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On September 10, the U.S. District Court for the Eastern District of Arkansas granted a motion to compel arbitration in a putative class action alleging violations of the Arkansas Fair Debt Collection Practices Act (AFDCPA) and the FDCPA. According to the order, the plaintiffs contended that the defendants—a debt buyer and its law firm—attempted to collect charged-off credit card debts “through standardized, form debt collection complaints . . . that fraudulently and falsely averred that [the debt buyer] ‘holds in due course a claim . . . pursuant to a defaulted [bank] credit card account.” While the plaintiffs did not dispute that the arbitration provision contained within the cardholder agreement entered into with the bank was valid and that their state and federal claims fell within its scope, they argued that the debt buyer was not a “holder in due course” of the accounts in questions, and as such, the arbitration provision contained within the cardholder agreement was not assigned to the defendants. The court disagreed, ruling that the cardholder agreements specifically permitted the original creditors to assign their rights to a third party, which includes the right to arbitration and the right to enforce the class action prohibition.
On September 11, the U.S. District Court for the Southern District of California denied a mortgage company’s motion to dismiss an action by the U.S. government alleging the company violated the False Claims Act by falsely certifying compliance with FHA mortgage insurance requirements. According to the opinion, the government intervened in a former employee’s suit against the company and alleged that the company, a participant in HUD’s Direct Endorsement Lender program, had failed to report loans to HUD that presented “material risk and ‘[f]indings of fraud or other serious violations’ discovered during the ‘normal course of business and by quality control staff during reviews/audits of FHA loans.’” The company moved to dismiss the action, arguing that the government failed to allege a scheme that was designed to flout specific FHA requirements. In denying the motion, the court concluded that the government sufficiently alleged the “who, what, where, how, and why” of the company’s misconduct, noting that the company “knew, or should have known, that the certifications of compliance it made at the time of endorsement were false because the falsities were facially apparent from the loan files that it was required to underwrite in accordance with HUD’s requirements.” The court also concluded that the government sufficiently pleaded its breach of fiduciary duty and breach of contract claims.
On September 10, the FDIC and the OCC filed an amicus brief in the U.S. District Court for the District of Colorado, supporting a bankruptcy judge’s ruling, which refused to disallow a claim for a business loan that carried a more than 120 percent annual interest rate, concluding the interest rate was permissible as a matter of federal law. After filing bankruptcy in 2017, a Denver-based business sought to reject the claim under Section 502 of the Bankruptcy Code, and sought equitable subordination under Section 510 of the Code, arguing that the original promissory note, executed by the debtor and a Wisconsin state chartered bank, and subsequently assigned to a nonbank lender, was invalid under Colorado’s usury law. The bankruptcy judge disagreed, declining to follow Madden v. Midland Funding, LLC (covered by a Buckley Special Alert here). The judge concluded that the promissory note was valid under Wisconsin law when executed as that state imposes no interest rate cap on business loans, and the assignment to the nonbank lender did not alter this, stating “[i]n the Court’s view, the ‘valid-when-made’ rule remains the law.” The debtor appealed the ruling to the district court.
In support of the bankruptcy judge’s opinion, the FDIC and the OCC argue that the valid-when-made rule is dispositive. Specifically, the agencies assert that the nonbank assignee may lawfully charge the 120 percent annual rate, because the interest rate was non-usurious at the time when the loan was made by the Wisconsin state chartered bank. Moreover, the agencies state that it is a fundamental rule of contract law that “an assignee succeeds to all the assignor’s rights in the contract, including the right to receive the consideration agreed upon in the contract—here, the interest rate agreed upon.” Hence, the nonbank lender inherited the same contractual right to charge the annual interest rate. The agencies also argue that the Federal Deposit Insurance Act’s provisions regarding interest rate exportation (specifically 12 U.S.C. § 1831d) requires the same result, noting that “Congress intended to confer on banks a meaningful right to make loans at the rates allowed by their home states, which necessarily includes the ability to transfer those rates.” The agencies conclude that the bankruptcy judge correctly rejected Madden, calling the 2nd Circuit’s decision “unfathomable” for disregarding the valid-when-made doctrine and the “stand-in-the-shoes-rule” of contract law.
