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Financial Services Law Insights and Observations


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  • CFPB warns lead generators, digital comparison-shopping tool operators of potential CFPA violations

    Federal Issues

    On February 29, the CFPB issued a circular to law enforcement agencies and regulators explaining how operators of digital comparison-shopping tools or lead generators can potentially violate the CFPA’s prohibition on abusive acts or practices by steering consumers towards options that best serve the operator or the lead generator. The circular further discussed “how law enforcement agencies and regulators can evaluate operators of comparison-shopping tools… to manipulate results” to appease consumer preferences.

    The Bureau explained that while consumers often use these tools to research, compare, and select financial products, some intermediaries also functioned as lead generators that sold consumer information to lenders. These intermediaries may have received compensation, the CFPB said, often termed as “bounties,” from financial providers for preferential treatment or lead generation. The circular recognized that operators of these tools may have engaged in commercial arrangements with financial providers and may have received compensation based on user actions or bids.

    The CFPB stated that both digital comparison-shopping tool operators and lead generators can qualify as “covered persons” under CFPA section 1031(d)(2)(C) which prohibits them from engaging in unfair, deceptive, or abusive acts or practices, particularly those that “take unreasonable advantage” of consumers so they may act in the “covered person’s” best interests. The circular outlined elements of CFPA Section 1031(d)(2)(C) and applied the elements including reasonable reliance by consumers on covered entities to act in their interests, to an evaluation of the operator or lead generator activities. Notably, the circular warned that reasonable consumer reliance could be created based on the representations of the tool operator or lead generator, as well as implicit or explicit communications. Further, the Bureau added that steering consumers towards certain products or providers for the financial benefit of the operator or lead generator, rather than consumer interest, constituted unreasonable advantage-taking.

    Finally, the circular included a non-exhaustive list of examples of preferencing or steering arrangements and advised law enforcement agencies and regulators to scrutinize bounty or bidding schemes and decision-making processes to identify abusive conduct.


    Federal Issues CFPB Lead Generation CFPA Enforcement Consumer Protection Abusive Deceptive Unfair

  • Judge stays CFPB, NY AG lawsuit against auto lender


    On August 7, the U.S. District Court for the Southern District of New York granted a defendant’s motion to stay a lawsuit against an alleged predatory auto lender until the Supreme Court determines the constitutionality of the CFPB’s funding in a separate lawsuit (CFSA Case; covered by InfoBytes here).

    The CFPB and the New York Attorney General (AG) brought the complaint in January, accusing the lender of UDAAP and TILA violations that involved tricking consumers into loans financing used cars with high interest rates (typically above 22 percent) and add-on products they could not afford. The CFPB and AG alleged the dealers affiliated with the company (i) engaged in deceptive conduct; (ii) used high pressures sales tactics; (iii) pressured consumers into unaffordable auto loans; (iv) pressured family and friends to cosign the loans; (v) withheld prices of vehicles; and (vi) misrepresented key financial terms of the purchase, violating the CFPB, the Martin Act, and fraud and UDAP statutes, among other allegations.

    In its decision, the district court reasoned that the stay awaiting the Supreme Court’s decision would (i) allow for clarity and guidance on the legal issues at hand and it may help the defendant avoid unnecessary litigation costs; and (ii) promote judicial efficiency and minimize the possibility of conflicts with other courts. Furthermore, the court determined that although it would be in the public interest to enforce consumer protection laws, the potential harm to the public caused by the stay is outweighed by the benefit to consumers “in proceeding in a streamlined fashion.” The order requires the parties to file a joint letter updating the court by the earlier of November 3 or one week after a major development in the CFSA case.  

    Courts Federal Issues CFPB CFPA Consumer Protection Auto Lending Martin Act Deceptive New York State Attorney General Abusive

  • CFPB issues Summer ’23 supervisory highlights

    Federal Issues

    On July 26, the CFPB released its Summer 2023 issue of Supervisory Highlights, which covers enforcement actions in areas such as auto origination, auto servicing, consumer reporting, debt collection, deposits, fair lending, information technology, mortgage origination, mortgage servicing, payday lending and remittances from June 2022 through March 2023. The Bureau noted significant findings regarding unfair, deceptive, and abusive acts or practices and findings across many consumer financial products, as well as new examinations on nonbanks.

