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Federal Register Publishes Correction to CFPB's KBYO Rule
On February 10, the CFPB published a correction to amend the preamble of the Know Before You Owe (KBYO) rule. Under the former RESPA rules, prepaid property taxes, HOA dues, condo fees, and co-op fees were not subject to tolerances, and the CFPB did not intend to modify that standard under KBYO. However, KBYO’s preamble was missing a “not” where it explained applicable tolerance limitations, which reinforced existing dialogue that the aforementioned fees were within the zero tolerance category. The CFPB’s recently issued correction amends KBYO’s preamble to include the formerly missing “not”: “The final rule also mirrors current Regulation X in that property insurance premiums, property taxes, homeowner’s association dues, condominium fees, and cooperative fees are not subject to tolerances whether or not they are placed into an escrow, impound, reserve, or similar account.” The publication further explains why the CFPB believes those fees are not subject to tolerances, noting “[p]roperty taxes, homeowner’s association dues, condominium fees, and cooperative fees are all ‘[c]harges paid for third-party servicers not required by the creditor.’” The correction is effective February 10, 2016.
FTC Submits Letter to CFPB Regarding ECOA Enforcement and Education Activities
On February 8, the FTC sent the CFPB a letter summarizing the FTC’s enforcement activities related to compliance with the Equal Credit Opportunity Act (ECOA) and implementing Regulation B during 2015. The annual letter reviews the FTC’s responsibilities with regard to ECOA enforcement and education to most non-bank financial service providers. Highlights of the letter include, but are not limited to, (i) the FTC’s public workshop on the growing use of online lead generation in industries such as lending and education; (ii) the FTC’s Federal Register Notice seeking comments on a proposed survey of consumers regarding their experiences in buying and financing automobiles at dealerships, over which the FTC has broad authority to enforce the FTC Act and ECOA; and (iii) updates to the FTC’s Mortgage Discrimination publication, which includes information about ECOA and warns consumers of illegal practices. Finally, the FTC emphasized that, since 2011, it has brought over 25 cases in the auto purchase and financing industry, “including those in a federal-state effort that yielded more than 200 actions for fraud, deception, and other illegal practices.”
Obama Administration's FY 2017 Budget Proposal Makes Room for Small Dollar Loan Program
This week, the Obama Administration released the Fiscal Year 2017 Budget Proposal. President Obama’s proposed budget for the Department of the Treasury would, through the Community Development Financial Institutions (CDFI) Fund, reserve at least $10 million until September 30, 2018 to provide grants for loan loss reserve funds and to provide technical assistance for small dollar loan programs under section 1206 of the Dodd-Frank Act. The Small Dollar Loan Program, according to the budget proposal, “will support broader access to safe and affordable financial products and provide an alternative to predatory lending by encouraging CDFIs to establish and maintain small dollar loan programs.” Earlier this year, Senator Sherrod Brown (D-OH), in a letter to the President, requested that the FY 2017 budget proposal prioritize funding for small dollar loan programs, as outlined in Title XII – Improving Access to Mainstream Financial Institutions – of the Dodd-Frank Act.
On a similar note, the House Financial Services Committee held a hearing titled, “Short-term, Small Dollar Lending: The CFPB’s Assault on Access to Credit and Trampling of State and Tribal Sovereignty,” on February 11, which examined the short-term, small dollar credit marketplace. During the hearing, House members expressed concern that the CFPB and other government agencies are “overextending their efforts” in regulating the industry, thus limiting consumers’ access to credit. Per the CFPB’s 2015 Regulatory Agenda, the agency is “in the process of developing a Notice of Proposed Rulemaking to address concerns in markets for payday, auto title, and similar lending products.” This stimulated conversations on how the potential rule would affect consumers and existing state and tribal law. CFPB Acting Deputy Director David Silberman was present at the hearing; Silberman maintained that the CFPB’s regulatory efforts are to ensure that small dollar loans are affordable and that consumers are not “spiraling into continual debt.”
