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Financial Services Law Insights and Observations


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  • Student loan servicer fined $1.8 million by Massachusetts Attorney General

    State Issues

    On January 11, the Massachusetts Attorney General (AG) announced a $1.8 million settlement with a student loan servicer, to resolve allegations that the company did not properly communicate Income-Driven Repayment (IDR) plan renewals to borrowers. According to the settlement, IDR plans are a “helpful tool for managing unaffordable federal student loan debt and avoiding the consequences of default… [and respondent] is required to follow specific procedures intended to ensure that borrowers are able to successfully navigate the enrollment and annual recertification processes required for IDR.” The AG alleged that the respondent violated state law by sending written notices that did not meet regulatory requirements and failed to send required notices.

    Under the terms of the settlement, respondent will (i) pay $1.8 million; (ii) include certain disclosures in renewal notice correspondence to borrowers; (iii) comply with requirements for FFELP loans owned by the DOE and enrolled in certain repayment plans; (iv) clearly disclosure to certain borrowers that failure to timely provide certain information about income or family size will result in increased monthly payments; and (v) retain copies of each written communication that it sends to borrowers regarding their IDR plans. The student loan servicer enters into this agreement for settlement purposes only (without admission).

    State Issues Massachusetts Student Loan Servicer Settlement Student Loans State Attorney General Income-Driven Repayment Lending Enforcement

  • Biden Administration, DOE withhold payments to student loan servicers

    Federal Issues

    On January 5, the Biden Administration and the U.S. Department of Education (DOE) announced they are withholding payments to three student loan servicers as part of their efforts to strengthen protections for student loan borrowers and ensure accountability among servicers. The three servicers were found to have collectively failed in sending timely billing statements to a total of 758,000 borrowers during their first month of repayment. Consequently, the DOE is withholding $2 million from one servicer, $161,000 from the second, and $13,000 from the third servicer based on the number of affected borrowers.

    U.S. Secretary of Education Miguel Cardona emphasized that the DOE “will continue to engage in aggressive oversight of student loan servicers and put the interests of borrowers first.” During this period, borrowers will not be required to make payments, and any accrued interest will be adjusted to zero. Additionally, the months spent in administrative forbearance will count toward forgiveness programs like Public Service Loan Forgiveness or income-driven repayment forgiveness. The DOE aims to ensure that borrowers are not negatively affected by these errors.

    Furthermore, to protect borrowers from penalties due to late or missed payments during the repayment transition, the DOE recently sent a letter to credit reporting agencies and credit scoring companies to remind them that borrowers’ current payment behavior may not accurately reflect their ability or willingness to make payments.

    Federal Issues Department of Education Biden Student Loan Servicer Student Lending

  • CFPB finds student loan servicer issues in new report

    Federal Issues

    On January 5, the CFPB released a report on how student loan borrowers may face customer support challenges as their student loan payments resume. Federal student loan repayments resumed for the first time in over three years, and the Consumer Financial Protection Act directs the CFPB to conduct studies and provide oversight over the servicing process. The CFPB highlights its coverage of servicers because borrowers do not get to pick their servicer and many servicers, especially during the payment pause, often made business decisions to cut costs leading to diminished customer service.

    The report found that from August to October 2023, student loan borrowers faced longer hold times when contacting their servicer by phone, significant delays in processing applications for income-driven repayment (IDR) plans, and faulty and confusing billing statements. More specifically, wait times to speak to a live representative rose from 12 minutes to over 70 minutes; the number of pending IDR plan applications totaled more than 1.25 million, with more than 450,000 pending longer than thirty days with no resolution; and borrowers received faulty bills from their servicers, often causing confusion and putting even more strain on customer service resources as borrowers call customer service representatives. The director of the CFPB, Rohit Chopra, accompanied the report with a statement of his own.

