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On January 18, acting CFPB General Counsel Seth Frotman sent a letter to consumer advocates responding to their concerns that the Bureau’s November 2020 advisory opinion on earned wage access (EWA) products was being misused as justification for passage by proponents of a pending New Jersey bill that would permit third-party earned wage access companies to charge fees or permit “tips” for their products without having to abide by the state’s 30 percent usury cap. As previously covered by InfoBytes, the Bureau issued an advisory opinion on EWA products to address the uncertainty as to whether EWA providers that meet short-term liquidity needs that arise between paychecks “are offering or extending ‘credit’” under Regulation Z, which implements TILA. The advisory opinion stated that “‘a Covered EWA Program does not involve the offering or extension of ‘credit,’” and noted that the “totality of circumstances of a Covered EWA Program supports that these programs differ in kind from products the Bureau would generally consider to be credit.” In December 2020, the Bureau approved a compliance assistance sandbox application, which confirmed that a financial services company’s EWA program did not involve the offering or extension of “credit” as defined by section 1026.2(a)(14) of Regulation Z. The Bureau noted that various features often found in credit transactions were absent from the company’s program, and issued a two-year approval order, which provides the company a safe harbor from liability under TILA and Regulation Z, to the fullest extent permitted by section 130(f) as to any act done in good faith compliance with the order (covered by InfoBytes here).
In his letter, Frotman stated that “[i]t appears from your recounting of the legislative history that the advisory opinion has created confusion, as proponents of the bill seem to have misunderstood the scope of the opinion. The CFPB’s advisory opinion, by its terms, is limited to a narrow set of facts—as relevant here, earned wage products where no fee, voluntary or otherwise, is charged or collected.” Frotman acknowledged that the Bureau’s advisory opinion has also received pushback from consumer groups who sent a letter last year urging the Bureau to rescind the advisory opinion and sandbox approval and regulate fee-based EWA products as credit subject to TILA (covered by InfoBytes here). “Given these repeated reports of confusion caused by the advisory opinion due to its focus on a limited set of facts, I plan to recommend to the Director that the CFPB consider how to provide greater clarity on these types of issues,” Frotman wrote. He further stated that the advisory opinion did not purport to interpret whether the covered EWA products would be “credit” under other statutes other than TILA, including the CFPA or ECOA, or whether they would be considered credit under state law.
On January 20, the CFPB announced its plans to examine the operations of post-secondary schools that extend private loans directly to students and update its exam procedures, including a new section on institutional student loans. The Bureau noted that it is “concerned about the borrower experience with institutional loans because of past abuses at schools,” high interest rates, and strong-arm debt collection practices. When examining institutions offering private education loans, in addition to examining general lending issues, the Bureau noted that examiners will review certain actions only schools can take against their students, which include, among other things: (i) placing enrollment restrictions; (ii) withholding transcripts; (iii) improperly accelerating payments; (iv) failing to issue refunds; and (v) maintaining improper lending relationships. The education loan exam procedures manual is intended for use by Bureau examiners, and is available as a resource to those subject to its exams. These procedures will be incorporated into the Bureau’s general supervision and examination manual.
On January 19, the CFPB’s Office of Minority Women and Inclusion (OMWI) released a report on diversity and inclusion in the financial services industry. The report, among other things, summarized the results of the Bureau’s research in 2020 to further understand how companies under the Bureau’s jurisdiction publicly show their commitment to diversity. According to the report, the sample showed an “extremely mixed picture of progress in the financial services sector on public diversity and inclusion information: 44% of the sample (119 entities) had no public information about diversity and inclusion efforts on their website or in annual reports. In contrast, 22% of entities sampled (60) had high information availability on their websites or public documents.” The report found that few organizations outside of depository lenders had either a dedicated diversity and inclusion executive or a formal body that directed diversity and inclusion efforts, and instead, centered their diversity and inclusion efforts within the human resources office, or opted to not publicize that information. The report also outlined recommendations for financial services companies of different sizes to improve the diversity and inclusion information that is available to the public, including that small companies with little to no information about diversity and inclusion should add a public value statement on their website. For large companies, the report recommended employing a chief diversity officer, expanding their workforce demographic data, and publicizing their professional development resources. The report also emphasized that executing an organizational commitment to diversity and inclusion is important for institutions to remain competitive. In continuing with its diversity-focused research, the Bureau plans to continue its diversity-focused industry research and will “track the progress of researched entities annually.”
