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On August 21, the OCC issued a proclamation providing discretion to OCC-regulated institutions to close offices affected by Tropical Storm Hilary in California, Nevada, and Arizona “for as long as deemed necessary for bank operation or public safety.” The proclamation directs institutions to OCC Bulletin 2012-28 for further guidance on actions they should take in response to natural disasters and other emergency conditions. According to the OCC, only bank offices directly affected by potentially unsafe conditions should close, and institutions should make every effort to reopen as quickly as possible to address customers’ banking needs.
Find continuing InfoBytes coverage on disaster relief here.
On May 19, the Arizona governor signed HB 2010 to amend certain sections of the Arizona revised statutes relating to the Department of Insurance and Financial Institutions. Amendments make changes to several licensing provisions, including the length of time a license remains active and licensure renewal requirements. The Act provides that on or before June 30 of each year, a licensee may renew each license without investigation by paying prescribed fees. Other revisions amend accounting practices and record retention requirements for mortgage brokers, mortgage bankers, and commercial mortgage bankers, among others. HB 2010 is effective 90 days after enactment.
Recently, the Arizona attorney general issued an opinion confirming that earned wage access (EWA) products are not considered consumer loans under Arizona law, and that persons who make, procure, or advertise an EWA product are not subject to licensure as a consumer lender by the Arizona Department of Insurance and Financial Institutions. The opinion concluded that an EWA product offered as a no-interest, no-fee, non-recourse product does not fall within the definition of “consumer loan” under Arizona Revised Statutes § 6-601(7).
First, a fully non-recourse EWA product “represents a payment of wages already earned by the employee” and “does not allow recourse against the employee in the event the provider is unable to recoup all or some portion of the advance,” the opinion explained. The opinion added that a fully non-recourse EWA product is one in which “the provider obtains no legal or contractual right to repayment against the employee, does not engage in any debt collection activities with regard to any unpaid balance, does not sell or assign any unpaid balance to a third party, and does not report non-payment to any consumer credit reporting agency.”
Second, and independently, the AG opined that an EWA product is not a consumer loan so long as the provider does not impose a “finance charge,” as that term is defined by A.R.S. § 6-601(11). Specifically, “a non-recourse EWA product that requires repayment only of the principal balance is not a 'loan.'” While the Consumer Lenders Act (CLA) “does not expressly state that the obligation to repay principal is not a “finance charge,” requiring repayment of principal is self-evidently not an amount payable incident to or as a condition of a consumer lender loan.”
The opinion noted, however, that a provider “may also receive revenue through services ancillary to providing an EWA product without converting the EWA product into a “loan” under the CLA, such as by requesting a voluntary gratuity, charging a fee for expedited transfer of an EWA payment, or earning interchange revenue for processing a card payment. As long as the provider does not condition the provision of an EWA product on the “receipt of any such ancillary revenue” or impose fees or charges that fall within the CLA’s definition of “finance charge,” the EWA product will not meet the CLA’s definition of a “consumer loan.”
The opinion referred to guidance issued by other regulators who have drawn similar conclusions that an EWA product is not a loan so long as the program meets specific criteria. Such references include the 2020 CFPB advisory opinion on EWA products. As previously covered by InfoBytes, the Bureau’s advisory opinion addressed uncertainty as to whether EWA providers that meet short-term liquidity needs that arise between paychecks “are offering or extending ‘credit’” under Regulation Z, which implements TILA. The advisory opinion stated that “‘a Covered EWA Program does not involve the offering or extension of ‘credit,’” and noted that the “totality of circumstances of a Covered EWA Program supports that these programs differ in kind from products the Bureau would generally consider to be credit.” The Arizona AG opinion highlighted the Bureau’s conclusion that EWA products do not involve debt because “a Covered EWA Program facilitates employees’ access to wages they have already earned, and to which they are already entitled, and thus functionally operate like an employer that pays its employees earlier than the scheduled payday.”
Last January, CFPB General Counsel Seth Frotman issued a letter in response to concerns raised by consumer advocates (covered by InfoBytes here), stressing that the CFPB’s 2020 advisory opinion “is limited to a narrow set of facts—as relevant here, earned wage products where no fee, voluntary or otherwise, is charged or collected.” Frotman noted, however, that due to “repeated reports of confusion caused by the advisory opinion due to its focus on a limited set of facts,” he planned to recommend that the CFPB director consider ways to provide greater clarity on these issues. He emphasized that the advisory opinion did not purport to interpret whether covered EWA products would be “credit” under other statutes other than TILA, such as the CFPA or ECOA, or whether they would be considered credit under state law.
