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On June 10, Senators Elizabeth Warren (D-Mass.) and Doug Jones (D-Ala.) wrote to the Federal Reserve Board, the OCC, the FDIC, and the CFPB requesting information regarding the role the regulators can play in ensuring that fintech companies serve consumers on a nondiscriminatory basis. The letter asserts that ,while the fintech business model—using algorithms to underwrite loans, typically without face-to-face interaction with consumers—has “the potential to expand access to financial services for underserved populations,” it also has the potential to lead to discriminatory results. Based on recent reports cited in the letter, the Senators ask the regulators to, among other things, (i) identify what their agency is doing to combat lending discrimination by lenders using algorithmic underwriting; (ii) explain how the agencies’ oversight of fair lending laws extend to the fintech industry; and (iii) describe any analyses conducted on the impact of fintech algorithms on minority borrowers. The letter requests the agencies respond to the inquiries by June 24.
On June 12, the FTC announced a settlement under which a software provider agreed to better protect the data it collects, resolving allegations that the company failed to implement reasonable data security measures and exposed personal consumer information obtained from its auto dealer clients in violation of the FTC Act and the Standards for Safeguarding Customer Information Rule, issued pursuant to the Gramm-Leach-Bliley Act.
In its complaint, the FTC alleged the company’s failure to, among other things, (i) implement an organization information security policy; (ii) implement reasonable guidance or training for employees; (iii) use readily available security measures to monitor systems; and (iv) impose reasonable data access controls, resulted in a hacker gaining unauthorized access to the company’s database containing the personal information of approximately 12.5 million consumers. The proposed consent order requires the company to, among other things, implement and maintain a comprehensive information security program designed to protect the personal information it collects, including implementing specific safeguards related to the FTC’s allegations. Additionally, the proposed consent order requires the company to obtain third-party assessments of its information security program every two years and have a senior manager certify compliance with the order every year.
On June 11, the Federal Housing Finance Agency (FHFA) issued its 2018 Report to Congress, which, in part, provides information regarding FHFA's oversight of Fannie Mae and Freddie Mac (the GSEs) and describes FHFA actions as conservator the GSEs.
Most notably, in his letter to Congress introducing the report, FHFA Director Mark Calabria urged Congress to act on housing finance reform, noting that the conservatorship over the GSEs was “established as a short-term measure to address instability” during the financial crisis and now is of “unprecedented duration and scope.” Calabria encouraged Congress to work with the FHFA and the Administration to enact housing finance reform to ensure the GSEs are “well-capitalized, well-regulated, and well-managed to withstand any future downturn in the economy.” Additionally, Calabria requested that Congress provide FHFA with chartering authority similar to that of the OCC to increase competition in the secondary mortgage market. (As previously covered by InfoBytes here and here, Calabria and the Administration have encouraged housing finance reform that would end the GSE conservatorships and increase private sector participation in the mortgage market.) Lastly, Calabria argued for strengthening FHFA’s powers, similar to that of other federal financial safety and soundness regulators, including by granting the agency the authority to oversee third parties that do business with the GSEs, such as nonbank mortgage servicers.
On June 11, House Financial Services Committee Chairwoman Maxine Waters and 64 other Democratic House members sent a letter to the CFPB urging rescission of its May proposal to permanently raise the coverage thresholds for collecting and reporting HMDA data and to retire its HMDA Explorer tool. (Covered by InfoBytes here.) In the letter, members argue that recent data “showed widespread discrimination in bank lending” and that redlining continues to be a pervasive problem. They note that HMDA data is an important tool for public officials to understand access to credit in their communities, and that the Bureau’s proposal would exempt “about half of lending institutions from reporting data about closed-end mortgages … [and] sacrifice information that can make a difference in the lives of creditworthy, lower-income consumers.” The members also ask for information regarding the new Federal Financial Institutions Examination Council (FFIEC) query tool that is to be used as a replacement for the HMDA Explorer tool and Public Data Platform API that the Bureau plans to retire, as previously covered by InfoBytes here.
