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On November 27, the Superior Court of New Jersey, Appellate Division, affirmed an order requiring arbitration between a consumer and the buyer of the consumer’s debt (debt collector) in a lawsuit filed by the consumer claiming that the debt collector was not licensed to collect debts in New Jersey. According to the decision, the consumer had opened a credit card account with a bank, which included an arbitration agreement, then defaulted on the account. The debt collector then bought the debt and collected the consumer’s debt. The consumer subsequently sued the debt collector for its purported unlicensed collection of debts, but the trial court dismissed the complaint and compelled arbitration between the parties. The consumer appealed, arguing in part that the trial court erred by allowing an arbitrator to decide the validity of the assignment to the debt collector, and, therefore, the enforceability of the arbitration agreement. The appellate division court sided with the trial court that the arbitration clause “clearly and expressly stated claims relating to the ‘application, enforceability or interpretation of this Agreement, including this arbitration provision’ are subject to arbitration.” Moreover, the court concurred that the agreement did not violate the state’s plain language statute. However, the appellate division remanded the case to the trial court for issuance of an order to stay—rather than dismiss—the matter pending arbitration.
On November 20, the Office of Information and Regulatory Affairs released the CFPB’s fall 2019 rulemaking agenda. According to a Bureau announcement, the information released represents regulatory matters it “reasonably anticipates having under consideration during the period from October 1, 2019, to September 30, 2020.”
Key rulemaking initiatives include:
- Property Assessed Clean Energy (PACE) Financing: As previously covered by InfoBytes, the Bureau published an Advanced Notice of Proposed Rulemaking (ANPR) in March 2019 seeking feedback on the unique features of PACE financing and the general implications of regulating PACE financing under TILA. The Bureau notes it is currently reviewing comments as it considers next steps.
- Small Business Rulemaking: On November 6, the Bureau held a symposium on small business lending to gather information for upcoming rulemaking (previously covered by InfoBytes here). The Bureau emphasized it will focus on rulemaking that would not impede small business access to credit by imposing unnecessary costs on financial institutions. According to the Bureau, materials will be released prior to convening a panel under the Small Business Regulatory Enforcement Fairness Act to consult with businesses that may be affected by future rulemaking.
- HMDA/Regulation C: The Bureau plans to finalize the permanent thresholds for reporting data on open-end lines of credit and closed-end mortgage loans in March 2020, and expects to issue a Notice of Proposed Rulemaking (NPRM) to govern the collection of HMDA data points and the disclosure of this data in July 2020. Both initiatives follow an NPRM and an ANPR issued by the Bureau in May (previously covered by InfoBytes here).
- Payday, Vehicle Title, and Certain High-Cost Installment Loans: As previously covered by InfoBytes, the Bureau published two NPRMs related to certain payday lending requirements under the final rule titled “Payday, Vehicle Title, and Certain High-Cost Installment Loans.” Specifically, the Bureau proposed to rescind the portion of the rule that would make 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, and to delay the rule’s compliance date for mandatory underwriting provisions. The Bureau notes it is currently reviewing comments and expects to issue a final rule in April 2020.
- Debt Collection: Following an NPRM issued in May concerning debt collection communications, disclosures, and related practices (previously covered by InfoBytes here), the Bureau states it is currently “engaged in testing of consumer disclosures related to time-barred debt disclosure issues that were not addressed in the May 2019 proposal.” Once testing has concluded, the Bureau will assess the need for publishing a supplemental NPRM related to time-barred debt disclosures.
- Remittance Transfers: The Bureau expects in December to issue a proposed rule to address the July 2020 expiration of the Remittance Rule’s temporary exception for certain insured depository institutions from the rule’s disclosure requirements related to the estimation of fees and exchange rates. (Previously covered by InfoBytes here.)
- GSE Patch: The Bureau plans to address in December the so-called GSE patch, which confers Qualified Mortgage status for loans purchased or guaranteed by Fannie Mae and Freddie Mac while those entities operate under FHFA conservatorship. The patch is set to expire in January 2021, or when Fannie and Freddie exit their conservatorships, whichever comes first. (See Buckley Special Alert here.)
The Bureau further notes in its announcement the addition of entries to its long-term regulatory agenda “to address issues of concern in connection with loan originator compensation and to facilitate the use of electronic channels of communication in the origination and servicing of credit card accounts.”
