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Financial Services Law Insights and Observations


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  • CFPB Monthly Complaint Snapshot Spotlights Debt Settlement, Check Cashing, and Other Financial Services Complaints

    Federal Issues

    On November 29, the CFPB released Volume 17 of its monthly complaint snapshot reports on consumer complaints stemming from financial services that fall outside of the Bureau’s major complaint categories. The “other financial services” covered in the report include debt settlement, check cashing, money orders, and credit repair. To date, the CFPB has handled approximately 1,035,200 complaints nationally across all products. As reported in the current snapshot: (i) Debt collection was the most-complained-about financial product or service in October; (ii) Student loan complaints showed the greatest increase—108 percent—of any product or service over the three-month period of August to October; and (iii) Alaska, New Mexico, and Missouri experienced the greatest year-to-year complaint volume increases from August to October 2016 period versus the same time period 12 months before. The current report also highlighted a trend in complaints coming from Oklahoma and the Oklahoma City metro area.

    Federal Issues Consumer Finance CFPB Student Lending Debt Collection Check Cashing

  • CFPB Publishes Updated Version of its Mortgage Servicing Small Entity Compliance Guide

    Federal Issues

    On December 1, the CFPB published an updated version of the Mortgage Servicing Small Entity Compliance Guide on its "Mortgage Servicing Implementation & Guidance" webpage. The updated guide incorporates amendments made to mortgage servicing provisions in Regulation X and Regulation Z by the 2016 Mortgage Servicing final rule. Most provisions of the 2016 Mortgage Serving final rule take effect on October 19, 2017. However, the provisions relating to successors in interest and the provisions relating to periodic statements for borrowers in bankruptcy will not take effect until April 19, 2018.

    Federal Issues Consumer Finance CFPB Mortgage Servicing Regulation Z Regulation X

  • PHH Response Due Date Pushed Back as Solicitor General Permitted to Respond to CFPB's Petition in PHH Corp. v. CFPB by December 22


    As discussed previously, the D.C. Circuit ordered PHH to respond to the CFPB’s petition for en banc review of the October 2016 three-judge panel decision in PHH Corp. v. CFPB. In an Unopposed Motion for Leave to file the United States' Response, filed December 1, the Office of the Solicitor General sought permission to file its own responsive briefing on or before December 22. In an Order issued December 1, the D.C. Circuit granted the Solicitor General’s request, but also moved back the due date for PHH’s responsive papers so that both responses are now due on December 22.

    Earlier in the week, on November 30, two groups filed amicus briefs in support of the CFPB’s petition together along with motions requesting an invitation from the court. The first brief was submitted by a group of leading consumer protection organizations, while the second brief was filed by a group of 21 current and former members of Congress.

    Courts Consumer Finance CFPB U.S. Senate U.S. House PHH v. CFPB

  • Full D.C. Circuit Orders PHH to Respond to CFPB's Petition for En Banc Review, Invites U.S. Solicitor General to Provide Views

    Federal Issues

    On November 23, the full D.C. Circuit ordered PHH to respond to the CFPB's petition for en banc review of the October 2016 three-judge panel decision in PHH Corp. v. CFPB. The CFPB’s November 18 petition challenged, among other things, the conclusion by the majority of the panel that the CFPB's structure was unconstitutional and that, to remedy this defect, the Director must be removable at will by the President. PHH’s response, which is due by December 8, would not have been permitted without the court’s order. Similarly, the CFPB is not permitted to file a reply unless ordered by the court.  Importantly, the en banc court also “invited” the U.S. Solicitor General “to file a response to the petition” to “express[] the views of the United States.” Although there is no deadline for this response, the invitation allows the Solicitor General to respond before the change in administration, which may be significant because the Dodd-Frank Act does not allow the CFPB to petition the Supreme Court for review without the approval of the Attorney General (12 USC § 5564(e)).

    For additional background, please see our summaries of the panel decision and the CFPB's petition for rehearing.

    Federal Issues Consumer Finance CFPB U.S. Supreme Court PHH v. CFPB Cordray DC Circuit Single-Director Structure

  • GAO Issues Report on Compliance with the SCRA Interest Rate Cap by Student Loan Servicers

    Federal Issues

    On November 18, the GAO announced the release of its report and recommendations following the watchdog agency’s review of application of the SCRA’s rate cap by student loan servicers. According to the report, entitled Student Loans: Oversight of Servicemembers' Interest Rate Cap Could Be Strengthened, the number of servicemembers receiving the interest rate cap for their student loans has greatly increased since the Department of Education began requiring federal student loan servicers to automatically check the Department of Defense’s SCRA database to identify those who are eligible.