CFPB and DOJ Announce Joint Settlement with Indirect Auto Lender over Alleged ECOA Violations
On February 2, the CFPB and the DOJ announced a joint enforcement action against an indirect auto lender for alleged violations of the Equal Credit Opportunity Act (ECOA) and implementing Regulation B. In April 2013, the CFPB and the DOJ began an investigation into the indirect auto lender’s compliance with the ECOA and found that its policies allowed for dealers to mark up a consumer’s interest rate on the retail installment contract above the established risk-based buy rate, known as “dealer markup.” The dealers received greater compensation from the indirect auto lender on loans with a higher interest rate. The DOJ and the CFPB determined that the respondent’s practice of allowing pricing discretion resulted in qualified African-American/Pacific Islander borrowers paying more than qualified white borrowers. To resolve the DOJ and the CFPB’s allegations, the respondent agreed to (i) reduce the amount by which loans can be marked up to only 1.25% above the established buy rate for auto loans with terms of five years or less, and 1% for loans with longer terms; (ii) pay at least $19.9 million in redress to borrowers affected by its finance practices from January 2011 to February 2, 2016, and up to $2 million more from the date of the action until it implements a new pricing and compensation structure, which must be in place by August 2016; and (iii) hire a settlement administrator to ensure that affected borrowers receive compensation.
These enforcement actions are the fourth in a series of joint CFPB and DOJ actions addressing fair lending risks in the indirect auto lending industry.
CFPB Releases Compliance Bulletin, Letter to Financial Institutions, and Consumer Resources in an Effort to Address Access to Checking Accounts Concerns
On February 3, the CFPB held a field hearing to address concerns relating to consumers’ access to checking accounts. In Director Cordray’s opening remarks at the field hearing, he announced steps the CFPB is taking to alleviate concern that (i) consumers lack options that fit their financial need and situation; and (ii) inaccurate information is used to screen potential customers. To address the first issue, the CFPB sent a letter to the 25 largest retail banks urging them to make lower-risk account offerings that promise no authorized overdrafts available to consumers. The CFPB’s letter, which the agency describes as “simply a suggestion,” further recommends that banks already offering lower-risk products more prominently “feature them among their standard account offerings both in their branches and online.” Regarding the second concern, the CFPB issued Compliance Bulletin 2016-01, warning banks and credit unions (collectively, furnishers) of their obligation under Regulation V “to establish and implement reasonable written policies and procedures regarding the accuracy and integrity of information relating to consumers that they furnish to consumer reporting agencies (CRAs).” The bulletin notes that a furnisher’s failure to comply with such obligations under Regulation V could “potentially cause adverse consequences for consumers when included in a credit report, such as being denied a loan at a more favorable interest rate or being unable to open a transaction account.”
The CFPB also released new materials designed to help consumers better understand the options available to them, including: (i) a consumer advisory to “help people know what to do if they have been denied a deposit account or have an involuntary account closure”; (ii) a guide to selecting a lower-risk account that provides consumers with a list of suggested questions to consider when choosing an account; and (iii) a guide to managing your checking account that provides consumers with a list of steps for monitoring their account balance and activity.
CFPB Monthly Complaint Snapshot Highlights Financial Services Markets
On January 28, the CFPB released its monthly complaint report focusing on a number of financial services markets, including debt settlement, check cashing, tax refund anticipation checks, money order providers, and credit repair. The report states that, since July 19, 2014, the CFPB has handled approximately 2,700 complaints relating to these other types of financial services. According to the report, debt settlement and credit repair complaints are among the more common complaints, and over a quarter of these complaints mention student loans, with borrowers selecting fraud or scam as their primary issue. Additional findings highlighted in the snapshot include: (i) consumers being charged excessive fees, including upfront fees that are generally prohibited by law, for debt settlement and credit repair services; (ii) consumers encountering problems redeeming money orders, taking issue with the amount of time it took to resolve errors with customer service representatives; and (iii) consumers complaining they were victims of fraud when using money orders and travelers checks. The CFPB identified New York State and the New York metro area as its geographic spotlight in this issue, noting that, as of January 1, 2016, the CFPB has received 50,400 complaints from New York State consumers alone. Similar to past reports, mortgages remain the most complained-about product.