On September 9, the U.S. District Court for the Northern District of California entered a final judgment against a debt collection agency that was found guilty of violating the TCPA by making more than 500,000 unsolicited robocalls using autodialers. The court’s final judgment is consistent with the jury’s verdict from last May, which identified four classes of individuals: two involving consumers who received skip-tracing calls or pre-recorded messages, and two involving non-debtor consumers who never had debt collection accounts with the defendant but received calls on their cell phones. In a February 2018 order, the court resolved cross motions for summary judgment, affirming that the dialers used by the defendant to place the calls constituted autodialers within the meaning of the TCPA and that the defendant lacked prior express consent to place the calls. Under the more than $267 million final judgment, class members will each receive $500 per call, with one of the named plaintiffs receiving $7,000 for his individual TCPA claim.
On September 10, the U.S. District Court for the Southern District of New York issued a final order and judgment to approve a class action settlement agreement, which ends litigation dating back to 2011 concerning alleged violations of state usury limitations. As previously covered by InfoBytes, the plaintiffs brought claims against a debt collection firm and its affiliate alleging violations of the FDCPA and New York state usury law when the defendants attempted to collect charged-off credit card debt with interest rates above the state’s 25 percent cap that was purchased from a national bank. In 2017, upon remand following the 2nd Circuit’s decision that a nonbank entity taking assignment of debts originated by a national bank is not entitled to protection under the National Bank Act from state-law usury claims (covered by a Buckley Special Alert here), the district court certified the class and allowed the FDCPA and related state unfair or deceptive acts or practices claims to proceed.
Following a fairness hearing, the court granted the parties’ joint motion for final approval, which divides the approximately 58,000 class members into two subclasses: claims alleging state-law violations, and claims alleging FDCPA violations. Under the terms of the settlement, the defendants are required to, among other things, (i) provide class members with $555,000 in monetary relief; (ii) provide $9.2 million in credit balance reductions; (iii) pay $550,000 in attorneys’ fees and costs; (iv) pay class representatives $5,000 each; and (v) agree to comply with all applicable laws, regulations, and case law regarding the collection of interest, including the collection of usurious interest.
On September 6, the Illinois Appellate Court, 5th District, vacated a circuit court’s $4.3 million settlement in a class action brought against a merchant for allegedly violating the Fair and Accurate Credit Transaction Act (FACTA) when it printed the first six and last four digits of customers’ 16-digit credit card account numbers on receipts. The appeals court held, among other things, that the “record is devoid of facts that would have permitted a reasoned judgment that the class settlement was fair, reasonable and in the best interests of all affected.” Under FACTA, merchants are prohibited from including on a receipt more than the last five digits of a consumer’s credit card number, and a credit card’s expiration date. A class action suit claiming the merchant violated the restriction was originally filed in New York federal court, but the preliminarily approved settlement was later dismissed after objectors argued that the plaintiffs lacked standing. The named plaintiff requested dismissal of the federal action and subsequently filed suit immediately after in Illinois state court, asking the court to adopt a settlement agreement identical to the one that had been preliminarily approved by the federal court. The objector appealed once again, challenging, among other things, (i) the named plaintiff’s ability to adequately represent the settlement class; (ii) the original class notice, which she argued was insufficient to cover the state court settlement; and (iii) the “fairness, reasonableness, and adequacy of the ‘coupon settlement,’” in which class members received $12 merchant gift cards, while the named plaintiff received $4,000 and class counsel was awarded $500,000.
On appeal, the appeals court disagreed with the objector’s contention that the named plaintiff lacked standing to represent the class because he kept his receipt and therefore had not been injured under FACTA, but found “a number of red flags” regarding the sub-class of more than 350,000 members of the merchant’s loyalty program, questioning whether the named plaintiff was an adequate representative for those class members since there was nothing in the record indicating whether he was a member of the program. Moreover, the appeals court agreed with the objector that the original class notice provided under the federal settlement did not sufficiently protect the due process rights of the settlement class, and that “due process requires the giving of notice anew of the pending state court settlement to absent class members so that they have the opportunity to protect their own interests.” The appeals court remanded the case to allow the trial court to more carefully scrutinize the terms of the settlement, stating that “we are unable to determine whether the trial court evaluated the merits of the cause of action, the prospects and problems of litigating the cause or the fairness of the terms of compromise.” The appeals court also ordered the trial court to further explain its findings that the $500,000 attorneys’ fee award and $4,000 lead plaintiff award are reasonable given the possibility that not every class member will use the coupon.
