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Financial Services Law Insights and Observations


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  • California governor proposes strengthening state consumer protection authority and increasing financial innovation

    State Issues

    On January 10, the California governor submitted his proposal for California’s 2020-2021 state budget, which would, among other things, include the creation and administration of the California Consumer Protection Law (Law). The governor’s budget summary indicates that “[t]he federal government’s rollback of the CFPB leaves Californians vulnerable to predatory businesses and leaves companies without the clarity they need to innovate.”  The proposed Law is intended to provide “consumers with more protection against unfair and deceptive practices when accessing financial services and products.” To create and administer the Law, the proposed budget contemplates the expansion of the Department of Business of Oversight’s (DBO) authority to “protect consumers” and “foster the responsible development of new financial products.” In light of the expanded role, the governor also proposed renaming the DBO to the Department of Financial Protection and Innovation. The governor’s budget includes an allocation to the DBO of a $10.2 million Financial Protection Fund and 44 positions in 2020-2021, which would increase to $19.3 million and 90 positions in 2022-2023 for creating and implementing the Law.

    According to the DBO’s website, the DBO currently “provides protection to consumers and services to businesses engaged in financial transactions” and “oversees the operations of state-licensed financial institutions, including banks, credit unions, money transmitters, issuers of payment instruments and travelers checks, and premium finance companies.” Under the governor’s budget proposal summary, in addition to the DBO’s current functions, the DBO will have greater authority to “pursue unlicensed financial service providers not currently subject to regulatory oversight such as debt collectors, credit reporting agencies, and financial technology (fintech) companies, among others.”

    The budget proposal summary provides that the DBO’s new activities will include:

    • Offering services to educate consumers (e.g., older Americans, students, military service members, and recent immigrants).
    • Licensing and examining industries that are currently under-regulated.
    • Analyzing market patterns and developments for evidence-based policies and enforcement.
    • Enforcing against unfair, deceptive, and abusive practices.
    • Establishing a new Financial Technology Innovation Office, which will be tasked with proactively promoting “responsible development of new consumer financial products.”
    • Providing legal support for the administration of the Law.
    • Expanding administrative and IT staff to support the DBO’s increased authority.

     The details of the Governor’s budget proposal have not yet been published.

    State Issues Consumer Finance CFPB CDBO State Regulators State Legislation Debt Collection Fintech Licensing

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  • CFPB files claims against debt relief companies

    Federal Issues

    On January 9, the CFPB announced that it filed a complaint in the U.S. District Court for the Central District of California against a mortgage lender, a mortgage brokerage, and several student loan debt relief companies (collectively, “the defendants”), for allegedly violating the FCRA, TSR, and FDCPA. In the complaint, the CFPB alleges that the defendants violated the FCRA by, among other things, illegally obtaining consumer reports from a credit reporting agency for millions of consumers with student loans by representing that the reports would be used to “make firm offers of credit for mortgage loans” and to market mortgage products. The Bureau asserts that the reports of more than 7 million student loan borrowers were actually resold or provided to companies engaged in marketing student loan debt relief services.

    According to the complaint, “using or obtaining prescreened lists to send solicitations marketing debt-relief services is not a permissible purpose under FCRA.” The complaint alleges that the defendants violated the TSR by charging and collecting advance fees before first “renegotiat[ing], settl[ing], reduc[ing], or otherwise alter[ing] the terms of at least one debt pursuant to a settlement agreement, debt-management plan, or other such valid contractual agreement executed by the customer,” and prior to “the customer ma[king] at least one payment pursuant to that settlement agreement, debt management plan, or other valid contractual agreement between the customer and the creditor or debt collector.” The CFPB further alleges that the defendants violated the TSR and the CFPA when they used telemarketing sales calls and direct mail to encourage consumers to consolidate their loans, and falsely represented that consolidation could lower student loan interest rates, improve borrowers’ credit scores, and change their servicer to the Department of Education.

    The Bureau is seeking a permanent injunction to prevent the defendants from committing future violations of the FCRA, TSR, and CFPA, as well as an award of damages and other monetary relief, civil money penalties, and “disgorgement of ill-gotten funds.”

    Federal Issues CFPB Debt Relief Consumer Finance Telemarketing Sales Rule Student Lending CFPA Courts FCRA UDAAP

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  • Missouri AG alleges housing nonprofit trust deceived members

    State Issues

    On January 2, the Missouri attorney general filed a petition for preliminary and permanent injunction in Missouri Circuit Court against a nonprofit trust and its registered agent (the defendants) alleging the defendants deceived thousands of state residents by marketing memberships in the trust with the promise that the pooled resources would fund “to-be-completed homes.” The AG alleges that the defendants solicited consumers to attend meetings, purchase memberships, and pay monthly dues, and also asked members to provide additional funds to go towards appliances and other fixtures for the homes. However, the agent defendant allegedly admitted that none of the promised homes were constructed or otherwise provided to the members.