    • Auto Origination: The CFPB examined auto finance origination practices of several institutions and found deceptive marketing of auto loans. For example, loan advertisements showcased cars larger and newer than the products for which actual loan offers were available, which misled consumers.
    • Auto Servicing: The Bureau’s examiners identified unfair and abusive practices at auto servicers related to charging interest on inflated loan balances resulting from fraudulent inclusion of non-existent options. It also found that servicers collected interest on the artificially inflated amounts without refunding consumers for the excess interest paid. Examiners further reported that auto servicers engaged in unfair and abusive practices by canceling automatic payments without sufficient notice, leading to missed payments and late fee assessments. Additionally, some servicers allegedly engaged in cross-collateralization, requiring consumers to pay other unrelated debts to redeem their repossessed vehicles.
    • Consumer Reporting: The Bureau’s examiners found that consumer reporting companies failed to maintain proper procedures to limit furnishing reports to individuals with permissible purposes. They also found that furnishers violated regulations by not reviewing and updating policies, neglecting reasonable investigations of direct disputes, and failing to notify consumers of frivolous disputes or provide accurate address disclosures for consumer notices.
    • Debt Collection: The CFPB's examinations of debt collectors (large depository institutions, nonbanks that are larger participants in the consumer debt collection market, and nonbanks that are service providers to certain covered persons) uncovered violations of the FDCPA and CFPA, such as unlawful attempts to collect medical debt and deceptive representations about interest payments.
    • Deposits: The CFPB's examinations of financial institutions revealed unfair acts or practices related to the assessment of both nonsufficient funds and line of credit transfer fees on the same transaction. The Bureau reported that this practice resulted in double fees being charged for denied transactions.
    • Fair Lending: Recent examinations through the CFPB's fair lending supervision program found violations of ECOA and Regulation B, including pricing discrimination in granting pricing exceptions based on competitive offers and discriminatory lending restrictions related to criminal history and public assistance income.
    • Information Technology: Bureau examiners found that certain institutions engaged in unfair acts by lacking adequate information technology security controls, leading to cyberattacks and fraudulent withdrawals from thousands of consumer accounts, causing substantial harm to consumers.
    • Mortgage Origination: Examiners found that certain institutions violated Regulation Z by differentiating loan originator compensation based on product types and failing to accurately reflect the terms of the legal obligation on loan disclosures.
    • Mortgage Servicing: Examiners identified UDAAP and regulatory violations at mortgage servicers, including violations related to loss mitigation timing, misrepresenting loss mitigation application response times, continuity of contact procedures, Spanish-language acknowledgment notices, and failure to provide critical loss mitigation information. Additionally, some servicers reportedly failed to credit payments sent to prior servicers after a transfer and did not maintain policies to identify missing information after a transfer.
    • Payday Lending: The CFPB identified unfair, deceptive, and abusive acts or practices, including unreasonable limitations on collection communications, false collection threats, unauthorized wage deductions, misrepresentations regarding debt payment impact, and failure to comply with the Military Lending Act. The report also highlighted that lenders reportedly failed to retain evidence of compliance with disclosure requirements under Regulation Z. In response, the Bureau directed lenders to cease deceptive practices, revise contract language, and update compliance procedures to ensure regulatory compliance.
    • Remittances: The CFPB evaluated both depository and non-depository institutions for compliance with the EFTA and its Regulation E, including the Remittance Rule. Examiners found that some institutions failed to develop written policies and procedures to ensure compliance with the Remittance Rule's error resolution requirements, using inadequate substitutes or policies without proper implementation.

