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On July 21, the CFPB marked its 10 year anniversary. Prepared remarks published by acting Director Dave Uejio highlighted Bureau activities taken over the past decade in consumer empowerment and racial equity, as well as recent actions in response to the Covid-19 pandemic. With respect to enforcement, Uejio noted that since 2011, the Bureau’s work has led to approximately $14.4 billion in consumer relief and $1.7 billion in civil penalties. According to a Bureau blog post, during this time period more than 183 million consumers and consumer accounts have received economic redress and consumers have filed more than 3 million complaints. Additionally, over 7 million consumers have accessed the Bureau’s Covid-19 educational materials. “In the decade to come, we will continue to use all the tools at our disposal to empower American consumers and work to ensure the financial markets they interact with are fair, transparent, and competitive,” Uejio wrote.
On July 16, the U.S. District Court for the Northern District of California issued an order setting September 30 as the deadline for the CFPB to issue a notice of proposed rulemaking (NPRM) on small business lending data. As previously covered by InfoBytes, the Bureau is obligated to issue an NPRM for implementing Section 1071 of the Dodd-Frank Act, which requires the agency to collect and disclose data on lending to women and minority-owned small businesses. The requirement was reached as part of a stipulated settlement reached in 2020 with a group of plaintiffs, including the California Reinvestment Coalition (CRC), that argued that the Bureau’s failure to implement Section 1071 violated two provisions of the Administrative Procedures Act, and has harmed the CRC’s ability to advocate for access to credit, advise organizations working with women and minority-owned small businesses, and work with lenders to arrange investment in low-income and communities of color (covered by InfoBytes here).
Find continuing Section 1071 coverage here.
On July 14, the U.S. District Court for the Central District of California entered a stipulated final judgment and order against the named defendant in a 2019 action brought by the CFPB, the Minnesota and North Carolina attorneys general, and the Los Angeles City Attorney. which had alleged a student loan debt relief operation deceived thousands of student-loan borrowers and charged more than $71 million in unlawful advance fees. As previously covered by InfoBytes, the complaint asserted that the defendants violated the CFPA, the Telemarketing Sales Rule, and various state laws. A second amended complaint also included claims for avoidance of fraudulent transfers under the FDCPA and California’s Uniform Voidable Transactions Act.
In 2019, the named defendant filed a voluntary petition for Chapter 11 relief, which was later converted to a Chapter 7 case. As the defendant is a Chapter 7 debtor and no longer conducting business, the Bureau did not seek its standard compliance and reporting requirements. Instead, the finalized settlement prohibits the defendant from resuming operations, disclosing or using customer information obtained during the course of offering or providing debt relief services, or attempting “to collect, sell, assign, or otherwise transfer any right to collect payment” from any consumers who purchased or agreed to purchase debt relief services. The defendant is also required to pay more than $35 million in redress to affected consumers, a $1 civil money penalty to the Bureau, and $5,000 in civil money penalties to each of the three states.
Senate Republicans say Chopra’s refusal to answer questions should disqualify him as next CFPB director
On July 13, Republican members of the Senate Banking Committee sent a follow-up letter to CFPB director nominee and FTC Commissioner Rohit Chopra, claiming Chopra’s refusal to answer questions concerning potential violations of law at the Bureau should disqualify him from consideration as its next director. The Senators referred to Ranking Member Pat Toomey’s June 17 letter, which asked Chopra whether he was aware of any alleged improper treatment of, or efforts to, “sideline” Bureau employees. A similar letter was sent to CFPB acting Director Dave Uejio, asking for certain records on staff departures, separation incentives, and investigations. Uejio initially responded that the CFPB needed additional time to respond to the Senators’ request, then later sent a letter stating “it would not be appropriate for me to confirm or deny the placement of any Bureau employee on administrative leave or the pendency of any internal investigations into alleged employee misconduct” citing, among other things, confidentiality restrictions under the Privacy Act. Uejio stressed the CFPB’s compliance with all applicable laws and regulations designed to protect career employees and added that “no career Bureau Executive has been involuntarily separated” from the agency under his watch, nor has the CFPB taken disciplinary or adverse action against any such individuals or offered voluntary separation compensation (VSC) incentives “for any political or partisan reason.” Uejio also emphasized that Chopra has had no involvement with VSC decisions or internal investigations into employees.
