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Financial Services Law Insights and Observations


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  • State AGs support congressional disapproval of 2019 Borrower Defense Rule

    State Issues

    On January 14, a coalition of attorneys general from 19 states and the District of Columbia sent a letter to Congress in support of H.J. Res. 76, which was passed by the House of Representatives on January 16, and provides for congressional disapproval of the Department of Education’s 2019 Borrower Defense Rule (covered by InfoBytes here). The Department’s 2019 Borrower Defense Rule, published last September and set to take effect July 1, revises protections for student borrowers that were significantly misled or defrauded by their higher education institution and establishes standards for loan forgiveness applicable for “adjudicating borrower defenses to repayment claims for Federal student loans first disbursed on or after July 1, 2020.”

    The AGs claim, however, that the 2019 Borrower Defense Rule “provides no realistic prospect for borrowers to discharge their loans when they have been defrauded by predatory for-profit schools, and . . . eliminates financial responsibility requirements for those same institutions.” The AGs further argue that the new provisions require “student borrowers to prove intentional or reckless misconduct on the part of their schools,” which they claim is “an extraordinarily demanding standard not consistent with state laws governing liability for unfair and deceptive conduct.” Other standards, such as requiring student borrowers to “prove financial harm beyond the intrinsic harm caused by incurring federal student loan debt as a result of fraud” and establishing a three-year time bar on borrower defense claims, would further reduce protections for student borrowers. Citing to several state enforcement actions taken against for-profit schools for alleged deceptive and unlawful tactics, the AGs stress the need for a “robust and fair borrower defense rule.”

    State Issues State Attorney General U.S. Senate Department of Education Student Lending Congress Borrower Defense

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  • CFPB files claims against debt relief companies

    Federal Issues

    On January 9, the CFPB announced that it filed a complaint in the U.S. District Court for the Central District of California against a mortgage lender, a mortgage brokerage, and several student loan debt relief companies (collectively, “the defendants”), for allegedly violating the FCRA, TSR, and FDCPA. In the complaint, the CFPB alleges that the defendants violated the FCRA by, among other things, illegally obtaining consumer reports from a credit reporting agency for millions of consumers with student loans by representing that the reports would be used to “make firm offers of credit for mortgage loans” and to market mortgage products. The Bureau asserts that the reports of more than 7 million student loan borrowers were actually resold or provided to companies engaged in marketing student loan debt relief services.

    According to the complaint, “using or obtaining prescreened lists to send solicitations marketing debt-relief services is not a permissible purpose under FCRA.” The complaint alleges that the defendants violated the TSR by charging and collecting advance fees before first “renegotiat[ing], settl[ing], reduc[ing], or otherwise alter[ing] the terms of at least one debt pursuant to a settlement agreement, debt-management plan, or other such valid contractual agreement executed by the customer,” and prior to “the customer ma[king] at least one payment pursuant to that settlement agreement, debt management plan, or other valid contractual agreement between the customer and the creditor or debt collector.” The CFPB further alleges that the defendants violated the TSR and the CFPA when they used telemarketing sales calls and direct mail to encourage consumers to consolidate their loans, and falsely represented that consolidation could lower student loan interest rates, improve borrowers’ credit scores, and change their servicer to the Department of Education.

    The Bureau is seeking a permanent injunction to prevent the defendants from committing future violations of the FCRA, TSR, and CFPA, as well as an award of damages and other monetary relief, civil money penalties, and “disgorgement of ill-gotten funds.”

