Form 1002A) within 30 days of the end of each month, beginning May 31, 2024 for the April 2024 monthly reporting. An additional change to the Servicing Guide involves a revised policy for loans transferred to an LLC, eliminating the specific timing requirement for the title transfer and instead directing sellers to refer to the Selling Guide for guidance on the timing requirement. This policy clarification is effective immediately. The announcement also contains, among other miscellaneous changes, an updated Special Lender Approval Form (Form 1000A) that improves the application process for sellers and servicers applying to sell or acquire a particular renovation mortgage.