Chopra currently awaits a Senate confirmation vote on his nomination.
On July 12, the U.S. District Court for the District of Maryland issued an opinion denying several motions filed by parties in litigation stemming from a 2016 complaint filed by the CFPB, which alleged the defendants employed abusive practices when purchasing structured settlements from consumers in exchange for lump-sum payments. As previously covered by InfoBytes, the Bureau claimed the defendants violated the CFPA by encouraging consumers to take advances on their structured settlements and falsely representing that the consumers were obligated to complete the structured settlement sale, “even if they [later] realized it was not in their best interest.” After the court rejected several of the defendants’ arguments to dismiss based on procedural grounds and allowed the CFPB’s UDAAP claims against the structured settlement buyer and its officers to proceed, the CFPB filed an amended complaint in 2017 alleging unfair, deceptive, and abusive acts and practices and seeking a permanent injunction, damages, disgorgement, redress, civil penalties and costs.
In the newest memorandum opinion, the court considered a motion to dismiss the amended complaint and a motion for judgment on the pleadings on the grounds that the enforcement action was barred by the U.S. Supreme Court’s decision in Seila Law LLC v. CFPB, which held that that the director’s for-cause removal provision was unconstitutional (covered by a Buckley Special Alert), and that the ratification of the enforcement action “came too late” because the statute of limitations on the CFPA claims had already expired. The court reviewed, among other things, whether the doctrine of equitable tolling saved the case from dismissal and cited a separate action issued by the Middle District of Pennsylvania which concluded that an “action was timely filed under existing law, at a time where there was no finding that a provision of the Dodd-Frank Act was unconstitutional.” While noting that the ruling was not binding, the court found the facts in that case to be similar to the action at issue and the analysis to be persuasive. As such, the court denied the motion to dismiss and the motion for judgment on the pleadings, and determined that the Bureau may pursue the enforcement action originally filed in 2016.
On July 12, the CFPB announced a consent order against a Georgia-based fintech company for allegedly enabling contractors and other merchants to take out loans on behalf of thousands of consumers who did not authorize them. According to the CFPB, the respondent allegedly violated the CFPA’s prohibition against deceptive acts or practices by (i) servicing and facilitating the origination of unauthorized loans to consumers and (ii) enabling unauthorized loans by, among other things, failing to implement appropriate and effective controls during the loan application, approval, and funding processes. The CFPB noted that over 6,000 complaints were filed between 2014 and 2019 about the respondent, with some consumers claiming to have no prior involvement or knowledge of the respondent before receiving billing statements and collection letters. Under the terms of the consent order, the respondent must verify consumers’ identities and confirm their authorizations before activating loans or disbursing loan proceeds and implement an effective consumer complaint management program, exercising oversight of third-party merchant partners, and implementing uniform standards regarding the write-off of illegal loans. The respondent is also ordered to pay up to approximately $9 million in redress to its victims and a $2.5 million civil money penalty.
On July 14, the CFPB and FDIC announced enhancements to Money Smart for Older Adults, the agencies’ financial education program geared toward preventing elder financial exploitation. The enhanced version includes sections to help people avoid romance scams, which, according to data from the FTC, led to $304 million in losses in 2020. In addition, the agencies are also releasing an informational brochure on Covid-19 related scams. FDIC training materials and other resources for older adults are available from the CFPB here.
On July 9, President Biden issued a broad Executive Order (E.O.) that includes provisions related to the financial services industry.
- CFPB. The E.O. encourages the CFPB director to issue rules under Section 1033 of Dodd-Frank “to facilitate the portability of consumer financial transaction data so consumers can more easily switch financial institutions and use new, innovative financial products.” As previously covered by InfoBytes, last October, the Bureau issued an advanced notice of proposed rulemaking on Section 1033, seeking comments on questions related to consumers’ access to their financial records. The E.O. also instructs the Bureau to enforce Section 1031 of Dodd-Frank, which prohibits unfair, deceptive, or abusive acts or practices in consumer financial products or services, “to ensure that actors engaged in unlawful activities do not distort the proper functioning of the competitive process or obtain an unfair advantage over competitors who follow the law.”
- Treasury Department. The E.O. calls on Treasury to submit a report within 270 days on the effects on competition of large technology and other non-bank companies’ entry into the financial services space.