On January 18, the CFPB filed a proposed stipulated judgment and order to resolve a complaint filed last year against an Illinois-based third-party payment processor and its founder and former CEO (collectively, “defendants”) for allegedly engaging in unfair practices in violation of the CFPA and deceptive telemarketing practices in violation of the Telemarketing Act and its implementing rule, the Telemarketing Sales Rule. As previously covered by InfoBytes, the CFPB alleged that the defendants knowingly processed remotely created check (RCC) payments totaling millions of dollars for over 100 merchant-clients claiming to offer technical-support services and products, but that actually deceived consumers—mostly older Americans—into purchasing expensive and unnecessary antivirus software or services. The tech-support clients allegedly used telemarketing to sell their products and services and received payment through RCCs, the Bureau claimed, stating that the defendants continued to process the clients’ RCC payments despite being “aware of nearly a thousand consumer complaints” about the tech-support clients. According to the Bureau, roughly 25 percent of the complaints specifically alleged that the transactions were fraudulent or unauthorized.
If approved by the court, the defendants would be required to pay a $500,000 civil penalty, and would be permanently banned from participating in or assisting others engaging in payment processing, consumer lending, deposit-taking, debt collection, telemarketing, and financial-advisory services. The proposed order also imposes $54 million in redress (representing the total amount of payments processed by the defendants that have not yet been refunded). However, full payment of this amount is suspended due to the defendants’ inability to pay.
On January 18, the CFPB issued “reminders and tips” for preparing and uploading submission for 2021 HMDA data, which will close for on-time submissions on March 1. As previously covered by InfoBytes, the filing period for HMDA data collected in 2021 opened on January 1. According to the CFPB, filers are encouraged to utilize the 2021 Beta Platform to test their loan/application register files prior to submission, which is available on an ongoing basis. However, no data submitted on the Beta Platform will be considered for compliance with HMDA data reporting requirements. Regarding open-end thresholds, the threshold for reporting data about open-end lines of credit is 200 in each of the two preceding calendar years, which became effective January 1. The CFPB also noted, among other things, that: (i) the Legal Entity Identifier, used to register with the HMDA Platform and submit HMDA data must relate to the institution covered by Regulation C; (ii) an institution is required to report whether the obligation arising from a covered loan was, or for an application would have been, initially payable to the institution, except for purchased covered loans and transactions covered by a partial exemption; and (iii) users can use their existing credentials to log in to the 2021 HMDA Data Platform.
On January 14, the CFPB announced publicly that it settled a lawsuit filed by several consumer advocacy groups against the CFPB, which claimed that the Bureau’s Taskforce on Federal Consumer Financial Law established under former Director Kathy Kraninger was “illegally chartered” and violated the Federal Advisory Committee Act (FACA). The consumer advocacy groups alleged that the taskforce—established by the Bureau in 2019 to provide recommendations to improve consumer financial laws and regulations—lacks balance, and that the appointed members who “uniformly represent industry views” have worked on behalf of several large financial institutions or work as industry consultants or lawyers. (Covered by InfoBytes here.) Last November, the parties entered a stipulated settlement in the U.S. District Court for the District of Massachusetts, in which the parties agreed that the Bureau failed to comply with FACA in its establishment and operation of the taskforce. As previously covered by InfoBytes, the stipulated settlement required the Bureau to, among other things, (i) release all taskforce records; (ii) amend the final report to include a disclaimer that the report was produced in violation of FACA; (iii) relocate the taskforce webpage and remove the current version of the report from its website; (iv) issue a press release by January 17, 2022, notifying the public of the settlement agreement; and (v) provide status reports until the Bureau has come into full compliance. In its January 14 press release, in addition to publicly announcing the settlement agreement, the CFPB also reported that all Taskforce records would be made available on the CFPB’s website and that the Bureau had amended the Taskforce’s report to include the requirement disclaimer.
On January 14, the U.S. District Court for the District of Columbia granted two motions to dismiss a challenge to the Bureau’s 2020 final rule revoking certain underwriting provisions of the agency’s 2017 final rule covering “Payday, Vehicle Title, and Certain High-Cost Installment Loans” (Payday Lending Rule). As previously covered by InfoBytes, the final rule revokes, among other things (i) the provision that makes it an unfair and abusive practice for a lender to make covered high-interest rate, short-term loans or covered longer-term balloon payment loans without reasonably determining that the consumer has the ability to repay the loans according to their terms; (ii) the prescribed mandatory underwriting requirements for making the ability-to-repay determination; (iii) the “principal step-down exemption” provision for certain covered short-term loans; and (iv) related definitions, reporting, and recordkeeping requirements. The plaintiff (a national association of organizations serving Latino communities) filed suit alleging the Bureau’s 2020 final rule violated federal rulemaking requirements and arguing that the 2020 final rule rested on an “unreasonable” new evidentiary standard and advanced statutory definitions that “appear custom-designed to repeal the ability-to-repay protections” of the Payday Lending Rule. The plaintiff asked the court to overturn the repeal and order the Bureau to implement the 2017 Payday Lending Rule. Motions to dismiss for lack of standing were filed by the Bureau as well as an intervenor-defendant association.