    Federal Issues CFPB Consumer Finance Consumer Protection Auto Lending Examination Mortgages Mortgage Servicing Mortgage Origination Supervision Nonbank UDAAP FDCPA CFPA ECOA Regulation Z Payday Lending EFTA Unfair Deceptive Abusive

  • CFPB alleges UDAAP violations by “lease-to-own” financer

    Federal Issues

    On July 19, the CFPB announced it is suing a lease-to-own finance company that provides services that allows consumers, typically with limited access to traditional forms of credit for their financing, to finance merchandise or services over a 12-month period. According to the complaint, the Bureau claims that once a consumer falls behind on payments, the company’s purchase agreement essentially “lock[s] [consumers] into the 12-month schedule—even if they want to return or surrender their financed merchandise.”  The alleged violations include:

    • Misleading consumers. The company is accused of designing and implementing its financing program in a way that misleads consumers by using print advertisements featuring the phrase “100 Day Cash Payoff” without including details of the purchase agreement financing. The company is accused of misrepresenting that consumers could not terminate their agreement, that consumers could not return their merchandise, and that the “best” or “only” option for consumers who no longer want to finance their merchandise is to enter a “buy-back” agreement. The Bureau alleges that such conduct, among other things, violated the CFPA's prohibition on deceptive and abusive acts and practices.
    • Unlawful conditioning of credit extension. The company is accused of violating the EFTA and its implementing Regulation E by allegedly improperly requiring consumers to repay credit through preauthorized automated clearing house debits.
    • Failing to establish reasonable policies concerning consumer information. The Bureau alleges that the company violated the FCRA and its implementing Regulation V by not having adequate written policies and procedures to ensure the accuracy and integrity of consumer information that it furnished, considering the company’s “size, complexity, and scope.”

    The Bureau seeks, among other things, injunctions to prevent future violations, rescission or reformation of the company's financing agreements, redress to consumers, and civil money penalties.

    Federal Issues CFPB Consumer Finance Enforcement CFPA FCRA Regulation E Regulation V Deceptive Abusive UDAAP

  • States endorse CFPB’s policy statement on abusive conduct

    State Issues

    On July 6, the California attorney announced that he had joined a coalition of state attorneys general in submitting a comment letter endorsing the CFPB’s recently issued policy statement on abusive conduct in consumer financial markets. The multi-state coalition comprises Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Wisconsin. In April, the Bureau issued a policy statement containing an “analytical framework” for identifying abusive conduct prohibited under the Consumer Financial Protection Act, in which it broadly defined abusive conduct as anything that obscures, withholds, de-emphasizes, renders confusing, or hides information about the key features of a product or service. (Covered by InfoBytes here.)

    In their letter, the state attorneys general emphasized the importance of preventing abusive conduct in consumer financial markets and highlighted the partnership between states and the Bureau in achieving this goal. The states also commended the Bureau for providing a clear, analytical framework for what constitutes abusive acts or practices and expressed appreciation for the agency’s use of real enforcement actions as examples of illegal abusive conduct. The multi-state coalition applauded the flexibility and guidance provided by the policy statement and complimented the Bureau for acknowledging the realities of modern consumer markets by clarifying that both acts and omissions can hinder consumers’ understanding of terms and conditions, including the use of fine print or complex language that limits comprehension.

    State Issues Federal Issues State Attorney General CFPB CFPA UDAAP Abusive Consumer Finance

  • Default judgment entered against provider of immigration bonds


    The U.S. District Court for the Western District of Virginia recently entered default judgment against defendants accused of misrepresenting the cost of immigration bond services and deceiving migrants to keep them paying monthly fees by making false threats of deportation for failure to pay. As previously covered by InfoBytes, the defendants—a group of companies providing immigration bond products or services for non-English speaking U.S. Immigration and Customs Enforcement detainees—were sued by the CFPB and state attorneys general from Massachusetts, New York, and Virginia in 2021 for allegedly engaging in deceptive and abusive acts and practices in violation of the Consumer Financial Protection Act (CFPA). The defendants argued that the court lacked subject matter jurisdiction because the Bureau did not have authority to enforce the CFPA since the defendants are regulated by state insurance regulators and are merchants, retailors, or sellers of nonfinancial goods or services. However, the court disagreed, explaining that “limitations on the CFPB’s regulatory authority do not equate to limitations on this court’s jurisdiction.” (Covered by InfoBytes here.)