    The report also identified several challenges commonly encountered by servicemembers seeking to take advantage of the rate cap, including:  (i) inaccurate SCRA information from the database; (ii) lack of a requirement that private loan servicers use the automatic eligibility check to identify eligible servicemembers; and (iii) lack of routine oversight of SCRA compliance for nonbank private student loan lenders and servicers. The GAO recommended, among other things, that the DOJ require private loan servicers to use the automatic eligibility check to identify eligible borrowers. The report also highlighted an issue with the Department of Education’s new borrower complaint system, which lacks the ability to track SCRA complaints systematically.

    Federal Issues Consumer Finance Servicemembers Student Lending SCRA GAO Department of Education Department of Defense

  • CFPB Requests Rehearing of Decision Threatening Agency's Structure

    Federal Issues

    Earlier today, the CFPB filed its much-anticipated response in PHH Corp. v. CFPB, requesting reconsideration by the full D.C. Circuit. As discussed in our special alert, on October 11, 2016, a three-judge panel of the D.C. Circuit vacated the CFPB’s $109 million penalty against PHH under the Real Estate Settlement Procedures Act (RESPA). In addition, a majority of the panel held that, to resolve a constitutional defect in the CFPB’s structure, the Director was removable by the President at will, meaning that President Trump could remove Director Cordray upon taking office. However, the panel’s decision is stayed until seven days after the court rules on the CFPB’s request.

    Rather than proceeding directly to the Supreme Court, the CFPB proceeded as expected by requesting rehearing en banc by the full D.C. Circuit, which is generally disfavored and granted only for matters of “exceptional importance.” Perhaps most significantly, the Bureau’s petition does not request rehearing of the panel’s conclusion that RESPA’s three-year statute of limitations applied to administrative as well as judicial actions brought under that statute. 

    The CFPB’s petition argues that the panel’s constitutional ruling on the CFPB’s structure should be reheard because it “sets up what may be the most important separation-of-powers case in a generation.” Specifically, the Bureau argues that the panel’s determination that a multi-member commission is an essential component of an independent agency runs contrary to Supreme Court precedent and “unduly limits Congress’s flexibility to respond to the various crises of human affairs … by creating independent administrative agencies headed by a single director.” The Bureau further states that the panel’s reasoning “may affect not only the Bureau but also other agencies headed by a single director removable only for cause,” such as the Social Security Administration, Federal Housing Finance Agency, and the Office of Special Counsel.

    The Bureau also asks the D.C. Circuit to rehear the panel’s determination that RESPA permits lenders and mortgage insurers to enter into tying arrangements under which the lender refers mortgage insurance businesses to the insurer in exchange for the insurer purchasing reinsurance from the lender’s affiliate. In support of this request, the Bureau argues that “the panel’s decision misinterpreted [RESPA] in a manner that so fundamentally defeats the statutory purpose [of prohibiting kickbacks] as to warrant rehearing en banc.” Specifically, the Bureau states that “[t]he panel’s reading of the statute would permit any mortgage lender to condition referrals on the purchase of goods or services in any related or unrelated business line. Such schemes flout the core purposes of RESPA.”

    Under the D.C. Circuit’s rules, PHH is not permitted to file a response to the CFPB’s petition unless ordered by the court to do so. However, the court will not modify the panel’s opinion without allowing PHH to respond to the petition. There is no deadline for action by the court.

    Federal Issues Consumer Finance CFPB RESPA FHA PHH v. CFPB Trump U.S. Supreme Court Single-Director Structure

  • GOP Leaders Formally Request that Obama Administration Not Finalize Rules and Regulations in its Final Days

    Federal Issues

    On November 15, GOP leaders sent a letter to “Secretaries, Administrators, Directors and Commissioners” within the Obama Administration caution[ing] [each] against finalizing pending rules or regulations in the administration’s last days.” The letter explains that by “refraining from acting with undue haste, . . . it [is] less likely that unintended consequences will harm consumers and businesses.”  In addition, “such forbearance is necessary to afford the recently elected administration and Congress the opportunity to review and give direction concerning pending rulemakings.”

