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DOJ, CFPB Fair Lending Enforcement Actions Target Credit Card Repayment Programs, Marketing Of Add-On Products
On June 19, the CFPB and the DOJ announced parallel enforcement actions against a federal savings bank that allegedly violated ECOA in the offering of credit card debt-repayment programs and allegedly engaged in deceptive marketing practices in the offering of certain card add-on products. The bank will pay a total of $228.5 million in customer relief and penalties to resolve the allegations.
ECOA Violations
The CFPB and DOJ charge that the bank excluded borrowers who indicated that they preferred communications to be in Spanish or who had a mailing address in Puerto Rico, even if the consumers met the promotion’s qualifications. The CFPB and DOJ assert that as a result, Hispanic populations were unfairly denied the opportunity to benefit from the promotions, which constitutes a violation of the ECOA’s prohibition on creditors discriminating in any aspect of a credit transaction on the basis of characteristics such as national origin.
To resolve the joint fair lending actions, the bank entered into separate consent orders with the CFPB and the DOJ. As detailed in the DOJ order, the bank will make $37 million in payments, credits and waivers to affected borrowers. The bank already has provided the benefits of the offers or their equivalent value to approximately 84,000 borrowers, totaling $131.8 million in relief. In total the bank will provide $169 million in relief, making the settlement the largest ever fair lending credit card action. The CFPB did not assess a civil money penalty for the ECOA violations because the bank self-reported the potential violations, self-initiated remediation to affected borrowers, and cooperated in the investigation. The CFPB did require the bank to review its credit offering strategies and enhance fair lending training and compliance.
Add-On Product Marketing Violations
The CFPB further alleges that its examiners identified several deceptive marketing practices used by the bank to promote five credit card add-on products. The CFPB alleges that the bank’s and its service providers misrepresented the products by (i) marketing them as free of charge when the fee was avoidable only in certain specific circumstances; (ii) failing to disclose consumers’ ineligibility, causing certain consumers to purchase products from which they could receive no benefit; (iii) failing to disclose that consumers were making a purchase, leading consumers to believe they were receiving a benefit or updating their account; and (iv) marketing as a limited time offer products that were not so limited.
Under the CFPB consent order, the bank will refund $56 million to approximately 638,000 consumers who were subjected to the allegedly deceptive marketing practices, and will pay a $3.5 million civil money penalty. The bank also must develop an enhanced add-on product compliance plan that includes, among other things, a revised vendor management policy.
Latest CFPB RESPA Enforcement Action Targets Employee Referrals
Last week, the CFPB announced its latest RESPA enforcement action, adding to one of the CFPB’s most active areas of enforcement. In this case, the CFPB required a New Jersey title company to pay $30,000 for allegedly paying commissions to more than twenty independent salespeople who referred title insurance business to the company. The matter was referred to the CFPB by HUD.
The CFPB asserts that from at least 2008 to 2013, the title company offered commissions of up to 40% of the title insurance premiums the company received. The CFPB explained that paying commissions for referrals is allowed under RESPA if the recipient of the payment is an employee of the company that is paying the referral, but claimed in this case that the individuals involved were actually independent contractors and not bona fide employees. The CFPB determined that although the individuals received W-2 forms from the title company, the company “did not have the right or power to control the manner and means by which the individuals performed their duties.”
In determining the penalty amount, the CFPB took into consideration the company’s ability to pay and remain a viable business. Notably, the consent order removes the “employer-employee” exception for this company on a going forward basis, including under existing employment contracts. The order prohibits the company from paying any employee “any fee, kickback, or thing of value that is contingent on the referral of title insurance business or other settlement services, notwithstanding the ‘employee exception’ contained in 12 C.F.R. §1024.14(g)(vii).” The order also establishes certain compliance, record keeping, and reporting requirements.