    As explained in the court’s opinion, last year the plaintiffs filed a motion for sanctions and for an order to show cause why the court should not hold the defendants in contempt for actions relating to several ongoing discovery disputes. The court determined that the defendants failed to demonstrate that “factors other than obduracy and willfulness” led to their failure to comply with multiple discovery orders and that the defendants engaged in a “pattern of knowing noncompliance with numerous orders of the court.” These delays, the court said, have significantly harmed the plaintiffs in their ability to prepare their case. Finding each defendant in civil contempt of court, the court also entered a default judgment against the defendants, citing them for discovery violations in other cases. The court set June deadlines for briefs on remedies and damages.

    Courts State Issues CFPB Enforcement State Attorney General Predatory Lending CFPA Deceptive Abusive

  • CFPB defines abusive conduct under the CFPA

    Agency Rule-Making & Guidance

    On April 3, the CFPB issued a policy statement containing an “analytical framework” for identifying abusive conduct prohibited under the Consumer Financial Protection Act. The Bureau broadly defines abusive conduct as anything that obscures, withholds, de-emphasizes, renders confusing, or hides information about the important features of a product or service. The policy statement, which is intended to clarify Congress’s statutory definition of abusive practices, serves as the Bureau’s “first formal issuance” summarizing more than a decade’s worth of precedent on abusiveness.

    Specifically, the policy statement highlights two categories of abusive prohibitions: (i) obscuring critical features that could materially interfere with or impede a consumer’s ability to understand terms or conditions that may prompt a consumer to reconsider signing up for certain products or services (e.g., burying or overshadowing important disclosures, filling disclosures with complex jargon, omitting material terms and conditions, physically preventing consumers from viewing notices, or engaging in digital interference through the use of “dark patterns” aimed at “making the terms and conditions materially less accessible or salient”); and (ii) leveraging a company’s knowledge or market power to take unreasonable advantage of a consumer relating to: gaps in understanding; unequal bargaining power; and consumer reliance (e.g., causing a consumer to face a range of potential harms, including monetary and non-monetary costs, taking advantage of a consumer’s lack of understanding as it relates to whether a debt is legally enforceable or when fees will be assessed, or preventing a consumer from switching service providers).

    Additionally, the Bureau notes that in order to establish liability, the agency would not be required to show that “substantial injury” occurred—it only needs to show that a practice is considered “harmful or distortionary to the proper functioning of the market.”

    Abusive acts or practices will focus on actions, CFPB Director Rohit Chopra explained in prepared remarks at the University of California Irvine Law School, whereas deception claims are more concerned with whether a company’s communications create a misleading net impression. “Congress prohibited companies from leveraging unequal bargaining power, and that includes consumer reporting companies, servicers, and debt collectors who use the fact that their customers are captive to force people into less advantageous deals, extract excess profits, or reduce costs by providing worse service than they would provide if they were competing in an open market,” Chopra added.

    The Bureau will receive comments on the policy statement through July 3.

    Agency Rule-Making & Guidance Federal Issues CFPB Abusive UDAAP CFPA

  • CFPB orders nonbank title lender to pay $15 million for numerous violations

    Federal Issues

    On February 23, the CFPB entered a consent order against a Georgia-based nonbank auto title lender (respondent) for alleged violations of the Military Lending Act (MLA), the Truth in Lending Act, and the Consumer Financial Protection Act. According to the Bureau, the respondent allegedly charged nearly three times the MLA’s 36 percent annual interest rate cap on auto title loans made to military families. The respondent also allegedly changed military borrowers’ personal information in an attempt to hide their protected status, included mandatory arbitration clauses and unreasonable notice provisions in its loans, and charged fees for an insurance product that provided no benefit to the borrower. The Bureau noted that the respondent has been under a consent order since 2016 for allegedly engaging in unfair and abusive acts related to its lending and debt collection practices (covered by InfoBytes here). While neither admitting nor denying any of the allegations, the respondent has agreed to pay $5.05 million in consumer redress and a $10 million penalty. The respondent must also implement robust measures to prevent future violations.