    The AG further contends that “none of the solicited funds were ever used or invested towards providing a home to any of the members,” and were instead used to cover the trust’s operating expenses. According to the AG, the defendants’ actions violate state law and constitute false promises, omissions of material fact, and deception. The AG seeks injunctive relief “up to and including prohibiting and enjoining [d]efendants . . . from owning or operating organizations that sell or manage real estate that solicit upfront payments for goods or services, or that solicit charitable contributions.” The AG also seeks restitution for member losses, a fine equal to 10 percent of the restitution amount, a $1,000 fine per violation, and compensation for the state’s costs in pursuing the case.

    State Issues State Attorney General Courts Deceptive Consumer Finance

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  • New York to expand access to safe and affordable financial services

    State Issues

    On January 4, the New York governor unveiled a proposal to expand access to safe and affordable financial services as part of the 2020 State of the State agenda. Included is a proposal to create the “Excelsior Banking Network” (Network), which is intended to “expand financial inclusion and access to affordable bank accounts and credit products” by providing $25 million in seed funding for the state’s Community Development Financial Institutions (CDFI) Fund. The Network—formed through a collaborative initiative between CDFIs, NYDFS, and other state agencies—will, among other things, engage in outreach and financial literacy education to the unbanked and expand available microcredit. “CDFIs are local financial service providers with locations throughout New York State, and often are the sole provider of banking and other financial services in low-income communities that are not served by traditional banks and financial institutions,” the announcement stated. Funding will be leveraged by participating CDFIs through targeted investments in underserved communities.

    The governor also proposed the creation of a statewide Office of Financial Inclusion and Empowerment (Office), which is intended to meet the financial services needs of low- and middle-income New York consumers. The Office will be based at NYDFS, and “will maintain a centralized list of financial services counseling providers—across housing, student loan, debt, and general financial literacy—throughout the [s]tate and coordinate state and local services aimed at expanding access to credit and enhancing financial empowerment.” According to the announcement, the Office will also “incubate new programs to expand access to safe and affordable banking services, credit and financial education; coordinate public-private partnerships; and foster provision of high-quality, low-cost financial products statewide.” 

    State Issues Consumer Finance NYDFS Financial Literacy

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  • CFPB releases annual college credit card report

    Federal Issues

    On December 31, the CFPB released its annual report to Congress on college credit card agreements. The report was prepared pursuant to the CARD Act, which requires card issuers to submit to the CFPB the terms and conditions of any agreements they make with colleges, as well as certain organizations affiliated with colleges. The CFPB cited data from 2018 showing that (i) the number of college card agreements in effect declined “both year-over-year as well as in comparison to 2009,” the first year data was collected; (ii) no new issuers submitted data to the Bureau for the first time since 2011, and two issuers left the market; and (iii) agreements with alumni associations continue to dominate the market based on most metrics. The complete set of credit card agreement data collected by the Bureau can be accessed here.

    Federal Issues CFPB Credit Cards Consumer Finance

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  • District Court shuts down mortgage relief operation; issues $18.4 million judgment


    On December 30, the FTC announced that the U.S. District Court for the District of Nevada had, on December 5, granted its motion for summary judgment in an action against a mortgage loan modification operation (operation) for allegedly violating the FTC Act and the Mortgage Assistance Relief Services Rule (MARS Rule). The January 2018 complaint alleged that the operation had engaged in unfair or deceptive acts or practices when it “preyed on financially distressed homeowners” by making false representations in advertising that its mortgage relief services could prevent foreclosures and “substantially lower” mortgage interest rates, as previously covered here. Additionally, the complaint charged that the operation used “doctored logos” in correspondence with consumers to give the impression that it was “affiliated with, endorsed or approved by, or otherwise associated with the federal government’s Making Home Affordable loan modification program,” and similarly claimed affiliation or “special arrangements” with the holder or servicer of the consumer’s loan. The court agreed with the FTC’s allegations, finding that the operation violated the FTC Act and the MARS Rule. The court entered a monetary judgment against the operation of over $18.4 million as equitable relief, which the FTC may use to compensate consumers harmed by the operation’s business practices. To the extent that an FTC representative determines that direct consumer redress is impracticable or money remains after redress is completed, the FTC may apply any remaining funds to other equitable relief (including consumer information remedies) that it determines is reasonably related to the practices alleged in the complaint. The court also permanently enjoined the operation from marketing or providing any secured or unsecured debt relief product or service, as well as from making deceptive statements to consumers regarding any other financial product or service.

    Courts Loan Modification Consumer Finance FTC Act MARS Rule Debt Relief Mortgages FTC

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  • Payday lenders’ $12 million settlement approved


    On December 13, the U.S. District Court for the Eastern District of Virginia granted final approval of a $12 million settlement to resolve allegations including unjust enrichment, usury, and violations of RICO against tribe-related lenders (lenders) that plaintiffs claim charged extremely high interest rates on consumer payday loans. According to the memorandum in support of the settlement, one lender’s “operation constituted a “rent-a-tribe,” where it originated high-interest loans through entities formed under tribal law in an attempt to evade state and federal laws.” The parties filed a preliminary settlement agreement in June. According to the approval order, the court found that “the settlement agreement is fair, adequate and reasonable,” reaffirmed certification of a final settlement class, and additionally found that “the class representatives have and continue to adequately represent settlement class members.” This settlement ends three separate putative class actions against the lenders.