    Federal Issues CFPB Student Loans Student Loan Servicer Loans CFPA

  • DOE moves to empower student loan oversight for better borrower support

    Federal Issues

    On November 9, the DOE announced it is outlining a framework for how it will increase borrower support and ensure student loan servicers are accountable for errors. Richard Cordray, Federal Student Aid (FSA) Chief Operating Officer, noted, “The landscape of loan servicing has substantially changed since the Department began collaboration with multiple servicers in 2009. FSA is dedicated to evolving servicing contracts to meet borrower requirements. As we approach the Direct Loan program’s unprecedented return to repayment, our upcoming transition to new contracts in 2024 will bring updated servicer obligations and increased avenues to ensure borrowers receive adequate support.”

    The DOE has implemented various strategies to bolster oversight and monitoring of servicers:

    • Direct Servicer Monitoring: FSA staff actively evaluate the quality of customer service provided by loan servicers, which involves scoring interactions between servicers’ representatives and borrowers, reviewing calls and chats, and conducting secret shopper calls to assess the accuracy of servicers’ responses to borrower inquiries.
    • Partnership with Federal and State Regulators: The DOE collaborates with agencies like the CFPB and state attorneys general responsible for enforcing consumer financial laws. Updates in the interpretation of federal preemption provide clear guidance for the ability of states to enforce state consumer protection laws and allow for coordination between the DOE and state partners.
    • Utilizing Borrower Complaints: The DOE leverages complaints filed through the FSA’s Office of the Ombudsman, which collaborates with the oversight team to discern if complaints signal wider servicer issues. The DOE also monitors social media and news stories to identify broader patterns of complaints, which allow the DOE to discern isolated instances from systemic errors affecting multiple borrowers. These listening tools serve as mechanisms for borrowers to report issues impacting their repayment directly.

    The DOE and the Biden administration wield several measures to ensure servicers meet their obligations and maintain standards. The announcement highlighted that the DOE could withhold payments from servicers failing to serve borrowers adequately, as exemplified by the recent $7.2 million withheld from a Missouri servicer for delayed billing statements to 2.5 million borrowers. The DOE also has the authority to suspend or re-allocate borrowers to other servicers, which impacts the financial compensation of underperforming servicers. In addition, Contractor Performance Reports assess servicer performance and influence future contract awards, while Corrective Action Plans demand remedies for servicing errors to ensure borrower satisfaction and prevent reoccurrence. The DOE also safeguards borrowers from servicer errors by instructing servicers to grant affected borrowers a temporary administrative forbearance during error resolution. Additionally, the DOE directs servicers to count these periods as qualifying for loan forgiveness and adjusts accrued interest to zero when errors might impede borrowers’ progress toward forgiveness.

    Finally, the DOE mentioned it is gearing up to transition to the USDS, a new loan servicing system, by spring 2024. This shift aims to enhance accountability, transparency, and performance evaluation for over 37 million federally managed student loan borrowers with a focus on rewarding good performance and ensuring servicers meet higher standards. By incentivizing servicers to maintain borrowers’ repayment status and improving tracking mechanisms, the DOE will prioritize borrower success and aim for a smoother repayment experience.

    Federal Issues Student Lending Department of Education Student Loan Servicer

  • CFPB releases education ombudsman’s annual report

    Federal Issues

    On October 20, the CFPB Education Loan Ombudsman published its annual report on consumer complaints submitted between September 1, 2022, and August 31, 2023. The report is based on approximately 9,284 student loan complaints received by CFPB regarding federal and private student loans.  Roughly 75 percent of complaints were related to federal student loans while the remaining 25 percent concerned private student loans. Overall, the report found underlying issues in student loan servicing that threaten borrowers’ ability to make payments, achieve loan cancellation, or receive other protections to which they are entitled under federal law.  The report indicated that challenges and risks facing federal student loan borrowers include customer service problems, errors related to basic loan administration, and problems accessing loan cancellation programs.  Similarly, private borrowers face issues accessing loan cancellation options, misleading origination tactics, and coercive debt collection practices related to private student loans.