    Federal Issues CFPB Debt Relief Consumer Finance Telemarketing Sales Rule Student Lending CFPA Courts FCRA UDAAP

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  • 9th Circuit: Student loan guaranty agency is not a debt collector under FDCPA


    On December 18, the U.S. Court of Appeals for the Ninth Circuit held that a nonprofit guaranty agency that collected delinquent student loans was exempt from the FDCPA because its “collection activity was incidental to its fiduciary obligation to the Department of Education.” According to the opinion, the matter dates back decades, where a judgment on the borrower’s three defaulted student loans was eventually assigned to the defendant, which began collection efforts on behalf of the Department of Education (the Department had previously repaid the guarantor of the loans). The defendant sent the borrower a notice in 2009 that it would begin collecting the Department’s claim by having the Department of Treasury “offset ‘all payment streams authorized by law,’ including his Social Security benefits,” to which the borrower did not respond. The borrower eventually disputed the debt in 2012 once the offset took effect, and filed a lawsuit in 2015 claiming FDCPA and Fifth Amendment due process violations. The district court granted summary judgment in favor of the defendant, ruling that the defendant was not a debt collector subject to the FDCPA and was not subject to due process because it was not a state actor.

    On appeal, the 9th Circuit agreed with the district court, concluding that while the defendant satisfied the general criteria for debt collectors because it regularly collected debts that were owed to someone else, the defendant qualified for an exception because its debt collection activities were “incidental to a bona fide fiduciary obligation.” Specifically, the appellate court held that “incidental to” a fiduciary obligation meant that debt collection could not be the “sole or primary” reason the judgment had been assigned to the defendant. The appellate court explained that the defendant had a broader role beyond the collection of debts, because it had also accepted recordkeeping and administrative duties. Finally, concerning the borrower’s argument that the defendant had “arbitrarily and maliciously” garnished his benefits in violation of his due process rights, the 9th Circuit concluded that there was no due process violation because the defendant (i) had provided the borrower with a notice of the debt and its intention to recover the claim from his Social Security benefits; (ii) the notice was sent to the correct address; and (iii) the defendant’s misstatement that the debt arose from one loan rather than the total of three loans was not a due process violation.

    Courts Appellate Ninth Circuit Student Lending Debt Collection Department of Education FDCPA

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  • Democratic Senators question Kraninger on student loan servicer oversight

    Federal Issues

    On December 17, eight Senate Democrats wrote to CFPB Director Kathy Kraninger urging the Bureau to fulfill its statutory obligations related to the oversight of student loan servicers who collect loans guaranteed by the federal government. In the letter, the Senators express concern over what they consider the Bureau’s “unacceptable” abandonment of its supervision and enforcement activities related to federal student loan servicers, and discuss the Department of Education’s termination of two Memoranda of Understanding (MOUs) in 2017 that previously permitted the sharing of information in connection with the oversight of federal student loans. (Previously covered by InfoBytes here.) According to the Senators, Kraninger’s testimony before the Senate Banking Committee in October (covered by InfoBytes here) reaffirmed the Bureau’s responsibility and ability to examine entities engaged in federal and private student loans. In addition, the Senators claim that Kraninger testified that the Bureau and the Department were “discussing how to move forward in an effective way” to ensure they were overseeing student loan servicers. However, the Senators note that “nearly two months later, the Bureau and Department still have not reestablished MOUs, and the Bureau still has not resumed examinations of federal student loan servicers.” In addition to calling on Kraninger to “take immediate steps, including seeking a court order” requiring the Department to provide access to borrower information so the Bureau can resume examinations of student loan servicers, the Senators request information concerning the MOUs as well as a timeline from the Bureau on when it will resume its examinations.

    Federal Issues U.S. Senate CFPB Department of Education Student Lending Student Loan Servicer

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  • FTC obtains $191 million from for-profit school for deceptive ads

    Federal Issues

    On December 10, the FTC announced a settlement with a for-profit school and its parent company to resolve allegations that they employed deceptive advertisements in violation of the FTC Act that gave the impression that the school had relationships and job opportunities with various technology companies and tailored curricula to those jobs. In the complaint, the FTC claims the defendants relied upon false and misleading advertisements to attract prospective students that gave the impression that the school’s relationship with certain companies would create employment opportunities. In addition, the FTC alleges that while the defendants claimed the companies also worked with the school to develop its courses, in reality the partnerships were primarily marketing relationships that did not create jobs or curricula for the school’s students. Moreover, the FTC claims that some of these advertisements specifically targeted current and former military members and Hispanic consumers. Under the terms of the settlement, the school is required to pay $50 million in consumer redress and cancel approximately $141 million in student loan debts owed to the school by former students who first enrolled during the covered period.

