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Recently, the U.S. District Court for the District of Kansas granted a plaintiff’s motion for final approval of a class action settlement resolving allegations that a national bank violated the Servicemembers Civil Relief Act by incorrectly repossessing vehicles owned by certain servicemembers. The bank, which denied all claims and allegations of wrongdoing, entered into the settlement agreement to avoid further uncertainties and expenses. The approximately $5.1 million settlement fund will go to affected servicemembers who have not, as of the effective date, already accepted payments in accordance with settlement agreements reached between the bank and the DOJ and OCC in 2016. (Covered by InfoBytes here.)
On June 6, the FTC announced that it submitted its 2018 Annual Financial Acts Enforcement Report to the CFPB. The report—which the Bureau requested for its use in preparing its 2018 Annual Report to Congress—covers the FTC’s enforcement activities regarding Regulation Z (the Truth in Lending Act or TILA), Regulation M (the Consumer Leasing Act or CLA), and Regulation E (the Electronic Fund Transfer Act or EFTA). Highlights of the enforcement matters covered in the report include:
- Auto Lending and Leasing. The report discusses two enforcement matters related to deceptive automobile dealer practices. The first, filed in August 2018, alleged that a group of four auto dealers, among other things, advertised misleading discounts and incentives in their vehicle advertisements, and falsely inflated consumers’ income and down payment information on financing applications. The charges brought against the defendants allege violations of the FTC Act, TILA, and the CLA. The FTC sought, among other remedies, a permanent injunction to prevent future violations, restitution, and disgorgement. (Detailed InfoBytes coverage of the filing is available here.) In the second, in December 2018, the FTC mailed over 43,000 checks, totaling over $3.5 million, to consumers allegedly harmed by nine dealerships and owners engaged in deceptive and unfair sales and financing practices, deceptive advertising, and deceptive online reviews. (Detailed InfoBytes coverage is available here.)
- Payday Lending. The report covers two enforcement matters, including the U.S. Court of Appeals for the 9th Circuit’s December 2018 decision upholding the $1.3 billion judgment against defendants responsible for operating an allegedly deceptive payday lending program. The decision is the result of a 2012 complaint in which the FTC alleged that the defendants engaged in deceptive acts or practices in violation of Section 5(a) of the FTC Act by making false and misleading representations about costs and payment of the loans. (Detailed InfoBytes coverage is available here.) The report also indicates that, in February 2018, the FTC issued over 72,000 checks totaling more an $2.9 million to consumers stemming from a July 2015 settlement, that alleged that online payday operators used personal financial information purchased from third-party lead generators or data brokers to make unauthorized deposits into and withdrawals from consumers’ bank accounts, regardless of whether the consumer applied for a payday loan. (Detailed InfoBytes coverage is available here.)
- Negative Option. The report covers six enforcement matters related to alleged violations of the EFTA and Regulation E for “negative option” plans, including three new filings against online marketers for allegedly advertising “free trial” offers for products that enrolled consumers in expensive, ongoing plans without their knowledge or consent. The report notes that, in 2018, the FTC reached a settlement with one entity and obtained a court judgment against another, both resulting in injunctive relief and monetary settlements (which were suspended due to the defendants’ inability to pay). The report also notes that the FTC mailed 2,116 refund checks totaling more than $355,000 to people who bought an allegedly deceptive “memory improvement” supplement.
Additionally, the report addresses the FTC’s research and policy efforts related to truth in lending and leasing, and electronic fund transfer issues, including (i) a study of consumers’ experiences in buying and financing automobiles at dealerships; and (ii) the FTC’s Military Task Force’s work on military consumer protection issues. The report also outlines the FTC’s consumer and business education efforts, which include several blog posts warning of new scams and practices.
On May 30, the U.S. Court of Appeals for the 9th Circuit affirmed summary judgment in favor of an auto finance corporation and various dealerships (collectively, “defendants”) in a putative class action alleging the defendants failed to provide add-ons the plaintiff purchased with the vehicle. The case, which was originally brought in Washington state superior court, was removed to federal court over the consumer’s objection, where the consumer amended the complaint to include a federal TILA claim.