    The Ombudsman’s report advised policymakers, law enforcement, and industry participants to consider several recommendations: (i) ensuring that federal student loan borrowers can access all protections intended for them under the law; (ii) ensuring that loan holders and servicers of private student loans do not collect debt where it may no longer be legally owed or previously discharged; and (iii) using consumer complaints to develop policies and procedures when they reveal systemic problems.

    Federal Issues CFPB Student Lending Student Loan Servicer Consumer Finance Debt Collection Covid-19

  • CFPB denies petition to set aside investigative demand in student loan discharge probe


    On September 19, the CFPB published a recent decision and order denying the petition of one of the nation’s largest private student loan servicers to set aside the CFPB’s civil investigative demand (CID) in connection with its investigation into potential violations of the CFPA’s prohibition of unfair, deceptive, and abusive acts and practices for attempting to collect on loans that had been previously discharged in bankruptcy. The order instructs the servicer to “comply in full” with the requests for documents and information set forth in the Bureau’s June 2023 CID.

    The servicer objected to the CFPB’s investigation, arguing, among other things, that the Bureau lacks authority to enforce the U.S. Bankruptcy Code.  The servicer also argued that the Bankruptcy Code displaces the CFPA if the reason a debt is not owed is due to a bankruptcy discharge.

    The Bureau rejected the servicer’s arguments, stating “[t]he Bureau seeks to determine whether a student loan servicer violated the prohibition on unfair, deceptive, and abusive acts and practices not just by making individual attempts to collect discharged debts from individual debtors, but also, more globally, by having no policies and procedures in place to determine whether loans in the servicer’s portfolio are dischargeable in bankruptcy via standard bankruptcy orders, a practice that could put entire populations of borrowers at risk of harmful and unlawful collection efforts.”  It went on to say “[t]he bureau does not seek to investigate potential violations of the Bankruptcy Code, but rather potential violations of the CFPA.”  The CFPB also noted that courts have “repeatedly held that the Bureau can bring CFPA claims based on companies’ attempts to collect debts that consumers do not owe due to the impact of some other statute.”

    Courts Student Lending Consumer Finance CFPA Student Loan Servicer

  • DOE recognizes states’ role in investigating student loan servicers

    Agency Rule-Making & Guidance

    On July 24, the Department of Education (DOE) issued a final interpretation to clarify that the Higher Education Act (HEA) preempts state laws and other applicable federal laws “only in limited and discrete respects.” Specifically, the final interpretation revises and clarifies the DOE’s position on the legality of state laws and regulations regarding certain aspects of the federal student loan servicing, including preventing unfair or deceptive practices, correcting misapplied payments, or addressing servicers’ refusals to communicate with borrowers.

    The final interpretation supersedes a 2021 DOE interpretation (covered by InfoBytes here), as well as prior statements and interpretations issued by the agency, which addressed state regulation of the servicing of student loans under the William D. Ford Federal Direct Loan Program and the Federal Family Education Loan Program. Following a review of public comments, the DOE modified its interpretation to more clearly describe the standard for conflict preemption, explaining that recent court rulings on the issue of conflict preemption have consistently found that the HEA does not prioritize maintaining uniformity in federal student loan servicing, and that as a result, the courts have upheld the authority of individual states to address fraud and affirmative misrepresentations in the federal student aid program without being hindered by federal preemption. Additionally, the DOE noted that courts have consistently applied conflict preemption to state laws that require licensing of the DOE’s student loan servicers, particularly in limited circumstances where the licensing requirement aims to disqualify a federal contractor from operating within the state. The final interpretation states that it is firmly established that states cannot hinder the federal government's ability to choose its contractors by imposing such licensing requirements, noting that two courts recently concluded that such preemption also applies to a state’s refusal to license federal student loan servicers.

    The final interpretation is effective immediately.

    Agency Rule-Making & Guidance State Issues Department of Education Student Lending Student Loan Servicer Higher Education Act Preemption

  • Nevada to regulate student loan servicers and lenders

    On June 14, the Nevada governor signed AB 332 (the “Act”) which provides for the licensing and regulation of student loan servicers. The Act also implements provisions for the regulation of private education loans and lenders. Among other things, the Act requires, subject to certain exemptions, persons servicing student loans to obtain a license from the Commissioner of Financial Institutions. Specifically, the Act states that a person seeking to act as a student loan servicer is exempt from the application requirements only if the commissioner determines that the person’s servicing performed in the state is conducted pursuant to a contract awarded by the U.S. Secretary of Education.