In dismissing the action, the court determined that the plaintiff failed to establish a “concrete and demonstrable injury to its activities” attributable to the 2020 final rule’s impact. The plaintiff contended that it suffered injury because the 2020 final rule made its work more difficult due to member organizations needing more assistance and resources from the plaintiff in order to “help families avoid or address unaffordable payday and title loans.” The court reasoned, however, that “[e]xpenditure of resources in response to agency action alone is not enough to establish a cognizable injury because it leaves step one of the inquiry unanswered.” Rather, “there must be a separate perceptible impairment of the organization's ability to provide services—something that makes it more difficult for the organization to conduct its activities”—an impairment, the court stated, for which the plaintiff has not plausibly alleged.
On January 6, the CFPB, DOJ, and DOD filed an amicus brief on behalf of the United States in support of a consumer servicemember plaintiff’s appeal in Jerry Davidson v. United Auto Credit Corp, arguing that the hybrid loan at issue in the case, which was used for both an MLA-exempt and non-exempt purpose, must comply with the MLA. The loan included an amount used to purchase Guaranteed Auto Protection (GAP) insurance coverage, and the plaintiff alleged that, among other things, the auto lender (defendant) violated the MLA by forcing the plaintiff to waive important legal rights as a condition of accepting the loan and by requiring him to agree to mandatory arbitration should any dispute arise related to the loan. The plaintiff also alleged that the defendant failed to accurately communicate his repayment obligations by failing to disclose the correct annual percentage rate. The case is before the U.S. Court of Appeals for the Fourth Circuit after a district court held that the plaintiff’s GAP insurance fell within the car-loan exception to the MLA as “inextricably tied to” and “directly related” to the vehicle purchase.
Arguing that GAP coverage “is not needed to buy a car and does not advance the purchase or use of the car,” the agencies’ brief noted that GAP coverage is identified as “debt-related product that addresses a financial contingency arising from a total loss of the car” and that the coverage can be purchased as a standalone product. According to the brief, the plaintiff’s loan is a “hybrid loan—that is, a loan that finances a product bundle including both an exempt product (such as a car) and a distinct non-exempt product (such as optional GAP coverage),” and the district court erred in failing to interpret the MLA consistent with guidance issued in 2016 and 2017 by the DOD suggesting that such “hybrid loans” are consumer credit subject to the protections in the MLA. The 2017 guidance explained that “a credit transaction that includes financing for Guaranteed Auto Protection insurance … would not qualify for the exception,” and the agencies argued that although the 2017 guidance was withdrawn in 2020, the “withdrawal did not offer a substantive interpretation of the statute that would alter the conclusion” that the plaintiff’s loan was not exempt from the MLA.
Recently, the CFPB, CFTC, FDIC, FHFA, and OCC provided notice in the Federal Register regarding adjustments to the maximum civil money penalties due to inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Each notice or final rule (see CFPB here, CFTC here, FDIC here, FHFA here, and OCC here) adjusts the maximum amounts of civil money penalties and provides a chart reflecting the inflation-adjusted maximum amounts associated with the penalty tiers for particular types of violations within each regulator’s jurisdiction. The OCC’s adjusted civil money penalty amounts are applicable to penalties assessed on or after January 12. The new CFPB, CFTC, FDIC, and FHFA civil money penalty amounts are applicable to penalties assessed on or after January 15.
Recently, the CFPB released its annual lists of rural counties and rural or underserved counties for lenders to use when determining qualified exemptions to certain TILA regulatory requirements. In connection with these releases, the Bureau also directed lenders to use its web-based Rural or Underserved Areas Tool to assess whether a rural or underserved area qualifies for a safe harbor under Regulation Z.
- Jonice Gray Tucker to discuss “Getting your company ready: Managing fair lending for IMBs” at the Mortgage Bankers Association Independent Mortgage Bankers Conference
- Jonice Gray Tucker to discuss “Be Your Compliance Best in 2022” at the California Mortgage Bankers Association webinar
- Lauren R. Randell to discuss “Significant legal developments in the Northeast” at the 37th Annual National Institute on White Collar Crime
- Jonice Gray Tucker to discuss “Small business & regulation: How fair lending has evolved & where it is heading?” at the Consumer Bankers Association Live program
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek
- Jonice Gray Tucker and Kari Hall to discuss “Equity, equality, regulation and enforcement – The evolving regulatory landscape of fair lending, redlining, and UDAAP” at the ABA Business Law Committee Hybrid Spring Meeting