    The FTC’s press release notes, however, that the “settlement will not affect student borrowers’ federal or private loan obligations,” and directs borrowers to the Department of Education’s income-driven repayment plans for guidance on lowering monthly payments. The FTC also states that borrowers who believe they may have been defrauded or deceived can apply for loan forgiveness through the Borrower Defense to Repayment procedures.

    Federal Issues FTC Enforcement FTC Act UDAP Advertisement Student Lending

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  • CFPB examines student loan borrowers enrolled in IDR plans

    Federal Issues

    On November 22, the CFPB released a new Data Point report from the Office of Research titled “Borrower Experiences on Income-Driven Repayment,” which examines, among other things, the types of student loan borrowers who participate in income-driven repayment (IDR) plans, the evolution of borrower delinquencies, and borrower experiences with enrollment recertification processes. According to the Bureau, while student loans are currently the largest non-mortgage form of debt held by U.S. consumers, “there remains limited evidence of how this growing debt burden affects the use of other financial products and services.” Key findings of the report include:

    • Delinquencies decreased 19 to 26 percent after one year into IDR enrollment for borrowers who received partial payment relief as compared to the quarter before enrollment, and the share of borrowers actively in repayment on their loans was 27 percent higher at the end of the first year of being enrolled in IDR than prior to entering IDR.
    • Delinquent borrowers who enrolled in IDR showed a 17 percent reduction in their delinquencies on other credit products, however, the Bureau noted that “one in five such borrowers were still behind on their payments on these other credit products one year later, reflecting persistent financial struggles for some borrowers.”
    • Roughly two-thirds of borrowers who recertified their IDR enrollment for a second year did so either immediately or within two months after the initial IDR period ended, with an additional 12 percent entering forbearance or deferment. The Bureau stated that borrowers who do not recertify on time after their first year may face persistent difficulties, and reported that delinquencies more than tripled for these borrowers.
    • More than 80 percent of borrowers enrolled in IDR “sought out prolonged payment relief beyond a single year.”

    According to the Bureau, the data “helps the Bureau and other researchers and policymakers understand how consumers repay their student loans and how that behavior affects their use of other financial products.”

    Federal Issues CFPB Student Lending Income-Driven Repayment

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  • AG coalition calls on Department of Education to discharge loans for students who attended closed for-profit school

    State Issues

    On November 13, a coalition of 22 state attorneys general led by the Massachusetts attorney general sent a letter to the Department of Education’s Federal Student Aid Chief Operating Officer to determine whether the Department has complied with federal regulations that allow student borrowers to qualify for automatic discharge relief if they attended a school within 120 days of its closure date and have not continued their education elsewhere. The letter referred to an estimate provided by the Department in May, which stated that approximately 52,000 former students of a now-closed for-profit college qualified for automatic closed-school discharge relief. The letter notes, however, that recent information obtained from Congress indicates that only 7,000 student borrowers have been granted automatic discharges. Among other things, the AGs ask the Department to clarify whether all eligible students are now receiving automatic discharges, and request that the 120-day window be expanded “due to the deeply compromised nature of the school and its offerings in the months before its national collapse.” In addition, the letter requests details about the number of students with discharged loans and the methodology the Department is using to implement the automatic closed-school discharge.