    The Act also outlines numerous requirements relating to licensing applications, including that the commissioner may participate in the Nationwide Multistate Licensing System and Registry (NMLS), and may instruct NMLS to act on his or her behalf to, among other things, collect and maintain records of applicants and licensees, collect and process fees, process applications, and perform background checks. The commissioner is also permitted to enter into agreements or sharing arrangements with other governmental agencies, the Conference of State Bank Supervisors, the State Regulatory Registry, or other such associations. Additional licensing provisions set forth requirements relating to licensing renewals, reinstatements, surrenders, and denials; liquidity standards; and bond requirements. The commissioner is also granted general supervisory, investigative, and enforcement authority relating to student loan servicers and student education loans and may impose civil penalties for violations of the Act’s provisions. The commissioner must conduct investigations and examinations at least once a year (with licensees being required to pay for such investigations and examinations). The Act further provides that the student loan ombudsman shall enter into an information sharing agreement with the office of the attorney general to facilitate the sharing of borrower complaints.

    With respect to private education lenders, the Act establishes certain protections for cosigners of private education loans and prohibits private education lenders from accelerating the repayment of a private education loan, in whole or in part, except in cases of payment default. A lender may be able to accelerate payments on loans made prior to January 1, 2024, provided the promissory note or loan agreement explicitly authorizes an acceleration based on established criteria. The Act also sets forth responsibilities for lenders in the case of the total and permanent disability of a private education loan borrower or cosigner, including cosigner release requirements. Additional provisions outline prohibited conduct and create requirements and prohibitions governing lenders’ business practices. Furthermore, private education lenders are not exempt from any applicable licensing requirements imposed by any other specific statute.

    The Act becomes effective immediately for the purpose of adopting any regulations and performing any preparatory administrative tasks that are necessary to carry out the provisions of the Act and on January 1, 2024 for all other purposes.

    Licensing State Issues State Legislation Nevada Student Loan Servicer Student Lending Consumer Finance NMLS

  • Nevada expands collection agency licensing requirements

    On June 16, the Nevada governor signed SB 276 (the “Act”) to revise certain provisions relating to debt collection agencies and make amendments to the state’s collection agency licensing law. While existing law requires collection agencies to be licensed, the amendments expand the type of activities that trigger collection agency licensure. Notably, the Act now requires any “debt buyer” to hold a license, which is defined as “a person who is regularly engaged in the business of purchasing claims that have been charged off for the purpose of collecting such claims, including, without limitation, by personally collecting claims, hiring a third party to collect claims or hiring an attorney to engage in litigation for the purpose of collecting claims.” Mortgage servicers, however, are now exempt unless the “mortgage servicer is attempting to collect a claim that was assigned when the relevant loan was in default.” The amendments also repeal provisions governing foreign collection agencies and now require that such agencies be licensed in the same fashion as domestic collection agencies.

    In addition to licensed mortgage servicers the amendments also exclude others from the definition of the term “collection agency,” including an expanded list of certain financial institutions (as well as their employees), persons collecting claims that they originated on their own behalf or originated and sold, and other persons not deemed to be debt collectors under federal law. The term “collection agent” has also been refined to exempt persons who do not act on behalf of a collection agency from requirements governing collection agents.

    The Act revises requirements relating to “compliance managers” (formerly referred to as “collection managers”) – including an avenue to request a waiver from the Nevada compliance manager examination requirement if certain experiential requirements are met – and makes changes to certain record retention and application requirements, including amendments to the frequency with which the commissioner reviews a licensee’s required bond amount (annually instead of semiannually). A provision requiring applicants to pursue branch licenses for second or remote locations is also repealed. Instead, collection agencies must simply notify the commissioner of the location of the branch office. Further, collection agencies are now required to display license numbers and certificate identification numbers of compliance managers on any website maintained by the collection agency.