On November 15, the U.S. District Court for the Northern District of Georgia entered a stipulated final judgment and order to resolve allegations concerning one of the defendants cited in a 2015 action taken against an allegedly illegal debt collection operation. As previously covered by InfoBytes, the CFPB claimed that several individuals and the companies they formed attempted to collect debt that consumers did not owe or that the collectors were not authorized to collect. The complaint further alleged uses of harassing and deceptive techniques in violation of the CFPA and FDCPA, and named certain payment processors used by the collectors to process payments from consumers. While the claims against the payment processors were dismissed in 2017 (covered by InfoBytes here), the allegations against the outstanding defendants remained open. The November 15 stipulated final judgment and order is issued against one of the defendants who—as an officer and sole owner of the debt collection company that allegedly engaged in the prohibited conduct—was found liable in March for violations of the FDCPA, as well as deceptive and unfair practices and substantial assistance under CFPA.
Among other things, the defendant, who neither admitted nor denied the allegations except as stated in the order, is (i) banned from engaging in debt collection activities; (ii) permanently restrained and enjoined from making misrepresentations or engaging in unfair practices concerning consumer financial products or services; and (iii) prohibited from engaging in business ventures with the other defendants; using, disclosing or benefitting from certain consumer information; or allowing third parties to use merchant processing accounts owned or controlled by the defendant to collect consumer payments. The stipulated order requires the defendant to pay a $1 civil money penalty and more than $5.2 million in redress, although full payment of the judgment is suspended upon satisfaction of specified obligations and the defendant’s limited ability to pay.
On November 11, the Massachusetts attorney general announced a $4 million settlement with a Virginia-based debt collection company to resolve allegations that it engaged in deceptive and unfair debt collection practices. The AG’s release stated that an assurance of discontinuance filed in the Suffolk Superior Court alleges that the company “aggressively” collected on purchased defaulted loans, credit card accounts, car loans, and other consumer debts by using a network of in-house collectors who contacted consumers through multiple letters and phone calls, and used law firms to take consumers to court. An investigation revealed that the company “routinely pursued consumers with only exempt sources of income such as social security, social security disability, and supplemental security income,” and that consumers who informed the company of their reliance on such income “were pressured by the company to pay money they should have been entitled to keep.” Among other things, the AG’s office claimed that the company also (i) collected on debts it could not substantiate; (ii) failed to verify whether the consumer information it reported to credit reporting agencies was accurate; (iii) ignored the statute of limitations when collecting debt; and (iv) failed to notify consumers of their rights to request proof of a debt and to provide proof of a debt upon request. In addition to the $4 million payment, the company has agreed to stop collecting from consumers using only exempt income, will obtain documentation that debts are valid before collecting, will inform consumers when debt is beyond the statute of limitations, and will refrain from calling consumers more than twice in a seven-day period. The company also agreed to stop reporting debts it cannot substantiate to credit reporting agencies and to investigate consumer credit report accuracy disputes.
On November 8, the U.S. Court of Appeals for the Seventh Circuit reversed a district court’s dismissal of an action against a debt collector, concluding that tax consequence language in a debt collection letter may violate the FDCPA. According to the opinion, the debt collector sent a consumer four collection letters with at least one letter stating in part that “[s]ettling a debt for less than the balance owed may have tax consequences and [the creditor] may file a 1099C form.” The consumer filed an action against the debt collector alleging that the language violated the FDCPA because the creditor is not obligated to file a 1099C with the IRS unless it has forgiven at least $600 in principal. The consumer also claimed that the creditor at issue would never file a 1099C unless it was legally obligated to do so, and as applied to the consumer’s debt at issue, none of the settlement options offered in the dunning letter would have reached the $600 threshold. The district court granted the debt collector’s motion to dismiss the action and the consumer appealed.
On appeal, the 7th Circuit focused on the letter’s reference to the possible 1099C filing. The court noted that “it is impermissible for a creditor to make a ‘may’ statement about something that is illegal or impossible,” and while it is not technically illegal or impossible for the creditor to file a 1099C form for amounts less than $600, the debt collector did not dispute that the creditor “would never file a 1099C form with the IRS unless required to do so by law.” The court observed that the “language of a collection letter can be literally true and still be misleading in a way that violates the Act.” Thus, the consumer plausibly alleged that “it is, in fact, misleading to state that [the creditor] may file a Form 1099C, when it never would.” And because questions as to whether specific statements are deceptive or misleading are “almost always questions of fact,” the appellate court reversed the dismissal and remanded the case back to district court for further proceedings.
