Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
On June 21, the U.S. District Court for the Western District of North Carolina granted a defendant’s motion for judgment on the pleadings in an FDCPA case concerning dispute responses over a debt. According to the order, the defendants—who represented a bank—sent a letter to the plaintiff attempting to collect an unpaid credit card debt. The letter included information about the creditor, the outstanding balance, and a validation notice. The plaintiff disputed the debt and requested validation of charges, payments, and credits on the account. The defendants responded with another letter, providing information about the original creditor and the balance of the unpaid debt. The plaintiff then sent another letter to the defendants requesting the original account agreement, all original account level documentation, and a “wet ink signature of the contractual obligation.” The defendants filed a collection suit against the plaintiff. The plaintiff filed suit in response, alleging the collection lawsuit violated the FDCPA and North Carolina state law because it “unjustly” condemned and vilified plaintiff for his non-payment of the alleged debt.
The court found that the “[p]laintiff’s allegations misconstrue the obligations of the debt collector in verifying the debt.” The court also noted that the FDCPA did not require the defendants provide “account level documentation,” stating that “[v]erification only requires a showing that the amount demanded ‘is what the creditor is claiming is owed,’ not conclusive proof of the debt.”
On March 15, the Court of Appeals of North Carolina affirmed a district court’s grant of summary judgment in favor of a debt buyer plaintiff and rejected the debtor defendant’s argument that the plaintiff failed to comply with a provision of North Carolina’s Consumer Economic Protection Act (CEPA). According to the order, the defendant appealed the district court’s grant of summary judgment to the plaintiff in its 2019 suit to renew a default judgment that was entered in 2010 against the defendant. The defendant argued that the default judgment “is void because it was procured by fraud and the clerk lacked jurisdiction to enter the default judgment for various reasons,” and “that Plaintiff’s interest rates on Defendant’s debt violate North Carolina law.” The appellate court noted that the CEPA “did not apply” because the statute requires that, “[p]rior to entry of a default judgment or summary judgment against a debtor in a complaint initiated by a debt buyer, the plaintiff shall file evidence with the court to establish the amount and nature of the debt.” The appellate court noted that although the plaintiff filed its original complaint against the defendant in August 2009, this CEPA provision did not take effect until October 1, 2009, and therefore only applies to “foreclosures initiated, debt collection activities undertaken, and actions filed on or after that date.” The defendant argued that the plaintiff was still required to comply with the CEPA provision because the plaintiff filed its motion for a default judgment in February 2010—after the effective date of the CEPA provision. But the appellate court determined that the plaintiff’s motion for a default judgment “was part of prosecuting its ‘action filed’ and was not a ‘debt collection activity’ within the meaning of the Act.”
On October 15, the North Carolina governor signed HB 624, which creates a regulatory sandbox program and establishes the North Carolina Innovation Council (Council). Under the North Carolina Regulatory Sandbox Act of 2021, participants will have 24 months from the date an application is approved (unless granted an extension) to test an innovative product or service on consumers in the state without being subject to state laws and regulations that normally would regulate such products or services. The waiver “shall be no broader than necessary to accomplish the purposes” established under the Act. The Act notes that legislative findings determined that existing legal and regulatory frameworks restrict innovation because they “were established largely at a time when technology was not a fundamental component of industry ecosystems, including banking and insurance,” and that innovators would benefit from a flexible regulatory regimen to test new products, services, and emerging technologies. In addition, the Council will provide support for innovation, encourage participation in the regulatory sandbox, and set standards, principles, guidelines, and policy priorities for the types of innovations supported by the regulatory sandbox. The Council will also be responsible for admission into the regulatory sandbox and for assigning selected participants to the appropriate state agency. The program stipulates that innovative products or services may only be offered to state residents, with the exception of products and services associated with a money transmitter, “in which case only the physical presence of the consumer in the [s]tate at the time of the transaction may be required.” The program also allows participants and the applicable state agency to mutually agree to an extension or an increase in the numbers of consumers or dollar limits for a particular product or service. Among other things, participants may also request an extension of not more than 12 months to obtain a license or other authorization required by law to continue to market the product or service. The Act is effective immediately.
CFPB, FTC, and North Carolina argue public records website does not qualify for Section 230 immunity
On October 14, the CFPB, FTC, and the North Carolina Department of Justice filed an amicus brief in support of the consumer plaintiffs in Henderson v. The Source for Public Data, L.P., arguing that a public records website, its founder, and two affiliated entities (collectively, “defendants”) cannot use Section 230 liability protections to shield themselves from credit reporting violations. The case is currently on appeal before the U.S. Court of Appeals for the Fourth Circuit after a district court determined that the immunity afforded by Section 230 of the Communication and Decency Act applied to the FCRA and that the defendants qualified for such immunity and could not be held liable for allegedly disseminating inaccurate information and failing to comply with the law’s disclosure requirements.