    Federal Issues Consumer Finance Obama Agency Rule-Making & Guidance

  • CFPB Launches Inquiry into Consumer Financial Data Access

    Consumer Finance

    On November 17, the CFPB formally announced the launch of an inquiry into the benefits and risks associated with consumers authorizing third-parties to access their financial and account information held by financial service providers. The CFPB has been investigating and assessing issues related to data access and technological innovation for some time, including through Project Catalyst.

    As detailed in the Request for Information (Dkt No. CFPB-2016-0048) issued on November 17, the CFPB is focused on three main points of inquiry: (i) secure access for consumersi.e., are consumers able to securely access, and authorize others to securely access, their financial records? Are there any “business burdens” that must be addressed to provide access and use of financial records?; (ii) third-party risk -- i.e., some financial institutions have expressed concern that providing third parties with access to records may compromise consumer privacy or put their funds at risk. The CFPB would like learn more about options for ensuring that financial records are securely obtained, stored and used; and (iii) consumer control -- i.e., to what extent are consumers able to control how shared data is being used by third-parties with authorized access?  Are consumers able to limit the number of times those firms can access the data?

    In prepared remarks delivered at a field hearing in Salt Lake City, UT, CFPB Director Richard Cordray explained: “The technology around digital financial records continues to develop and, so far, there are many unanswered questions about how the information is being shared, by and to whom, and how safely. As with any emerging industry, we are hearing about some bumps in the road. Both Fintech companies and financial institutions, as well as consumer groups, are describing to us the various challenges, risks and technological obstacles to further progress in this area.”

    Consumer Finance CFPB Data Collection / Aggregation Privacy/Cyber Risk & Data Security

  • SEC Hosts First Financial Technology (FinTech) Forum

    Federal Issues

    On November 14, the SEC hosted its first Fintech Public Forum at its Washington, DC headquarters to discuss FinTech and to evaluate how the current regulatory environment can most effectively address innovation in the financial services industry. The event was divided into four panels, which covered the following topic areas: (i) the impact of recent innovation in investment advisory services; (ii) the impact of recent innovation on trading, settlement, and clearance activities; (iii) the impact of recent innovation in capital formation; and (iv) investor protection in the FinTech era. The forum was open to the public and is also available on the SEC’s website.

    SEC Chair Mary Jo White opened the forum with introductory remarks. After explaining that “Fintech innovations have the potential to transform key parts of the securities industry,” Chair White highlighted several developments that are particularly important to the SEC, including: (i) automated investing advice; (ii) distributed ledger technology; and (iii) online marketplace lenders and crowdfunding portals. In describing the SEC’s role with respect to such innovations, Chair White noted that the Commission “must ensure new developments are not rushed to market or implemented in a way that facilitates a risk of fraud or harm to investors.” Ms. White explained that she had “directed the creation of a Fintech working group at the SEC earlier this year . . . to evaluate the emerging technologies,” and tasked the group to provide “specific, tailored recommendations . . . about what the SEC should do to provide clarity on existing regulatory requirements and help foster responsible innovation.” Chair White also clarified that the SEC was at an early stage in its outreach to investors, innovators and other stakeholders in new technologies, with the forum being an important part of SEC’s outreach.

    SEC Commissioner Michael Piwowar, who championed the idea of the Commission hosting a Fintech public forum, also spoke to attendees. “I believe the commission should take the lead regulatory role in the Fintech space,” Piwowar said in prepared remarks. “Many of the firms pursuing Fintech are already SEC registrants, and others are providing services that are squarely within the commission’s oversight, such as investment advice and trading and settlement functionalities.” Piwowar emphasized the need for clarity in the sector, but added that the SEC is “uniquely situated to determine whether and how Fintech currently fits, and ultimately should fit, within a financial regulatory structure.”

    Federal Issues Consumer Finance Digital Commerce SEC Financial Technology Fintech Virtual Currency Distributed Ledger

  • SEC Chair Mary Jo White Stepping Down

    Federal Issues

    After nearly four years as the head of the SEC, Chair Mary Jo White announced on November 14 that she intends to leave the position at the end of the Obama Administration. During her tenure, Chair White implemented the Commission’s first-ever policy to require admissions of wrongdoing in certain cases where heightened accountability and acceptance of responsibility is appropriate. To date, the Commission has required admissions from more than 70 defendants, including 44 entities and 29 individuals. Chair White’s departure affords President-elect Donald Trump the opportunity to name Chair White’s successor, subject to the Senate’s consent.

    Federal Issues Consumer Finance SEC Obama


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