Recently, the Arizona governor approved Proposition 209, which decreases the maximum lawful annual interest rate on “medical debt” from 10 percent to three percent. Among other things, the proposition defines “medical debt” as “a loan, indebtedness, or other obligation arising directly from the receipt of health care services or of medical products or devices.” Accordingly, in addition to judgments on medical debt, the three percent annual rate limit applies to loans or other financing for health care services or medical products or devices. The proposition also decreases the share of borrowers’ wages that lenders can garnish. The current limit is 25 percent, but that percentage will decrease to 10 percent for many consumers, and to five percent for consumers dealing with extreme economic hardship. Additionally, the proposition increases various exemption amounts, including: (i) $400,000 (up from $150,000) for the homestead exemption; and (ii) $15,000 (up from $6,000) for household furniture, furnishing, goods, and appliances. The proposition is effective immediately.
On December 7, a state court granted a temporary restraining order, which stopped the enactment of the approved measure. An evidentiary hearing is set to happen in December where the plaintiffs are seeking to have the proposition nullified.
At the end of September, amended financial services licensing provisions under Arizona SB 1394 took effect. SB 1394 streamlines licensing requirements for companies that are currently required to obtain separate licenses for trade names or assumed names (often known as “doing business as” or DBAs). Specifically, SB 1394 will allow most companies that the Department of Insurance and Financial Institutions (DIFI) licenses to operate with additional trade names under a single license, provided the company notifies DIFI in writing prior to using the assumed name or trade name. Companies, however, may not use an assumed name or trade name that (i) is “so substantially similar” to another company’s name that it may cause public uncertainty or confusion; or (ii) may deceive or mislead the public as to the type of business conducted by the company. DIFI applauded the bill’s passage in an announcement released earlier this year, saying consumers will still be able to look up companies under a trade name and file complaints against a company’s trade name. “Licensees will save time and money by linking additional DBAs to a single license name without having to pay for and maintain multiple licenses,” DIFI said, noting that it still “maintains all regulatory authority including the ability to investigate, examine, and take action against the parent business.”
On October 4, the Arizona attorney general announced an $85 million settlement with an internet technology company to resolve allegations that it collected individuals’ location data for targeted advertising without users’ knowledge or consent or after users opted out of the feature through the platform’s settings. The AG initiated an investigation in 2018 into the company’s practices after sources claimed that the platform surreptitiously collected and sold location information through other settings even though users believed disabling the “Location History” setting would ensure this would not occur. The AG sued the company in 2020, claiming violations of the Arizona Consumer Fraud Act. Among other things, the AG alleged the company’s disclosures misled users into believing these other settings had nothing to do with tracking user location, and that the company used “deceptive and unfair practices to collect as much user information as possible” and made it difficult for users to understand what was being done with their data or opt out of data sharing. Without admitting any wrongdoing, the company agreed to the terms of the settlement agreement and will pay Arizona $85 million, of which the majority will go toward “education, broadband, and [i]nternet privacy efforts and purposes.”
On September 15, the FDIC issued FIL-41-2022 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Salt River Pima-Maricopa Indian Community (Arizona) affected by severe storms from July 17-18. The FDIC acknowledged the unusual circumstances faced by institutions affected by the storms 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.” Additionally, the FDIC noted 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.
On May 20, the Arizona governor signed SB 1580, which revises provisions related to money transmitters. The bill, among other things, provides that “a person may not engage in the business of money transmission or advertise, solicit or hold itself out as providing money transmission unless the person is licensed." The provision does not apply to “a person that is an authorized delegate of a person licensed under this article that is acting within the scope of authority conferred by a written contract with the licensee,” and to exempt persons provided the person “does not engage in money transmission outside the scope of the exemption.” The bill also creates provisions related to consistent licensure, application for licensure, and information requirements for certain individuals.