House Passes Points And Fees Bill; Financial Services Committee Approves Additional CFPB Bills
On June 9, the House passed by voice vote H.R. 3211, the Mortgage Choice Act of 2013. The bill would amend TILA’s definition of “points and fees” for purposes of the CFPB’s Ability to Repay and HOEPA rules to exclude from the definition insurance held in impound accounts and amounts received by affiliated companies as a result of their participation in an affiliated business arrangement. The bill now moves to the Senate where a similar bill was introduced last year by Senator Joe Manchin (D-WV) but has not yet been considered by the Senate Banking Committee. Later in the week, the House Financial Services Committee approved numerous additional bills related to the CFPB, including: (i) H.R. 4804, which would establish certain requirements for CFPB examinations, including prohibiting the use of enforcement attorneys; (ii) H.R. 4811, which would establish standards for CFPB guidance, including a notice and comment period, and would declare the CFPB’s fair lending auto finance guidance to have no force or effect; and (iii) H.R. 3770, which would create an independent inspector general for the CFPB.
CFPB Begins Collecting Input On Mobile Financial Services
On June 11, the CFPB released a request for information (RFI) about how consumers are using mobile financial services (MFS) to access products and services, manage finances, and achieve financial goals, with a focus on “economically vulnerable” consumers. The request does not cover point of sale payments, except with respect to mobile payment products targeted to underserved consumers. The request states that the information will be used to inform the CFPB’s “consumer education and empowerment strategies.” On June 12, the CFPB hosted a field hearing on MFS, which included presentations from consumer advocates and emerging mobile services providers regarding the future potential of MFS to reach the underserved.
To start the field hearing, Director Corday described the growth of technology in financial services and stressed the importance of understanding and encouraging the benefits of innovation without undermining the equally important goal of protecting consumers in the marketplace. He acknowledged that the FDIC and Federal Reserve have already done substantial work in the area of mobile banking services, and explained that the CFPB is now seeking to further those efforts through the RFI, which will help the CFPB: (i) explore how mobile services provide access to consumers that cannot easily access current financial services; and (ii) learn more about the real time money management opportunities mobile devices provide.
The CFPB’s inquiry also will review potential risks to consumers presented by MFS. For example, parts of the field hearing related to consumer data security, and panelists broadly described other potential risks related to online disclosures,along with the potential for mobile products or services to circumvent other existing consumer protections. In addition, the RFI seeks information that could serve regulatory and enforcement purposes. For example, the CFPB asks (i) whether there is a “risk that data will be used to direct underserved consumers to higher-cost products and services than they would otherwise be eligible to purchase and that may pose greater risk of financial harm;” and (ii) whether “low income consumers are less likely to detect hidden fees, and, if so, whether special attention needs to be provided to the design of mobile payments products targeted at low income consumers.”
Comments in response to the RFI are on or before September 10, 2014.
CFPB Director Announces Prepaid Card Rule Delay, Discusses Other Initiatives
On June 10, CFPB Director Richard Cordray testified before the Senate Banking Committee in connection with the CFPB’s recently released Semiannual Report to Congress. The hearing covered a broad range of topics, including, among several others, prepaid cards, student loans, small dollar loans, and arbitration clauses.
Prepaid Cards
Director Cordray advised in response to an inquiry from Senator Menendez (D-NJ) that the CFPB’s prepaid card proposed rule, which the CFPB recently indicated could be released this month, likely will not come until the end of the summer. He reassured the Senator that the delay does not indicate any particular problem about the rulemaking, only that certain of the issues raised have been “hard to work through.”
Student Loans
Senator Menendez raised concerns about “automatic defaults” in the student loan context, an issue raised in the CFPB Student Loan Ombudsman’s mid-year report on student loans. In that report, the CFPB stated, based on an unidentified number of consumer complaints, that “industry participants are automatically placing loans in default – even when a borrower is paying as agreed” – in circumstances such as when a co-signer dies or goes into bankruptcy. The Ombudsman acknowledged that financial institutions may have legitimate business purposes for exercising contractual acceleration options which demand the full balance of a loan when a borrower’s co-signer has died or filed for bankruptcy. Senator Mendendez described legislation to address the issue. Senator Brown (D-OH) also focused on student loan issues, picking up on the CFPB’s common refrain that problems in the student loans servicing market are similar to those seen in mortgage servicing. He called for the CFPB to establish student loan servicing standards. Director Cordray acknowledged that the two markets are different, but pointed to “poor customer service, problems with transfers, lack of information, and harm to consumers” as “eerie” examples of problems seen in both markets.