According to the opinion, plaintiff alleged that his purchased vehicle did not come with three add-ons listed in the “Dealer Addendum,” which was a sticker affixed to the car. At the time of purchase, the customer was not aware of what the add-ons were, nor were they explained to him; the add-ons were only listed in the addendum. Plaintiff argued that if he had known what the add-ons were, he would have declined them and paid a lower price for the vehicle. The district court rejected plaintiff’s arguments and granted summary judgment for the defendants on all claims.
On appeal, the 9th Circuit upheld the entirety of the district court’s ruling, concluding the consumer offered no evidence that the add-ons identified in the Dealer Addendum were made part of the vehicle purchase transaction. Moreover, the appellate court upheld the district court’s decision not to remand the case back to state court, determining that while the district court did not have subject-matter jurisdiction at the time of removal, it had subject-matter jurisdiction at the time it rendered its final decision, due to the consumer’s voluntary addition of the TILA claim to the complaint. The appellate court also found that the district court did not abuse its discretion in denying the consumer’s request for additional discovery based on plaintiffs failure to “identif[y] the specific facts that further discovery would have revealed or explained[ed].”
On May 24, the Oregon governor signed SB 366, which repealed the sunset provision on statutes establishing the conditions under which creditors can offer guaranteed asset protection (GAP) waivers in connection with the sale of an automobile. Chapter 523, Oregon Laws 2015 allows creditors to offer GAP waivers to consumers outside of the regulation of the Insurance Code while specifying certain requirements for offering the waivers. Section 11 of Chapter 523, would have repealed these GAP waiver provisions on January 2, 2020. The bill repeals Section 11, allowing for the GAP waiver provisions to remain in effect. The bill is effective January 1, 2020.
On May 28, the U.S. District Court for the Southern District of Florida ruled that customers who financed a vehicle through a Florida car dealership were bound by the arbitration provision contained within a signed purchase order and retail installment sale contact. The customer plaintiffs contended that the defendant car dealership violated the FCRA and state law when it ran a “hard” credit inquiry on them instead of the “soft” credit inquiry they had authorized on a pre-approval financing form completed on the defendant’s website. As a result, the plaintiffs’ credit scores were affected. Based on the arbitration provisions contained in the purchase order and retail sale installment contract, the defendant filed a motion to compel arbitration. The plaintiffs argued that they were not bound by the arbitration agreements because they were signed a few days after the dealership ran the unauthorized credit check. However, the court held that it did not matter when the agreement was signed, stating that the “[p]laintiffs’ sole argument is that the [hard credit report check], does not in any way ‘relate to’ the purchasing documents which contain the arbitration clauses, and thus the arbitration clauses cannot be applied retroactively to encompass disputes arising from that transaction. The [c]ourt disagrees.” In granting the motion to compel arbitration, the court explained that the plaintiffs’ argument was “essentially one relating to scope and arbitrability, issues that the parties clearly and unmistakably agreed to arbitrate.”
On May 16, the Iowa governor signed SF 619, which, among other things, amends the state’s service contract provider provisions to require any provider that issues, offers for sale, or sells motor vehicle service contracts in the state to be licensed as a service company. Persons who provide support services or work under the direction of a licensed service company, including those who provide marketing, administrative, or technical support, are not subject to the licensure requirements. In addition, SF 619 also prohibits a licensed service company that offers motor vehicle service contracts from making certain false, deceptive, or misleading statements regarding (i) the service company’s affiliations with a manufacturer or importer; (ii) a warranty’s validity or expiration date; or (iii) whether a contract holder must obtain a new service contract in order to maintain coverage under an existing contract or warranty. Furthermore, SF 619 prohibits a lending institution from requiring “the purchase of a motor vehicle service contract or residential service contract as a condition of a loan or the sale of any property or motor vehicle.” The amendments are effective immediately.
On May 6, the Indiana governor signed HB 1183, which amends the state statute concerning the release of an abandoned motor vehicle that has been towed to a storage yard or towing facility. Among other things, the bill revises notification requirements for towed vehicles, providing that a public agency or towing service must conduct a search of the National Motor Vehicle Title Information System or an equivalent database to attempt to obtain the name of the person who owns or holds a lien on the vehicle and contact that person within three days regarding charges and the potential to auction the vehicle if not claimed. The bill also provides inspection rights for owners and lienholders of vehicles and allows for a towing service or storage yard to charge an inspection fee for inspections or retrievals from the vehicle. The bill is effective July 1.