On May 16, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded a district court’s summary judgment ruling in favor of a defendant furnisher, stating that it is up to a jury to decide whether the defendant’s “reasonable investigation” into the plaintiff’s dispute complied with the FCRA. After the plaintiff defaulted on both his first and second mortgages, the property was foreclosed and sold. Several years later, the plaintiff tried to purchase another home but was denied a mortgage due to a tradeline on his credit report that showed one of his mortgages as past due with accruing interest and late fees due to missed payments. The plaintiff disputed the debt through the consumer reporting agency (CRA) and provided a citation to the Arizona Anti-Deficiency Statute, which abolished his liability for the reported debt. The CRA then told the defendant about the dispute and provided information about the statutory citation. The defendant originally “updated” the plaintiff’s account to show that the debt was being disputed, but continued to report current and past due balances. Yet after the plaintiff again disputed the validity of his debt, the defendant marked the account as “paid, closed” and changed the balance to $0.
The plaintiff sued, claiming the defendant violated the FCRA by failing to reasonably investigate his dispute and for reporting inaccurate information. The district court granted the defendant’s motion for summary judgment, ruling that the reports it made were accurate as a matter of law and that the defendant had reasonably investigated the dispute. Moreover, “whether the Arizona anti-deficiency statute rendered [plaintiff’s] debt uncollectible is a legal question, not a factual one,” the district court stated, adding that “the FCRA does not impose on furnishers a duty to investigate legal disputes, only factual inaccuracies.”
The 9th Circuit disagreed, writing that Arizona law required that the plaintiff’s balance be “abolished,” so it was “patently incorrect” for the defendant to report otherwise. In applying Arizona law, the plaintiff had “more than satisfied his burden” of showing inaccurate reporting, the appellate court wrote, explaining that the “situation was no different than a discharge under bankruptcy law, which extinguishes ‘the personal liability of the debtor.’” The 9th Circuit also held that the FCRA does not “categorically exempt legal issues from the investigations that furnishers must conduct.” Pointing out that the “distinction between ‘legal’ and ‘factual’ issues is ambiguous, potentially unworkable, and could invite furnishers to ‘evade their investigation obligation by construing the relevant dispute as a ‘legal’ one,’” the panel referred to an April 2021 amicus brief filed in support of the plaintiff by the CFPB, which argued that the FCRA does not distinguish between legal and factual disputes when it comes to furnishers’ obligations to investigate disputes referred from CRAs. The CFPB recently made a similar argument in an amicus brief filed last month in the 11th Circuit (covered by InfoBytes here). There, the CFPB argued that importing this exemption would run counter to the purposes of FCRA, would create an unworkable standard that would be difficult to implement, and could encourage furnishers to evade their statutory obligations any time they construe the disputes as “legal.”
Holding that there was a “genuine factual dispute about the reasonableness” of the defendant’s investigation, the appellate court ultimately determined that it would “leave it to the jury” to decide whether the defendant’s investigation had been reasonable. “Unless ‘only one conclusion about the conduct’s reasonableness is possible,’ the question is normally inappropriate for resolution at the summary judgment stage,” the appellate court stated. “Here, as is ordinarily the case, this question is best left to the factfinder.”
On May 10, the Arizona attorney general announced it filed a stipulated consent judgment in the Superior Court of Arizona against a defendant, the owner and manager of a debt collection operation. The AG’s original action was part of the FTC’s “Operation Corrupt Collection”—a nationwide enforcement and outreach effort established by the FTC, CFPB, and more than 50 federal and state law enforcement partners to target illegal debt collection practices (covered by InfoBytes here).
According to the AG’s press release announcing the consent judgment, the defendant’s debt collection operation allegedly called consumers and made false claims and threats to convince people to pay debts the operation had no authority to collect. The complaint contended that employees frequently used spoofing software to reinforce claims that they were law enforcement officers, government officials, process servers, and law firm personnel to intimidate consumers into paying the alleged debts, and told consumers to immediately respond or be held in contempt of court. Employees also allegedly threatened to file lawsuits, garnish wages and tax returns, place liens on homes and car titles, freeze bank accounts, send law enforcement to consumers’ homes and/or places of employment, and arrest consumers.
Under the terms of the consent judgment, the defendant is required to pay more than $1.6 million in consumer restitution and up to $900,000 in civil penalties, and is permanently enjoined, restrained and prohibited from participating in the debt collection industry. Court approval of the stipulated judgment is pending.