    Federal Issues CFPB Enforcement Auto Finance Military Lending Act Consumer Finance Nonbank Repeat Offender Title Loans UDAAP CFPA Unfair Abusive

  • CFPB and New York say auto lender misled consumers

    Federal Issues

    On January 4, the CFPB and New York attorney general filed a complaint against a Michigan-based auto finance company accused of allegedly misrepresenting the cost of credit and deceiving low-income consumers into taking out high-interest loans on used vehicles. (See also AG’s press release here.) The joint complaint alleges, among other things, that the defendant based the price of a loan (and then artificially inflated the principal amount) and the payment to the dealer on the projected amount that may be collected from the consumer during the life of the loan (without factoring in whether consumers could actually afford the loan).

    The Bureau and AG further argued that the true cost of credit is hidden in inflated principal balances in order to evade state interest rate caps. An investigation conducted by the AG found that while the defendant’s loan agreements in New York claimed an APR of 22.99 percent or 23.99 percent (just below the 25 percent usury cap), the defendant actually charged on average more than 38 percent (and on many occasions charged an APR in excess of 100 percent). These high-interest loans, the AG claimed, often caused consumers to accrue additional fees and become delinquent on their loans.

    The complaint also alleged the defendant failed to consider consumers’ ability to repay their loans in full, engaged in aggressive debt collection tactics, and created financial incentives for dealers to add on extra products, such as vehicle service contracts. Add-on products generated roughly $250 million in revenue for the defendant in 2020, the complaint said, adding that these alleged deceptive lending practices lowered consumers’ credit scores and cost borrowers millions of dollars. The complaint further maintained that the defendant packaged the consumer loans into securities that were sold to investors on the premise that the underlying loans complied with applicable law. These alleged false representations, the complaint said, constituted securities fraud under New York’s Martin Act.

    The complaint — which also alleges violations of the Consumer Financial Protection Act’s prohibition against deceptive and abusive acts or practices, New York usury limits, and other state consumer and investor protection laws — seeks, among other things, injunctive relief, monetary relief, disgorgement, and civil money penalties of $1,000,000 for each day of violations.

    The defendant was previously targeted for violating consumer protection laws in 2021 by the Massachusetts attorney general, who announced a $27.2 million settlement to resolve allegations of predatory lending and deceptive debt collection practices. (Covered by InfoBytes here.)

    Federal Issues State Issues CFPB New York State Attorney General Enforcement Auto Finance Consumer Finance Deceptive Abusive CFPA UDAAP

  • CFPB, OCC issue consent orders against national bank

    Federal Issues

    On July 14, the CFPB announced a consent order against a national bank to resolve allegations that the bank engaged in unfair and abusive acts or practices with respect to unemployment insurance benefit recipients who filed notices of error concerning alleged unauthorized electronic fund transfers (EFTs). The CFPB alleged that the bank violated the CFPA by, among other things: (i) determining that “no error had occurred and [by] freezing cardholder accounts based solely on the results of [the bank’s] automated Fraud Filter”; (ii) “retroactively applying its automated Fraud Filter to reverse permanent credits for unemployment insurance benefit prepaid debit cardholders whose notices of error [the bank] had previously investigated and paid”; and (iii) “impeding unemployment insurance benefit prepaid debit cardholders’ efforts to file notices of error and seek liability protection from unauthorized EFTs.” The CFPB also claimed that the bank violated the EFTA and Regulation E by “fail[ing] to conduct reasonable investigations” of cardholders’ notices of error. Under the terms of the Bureau’s consent order, the bank is required to provide redress to harmed consumers, review and reform its unemployment insurance benefit prepaid debit card program, and pay a $100 million civil penalty to the Bureau.

    The same day, the OCC announced a consent order and a $125 million civil money penalty against the bank for alleged unsafe or unsound practices related to the same prepaid card program. According to the OCC, the bank, among other things: (i) “fail[ed] to establish effective risk management” over its unemployment card program”; and (ii) “beginning in 2020, denied or delayed many consumers’ access to unemployment benefits when consumers filed or attempted to file [unemployment insurance benefits] unauthorized transaction claims.” The OCC’s civil money penalty and remediation requirement is in addition to the CFPB’s civil money penalty.

    Federal Issues CFPB Enforcement OCC UDAAP Unfair Abusive CFPA Electronic Fund Transfer Prepaid Cards EFTA Regulation E Risk Management Consumer Finance


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