The plaintiffs alleged, among other things, that because the defendants’ website collects, sorts, summarizes, and assembles public record information into reports that are available for third parties to purchase, it qualifies as a consumer reporting agency under the FCRA. According to the amicus brief, the plaintiffs’ claims do not seek to hold the defendants liable on the basis of the inaccurate data but rather rest on the defendants’ alleged “failure to follow the process-oriented requirements that the FCRA imposes on consumer reporting agencies.” According to plaintiffs, the defendants, among other things, (i) failed to adopt procedures to assure maximum possible accuracy when preparing reports; (ii) refused to provide plaintiffs with copies of their reports upon request; (iii) failed to obtain required certifications from its customers; and (iv) failed to inform plaintiffs they were furnishing criminal information about them for background purposes. The defendants argued that they qualified for Section 230 immunity. The 4th Circuit is now reviewing whether a consumer lawsuit alleging FCRA violations seeking to hold a defendant liable as the publisher or speaker of information provided by a third party is preempted by Section 230.
In their amicus brief, the CFPB, FTC, and North Carolina urged the 4th Circuit to overturn the district court ruling, contending that the court misconstrued Section 230—which they assert is unrelated to the FCRA—by applying its immunity provision to “claims that do not seek to treat the defendant as the publisher or speaker of any third-party information.” According to the brief, liability turns on the defendants’ alleged failure to comply with FCRA obligations to use reasonable procedures when reports are prepared, to provide consumers with a copy of their files, and to obtain certifications and notify consumers when reports are furnished for employment purposes. “As the consumer reporting system evolves with the emergence of new technologies and business practices, FCRA enforcement remains a top priority for the commission, the Bureau, and the North Carolina Attorney General,” the brief stated. “The agencies’ efforts would be significantly hindered, however, if the district court’s decision  is allowed to stand.”
Newly sworn-in CFPB Director Rohit Chopra and FTC Chair Lina M. Khan issued a joint statement saying “[t]his case highlights a dangerous argument that could be used by market participants to sidestep laws expressly designed to cover them. Across the economy such a perspective would lead to a cascade of harmful consequences.” They further stressed that “[a]s tech companies expand into a range of markets, they will need to follow the same laws that apply to other market participants,” adding that the agencies “will be closely scrutinizing tech companies’ efforts to use Section 230 to sidestep applicable laws. . . .”
On September 13, the FDIC issued FIL-65-2021 to provide regulatory relief to financial institutions and help facilitate recovery in areas of North Carolina affected by remnants of Tropical Storm Fred. The FDIC acknowledged the unusual circumstances faced by institutions in affected areas, and suggested institutions take certain steps to meet the needs of their communities and keep the FDIC informed of business impacts. These steps include (i) working with borrowers to adjust or alter loan terms in a safe and sound manner; (ii) identifying potential community development activities to revitalize or stabilize the disaster area (which the FDIC noted may receive favorable CRA consideration); (iii) monitoring potentially impacted municipal securities and loans; (iv) notifying the FDIC of delays in meeting filing and publishing requirements, or in the event temporary banking facilities are needed; and (v) processing consumer requests under Regulation Z for a waiver or modification of the three-day rescission period for dwelling-secured loans in the event of a “bona fide personal financial emergency.”
On January 27, the governor of North Carolina issued Executive Order No. 191 extending the limitations on residential evictions, consistent with the framework set forth in the federal CDC Order, through March 31.
The North Carolina Secretary of State has issued requirements and FAQs for remote video notarizations, which are permissible under North Carolina’s emergency video notarization law from May 2 until August 1. The requirements specify, among other things, the identification and recordkeeping requirements for remote notarizations using video conference technology.
North Carolina Attorney General announces joint relief effort for North Carolinians facing Covid-19 financial hardship
On June 4, the North Carolina attorney general announced the Carolina Relief Plan, a voluntary agreement whereby participating financial institutions will offer certain financial relief to customers facing Covid-19 financial hardships. Relief includes, among other things, allowing eligible customers to request a forbearance on residential mortgage payments not otherwise covered by the CARES Act, assistance for payment extensions of auto loan accounts, and relief from monthly maintenance fees, overdraft fees, and CD early withdrawal penalties. Under the agreement, any participating financial institution also must: (1) offer to place a moratorium on residential mortgage foreclosures and consumer auto repossessions through at least June 30, 2020; (2) refrain from reporting loans subject to Covid-19 accommodations; and (3) inform customers about the assistance they are being offered and of the heightened risk of scams. One financial institution has signed onto the relief plan as of the time of the announcement.
On May 5, the North Carolina governor signed the Covid-19 Recovery Act, which provides certain relief to North Carolinians in response to the Covid-19 crisis. Among other things, the legislation authorizes emergency video notarization and video witnessing during the state of emergency. The legislation also provides limited immunity to essential businesses from civil liability for claims alleged to have been caused by the Covid-19 pandemic. Essential businesses include financial and insurance institutions, as determined by Executive Order 121, and any business that the Department of Revenue determines is essential.
- Jedd R. Bellman to discuss “The CFPB’s crackdown on collection junk fees and the growing anti-CFPB rhetoric” at an Accounts Recovery webinar
- Benjamin W. Hutten to discuss “Latest on AML regulations and impact of economic sanctions” at a Mortgage Bankers Association webinar
- Benjamin W. Hutten to discuss “Fundamentals of financial crime compliance” at the Practicing Law Institute
- Benjamin W. Hutten to discuss “Ongoing CDD: Operational considerations” at NAFCU’s Regulatory Compliance & BSA Seminar