On June 6, twenty six Democratic Senators sent a letter to the CFPB requesting that the Bureau reconsider the recent debt collection rulemaking proposal to “pursue more meaningful reforms that put consumers . . . first.” As previously covered by InfoBytes, in May, the CFPB released its highly anticipated debt collection rulemaking, which regulates debt collection communications and disclosures and addresses related practices by debt collectors. Among other things, the proposed rule would (i) require debt collectors to provide consumers with a validation notice containing specific information regarding the debt; (ii) restrict debt collectors from calling consumers regarding a particular debt more than seven times within a seven-day-period and prohibit telephone contact for seven days after the debt collector has had a conversation with the consumer; (iii) allow for consumers to unsubscribe from various communication channels with debt collectors, including text or email; and (iv) prevent debt collectors from contacting consumers on their workplace email addresses or through public-facing social media platforms.
In the letter, the Senators argue that the proposed rule as currently written “will only exacerbate and increase troubling harassment tactics” by debt collectors. The Senators note that the Bureau received 81,500 consumer debt collection complaints, and the FTC received nearly 458,000 such complaints in 2018, and argue that the proposed rule does not do enough to address the particular abusive practices that those complaints raised. The Senators allege that the proposed rule “permits collectors to overwhelm consumers with intrusive communications” because it allows for unlimited text messages and emails and allows for collectors to call consumers seven times per week, per debt. Additionally, the Senators argue that the proposed rule “could encourage collectors to practice willful ignorance about the status of the debt they collect,” as it only “prohibits filing or threatening to file a lawsuit if the collector ‘knows or should know’ that the debt is not enforceable.” Lastly, the Senators assert that the Bureau should hold attorneys who engage in debt collection to a “higher standard, [they should] not be granted a safe harbor to engage in abusive and deceptive practices.”
On June 10, the FDIC issued Financial Institution Letter FIL-30-2019 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Oklahoma affected by severe weather from May 7 through the present. The FDIC is encouraging institutions to consider, among other things, extending repayment terms and restructuring existing loans to borrowers affected by the severe weather. Additionally, the FDIC notes that institutions may receive favorable Community Reinvestment Act (CRA) consideration for community development loans, investments, and services in support of disaster recovery.
Find continuing InfoBytes coverage on disaster relief here.
On June 6, the FTC announced that it submitted its 2018 Annual Financial Acts Enforcement Report to the CFPB. The report—which the Bureau requested for its use in preparing its 2018 Annual Report to Congress—covers the FTC’s enforcement activities regarding Regulation Z (the Truth in Lending Act or TILA), Regulation M (the Consumer Leasing Act or CLA), and Regulation E (the Electronic Fund Transfer Act or EFTA). Highlights of the enforcement matters covered in the report include:
- Auto Lending and Leasing. The report discusses two enforcement matters related to deceptive automobile dealer practices. The first, filed in August 2018, alleged that a group of four auto dealers, among other things, advertised misleading discounts and incentives in their vehicle advertisements, and falsely inflated consumers’ income and down payment information on financing applications. The charges brought against the defendants allege violations of the FTC Act, TILA, and the CLA. The FTC sought, among other remedies, a permanent injunction to prevent future violations, restitution, and disgorgement. (Detailed InfoBytes coverage of the filing is available here.) In the second, in December 2018, the FTC mailed over 43,000 checks, totaling over $3.5 million, to consumers allegedly harmed by nine dealerships and owners engaged in deceptive and unfair sales and financing practices, deceptive advertising, and deceptive online reviews. (Detailed InfoBytes coverage is available here.)
- Payday Lending. The report covers two enforcement matters, including the U.S. Court of Appeals for the 9th Circuit’s December 2018 decision upholding the $1.3 billion judgment against defendants responsible for operating an allegedly deceptive payday lending program. The decision is the result of a 2012 complaint in which the FTC alleged that the defendants engaged in deceptive acts or practices in violation of Section 5(a) of the FTC Act by making false and misleading representations about costs and payment of the loans. (Detailed InfoBytes coverage is available here.) The report also indicates that, in February 2018, the FTC issued over 72,000 checks totaling more an $2.9 million to consumers stemming from a July 2015 settlement, that alleged that online payday operators used personal financial information purchased from third-party lead generators or data brokers to make unauthorized deposits into and withdrawals from consumers’ bank accounts, regardless of whether the consumer applied for a payday loan. (Detailed InfoBytes coverage is available here.)
