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Financial Services Law Insights and Observations


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  • CFPB to Explore “Alternative Data” as Means to Measure the “Credit Invisible”

    Consumer Finance

    On February 16, the CFPB published a Request for Information seeking information about the “use or potential use” of “alternative data” and/or modeling techniques that might help increase access to credit for consumers who otherwise lack sufficient credit history. As explained by the Bureau in a press release, and as previously covered by InfoBytes, millions of Americans have insufficient credit history to produce a credit score. Accordingly, the Bureau is seeking public feedback on the benefits and risks of utilizing alternative sources of information–such as bills for mobile phones and rent payments–that may be used to make lending decisions involving consumers whose lack of credit history might otherwise exclude them from lending opportunities.

    In prepared remarks delivered at a field hearing on alternative data, CFPB Director Richard Cordray noted, among other things, that "equal access to credit means even more if overall access to credit is expanded and not constrained by lingering uncertainty about how regulators intend to apply fair lending laws. So we have crafted this Request for Information to help us better understand whether and how such uncertainty may be hindering credit access for disadvantaged populations. We also want to learn more about how the Consumer Bureau might reduce that uncertainty while holding fast to the anti-discrimination principles that are the cornerstones of federal law."

    Consumer Finance Lending CFPB Cordray Credit Scores

  • CFPB Settles with Two Credit Reporting Companies Regarding Marketing Practices

    Federal Issues

    On January 3, the CFPB entered into separate consent orders (2017-CFPB-0001, 2017-CFPB-0002) with two credit reporting companies and their subsidiaries regarding the companies’ representations concerning credit scores sold to consumers, as well as the companies’ credit-related product sales practices.  Under the terms of its consent order, one of the companies must pay a $2.5 million civil penalty in addition to almost $3.8 million in restitution to affected consumers. The consent order for the other company includes a $3 million civil penalty and payment of more than $13.9 million in restitution to affected consumers.

    Federal Issues Consumer Finance CFPB Credit Scores

  • CFPB Report Reveals That One in Ten Adults are Credit Invisible

    Federal Issues

    On December 12, the CFPB announced the release of a brief on credit invisibility, following up on a 2015 report, which found that 26 million Americans—or one in 10 adults—do not have a credit history with one of the nationwide credit reporting companies. According to CFPB research, an additional 19 million consumers have “unscorable” credit files—i.e., files that are thin or contain insufficient or too brief credit history—and thus, overall, there are 45 million consumers who may be denied access to credit because they do not have credit records that can be scored. The Bureau also provided a checklist for consumers that incorporates the information from the post and identifies actions that consumers can take concerning credit reports. According to the CFPB, consumers should obtain and read credit reports and act quickly to correct any errors they may find in the reports.

    Federal Issues Consumer Finance CFPB Credit Scores

  • Seventh Circuit Finds No Enforceable Arbitration Agreement Case Involving Chicago-Based Credit Reporting Company

    Consumer Finance

    Recently, the U.S. Court of Appeals for the Seventh Circuit issued an opinion affirming a district court’s denial of a credit reporting company’s motion to compel arbitration in a putative class action. The Seventh Circuit considered whether a particular online process was sufficient to form a contract between the company and its customer. Sgourros v. TransUnion Corp., No. 15-1371 (7th Cir. Mar. 25, 2016). The plaintiff in the case purchased a credit score report from the company that he alleged was inaccurate — it was 100 points higher than a lender’s report — and therefore he alleged that the report was useless. The plaintiff sued the company under various state and federal consumer protection laws. The company sought to compel arbitration, arguing that the plaintiff had agreed to the terms of a service agreement that included a mandatory arbitration clause because he clicked on various acceptance buttons in the online ordering process. In this regard, the company took the position that the plaintiff had agreed to the terms of the service agreement by clicking the “I Accept & Continue to Step 3” button. The federal district court disagreed, concluding that no contract had been formed, and the Seventh Circuit affirmed. In reviewing the matter, the appellate court found that the online presentation process was insufficient to form a contract, because the web pages did not include a clear statement that the purchase was subject to the terms and conditions of the service agreement. The court observed that no such statement appeared either in the displayed text of the agreement visible within the scroll box, or in the statement displayed below the scroll box. The company argued that there was additional language in the service agreement stating that the purchase was governed by the service agreement, and the plaintiff should be bound by that language. However, the court held that since the additional language was not readily visible unless the plaintiff scrolled the agreement or opened the printable version, it was insufficient to put him on notice that the service agreement applied to the purchase. The court also observed:

    Illinois contract law requires that a website provide a user reasonable notice that his use of the site or click on a button constitutes assent to an agreement. This is not hard to accomplish, as the enormous volume of commerce on the Internet attests. A website might be able to bind users to a service agreement by placing the agreement, or a scroll box containing the agreement, or a clearly labeled hyperlink to the agreement, next to an “I Accept” button that unambiguously pertains to that agreement. There are undoubtedly other ways as well to accomplish the goal.

    Accordingly, the Seventh Circuit found that no enforceable agreement to arbitrate arose between the company and the plaintiff and remanded the case to the District Court for further proceedings on the merits.

    Arbitration Credit Scores Credit Reporting Agency

  • CFPB Provides Consumers with Information on Obtaining Credit Reports

    Consumer Finance

    On January 27, the CFPB announced that it published its 2016 list of consumer reporting companies. The list includes contact information for the three largest nationwide reporting companies and various specialty reporting companies concentrating on specific geographic market areas and consumer segments. In addition, the list provides consumers with (i) tips on determining which specialty credit reports may be important to review depending upon the particular circumstances, such as applying for a job or a new bank account; (ii) information regarding how companies confirm the identity of the consumer requesting a copy of his or her credit report; and (iii) information on which companies also provide free credit scores. The CFPB also reminds consumers of their legal rights to (i) obtain the information in their credit reports, per the FCRA; and (ii) dispute inaccuracies contained in the report.

    CFPB FCRA Credit Scores Credit Reporting Agency

  • CFPB Takes Action Against "Buy-Here, Pay-Here" Auto Dealer and Affiliated Financing Company

    Consumer Finance

    On December 17, the CFPB announced a consent order against a Minnesota-based auto dealer and its affiliated financing company for alleged violations of the FCRA and the CFPA. The CFPB alleged that the auto dealer, acting through its financing company, (i) repeatedly furnished inaccurate consumer credit information for more than 84,000 customers from January 2009 through September 2013; and (ii) engaged in deceptive acts and practices by failing to report “good credit” to the credit reporting agencies (CRAs) for tens of thousands of consumers after making written representations that the it would report positive credit information to help consumers build and maintain good credit. Alleged FCRA violations include: (i) inaccurately reporting that vehicles were repossessed and borrowers owed balances after the vehicles were returned to the dealer in accordance with the company’s 72-hour return policy; (ii) inaccurately reporting that consumers had outstanding balances after issuing documentation that disputed accounts had been settled; and (iii) failing to establish and maintain reasonable written policies and procedures to ensure the accuracy and integrity of consumer information furnished to CRAs.

    Under the terms of the consent order, the companies are required to pay a $6,465,000 civil money penalty. In addition, the companies must (i) establish and implement written consumer-information furnishing policies and procedures that comply with the Furnisher Rule; (ii) identify and correct inaccurate consumer-information that was furnished to the CRAs (iv) cease from making false representations that it will report “good credit” or other positive information to the CRAs; (v) provide affected consumers with free credit reports; and (vi) implement an effective audit program of its credit reporting practices.

    CFPB Dodd-Frank FCRA Auto Finance Credit Scores

  • FTC Announces Proposed Settlement with Telecommunications Company for Alleged FCRA Violations