District Court allows majority of privacy invasion class action claims to proceed against social media company
On September 9, the U.S. District Court for the Northern District of California granted in part and denied in part a social media company’s motion to dismiss a multidistrict class action alleging the company failed to prevent third parties from accessing and misusing private data of its users, in violation of the Stored Communications Act (SCA), the Video Privacy Protection Act (VPPA), and various state laws. In the consolidated action, the plaintiffs allege that the company (i) made sensitive user information—including basic facts such as gender, age, and address; and substantive content such as photos, videos, and religious and political views—available to third parties without user consent; and (ii) failed to prevent those same third parties from selling or otherwise misusing the information. The company moved to dismiss the action, arguing, among other things, that “people have no legitimate privacy interest in any information they make available to their friends on social media.”
The district court disagreed, concluding that most of the plaintiffs’ claims should survive, and that the company “could not be more wrong” in its argument that its users lose all privacy interest in the information they share with their friends on social media. The court asserted that when a user shares information with a limited audience, they “retain privacy rights and can sue someone for violating them.” The court also rejected the company’s argument that the plaintiffs did not have standing to sue in federal court because they could not show “tangible negative consequences from the dissemination of [the] information.” The court noted that privacy invasion is a redressable injury in itself and does not need a secondary economic injury to confer standing. Additionally, while the court recognized that the company’s argument that the users consented to this practice has “some legal force,” it cannot “defeat the lawsuit entirely, at least at the pleading stage.” Therefore, the court denied the motion as to the VPPA and narrowed certain claims under the SCA and California state laws, mostly with regard to claims on behalf of users who signed up for the service after 2009, who purportedly authorized the company to share information through their friends with app developers.
En banc 5th Circuit declares FHFA structure unconstitutional, allows net worth sweep claims to proceed
On September 6, the U.S. Court of Appeals for the 5th Circuit reaffirmed, in an en banc rehearing, that the Federal Housing Finance Agency (FHFA) structure violates constitutional separation of powers requirements and allowed “net worth sweep” claims brought by a group of Fannie Mae and Freddie Mac (government-sponsored entities or GSEs) shareholders to proceed. As previously covered by InfoBytes, GSE shareholders brought an action against the U.S. Department of Treasury and FHFA arguing that (i) the FHFA acted outside its statutory authority when it adopted a dividend agreement that requires the GSEs to pay quarterly dividends equal to their entire net worth to the Treasury Department (known as “net worth sweep”); and (ii) the structure of the FHFA is unconstitutional because it violates separation of powers principles. The district court dismissed the shareholder’s statutory claims and granted summary judgment in favor of the Treasury Department and the FHFA on the separation of powers claim. On appeal, the 5th Circuit agreed with the lower court on the first claim, concluding that the net worth sweep payments were acceptable under the FHFA’s statutory authority and that the FHFA was lawfully established by Congress through the Housing and Economic Recovery Act of 2008 (HERA), which places restraints on judicial review. However, the appellate court reversed the lower court’s decision on the separation of powers claim, concluding that Congress went too far in insulating the FHFA’s single director from removal by the president for anything other than cause, ruling that the agency’s structure violates Article II of the Constitution.
After an en banc rehearing, the appellate court issued two separate majority opinions. Both opinions concluded that (i) the GSE shareholders plausibly alleged that the net worth sweep exceed the powers of the FHFA when acting as a conservator under HERA; and (ii) the FHFA’s structure—which provides the director with “for cause” removal protection—violates the Constitution’s separation of powers requirements. However, the opinions differed on the appropriate remedy, with nine judges concluding that the remedy should be severance of the for-cause provision, not prospective relief invalidating the net worth sweep, stating that “the Shareholders’ ongoing injury, if indeed there is one, is remedied by a declaration that the “for cause” restriction is declared removed. We go no further.”