On November 4, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s decision that a debt collector does not violate the FDCPA by sending notices to consumers that do not clarify that a debt is static. The plaintiff in that case alleged that the defendant violated the FDCPA’s prohibition on false, deceptive, or misleading representations in connection with the collection of a debt when it sent her a letter that contained a breakdown of interest and charges or fees accrued on the balance as separate line items, even though the amounts accrued explicitly reflect $0, along with the phrase “[a]s of the date of this letter, you owe $ [amount].” By implying that the amount owed might increase, the plaintiff argued that the least sophisticated consumer may erroneously think the debt is dynamic. The district court disagreed and granted the defendant’s motion for judgment on the pleadings.
In affirming this decision on appeal, the 2nd Circuit cited its own holding in Taylor v. Financial Recovery Services, Inc., in which it previously determined “that ‘a collection notice that fails to disclose that interest and fees are not currently accruing on a debt is not misleading within the meaning of [the FDCPA].” The appellate court was not persuaded by the plaintiff’s attempt to distinguish her case from Taylor, finding that the language in the plaintiff’s letter is “stock language. . .present in a number of collection notices, including those considered not misleading in Taylor.” The 2nd Circuit further noted that “requiring debt collectors to draw attention to the static nature of a debt could incentivize collectors to make debts dynamic instead of static.”
11th Circuit: District Court erred in denying class certification over bankruptcy preemption defense
On October 29, the U.S. Court of Appeals for the Eleventh Circuit vacated a district court decision denying class certification, concluding the court erred in its determination that each FDCPA and Florida Consumer Collection Practices Act (FCCPA) claim’s individualized inquiries predominated over issues common to the proposed class. According to the opinion, two plaintiffs filed a class action against their mortgage servicer alleging the servicer violated the FDCPA and the FCCPA by sending monthly mortgage statements after the debt was discharged in a Chapter 7 bankruptcy and they moved out of the home. The servicer objected to class certification that included both consumers who vacated their homes and those who remained in their homes because the Bankruptcy Code treats the two groups differently, thus requiring an individualized review to decide how the rules would be applied. Additionally, the servicer argued that the court would be required to decide whether the Bankruptcy Code precluded or preempted the claims for only class members who chose to remain in their homes. The district court denied class certification, concluding that individualized claims predominated over common issues, because “the question of ‘whether the Bankruptcy Code precluded and/or preempted the FDCPA and FCCPA’ presented an individualized rather than a common issue.”
On appeal, the 11th Circuit disagreed. The appellate court noted that the district court erred when it concluded that the question of whether the Bankruptcy Code precluded or preempted the FDCPA only applied to those consumers who chose to remain in their homes, because the preemption defense “potentially barred every class member’s FDCPA claim,” thus requiring the court to treat it as a common issue. The appellate court made a similar determination for the FCCPA claims. The appellate court cautioned that its conclusion was not an opinion about whether the servicer’s “defense is meritorious,” but was “limited to the conclusion that [the] defense raises questions common to all class members.” The appellate court, therefore, vacated and remanded the case back to district court.
On October 21, the U.S. District Court for the Eastern District of New York granted judgment for a debt collection law firm, concluding the law firm properly identified the current owner of the consumer’s debt in its collection letter. According to the opinion, the law firm sent a letter in March 2018 seeking to collect a debt from the consumer. The letter acknowledges the law firm is a debt collector and provides the balance due, a reference number, the last four digits of the associated bank account, and in two places, states “Re: [bank name].” The consumer filed the action against the law firm, alleging it violated the FDCPA because the least sophisticated consumer would be confused as to whether the bank or the law firm is “the creditor to whom the alleged debt is now purportedly owed.” Both parties moved for judgment and the court agreed with the law firm. Specifically, the court noted that the letter refers to the original creditor twice by stating, “Re: [bank name],” and also the subject line of the letter “identifies both the creditor, [the bank], and plaintiff’s account number with that institution,” which “strongly suggests” that the listed bank is the current creditor. Moreover, the court rejected the consumer’s argument that the least sophisticated consumer would understand the bank is the “source” of the debt but would not understand the bank is the “owner” of the debt, concluding that the least sophisticated consumer would “not likely make such a leap” to assume the debt may have been subsequently sold to another party not mentioned in the letter.