Small Dollar Loans
On small dollar loans, Senator Brown expressed concern that an eventual CFPB rule on traditional payday loans could lead to arbitrage and leave gaps in consumer protection related to other small dollar loans, including, for example, online loans, auto title loans, and installment loans. Director Corday described this issue as one of “extreme importance” as the CFPB addresses the small dollar loan market. He stated that implementation of the Military Lending Act has given rise to similar problems, which the CFPB is working with the Department of Defense to address. He explained that the CFPB’s process on a payday loan rule is taking longer as the Bureau attempts to deal with these issues, but believes “it's well worth a little additional time in order to make sure that what we do won't be made a mockery of by people circumventing it through just transforming their product slightly.”
Arbitration
Senator Warren (D-MA) turned her attention, which recently has focused on student loans, to the issue of arbitration. She stated that “arbitration stacks the deck against customers in favor of large corporations,” and that it is “no surprise that many big banks, and other big corporations, force customers to agree to arbitration clauses to get credit cards, or open checking accounts, knowing that this means that the customer will have no real remedy if things go wrong.” Director Cordray responded that in hearing from corporations and consumers on the issue of arbitration clauses, there is almost no relation between the two, which is contrary to CFPB’s experience on other issues. He explained that while the Dodd-Frank Act barred arbitration in mortgage contracts, he only directed the CFPB to study and consider interventions related to arbitration in other consumer finance contracts. He said the CFPB has pursued a very thorough process to conduct the required study, which the Director believes will be completed this year. Senator Warren pressed him to commit to new rules if the study presents evidence such rules are required. Director Cordray declined to describe any possible policy judgments or actions that could follow the study, but promised the CFPB will fulfill its obligation to engage in policymaking that appropriately reflects the conclusions of the study.
CFPB Announces Mobile Financial Services Field Hearing
On June 3, the CFPB announced that it will hold a field hearing on mobile financial services on June 12, 2014, in New Orleans, LA. The event is open to members of the public who RSVP and also will be streamed live on the CFPB’s website. Consistent with the CFPB’s past practice of providing limited advance information about field hearings, the announcement states only that the event will feature remarks from Director Richard Cordray, as well as testimony from consumer groups, industry representatives, and members of the public.
Freddie Mac Announces Numerous Servicing Policy Updates
On June 3, Freddie Mac announced revisions to numerous servicing policies, including policies regarding, among other things, short sales and deeds-in-lieu of foreclosure (DILs), the CFPB’s mortgage servicing rules, and unemployment forbearance. Bulletin 2014-10 advises servicers that for new short sale and DIL evaluations conducted on and after August 1, 2014 (or sooner if a servicer chooses), Freddie Mac will permit a servicemember to qualify for a short sale or DIL provided the mortgaged property is or was previously the borrower’s primary residence. When such a short sale or DIL is approved for a servicemember as provided above, the servicemember will receive the existing benefits afforded to a service member with PCS orders. In addition, for any borrower seeking a short sale or DIL, Freddie Mac is establishing a new lookback period that requires the servicer to review the borrower’s credit report to determine that the borrower did not obtain a new mortgage in the six months preceding the delinquency or in the six months preceding the evaluation of the borrower for a short sale or DIL. In addition, Freddie Mac (i) is now requiring servicers to investigate any inquiries by mortgage creditors that appear on the borrower’s credit report to determine if the borrower obtained a mortgage in the lookback period; and (ii) soon will require the servicer to rely solely upon the results of the cash reserves and promissory note payment capacity formulae to determine when to request a contribution from a borrower who is 31 days or more delinquent. The Bulletin also includes revisions to the following requirements introduced in response to the CFPB’s mortgage servicing rules: (i) trial period payment adjustments after the borrower exercises the right to appeal; (ii) delay in referral to foreclosure or proceeding with the next legal action; (iii) foreclosure sale date timing; and (iv) borrower solicitation letters. Finally, among several other policy revisions, the announcement details unemployment forbearance policy changes similar to those announced by Fannie Mae on June 4, 2014.