- FTC. The E.O. tasks the FTC with establishing rules to address concerns about “unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy.” The FTC already commenced that process on July 1, when it approved changes to its Rules of Practice to amend and simplify the agency’s procedures for initiating rulemaking proceedings. According to Commissioner Rebecca Kelly Slaughter, “[s]treamlined procedures for Section 18 rulemaking means that the Commission will have the ability to issue timely rules on issues ranging from data abuses to dark patterns to other unfair and deceptive practices widespread in our economy.”
- Bank Mergers. The E.O. encourages the Attorney General, in consultation with the Federal Reserve Board, FDIC, and OCC, to “review current practices and adopt a plan, not later than 180 days after the date of this order, for the revitalization of merger oversight under the Bank Merger Act and the Bank Holding Company Act of 1956.”
On July 13, the CFPB released findings regarding trends in reported assistance on consumers’ credit records. The post—the second in a series documenting trends in consumer credit outcomes during the Covid-19 pandemic (the first covered by InfoBytes here)—examines consumer month-to-month transitions into and out of assistance from January 2020 to April 2021. As previously covered by InfoBytes, last August, the Bureau issued a report examining trends through June 2020 in delinquency rates, payment assistance, credit access, and account balance measures, which showed that generally there was an overall decrease in delinquency rates since the start of the pandemic for auto loans, first-lien mortgages, student loans, and credit cards. According to the Bureau’s recent findings, as of March 2021, auto loans and credit card accounts with assistance were slightly above pre-pandemic levels, and the share of mortgages and student loans on assistance continued to be significantly higher than pre-pandemic levels. Researchers also found that some communities have been disproportionately affected by the health and economic shocks of the pandemic: “majority Black census tracts, majority Hispanic census tracts, older borrowers and borrowers in counties hit hardest by COVID cases and layoffs were most likely to receive assistance in the early months of the pandemic.” Additionally, consumers in majority Hispanic census tracts were “more likely to exit assistance, but consumers in majority Black census tracts were somewhat less likely to exit assistance than their counterparts in majority white census tracts.”
On July 1, the CFPB released a report that analyzed 2020 HMDA loan data and examined the differences in mortgage characteristics across Asian American and Pacific Islander (AAPI) subgroups. The report examined various outcomes for the subgroups, including costs of borrowing, denial rates, and credit characteristics. According to the report, “out of 18.8 million applications with race and ethnicity information, 8 percent (1.6 million) were submitted by AAPI consumers.” The CFPB generally found that borrowers who identified in the Asian Indian or Chinese subgroups paid lower interest rates than non-Hispanic White borrowers, and noted variations within the Hawaiian or Pacific Islanders group, which paid higher interest rates and loan costs than Asian borrowers. The report noted that Chinese and Asian Indian borrowers had higher average credit scores and incomes and lower combined-loan-to-value ratios than those of non-Hispanic White borrowers, but their denial rates were greater. The report provides additional analysis of data and compares various outcomes and loan characteristics within the AAPI subgroups and against those of Black, Hispanic White, and non-Hispanic White borrowers.
- Jeffrey P. Naimon to provide “Fair lending update” at the Colorado Mortgage Lenders Association Operational and Compliance Forum
- Jonice Gray Tucker to discuss “Justice for all: Achieving racial equity through fair lending” at CBA Live
- Warren W. Traiger to discuss “On the horizon for CRA modernization” at CBA Live
- Jonice Gray Tucker to discuss "Fair lending" at the Mortgage Bankers Association Regulatory Compliance Conference
- Michelle L. Rogers to discuss “State law regulatory and enforcement trends” at the Mortgage Bankers Association Regulatory Compliance Conference
- Jonice Gray Tucker to discuss “Government investigations, and compliance 2021 trends” at the Corporate Counsel Women of Color Career Strategies Conference
- Max Bonici to discuss “BSA/AML trends: What to expect with the implementation of the AML Act of 2020” at the American Bar Association Banking Law Fall Meeting
- H Joshua Kotin to discuss “Modifications and exiting forbearance” at the National Association of Federal Credit Unions Regulatory Compliance Seminar
- Jonice Gray Tucker to discuss “Fintech trends” at the BIHC Network Elevating Black Excellence Regional Summit
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute