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CFPB Releases Final Rule on Prepaid Financial Products; Chamber of Digital Commerce Comments on Scope of the Rule
On October 5, the CFPB released its final rule on prepaid financial products, including traditional prepaid cards, mobile wallets, person-to-person payment products, and other electronic accounts with the ability to store funds. The rule is intended to provide consumers with additional federal protections under the Electronic Fund Transfer Act analogous to the protections checking account consumers receive. The following federal protections are included in the new rule: (i) financial institutions will be required to provide certain account information for free via telephone, online, and in writing upon request, unless periodic statements are provided; (ii) financial institutions must work with consumers who find errors on their accounts, including unauthorized or fraudulent charges, timely investigate and resolve these incidents, and restore missing funds when appropriate; and (iii) consumers will be protected against unauthorized transactions, such as withdrawals or purchases, if their prepaid cards are lost or stolen. The rule contains new “Know Before You Owe” prepaid disclosures similar to those used for mortgages and student financial aid offers. In addition to requiring two (one short, the other long) disclosure forms, the new rule requires that prepaid account issuers post agreement offers made available to the general public on their websites, submit all agreements to the CFPB, and make agreements that are not required to be posted on their website available to relevant consumers. The new rule also includes credit protections stemming primarily from the Truth in Lending Act and the Credit Card Accountability Responsibility and Disclosure Act, including providing consumers with monthly credit billing statements, giving consumers reasonable time – at least 21 days – to repay their debt before incurring late fees, ensuring that consumers are able to repay the debt before making a credit offer, and limiting the fee and interest charges to 25% of the total credit limit during the first year an account is open. The rule, which has not yet been published in the Federal Register, has a general compliance date of October 1, 2017, but includes certain accommodations, one of which is an October 2018 effective date for the requirement that agreements be submitted to the CFPB.
The Chamber of Digital Commerce submitted comments to the CFPB in December advocating that virtual currency products and services should fall outside the scope of the prepaid rule. Pursuant to the final rule, the CFPB found that “application of Regulation E and this final rule to such products and services is outside the scope of this rulemaking.”
CFPB Creates HMDA and ECOA Safe Harbor for New Fannie/Freddie Application Form
On September 29, the CFPB published an Approval Action in the Federal Register that provides a safe harbor under the Equal Credit Opportunity Act (ECOA) and Regulation B for lenders who use the revised Uniform Residential Loan Application (URLA) form issued by Fannie Mae and Freddie Mac in August 2016. The Bureau’s Approval Action states that it has “determined that the relevant language in the 2016 URLA is in compliance with” Regulation B’s requirements for whether, and how, a creditor may seek information about an applicant’s race, color, religion, national origin, sex, marital status, and income sources, and information about an applicant’s spouse or former spouse.
The Bureau’s Approval Action also offers flexibility for lenders who must collect and report information about mortgage applicants’ ethnicity and race under the Home Mortgage Disclosure Act (HMDA), implemented by Regulation C. On October 28, 2015, the Bureau amended Regulation C to require covered lenders to offer applicants the opportunity to self-identify using disaggregated categories of ethnicity and race, effective January 1, 2018. The CFPB notes in the Federal Register notice that before January 1, 2108, asking applicants to self-identify using the disaggregated categories would not have been allowed under Regulation B’s restrictions on seeking information about an applicant’s ethnicity, race and other characteristics. The Approval Action gives lenders the option of using the disaggregated categories of ethnicity and race for applications taken in 2017 without violating Regulation B. It states that if a lender opts to collect information using the disaggregated categories in 2017, for applications that see final action before January 1, 2018, the lender must report the data to the Bureau using only the current aggregate categories for ethnicity and race. If a lender takes final action in 2018 or later on an application received in 2017, it may choose to report the data using either the current aggregate or the new disaggregated categories.
CFPB Settles With Online Lender
On September 27, the CFPB entered into a consent agreement with a California-based online lender for allegedly misrepresenting, among other things, the fees charged, the loan products that were available to consumers, and whether the loans would be reported to credit reporting companies. As part of the agreement, the CFPB indicated that the lender would be required to include the correct finance charge and annual percentage rate in all of its online disclosures, and must test those disclosures annually to ensure accuracy and compliance with the Truth in Lending Act. As a result, the lender will be required to pay $1.83 million in consumer redress as well as $1.8 million as a civil penalty.
CFPB Reaches Agreement With Title Lender
On September 26, the CFPB entered into a consent agreement with a Georgia-based automobile-title lender and its affiliates, based on allegations that the lender violated the Unfair and Abusive prongs of the Consumer Financial Protection Act. The CFPB alleged that the lender “lur[ed] consumers into costly loan renewals by presenting them with misleading information about the deals’ terms and costs.” The CFPB specifically indicated the lender’s use of a “Payback Guide” that focused the consumer’s attention on the monthly payment, and not on the total cost of the transaction, including the costs to roll over the loan to an additional period, materially interferes with the consumer’s ability to understand the terms of the transaction. The CFPB also alleged that the lender committed unfair debt-collection practices by visiting consumers’ homes, references, and places of employment, and revealing information about past-due debt to third parties, including neighbors, roommates, family members, supervisors, and co-workers. Under the terms of the consent order, the lender is prohibited from using the Payback Guide and from encouraging consumers to exceed the original term of repayment. The order also prohibits the lender from making in-person visits to collect payments. Under the agreement, the lender must pay $9 million as a civil penalty to the CFPB.
CFPB Sues Credit Repair Company in Federal Court
On September 22, the CFPB filed a complaint in federal district court against a credit repair company, claiming that the company charged consumers a series of illegal fees, including a fee to access the consumer’s credit report, a fee to set up the consumer’s account, and a monthly fee that continues to accrue until the consumer affirmatively cancels the service. The CFPB also alleged that the company misrepresented the cost and effectiveness of its services, stating that it could “remove virtually any negative information from a consumer’s credit report,” and that it raises customer’s credit scores by an average of more than 100 points, without proper substantiation for either claim. The CFPB alleged that the company’s actions violate the Telephone Sales Rule, and the deceptive prong of the Consumer Financial Protection Act.
Revised MLA Examination Procedures Released
On September 29, the Federal Reserve released the interagency examination procedures for the DOD’s Military Lending Act (MLA) final rule published in July of 2015. Also on September 29, the CFPB released its own examination procedures under the final rule, providing guidance as to how the CFPB will conduct reviews under what will be a broader scope of coverage under the MLA, including credit cards, deposit advance products, overdraft lines of credit (not traditional overdraft services), and certain types of installment loans. The final rule goes into effect on Monday, October 3 for most extensions of consumer credit to active duty servicemembers and their dependents.
Congress Seeks Answers from Bank CEO and Federal Bank Regulators
On September 20, the CEO of a major national bank faced questions from the House Financial Services Committee over consumer account practices uncovered during a recent enforcement action by the CFPB. The CEO will return to Capitol Hill on September 29 for additional testimony in front of the Committee. In addition, the Director of the CFPB and the Comptroller of the Currency faced scrutiny from the Senate Committee on Banking, Housing & Urban Affairs on their agencies awareness of, and failure to prohibit, the bank’s alleged actions for more than two years. In prepared testimony, Director Cordray indicated that the civil penalty levied against the bank was the “largest fine by far that the Consumer Bureau has imposed on any financial company to date” calling it a “dramatic amount as compared to the actual financial harm to consumers” but also “justified here by the outrageous and abusive nature of these fraudulent practices on such an enormous scale.” Director Cordray further stated that this enforcement action should help clarify how the CFPB will continue to analyze and enforce the prohibition on “abusive” practices under its mandate. Meanwhile Comptroller Curry explained how this enforcement action demonstrates the complimentary roles played by the OCC and the CFPB in supervising bank practices.
CFPB Sues Title Lenders for Failure to Post APRs
On September 21, the CFPB announced that it had filed five separate administrative actions against online auto title lenders formed in and operating out of Arizona. In the Notice of Charges to each company, the CFPB alleges that the lender violated the Truth in Lending Act by advertising periodic interest rates on their websites without including a corresponding annual percentage rate (APR). In one case, the lender had provided a monthly rate, and instructed consumers to multiply it by 12, but failed to inform consumers that the sum would be the APR. The CFPB is seeking monetary penalties and administrative orders to correct the alleged practices.
CFPB Imposes $8 Million Civil Penalty on For-Profit Company over Allegedly Deceptive Student Lending Practices
On September 12, the CFPB entered into a consent order with a San Diego-based for-profit education company to resolve allegations that its student lending practices were deceptive in violation of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Starting in 2009, the company, which owns two for-profit colleges, has operated an in-house institutional-lending program (Program). The CFPB alleged that under the Program thousands of students borrowed in the aggregate approximately $23,544,184, of which the company collected more than $4,900,000 in principle and interest, with more than $18,000,000 in debt remaining outstanding. The company claimed that, through the Program, students could repay their loans with a minimum monthly payment of $25; the CFPB contends, however, that the company’s marketing practices were deceptive because the typical loan payments under the Program exceeded $25. Pursuant to the consent order, the company must (i) provide cancellation of $18.5 million in existing student debt and pay $5 million in redress directly to affected students; (ii) ensure that students utilize the CFPB’s newly released Electronic Financial Impact Platform, which ultimately generates a customized disclosure for students regarding, among other things, finance offerings available and estimated post-graduate expenses; (iii) stop making allegedly misleading statements regarding students’ monthly payment obligations; (iv) remove any negative information that was reported to consumer-reporting agencies; and (v) pay an $8 million civil penalty.
House Financial Services Committee Approves Financial CHOICE Act
On September 13, the House Financial Services Committee approved by a 30-26 vote the Financial CHOICE Act, Congressman Jeb Hensarling’s (R-TX) legislative replacement to the Dodd-Frank Act. In his opening remarks, Hensarling claimed that the bill aims to end bailouts, support economic growth, and provide regulatory relief to community banks. House Democrats did not offer amendments to the bill, although many expressed adamant disapproval. Congresswoman Carolyn Maloney (D-NY) claimed that the “deeply disturbing” legislation “would take us back to the regulatory stone age.” Various Democrats referenced the CFPB’s recent enforcement action against a national bank to argue that the Financial CHOICE Act’s attempt to remove the CFPB’s authority over abusive practices was one of many reasons to oppose the bill. Democrats unanimously voted against the legislation, while all but one Republican, Congressman Bruce Poliquin (R-ME), voted in favor of moving the legislation forward.