    Consumer Finance

    On October 21, the FTC announced a $2.95 million settlement with a telecommunications company for alleged violations of the FCRA. According to the FTC, the company violated the FCRA’s Risk-Based Pricing Rule by failing to provide consumers with a fully compliant risk-based pricing notice when they were placed into a cell phone and data service program with an additional monthly fee because of information from their consumer reports and their credit scores. Specifically, the FTC’s complaint alleges that the company (i) failed to provide consumers in the program with required disclosures in their risk-based pricing notices, such as the key factors that adversely affected their credit scores and language encouraging consumers to verify the accuracy of their consumer reports; and (ii) provided consumers with the disclosures only after they have become contractually obligated. In addition to the $2.95 million civil money penalty, the proposed consent order would require the company to (i) abide by the requirements of the Risk-Based Pricing Rule in the future; (ii) provide consumers with the proper disclosures within five days of signing up for the company’s services, or by a certain date that would allow them to avoid recurring charges; and (iii) send the consumers who originally received incomplete disclosures new, corrected risk-based pricing notices. The proposed order is subject to court approval in the District Court for the District of Kansas.

    FTC FCRA Credit Scores

  • FTC Settles with Operators of Alleged Credit Repair Scheme

    Privacy, Cyber Risk & Data Security

    On August 4, the FTC announced a settlement with a California-based company and its employees for allegedly violating the FTC Act and the Credit Repair Organizations Act. According to the associated complaint filed by the FTC in March 2015, the defendants operated a bogus credit repair scheme targeting Spanish-speaking consumers. The FTC alleged that the company and the four named employees deceived consumers with false representations that the company was affiliated with the FTC and false promises that they could repair consumers' credit reports and guarantee that the consumer would have a credit score of 700 or higher within six months or less for a fee of approximately $2,000. The FTC’s final orders against the individuals and the Company (i) hold the defendants jointly and severally liable for a $2.4 million monetary judgment; (ii) prohibit the defendants from selling or advertising credit repair services to consumers, and from deceiving consumers about any good or service they are selling, and (iii) bar the defendants from benefiting, through sale or otherwise, from having customers’ personal information. The final orders were approved by the Commission in a 5-0 vote and filed in the U.S. District Court for the Central District of California, Western Division on July 30 and August 3.

    FTC Enforcement Credit Scores

  • CFPB Study: Over 26 Million Consumers Are Credit Invisible

    Consumer Finance

    On May 5, the CFPB released the results of its latest analysis of the credit reporting industry, finding that more than 26 million consumers are categorized as “credit invisible” (i.e., consumers without credit histories with a nationwide consumer reporting agency). The report also found that an additional 19 million consumers’ credit records (roughly 8 percent of the adult population) are unscored because of insufficient credit history or information not recently reported. Other notable findings of the study include: (i) almost 15 percent of Black and Hispanic consumers are more likely to be “credit invisible” compared to 9 percent of White consumers; and (ii) consumers in low-income neighborhoods are much more likely to be credit invisible or to have an unscored credit record. During a conference call to announce the results of the study, Kenneth Brevoort, Section Chief within the CFPB’s Office of Research, alluded to what the Bureau’s next steps may be in the area, stating that the Bureau wants “to have a better understanding of exactly what interventions are possible in the regulatory space or perhaps, industry initiatives that may improve the functioning of these markets for the consumers’ well-being.”

    CFPB Credit Scores

  • CFPB Initiative Results in Free Access to Credit Scores, Agency Pledges to Increase Credit Reporting Enforcement Authority

    Consumer Finance

    One year after launching an initiative to improve consumer access to credit reporting information, the CFPB announced on February 19 that at least 50 million Americans now have the ability to directly and freely access their credit scores. As a result of the CFPB’s credit score initiative, over a dozen major credit card issuers have elected to provide free credit reports to their cardholders, and more issuers are expected to follow suit. The initiative was launched to emphasize the significance of monitoring credit scores and to make it easier for consumers to keep themselves informed. CFPB Director Richard Cordray applauded the agency’s efforts to increase transparency in this arena in his prepared remarks for Thursday’s Consumer Advisory Board Meeting, stating that improving both the accessibility and accuracy of credit reports is vital to consumers and credit providers alike. Cordray also alluded that the CFPB intends to leverage its enforcement authority to more closely regulate the credit reporting industry, thereby placing creditors, debt collectors, and other businesses that furnish consumer credit information on high alert. “Using our supervision and enforcement authorities,” Cordray said, “we are already bringing significant new improvements to the credit reporting system − and we are only getting started.”

    CFPB Nonbank Supervision FCRA Credit Scores


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