Visa, Pew Develop Voluntary Prepaid Card Standards
On June 3, Visa announced that it teamed with Pew Charitable Trusts to develop voluntary prepaid card standards and a designation for cards that meet those standards. To qualify for the designation, which Visa believes “will signify a new level of simplicity, protection and opportunity,” a prepaid card must have the following features: (i) flat monthly fee covering all basic activities; (ii) no additional charges for declined transactions, customer service, in-network ATM withdrawal or balance inquiries, PIN or signature transactions, cash back at point of sale, or overdrafts; (iii) “consumer friendly” communication of fees—e.g. fee box and disclosures; and (iv) “quick-use guide” for using the card at the lowest cost. In addition, issuers seeking the designation must provide the following consumer protections: (i) individual FDIC/NCUA insurance; (ii) Regulation E dispute resolution rights; (iii) coverage under Visa’s zero liability policy; and (iv) access to Visa’s Prepaid Clearinghouse Service to assist with fraud prevention.
CFPB Seeks Comment On Revised Credit Card Arbitration Survey
On May 29, the CFPB published a notice and request for comment on an updated plan to conduct a credit card arbitration survey. The following day, the OMB made available the documents submitted by the CFPB in support of the survey.
The amended survey notice follows an initial notice last year that the CFPB planned to conduct a telephone survey of 1,000 credit cardholders to assess (i) the extent of their awareness of dispute resolution provisions in their credit card agreements and (ii) the cardholders’ “assessments of such provisions.” At the time, the CFPB released draft survey questions as part of its information collection request supporting statements. The initial public comment period closed August 6, 2013. During the comment period, banking trade groups objected to the survey and suggested the CFPB instead pursue peer-reviewed research that compares consumer dispute resolution methods.
In its latest notice, the CFPB states that the survey “will explore (a) the role of dispute resolution provisions in consumer card acquisition decisions and (b) consumers’ default assumptions (meaning consumers’ awareness, understanding, or knowledge without supplementation from external sources) regarding their dispute resolution rights vis-a-vis their credit card issuers, including their awareness of their ability, where applicable, to opt-out of mandatory pre-dispute arbitration agreements.”
The supporting statements and attachments thereto detail the CFPB’s rationale for conducting the survey. Appendix A provides the final survey questions, and Appendix B provides the justification for the questions
The public comment period on the notice and supporting materials closes June 30, 2014.
Illinois Federal Court Rejects Putative Class Challenge To Crediting Of Online Mortgage Payments
On May 27, the U.S. District Court for the Northern District of Illinois held that a mortgage servicer did not violate Regulation Z when it credited a payment two days after the borrower submitted the payment online. Fridman v. NYCB Mortg. Co., LLC, No. 13-3094, 2014 WL 2198395 (N.D. Ill. May 27, 2014). The borrower filed a putative class action against her mortgage servicer, alleging the servicer violated TILA and Regulation Z by failing to promptly credit her online payments. The court explained that the servicer allows borrowers to submit payments online, but requires borrowers to acknowledge that its ACH process takes two business days to post the payment. In this case, the borrower selected the online payment option, and the delayed payment application resulted in a late fee for the borrower. The court rejected the borrower’s argument that the servicer’s online payment screen is the equivalent of a check, and therefore the date of receipt is when the servicer receives the information—either at the online submission or when the ACH file is created through the nightly batch processing. The court determined based on Regulation E staff commentary that the ACH system utilized by the servicer is an electronic fund transfer system, and determined that the payment at issue fits squarely within the definition of “electronic fund transfer” that is considered received under Regulation Z “when the mortgage servicer receives the third-party payor’s check or other transfer medium, such as an electronic fund transfer.” Therefore, the court held that the servicer was in compliance with Regulation Z when it credited the account after receiving the transfer of funds from the borrower’s deposit account two days after the borrower submitted her payment online. The court granted the servicer’s motion for summary judgment and dismissed the suit.