On April 22, the Arizona governor signed HB 2674, a bill defining the term “guaranteed asset protection waivers” (GAP waivers) and clarifying that GAP waivers are not insurance and are thus exempt from the state’s insurance laws. The Act is effective 90 days after the state’s legislative session adjourns sine die.
On April 8, the Arkansas governor signed HB 1672, which provides a framework within which guaranteed asset protection (GAP) waivers may be offered in the state. Among other provisions, the act (i) clarifies that GAP waivers are not insurance and are exempt from the state’s insurance laws; (ii) states that persons who market, sell, or offer GAP waivers are exempt from Arkansas’ licensing requirements, provided they comply with the act; (iii) establishes requirements for offering GAP waivers and clarifies that any cost to the borrower for the sale of a GAP waiver, in compliance with TILA, should not be considered a finance charge or interest; (iv) states that neither the extension of credit, nor the sale or lease terms of a motor vehicle, “may be conditioned upon the purchase of a [GAP] waiver;” and (v) clarifies contractual liability coverage, disclosure requirements, and requirements and restrictions for GAP waiver cancellations, including refund provisions. HB 1672 further stipulates that the state’s insurance commissioner may enforce the act’s provisions and impose penalties. The act takes effect 90 days after adjournment of the legislature.
On April 2, the New Mexico governor signed HB 584, which amends the Collection Agency Regulatory Act and the Motor Vehicle Sales Finance Act to, among other things, require sales finance companies obtain a license to conduct business in the state. The bill outlines licensing requirements for such companies. State and national banks authorized to do business in the state are not required to obtain a license under the Motor Vehicle Sales Finance Act, “but shall comply with all of its other provisions.” Under HB 584, the Director of the Financial Institutions Division of the Regulation and Licensing Department may utilize the Nationwide Multistate Licensing System and Registry (NMLS) or other entities designated by the NMLS in order to receive and process licensing applications. The Director is also granted the authority to issue and deny licenses.
HB 584 also amends definitions used within the state’s Mortgage Loan Originator Licensing Act, and outlines provisions related to (i) licensing, registration, renewal, and testing requirements; (ii) certain exemptions; (iii) the issuance of temporary licenses to out-of-state mortgage loan originators who are both licensed through the NMLS and complete the mandatory education and testing requirements; and (iv) continuing education requirements. HB 584 also grants the Director the authority to establish rules for licensing challenges; “deny, suspend, revoke or decline to renew a licenses for a violation of the New Mexico Mortgage Loan Originator Licensing Act”; and impose civil penalties for violations.
Furthermore, HB 584 also amends the definitions used within the state’s Uniform Money Services Act and the Collection Agency Regulatory Act by listing licensing application requirements, and granting the Director the same authorities provided above.
The amendments take effect July 1, 2019.
- Buckley Webcast: Hot topics in debt collection — An analysis of recent federal FDCPA litigation
- Jonice Gray Tucker to discuss "How to succeed in law school" at the SEO Law DC Panel Discussions
- Amanda R. Lawrence to discuss "Navigating the challenges of the latest data protection regulations and proven protocols for breach prevention and response" at the ACI National Forum on Consumer Finance Class Actions and Government Enforcement
- Sasha Leonhardt and John B. Williams to discuss "Privacy" at the National Association of Federally-Insured Credit Unions Summer Regulatory Compliance School
- Warren W. Traiger to discuss "CRA modernization" at the National Association of Industrial Bankers and the Utah Association of Financial Services Annual Convention
- Benjamin W. Hutten to discuss "Requirements for banking inherently high-risk relationships" at the Georgia Bankers Association BSA Experience Program
- Henry Asbill to discuss "Ethical guidance in conducting internal investigations – The intersection of Yates an Upjohn" at the American Bar Association Southeastern White Collar Crime Institute
- Brandy A. Hood to discuss "RESPA Section 8/referrals: How do you stay compliant?" at the New England Mortgage Bankers Conference
- Daniel P. Stipano to discuss "Lessons learned from recent enforcement actions and CMPs" at the ACAMS AML & Financial Crime Conference
- Daniel P. Stipano to discuss "Assessing the CDD final rule: A year of transitions" at the ACAMS AML & Financial Crime Conference