CFPB Provides Consumers with Information on Obtaining Credit Reports
On January 27, the CFPB announced that it published its 2016 list of consumer reporting companies. The list includes contact information for the three largest nationwide reporting companies and various specialty reporting companies concentrating on specific geographic market areas and consumer segments. In addition, the list provides consumers with (i) tips on determining which specialty credit reports may be important to review depending upon the particular circumstances, such as applying for a job or a new bank account; (ii) information regarding how companies confirm the identity of the consumer requesting a copy of his or her credit report; and (iii) information on which companies also provide free credit scores. The CFPB also reminds consumers of their legal rights to (i) obtain the information in their credit reports, per the FCRA; and (ii) dispute inaccuracies contained in the report.
House Financial Services Committee: CFPB Removed Safeguards to Achieve Political Goals
On January 20, Republicans on the House Committee on Financial Services issued a report alleging that the CFPB removed a number of safeguards from the claims process after it secured its first settlement with an auto finance company and the company’s subsidiary bank in 2013. The Committee’s most recent report follows a November 2015 report in which the Republican staff (i) criticized the CFPB’s approach for determining discrimination in the auto lending industry; and (ii) questioned the CFPB’s authority to bring claims against banks involved in indirect auto lending under ECOA on a disparate impact theory. According to the more recently published report, the CFPB failed to confirm that funds from the 2013 settlement would be distributed to eligible recipients. Specifically, the report states that when CFPB Director Cordray announced that $80 million would be paid to consumers affected by the auto finance company’s practices, he “did not know the race of a single borrower in any vehicle finance contract purchased by [the company].” The report further comments that, “Bureau officials knew that in order to generate a sufficient number of check recipients, they would have to remove a number of safeguards from the claims process, including confirming the race of claimants alleged to have been discriminated against, thus making it more likely that non-minority consumers would receive remuneration.”
CFPB Takes Action Against Colorado-Based "Buy-Here Pay-Here" Auto Dealer
On January 21, the CFPB filed a consent order to resolve allegations that a Colorado-based subprime auto dealer violated the TILA and the CFPA by engaging in abusive financing and marketing schemes. Specifically, the CFPB alleged that, from January 2012 through May 2014, the auto dealer (i) failed to make purchase prices available to credit consumers until the very end of the transaction; (ii) hid finance charges and improperly disclosed the resulting APRs; (iii) refused to negotiate car prices with credit consumers; and (iv) used abusive marketing tactics by failing to disclose to purchasers the “complete and accurate credit terms” of the automobile financing. The CFPB’s consent order requires the auto dealer to (i) pay $700,000 in redress to consumers affected by its practices; (ii) clearly and prominently post the purchase price on all automobiles; (iii) stop misrepresenting interest rates, finance charges, amounts financed, other credit terms, or any other fact material to the financing of a motor vehicle; and (iv) disclose in writing to the consumer information concerning the terms of the financing offer (including the APR), the purchase price of the car, the total number of payments required before the consumer owns the car, and the duration of the purchase financing contract. The CFPB suspended its civil money penalty of $100,000 as long as redress is paid.
CFPB Seeks Applications for Advisory Board and Advisory Councils
On January 15, the CFPB announced that it is accepting applications for membership on its Consumer Advisory Board (Board) and two other advisory groups, the Community Bank Advisory Council, and the Credit Union Advisory Council (collectively, Advisory Councils). The Board and Advisory Councils are intended to give small financial institutions the opportunity to provide the CFPB with information regarding emerging trends and practices in the consumer financial products and services industries. In the fall of 2016, seven seats on the Board will become vacant, and eight seats on each of the Advisory Councils will become vacant. Applications are due February 29, 2016, according to the CFPB’s publication in the Federal Register.