    State Issues Department of Education Student Lending Borrower Defense State Attorney General

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  • District Court certifies class suing Department of Education over borrower defense claims


    On October 30, the U.S. District Court for the Northern District of California certified a class of borrowers who allegedly applied for student loan relief based on their higher education institution’s misconduct but have yet to receive a decision from the Department of Education. The borrowers allege that the Department has arbitrarily and capriciously stonewalled its own process for adjudicating the borrowers’ defense claims under the Higher Education Act, which “allows the Department to cancel a student federal loan repayment based on a school’s misconduct.” The borrowers claim the Department has failed to decide a borrower defense claim since June 2018. According to the borrowers—former students of for-profit schools with claims dating back to 2015—“the Department’s inaction continues to cause putative class members ongoing harm.” The Department argued, however, that the class should not be certified because the borrowers’ claims rely too much on individual circumstances and fail to prove a “systemic policy of inaction[.]” The court disagreed and certified the class, stating that the borrowers “have identified a single uniform policy—namely, the Department’s alleged ‘blanket refusal’ to adjudicate borrower defenses—which ‘bridges all their claims.’” Moreover, the court noted that “this alleged uniform policy is supported by the undisputed fact that the Department has failed to adjudicate a single borrower defense claim in over a year.” The class does not include borrowers who are part of a separate action filed against the Department (covered by InfoBytes here).

    Courts Class Action Student Lending Department of Education Borrower Defense

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  • Senate Democrats press CFPB to investigate Pennsylvania servicer’s PSLF management

    Federal Issues

    On October 28, 23 Senate Democrats wrote to CFPB Director Kathy Kraninger urging the Bureau to open an enforcement investigation into a Pennsylvania-based student loan servicer’s alleged mismanagement of the Public Service Loan Forgiveness (PSLF) program. The Senators contend that the servicer’s failure to properly administer the PSLF program “has resulted in widespread violations of federal law,” referring to reports by the CFPB, the Government Accountability Office, and the Department of Education Inspector General that claim that missteps and errors have caused public service workers to be denied loan forgiveness. The CFPB’s Student Loan Ombudsman’s report cites to the servicer’s “‘flawed payment processing, botched paperwork and inaccurate information,’” while the GAO report claims “that public service workers [have] improperly been denied loan forgiveness because of [the servicer’s] inability to properly account for qualifying payments and reliance on inaccurate information.” The letter requests that the Bureau investigate the servicer’s servicing practices, its management of the PSLF program, and other potential violations of federal consumer financial laws.

    As previously covered by InfoBytes, on October 3, the New York attorney general filed an action against the servicer for violating the Consumer Financial Protection Act and New York law through its mishandling of income driven repayment plans and misconduct related to the administration of PSLF program applications.

    Federal Issues U.S. Senate CFPB Student Loan Servicer Student Lending PSLF

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  • Regulators tackle company offering relief from student loans

    Federal Issues

    On October 30, the CFPB, along with the Minnesota and North Carolina attorneys general, and the Los Angeles City Attorney (together, the “states”), announced an action against a student loan debt relief operation for allegedly deceiving thousands of student-loan borrowers and charging more than $71 million in unlawful advance fees. In the complaint filed October 21 and unsealed on October 29 in the U.S. District Court for the Central District of California, the Bureau and the states alleged that since at least 2015 the defendants have violated the Consumer Financial Protection Act, the Telemarketing Sales Rule, and various state laws by charging and collecting improper advance fees from student loan borrowers prior to providing assistance and receiving payments on the adjusted loans. In addition, the Bureau and the states claim the defendants engaged in deceptive practices by misrepresenting (i) the purpose and application of fees they charged; (ii) their ability to obtain loan forgiveness; and (iii) their ability to actually lower borrowers’ monthly payments. The defendants also allegedly failed to inform borrowers that they automatically requested that the loans be placed in forbearance and submitted false information to student loan servicers to qualify borrowers for lower payments. The complaint seeks injunctive relief, as well as damages, restitution, disgorgement, and civil money penalties.

    On November 15, the court entered a preliminary injunction enjoining the alleged violations of law in the complaint, contining the asset freeze, and appointing a receiver against the defendants. 

    Federal Issues CFPB Student Lending Debt Relief Courts State Attorney General CFPA Telemarketing Sales Rule UDAAP

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