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Financial Services Law Insights and Observations


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  • Agencies reiterate illegality of appraisal discrimination

    Federal Issues

    On February 14, CFPB Fair Lending Director Patrice Ficklin joined senior leaders from the FDIC, HUD, NCUA, Federal Reserve Board, DOJ, OCC, and FHFA in submitting a joint letter to The Appraisal Foundation (TAF) urging the organization to further revise its draft Ethics Rule for appraisers to include a detailed statement of federal prohibitions against discrimination under the Fair Housing Act (FHA) and ECOA.

    This is the second time the agencies have raised concerns with TAF. As previously covered by InfoBytes, last February, the agencies sent a joint letter in response to a request for comments on proposed changes to the 2023 Appraisal Standards Board Ethics Rule and Advisory Opinion 16, in which they noted that while provisions prohibit an appraiser from relying on “unsupported conclusions relating to characteristics such as race, color, religion, national origin, sex, sexual orientation, gender, marital status, familial status, age, receipt of public assistance income, disability, or an unsupported conclusion that homogeneity of such characteristics is necessary to maximize value,” the “provisions do not prohibit an appraiser from relying on ‘supported conclusions’ based on such characteristics and, therefore, suggest that such reliance may be permissible.” The letter noted that the federal ban on discrimination under the FHA and ECOA is not limited only to “unsupported” conclusions, and that any discussions related to potential appraisal bias should be consistent with all applicable nondiscrimination laws. 

    In their second letter, the agencies said that the fourth draft removed a detailed, unambiguous summary covering nondiscrimination standards under the FHA and ECOA, and instead substituted “a distinction between unethical discrimination and unlawful discrimination.” The letter expressed concerns that the term “unethical discrimination” is not well established in current law or practice, and could lead to confusion in the appraisal industry. Moreover, the letter noted that “the term ‘ethical’ discrimination, and reference to the possibility of a protected characteristic being ‘essential to the assignment and necessary for credible assignment results,’ appears to resemble the concept of ‘supported’ discrimination that the agencies previously disfavored and whose removal and replacement with a summary of the relevant law significantly improved the draft Ethics Rule.” The agencies further cautioned that “[s]uggesting that appraisers avoid ‘bias, prejudice, or stereotype’ as general norms” would grant individual appraisers wide discretion in applying these norms and likely yield inconsistent results. The agencies advised TAF to provide a thorough explanation of these legal distinctions.

    Federal Issues CFPB Consumer Finance Appraisal FDIC HUD NCUA Federal Reserve DOJ OCC FHFA Fair Housing Act ECOA Discrimination

  • CFPB finds 33 percent decline in collections tradelines on credit reports

    Federal Issues

    On February 14, the CFPB released a report examining debt collection credit reporting trends from 2018 to 2022. The Bureau’s report, Market Snapshot: An Update on Third-Party Debt Collections Tradelines Reporting, is based on data from the agency’s Consumer Credit Panel—a nationally representative sample of roughly five million de-identified credit records maintained by one of the three nationwide credit reporting companies. According to the report, from Q1 2018 to Q1 2022, the total number of collections tradelines on credit reports declined by 33 percent, from 261 million tradelines in 2018 to 175 million tradelines in 2022. The Bureau determined that this decline was driven by contingency-fee-based debt collectors (responsible for primarily furnishing medical collections tradelines), who furnished 38 percent fewer tradelines during this time period. The total number of unique contingency-fee-based debt collectors also declined by 18 percent (from 815 to 672).

    In a related blog post, the Bureau estimated that while medical collections tradelines declined by 37 percent between 2018 and 2022, these tradelines still constitute a majority (57 percent) of all collections on consumer credit reports. The Bureau explained that the “decline may be partly explained by structural dysfunctions in medical billing and collections, which increase the risk that debt collectors will not meet their legal obligations” and can result in false and inaccurate information. The Bureau said it will continue to closely examine medical billing and collection practices and highlighted a bulletin published in January 2022, which reminded debt collectors and credit reporting agencies of their legal obligations under the FDCPA and the FCRA when collecting, furnishing information about, and reporting medical debts covered by the No Surprises Act. (Covered by InfoBytes here.)