- Negative Option. The report covers six enforcement matters related to alleged violations of the EFTA and Regulation E for “negative option” plans, including three new filings against online marketers for allegedly advertising “free trial” offers for products that enrolled consumers in expensive, ongoing plans without their knowledge or consent. The report notes that, in 2018, the FTC reached a settlement with one entity and obtained a court judgment against another, both resulting in injunctive relief and monetary settlements (which were suspended due to the defendants’ inability to pay). The report also notes that the FTC mailed 2,116 refund checks totaling more than $355,000 to people who bought an allegedly deceptive “memory improvement” supplement.
Additionally, the report addresses the FTC’s research and policy efforts related to truth in lending and leasing, and electronic fund transfer issues, including (i) a study of consumers’ experiences in buying and financing automobiles at dealerships; and (ii) the FTC’s Military Task Force’s work on military consumer protection issues. The report also outlines the FTC’s consumer and business education efforts, which include several blog posts warning of new scams and practices.
On June 6, the Department of Veteran’s Affairs (VA) Office of the Inspector General (OIG) issued a report concluding that the VA improperly charged exempt veterans VA home loan funding fees. According to the OIG, from 2012 through 2017, the VA charged approximately 72,900 exempt veterans around $286.4 million in funding fees, which represents 3 percent of the total amount of funding fees collected during that time. The OIG reports that, while the Certificate of Eligibility (COE) that the VA produces is intended to assist lenders in identifying the exempt veterans, “many COEs reflected an outdated, incorrect, or missing exemption status resulting in veterans being incorrectly charged a funding fee.”
Additionally, the OIG found that the VA does not have a policy in place to identify and issue refunds for inappropriate funding fee charges. Currently the VA relies on the veterans to contact the VA and file a claim for a refund, although the VA has not published a standard form for the request. Based on the findings, the OIG recommends that the VA develop a plan to (i) identify exempt veterans who were inappropriately charged funding fees and issue refunds; (ii) create system enhancements or procedural changes that minimize inappropriate funding fee charges; (iii) conduct periodic reviews to identify exempt veterans charged funding fees from January 1, 2018, forward and issue refunds in a timely manner; and (iv) consistently obtain documentation and verify lenders apply the funding fee refunds to loan balances in a timely manner.
On May 21, the CFPB issued two orders partially modifying civil investigative demands (CID) issued by the Bureau in 2017 and 2018. In 2017, a revised CID was issued to a provider of tax debt relief products and services concerning potential violations of UDAAP provisions under the Consumer Financial Protection Act (CFPA). Thereafter, the company petitioned the Bureau to set aside or modify the CID, arguing, among other things, that (i) the CFPA does not empower the CFPB to issue a CID to a tax preparation company given it does not provide a “‘consumer financial product or service’”; (ii) the investigation should be limited initially to information relevant to determining whether the Bureau has enforcement authority over the company; and (iii) the CID is overly broad because the notification of purpose does not comply with the CFPA’s requirements for authorizing Bureau CIDs. In the order, the Bureau rejected the company’s argument that it is not subject to the Bureau’s enforcement authority, stating that the agency is authorized to issue a CID to any person who may have information relevant to a violation, and moreover, the Bureau need not accept as true the company’s factual assertions that its business conduct does not include any activities covered by the CFPA. It also declined the company’s request that the CID be modified to focus solely on information relevant to determining whether the Bureau has enforcement authority over the company, stating that an agency may simultaneously investigate jurisdictional facts and possible violations. The Bureau further noted that the CFPA does not require a notification of purpose to identify particular persons who engaged in the conduct at issue or whether the company itself is under investigation. However, the CFPB modified the notification of purpose to include a statement reflecting that an additional purpose of the investigation is to determine whether false and misleading representation have been made to consumers regarding tax debt relief products and services.