On October 23, the U.S. Court of Appeals for the Third Circuit affirmed summary judgment for a debt collection law firm and attorney (collectively, “defendants”) in an action alleging the defendants violated the U.S. Bankruptcy Code and the FDCPA. According to the opinion, the plaintiffs had to make monthly payments to their condominium association as part of a special assessment to pay for an improvement project. The plaintiffs made payments until filing for bankruptcy in 2014. After the bankruptcy closed, the plaintiffs did not resume payments to the association for the improvement project. The balance continued to accrue and a lien was filed for the outstanding balance of $10,137.38. The association also created a “Certificate of Amount of Unpaid Assessments” that referenced the outstanding balance and explained over $8,000 of the total balance had been discharged in the 2014 bankruptcy. The plaintiffs sued the defendants, asserting that the bankruptcy discharged all the debt owed, including the post-discharge payments, and that the defendants’ collection efforts “were coercive and misleading.” The district court granted summary judgment in favor of the defendants.
On appeal, the 3rd Circuit affirmed. The court concluded that the payment owed to the condominium association was a “fee or assessment” under the Bankruptcy Code that was not discharged here because the plaintiffs retained ownership interest in the property and the assessment payment became due after the bankruptcy. The court also rejected the plaintiffs’ FDCPA claims against the defendants. The court explained that the defendants were not responsible for the amount listed in the condominium association’s certificate and, in any event, the amount the defendants’ attempted to collect did not include the discharged amount. The court concluded that the plaintiffs failed to provide any evidence that would create an issue of material fact on the FDCPA claim and affirmed the district court’s summary judgment ruling.
On October 15, the CFPB Private Education Loan Ombudsman published its annual report on consumer complaints submitted between September 1, 2017 and August 31, 2019. The report, titled Annual Report of the CFPB Student Loan Ombudsman, is based on approximately 20,600 complaints received by the Bureau relating to federal and private student loan servicing, debt collection, and debt relief services. The report focuses primarily on complaints and student loan debt relief scams, which are, according to Private Education Loan Ombudsman Robert G. Cameron, “two subjects that, if promptly addressed, may have the greatest immediate impact in preventing potential harm to borrowers.” Of the 20,600 complaints, roughly 13,900 pertained to federal student loans with approximately 6,700 related to private student loans. Both categories reflect a decrease in total complaints from previous years. The report also notes that the Bureau handled roughly 4,600 complaints related to student loan debt collection.
The report goes on to discuss collaborative efforts between federal and state law enforcement agencies, including the CFPB, FTC, Department of Education, and state attorneys general, to address student loan debt relief scams. According to the report, the FTC’s Operation Game of Loans (previous InfoBytes coverage here) has yielded settlements and judgments totaling over $131 million for the past two years, while Bureau actions (taken on its own and with state agencies) have resulted in judgments exceeding $17 million.
The report provides several recommendations, including that policymakers, the Department of Education, and the Bureau “assess and consider the sharing of information, analytical tools, education outreach, and expertise” to prevent borrower harm, and that when harm occurs, “reduce the window in which harm is occurring through timely identification and remediation.” With regard to student loan debt relief scams, the report recommends, among other things, that enforcement should be expanded “beyond civil enforcement actions to criminal enforcement actions at all levels.”
- Daniel P. Stipano to discuss "Risk management in enforcement actions: Managing risk or micromanaging it" at an American Bar Association webinar
- Kari K. Hall and Christopher M. Walczyszyn to speak on the "Understanding updates to Regulation CC to ensure effective check processing" at a National Association of Federal Credit Unions webinar
- Daniel P. Stipano to discuss "ACAMS Moneylaundering.com Year-End Compliance Review and 2020 Outlook" at an ACAMS webinar
- APPROVED Webcast: Periodic reporting made easier
- Daniel P. Stipano to discuss "A 20/20 view on 2020’s legislative and regulatory outlook" at the ACAMS Anti-Financial Crime and Public Policy Conference