    Courts Racketeering Usury Payday Lending Consumer Finance Tribal Immunity Class Action Interest Rate Settlement

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  • Supreme Court holds FDCPA filing limit starts on date of violation


    On December 10, the U.S. Supreme Court, in an eight-to-one decision, held that the one-year time limit for filing an FDCPA action starts on the date of the violation, and that no “discovery rule” applies. According to the opinion, the respondent law firm sued the petitioner seeking payment of credit card debt. The respondent attempted service on the petitioner at his old address, where the occupant accepted service. After the petitioner did not respond, a default judgment was entered against him in 2009. The petitioner claimed that he had no knowledge of the default judgement until 2014. He then sued the respondent in district court in 2015 alleging that the respondent “purposely served process in a manner that ensured he would not receive service,” and that the respondent violated the FDCPA by filing the debt collection suit against the petitioner “after the state-law limitations period expired,” and thus had no “lawful ability to collect.” The district court dismissed the action, rejecting the petitioner’s assertion of the U.S. Court of Appeals for the Ninth Circuit holding that a “discovery rule” exists, which delays the one-year limit to the date when the violation is discovered. The district court held that the FDCPA does not include a discovery rule, relying on the FDCPA’s “plain language.”

    On appeal, the U.S. Court of Appeals for the Third Circuit affirmed the district court’s decision, holding that “there is no default presumption” of a discovery rule in the FDCPA.

    Upon review by the Court, Justice Thomas, who penned the majority opinion, averred that the FDCPA explicitly provides a one-year limitation starting on “the date on which the violation occurs.” Moreover, the opinion points out that Congress would have added a provision to delay that limitation until after a violation was discovered if it meant for the FDCPA to have such a provision.

    According to Justice Ginsberg’s dissenting opinion, though she agreed with the one-year limitation for filing suit under the FDCPA, she added that the discovery rule should be observed when fraud prevents the petitioner from filing within the one-year period, distinguishing the “fraud-based discovery rule” from general “equitable tolling” principles.

    U.S. Supreme Court Courts FDCPA Discovery Consumer Finance

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  • Warren and Brown question CFPB advisory opinion plans

    Agency Rule-Making & Guidance

    On December 5, Senators Elizabeth Warren and Sherrod Brown wrote a letter to CFPB Director Kathy Kraninger seeking information regarding the Bureau’s plans for a program to issue formal advisory opinions. As previously covered by InfoBytes, the CFPB in September announced three new policies to “improve how the Bureau exercises its authority to facilitate innovation and reduce regulatory uncertainty,” including the mention of an “advisory opinion program” in the final policy announcement for one of the new policies. According to the letter, the Senators have concerns that CFPB guidance issued through advisory opinions has the potential to “exempt companies from complying with consumer protection laws” and “allow political employees to unduly influence and restrict the application of the consumer laws.” The letter lays out a number of questions for Director Kraninger regarding the CFPB’s use of advisory opinions, including whether all opinions will be made public, whether the facts and circumstances leading to a request for an opinion will be investigated, whether all opinions will be in writing, and who will draft them. Specifically, the letter questions the role of political appointees “at each stage of the advisory opinion process.” The letter requests that the Bureau respond to the questions by December 19.

    Agency Rule-Making & Guidance CFPB U.S. Senate Fintech Consumer Finance

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  • CFPB reexamines the effect of NCAP on credit scores and credit performance

    Federal Issues

    On December 10, the CFPB released the latest quarterly consumer credit trends report, which evaluated the extent to which removal of public records from credit reports affects consumer credit scores and credit performance. As previously covered by InfoBytes, the three major U.S. credit reporting agencies began using stricter guidelines when considering consumer public records, such as tax liens and civil judgments, to be included in consumer credit reports as a result of the National Consumer Assistance Plan (NCAP). The NCAP, among other things, imposed restrictions on medical debt reporting and civil public records such as tax liens, civil judgments, and bankruptcies. Observing that the “NCAP public records provision resulted in the removal of all civil judgments and almost half of tax liens from credit reports by the end of July 2017,” this report compared consumer credit scores and credit performance for consumers that had public records removed from their credit report and consumers who did not. According to the report, “there was only a slight increase in credit scores following the NCAP,” and “the NCAP did not seem to have a large effect on the relationship between credit scores and consumers’ credit performance for consumers whose credit report included a lien or judgment compared with consumers whose credit report did not.”

    Federal Issues CFPB Consumer Finance Credit Scores Credit Reporting Agency

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