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On January 12, the FDIC issued FIL-05-2022 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Washington state affected by flooding and mudslides. The FDIC acknowledged the unusual circumstances faced by institutions and their customers affected by the severe weather events in certain counties of Washington and suggested that institutions work with impacted borrowers to, among other things, (i) extend repayment terms; (ii) restructure existing loans; or (iii) ease terms for new loans to those affected by the severe weather, provided the measures are done “in a manner consistent with sound banking practices.” The FDIC noted that it will consider the unusual circumstances when examining efforts to work with borrowers in affected communities and that institutions “may receive favorable Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery.” The FDIC will also consider regulatory relief from certain filing and publishing requirements. Earlier on January 5, the FDIC also issued FIL-01-2022 and FIL-02-2022 to provide the same regulatory relief to financial institutions and help facilitate recovery in areas of Arkansas and Colorado affected by severe storms, tornados, winds, and wildfires.
On September 28, the Colorado attorney general announced that a Pennsylvania-based student loan servicer responsible for handling the federal Public Service Loan Forgiveness (PSLF) program has agreed to comply with a state law requiring consumer protection oversight. As previously covered by InfoBytes, the AG sued the servicer in May for allegedly failing to comply with state law when asked to provide certain documentation related to the servicer’s handling of the PSLF program during the Covid-19 pandemic. The servicer allegedly refused to produce the requested materials and only provided certain limited documents regarding non-government owned loans related to its business line. Under the terms of the assurance of discontinuance, the servicer (while denying any liability) has agreed to produce the requested records in compliance with the Colorado Student Loan Equity Act.
On September 10, the Colorado attorney general announced a settlement with a Texas-based auto lender (defendant) resolving allegations of lending practices that allegedly exposed consumers to unnecessarily high levels of risk and knowingly placed consumers into auto loans with a high probability of default, which violated Colorado’s consumer protection laws, among other things. Under the terms of the assurance of discontinuance, the defendant must amend its origination and collection practices, including by, among other things: (i) rescinding consumers’ debt on certain loans; (ii) attempting to repurchase any loans that may be held by third parties; and (iii) setting a reasonable debt-to-income threshold to ensure that the defendant is reasonably evaluating a consumer’s ability to pay.
On June 29, the Colorado governor signed SB21-057, which expands the Colorado Student Loan Servicers Act by adding new provisions covering private lenders, creditors, and collection agencies connected to postsecondary non-federal student loans. The act adds “Part 2” to the Colorado Revised Statutes, which, among other things, provides new definitions and stipulates that on or after September 1, lenders may not offer or make a private education loan to a state resident without first registering with the administrator and then annually providing specific loan data and contact information. Additionally, the act (i) outlines cosigner disclosure requirements and specifies that private education lenders are required to grant a release to cosigners provided certain conditions are met; (ii) provides that if a cosigner dies, the lender will not attempt to collect against the cosigner’s estate except for payment default; (iii) expands disability discharge requirements so that a borrower or cosigner may be released from payment obligations if permanently disabled; (iv) requires lenders to provide additional disclosures related to loans that will be used to refinance an existing loan; (v) outlines prohibited conduct concerning unfair, deceptive, or abusive acts or practices, such as placing a loan into default or accelerating a loan while a borrower is seeking a loan modification or enrolling in a flexible repayment plan; (vi) discusses debt collection prerequisites; and (vii) allows borrowers to bring a private right of action, including a counterclaim, against a lender or collection agency to recover or obtain actual damages or $500 (whichever is greater), restitution, punitive damages, injunctive relief, credit report corrections, attorney fees and costs, among others. Additionally, if it is proven that a lender or a collection agency has provided false information, the court will award the borrower the greater of treble damages or $1,500. Moreover, a violation of Part 2 is defined as a deceptive trade practice. Lenders or collection agencies that fail to comply with the outlined provisions will be liable for, among other things, actual damages sustained by a borrower or cosigner, as well as a monetary award equal to three times the total amount collected from the borrower in violation of Part 2. The act takes effect immediately.
On July 7, the Colorado governor signed SB 91, which, among other things, repeals a prior ban on surcharges for credit or debit card transactions. The bill limits the maximum surcharge amount per transaction to 2 percent of the payment amount or the actual fee. Merchants are required to display a specified notice regarding the surcharge on their premises or, for online purchases, before a customer’s completion of the transaction. The act becomes effective July 1, 2022.
On July 7, the Colorado governor signed SB 21-190 to create the Colorado Privacy Act (CPA) and establish a framework for personal data privacy rights. Colorado now joins Virginia and California as the third state in the nation to enact comprehensive consumer privacy laws. In 2018, California became the first state to put in place significant consumer data privacy measures under the California Consumer Privacy Act (covered by a Buckley Special Alert), and earlier this year in March, Virginia enacted the Consumer Data Protection Act (covered by InfoBytes here).
Highlights of the CPA include:
On June 1, the Colorado governor issued Executive Order 2021 110, which amends Executive Order 2021 088, as extended by Executive Order 2021 105. The amendment provides that an individual is prohibited from filing or initiating actions for forcible entry and detainer (i.e., eviction), including any demand for rent, unless the individual has notified the tenant in writing of the resources available to tenants and landlords, including a copy of the Department of Local Affairs resources. The Executive Order also directs the Executive Officer of the Department of Local Affairs to continue working with landlords to implement the model rent repayment agreements, to assist individuals who are unable to pay rent. Executive Order 2021 110 is set to expire on June 30. Previous coverage relating to Colorado’s eviction orders can be found here, here, here, and here.
On March 28, Colorado Governor Jared Polis issued Executive Order D 2021 073 extending the prohibition against assessing a late fee to a residential or commercial tenant for untimely payment of rent by an additional 30 days, expiring on April 30.
On March 27, Colorado Governor Jared Polis issued Executive Order D 2021 072 extending the period during which eligible state and local government expenditures can be reimbursed by CARES Act funds. This allows eligible expenditures to be funded by the CARES Act Coronavirus Relief Fund dollars through April 26.
On March 15, the Colorado governor issued an executive order extending numerous previous executive orders for 30 days. Among other things, the previous orders suspended certain aspects of Colorado statutes concerning foreign entity qualifications to conduct business in Colorado.
- Buckley Webcast: Privacy and cybersecurity outlook for 2022
- Jonice Gray Tucker to discuss “Be Your Compliance Best in 2022” at the California Mortgage Bankers Association webinar
- Hank Asbill to discuss white collar ethics issues at the Stetson Law Review Symposium
- Lauren R. Randell to discuss “Significant legal developments in the Northeast” at the 37th Annual National Institute on White Collar Crime
- Jonice Gray Tucker to discuss “Small business & regulation: How fair lending has evolved & where it is heading?” at the Consumer Bankers Association Live program
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek
- Max Bonici to discuss “Fintech-bank partnerships and potential enforcement” at the 2022 ABA Spring Meetings
- Jonice Gray Tucker and Kari Hall to discuss “Equity, equality, regulation and enforcement – The evolving regulatory landscape of fair lending, redlining, and UDAAP” at the ABA Business Law Committee Hybrid Spring Meeting