In 2018 a second CID was issued to a financial services company to investigate whether it has engaged in any potential UDAAP violations concerning its marketing and servicing of deferred- interest financing. The company petitioned the Bureau to set aside the CID on the grounds that it (i) provides an inadequate notification of purpose; (ii) seeks information not relevant to any investigation; (iii) is unduly broad and burdensome; and (iv) “is fundamentally at odds” with the Bureau’s mission. Among other things, the Bureau’s order rejected the company’s argument that oral misrepresentations related to deferred-interest financing “are not relevant because no such representations were made to consumers (or, if they were, they were not so numerous as to merit the Bureau’s attention),” or they were not made by the company. According to the Bureau, these objections go to whether the company complied with the law, not whether the information the Bureau seeks is relevant. The Bureau also rejected the company’s arguments related to whether the agency could seek information related to transactions outside of the limitations period for potential violations of the CFPA, stating that the information may allow the Bureau to develop an understanding of the company’s practices and operations. However, while the Bureau emphasized that the company failed to demonstrate that complying with the CID would be overly burdensome, it did make some modifications to the notification of purpose on the recommendation of enforcement counsel, and extended the production timeline.
On June 5, Fannie Mae issued a Selling Notice to address new regulations on private flood insurance taking effect July 1. (See previous InfoBytes coverage here.) While the joint final rule issued by the federal banking agencies in February applies the private flood insurance provisions of the Biggert-Waters Flood Insurance Reform Act of 2012 (Biggert-Waters Act) to supervised financial institutions, Fannie Mae stated that it is not subject to the final rule and will continue to apply its current Selling Guide eligibility standards and procedures to all loans in FEMA-designated special flood hazard areas (SFHA), or to loans secured by residences that are in a SFHA at the time of origination. Under the Selling Guide, “private flood insurance policies may be delivered as an alternative to National Flood Insurance Program (NFIP) policies” provided the terms and amount of coverage meet the specified qualifications and the property insurer meets the rating requirements.
On June 6, Freddie Mac released Guide Bulletin 2019-11, which, among other things, also emphasizes that it is not subject to the final rule, and is separately authorized by the Biggert-Waters Act to accept private flood insurance policies and establish requirements for issuers of these policies on premises securing Freddie Mac Mortgages. Specifically, Freddie Mac stated that it will continue to apply its current criteria when accepting private flood insurance policies, and that its requirements will “apply to all Seller/Servicers, including an institution subject to the federal banking agencies’ rule regardless of the rule provision (mandatory or discretionary) used to accept a private flood insurance policy.”
- APPROVED Webcast: Introducing Mogy — APPROVED’s licensing technology solution
- Hank Asbill to discuss "Pay no attention to the man behind the curtain: Addressing prosecutions driven by hidden actors" at the National Association of Criminal Defense Lawyers West Coast White Collar Conference
- Daniel P. Stipano to discuss "Mid-year policy update" at the ACAMS AML Risk Management Conference
- Daniel P. Stipano to discuss "Keep off the grass: Mitigating the risks of banking marijuana-related businesses" at the ACAMS AML Risk Management Conference
- Christopher M. Witeck and Moorari K. Shah to discuss "The latest in vendor management regulations" at a Mortgage Bankers Association webinar
- Buckley Webcast: Hot topics in debt collection — An analysis of recent federal FDCPA litigation
- Jonice Gray Tucker to discuss "How to succeed in law school" at the SEO Law DC Panel Discussions
- Amanda R. Lawrence to discuss "Navigating the challenges of the latest data protection regulations and proven protocols for breach prevention and response" at the ACI National Forum on Consumer Finance Class Actions and Government Enforcement
- Benjamin W. Hutten to discuss "Requirements for banking inherently high-risk relationships" at the Georgia Bankers Association BSA Experience Program
- Brandy A. Hood to discuss "RESPA Section 8/referrals: How do you stay compliant?" at the New England Mortgage Bankers Conference
- Daniel P. Stipano to discuss "Lessons learned from recent enforcement actions and CMPs" at the ACAMS AML & Financial Crime Conference
- Daniel P. Stipano to discuss "Assessing the CDD final rule: A year of transitions" at the ACAMS AML & Financial Crime Conference