    Additionally, the Act now authorizes collection agents to work remotely provided the agents meet certain criteria, including: (i) signing a written agreement prepared by the collection agency that requires the agent to maintain agency-appropriate security measures to ensure the confidentiality of customer information; (ii) refraining from disclosing details about the remote location to a debtor; (iii) refraining from conducting collection activity-related work with a debtor or customer in person at the remote location; (iv) allowing work conducted from the remote location to be monitored; and (v) completing various compliance and privacy training programs. Remote collection agents must adhere to certain practices requirements and restrictions set forth by both the Act and the FDCPA. Collection agencies must also maintain records of remote collection agents, provide oversight and monitoring of collection agents that work remotely, develop and implement a written security policy governing remote collection agents, and establish procedures to ensure collection agents working remotely are not acting in an illegal, unethical, or unsafe manner.

    Finally, the Act imposes new prohibitions against collection agencies and their agents and employees. Among other things, a collection agency (and its compliance manager, agents, or employees) is banned from suing to collect a debt when it knows or should have known that the applicable statute of limitations has expired. The amendments further clarify that the applicable limitation period is not revived upon “payment made on a debt or certain other activity relating to the debt after the time period for filing an action based on a debt has expired.” Certain notice must also be given to a medical debtor notifying that such a payment does not revive the applicable statute of limitations. A collection agency may also not sell “an interest in a resolved claim or any personal or financial information related to the resolved claim.”

    The Act becomes effective immediately for the purpose of adopting any regulations and performing any preparatory administrative tasks that are necessary to carry out the provisions of the Act and on October 1, 2023 for all other purposes. “Debt buyers” have until January 1, 2024 to submit a collection agency license application pursuant to the new provisions.

    Licensing State Issues State Legislation Nevada Student Loan Servicer Student Lending Consumer Finance NMLS

  • CFPB scrutinizes discharged private student loan billing and collection practices

    Federal Issues

    On March 16, the CFPB released a compliance bulletin discussing student loan servicers’ practice of collecting on private student loans discharged in bankruptcy. The bulletin also notified regulated entities on how the Bureau intends to exercise its enforcement and supervisory authorities on this issue. Bulletin 2023-01: Unfair Billing and Collection Practices After Bankruptcy Discharges of Certain Student Loan Debts addressed the treatment of certain private student loans following bankruptcy discharge. The Bureau explained that in order to secure a discharge of a qualified education loan in bankruptcy, a borrower must demonstrate that the loan would impose an undue hardship if not discharged. Loans that do not meet this qualification (“non-qualified student loans”) can be discharged under standard bankruptcy discharge orders, the Bureau said.

    Bureau examiners found, however, that several servicers failed to determine whether a borrower’s loan was qualified or non-qualified. As a result, non-qualified student loans were returned to repayment after a bankruptcy concluded, wherein servicers continued to bill and collect payments on the loans even through the borrower was released from this debt through the bankruptcy discharge. According to the Bureau, many borrowers, when faced with collection activities in violation of a bankruptcy court order, continued to make payments on debts they no longer owed.

    The Bureau explained that servicers who collected on student loans that were discharged by a bankruptcy court violate the prohibition on unfair, deceptive, or abusive acts or practices under the Consumer Financial Protection Act. The bulletin described unfair practices observed by examiners, such as servicers relying entirely on loan holders to distinguish among the loans and not ensuring that such holders had in fact done so. The bulletin also provided examples of student loans that are eligible for standard bankruptcy discharge, including loans made to students attending schools that are ineligible for federal student aid and loans made to students attending school less than half time. Bureau examiners instructed servicers to immediately stop collecting on discharged loans and take remedial action, including conducting a multi-year lookback and issuing refunds to affected borrowers.

    Federal Issues CFPB Student Lending Student Loan Servicer Consumer Finance UDAAP Supervision Examination Unfair


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