Various dissenting opinions were issued, including one signed by seven judges concluding that the FHFA acted within its statutory powers under HERA when it adopted the net worth sweep, stating “the FHFA’s ‘powers are many and mostly discretionary.’” In another dissenting opinion, four judges argued that the majority opinions wrongly concluded that the FHFA’s structure is unconstitutional, arguing that there are “only reasons for caution and skepticism, and none for action” in the constitutional claim. “Neither the Constitution’s text, nor the Supreme Court’s constructions thereof, nor the adversary process in this litigation has given us much ground on which to declare the FHFA’s design unconstitutional,” the judges argued.
Given the similarities of the FHFA’s single director structure with that of the CFPB, this case warrants close attention as it has the potential to create a vehicle for consideration by the Supreme Court of the constitutionality of single director agencies.
CFPB files deceptive and abusive allegations against foreclosure relief services company and principals
On September 6, the CFPB announced a complaint filed in the U.S. District Court for the Central District of California against a foreclosure relief services company, along with the company’s president/CEO (defendants), for allegedly engaging in deceptive and abusive acts and practices in connection with the marketing and sale of purported financial-advisory and mortgage-assistance-relief services to consumers. According to the complaint, since 2014 the defendants allegedly violated the Consumer Financial Protection Act (CFPA) and Regulation O by making deceptive and unsubstantiated representations about the efficacy and material aspects of its mortgage assistance relief services, as well as making misleading or false claims about the experience and qualifications of its employees. Additionally, the Bureau alleged the defendants’ representations about their services constituted abusive acts and practices because, among other things, consumers “generally did not understand and were not in a position to evaluate the accuracy of [the defendants’] marketing representations or the quality of the mortgage-assistance-relief services that [the defendants] sold.” Moreover, the Bureau claimed the defendants further violated Regulation O by charging consumers advance fees before rendering services.
In addition, the Bureau entered a proposed stipulated final judgment and order against the company’s principal auditor for providing “substantial assistance in furtherance of [the defendants’] unlawful conduct” in violation of the CFPA and Regulation O. The proposed judgment imposes a $493,403.04 civil penalty, of which all but $5,000 is suspended due to the auditor’s limited ability to pay. The auditor is also permanently banned from providing mortgage assistance relief services or consumer financial products and services.
On September 3, the U.S. District Court for the District of New Jersey denied a medical laboratory’s motion to dismiss, ruling that the company cannot use a Supreme Court ruling to avoid a proposed TCPA class action suit concerning allegations that it made unsolicited calls using an “autodialer.” As previously covered by InfoBytes, the court denied the defendant’s motion to dismiss last December after it concluded that the plaintiff sufficiently alleged the equipment used to make unsolicited calls qualified as an “autodialer.” The defendant argued, however, that the court should reconsider its decision in light of a 2019 Supreme Court ruling in which separate concurring opinions written by Justices Kavanaugh and Thomas concluded that district courts are not bound by the FCC’s interpretation of the term “autodialer” under the TCPA. According to the defendant, because of these concurring opinions, the court “was not bound by the FCC’s 2003 and 2008 guidance on the definition of an ‘autodialer,’” and should therefore revisit its prior opinion. However, the court stated that the Supreme Court’s case does not change any of the “controlling law” dealing with the TCPA issue in the current lawsuit. “Because defendant’s arguments are not based on any actual change in controlling law,” its motion for reconsideration is denied, the court stated, noting that concurring opinions “do not change ‘controlling law.’”
- Sherry-Maria Safchuk to speak on the "California Consumer Privacy Act (CCPA) Workshop" panel at the California Mortgage Banker's 2019 Legal Issues & Regulatory Compliance Conference
- Jon David D. Langlois to discuss "Legal and operational considerations" at the Mortgage Bankers Association's Whole Loan Trading Workshop
- Daniel P. Stipano to discuss “Connecting the dots on your CDD program” at the ABA/ABA Financial Crimes Enforcement Conference
- Daniel P. Stipano to discuss “Beneficial Ownership: You have questions – We have quick answers” at the ABA/ABA Financial Crimes Enforcement Conference
- Daniel P. Stipano to discuss "Risk management in enforcement actions: Managing risk or micromanaging it" at an American Bar Association webinar
- Kari K. Hall and Christopher M. Walczyszyn to speak on the "Understanding updates to Regulation CC to ensure effective check processing" at a National Association of Federal Credit Unions webinar