    Federal Issues CFPB Consumer Finance Debt Collection Credit Report Credit Reporting Agency FDCPA FCRA Medical Debt

  • FTC provides 2022 ECOA summary to CFPB

    Federal Issues

    On February 9, the FTC announced it recently provided the CFPB with its annual summary of activities related to ECOA enforcement, focusing specifically on the Commission’s activities with respect to Regulation B. The summary discussed, among other things, the following FTC enforcement, research, and policy development initiatives:

    • Last June, the FTC released a report to Congress discussing the use of artificial intelligence (AI), and warning policymakers to use caution when relying on AI to combat the spread of harmful online conduct. The report also raised concerns that AI tools can be biased, discriminatory, or inaccurate, could rely on invasive forms of surveillance, and may harm marginalized communities. (Covered by InfoBytes here.)
    • The FTC continued to participate in the Interagency Task Force on Fair Lending, along with the CFPB, DOJ, HUD, and federal banking regulatory agencies. The Commission also continued its participation in the Interagency Fair Lending Methodologies Working Group to “coordinate and share information on analytical methodologies used in enforcement of and supervision for compliance with fair lending laws, including the ECOA.”
    • The FTC initiated an enforcement action last April against an Illinois-based multistate auto dealer group for allegedly adding junk fees for unwanted “add-on” products to consumers’ bills and discriminating against Black consumers. In October, the FTC initiated a second action against a different auto dealer group and two of its officers for allegedly engaging in deceptive advertising and pricing practices and discriminatory and unfair financing. (Covered by InfoBytes here and here.)
    • The FTC engaged in consumer and business education on fair lending issues, and reiterated that credit discrimination is illegal under federal law for banks, credit unions, mortgage companies, retailers, and companies that extend credit. The FTC also issued consumer alerts discussing enforcement actions involving racial discrimination and disparate impact, as well as agency initiatives centered around racial equity and economic equality.   

    Federal Issues CFPB FTC ECOA Regulation B Fair Lending Enforcement Artificial Intelligence Consumer Finance Auto Finance Discrimination

  • CFPB urges Supreme Court review of 5th Circuit decision


    The CFPB recently filed a reply brief in its petition for a writ of certiorari asking the U.S. Supreme Court to review whether the U.S. Court of Appeals for the Fifth Circuit erred in holding that the Bureau’s funding structure violates the Appropriations Clause of the Constitution, and to consider the appellate court’s decision to vacate the agency’s 2017 final rule covering “Payday, Vehicle Title, and Certain High-Cost Installment Loans” (Payday Lending Rule or Rule) on the premise that it was promulgated at a time when the Bureau was receiving unconstitutional funding. (Covered by InfoBytes here.)

    Last month, the respondents filed an opposition brief urging the Supreme Court to deny the Bureau’s petition on the premise that the 5th Circuit’s decision does not warrant review—“let alone in the expedited and limited manner that the Bureau proposes”—because the appellate court correctly vacated the Payday Lending Rule, which, according to the respondents, has “multiple legal defects, including but not limited to the Appropriations Clause issue.” (Covered by InfoBytes here.) The respondents also maintained that the case “is neither cleanly presented . . . nor ripe for definitive resolution at this time,” and argued that the Supreme Court could address the validity of the Payday Lending Rule without addressing the Bureau’s funding issue. Explaining that the 5th Circuit’s decision “simply vacated a single regulation that has never been in effect,” the respondents claimed that the appellate court should have addressed questions about the Rule’s validity before deciding on the Appropriations Clause question. The respondents filed a cross-petition for writ of certiorari arguing that if the Supreme Court decides to hear the case, it should vacate the rule based on the unconstitutional removal restriction, and because it exceeds the Bureau’s statutory authority since “the prohibited conduct falls outside the statutory definition of unfair or abusive conduct.”

    In its reply brief, the Bureau challenged the respondents’ assertion that the agency’s funding was “unprecedented,” noting that the respondents “cannot meaningfully distinguish the CFPB’s funding from Congress’s longstanding and concededly valid practice of funding agencies from standing sources outside annual spending bills.” The Bureau also argued that the respondents failed to rehabilitate the appellate court’s disruptive remedy and could not justify the district court’s failure to conduct a severability analysis. Even if any unconstitutional features could be severed, that would not justify the “extraordinarily disruptive remedy of automatic vacatur” of the Payday Lending Rule, the Bureau said. Furthermore, the Bureau contended that the respondents offered no sound basis for declining to review the appellate court’s decision in the current Supreme Court term.

    According to the Bureau, the decision “carries immense legal and practical consequences that override any interest in ‘further percolation’” and “has already affected more than half of the Bureau’s 22 active enforcement actions” where five have been stayed and motions for relief are pending in seven other courts. Emphasizing that the 5th Circuit’s decision “threatens the validity of virtually all past CFPB actions, including numerous regulations that are critical to consumers and the financial industry,” the Bureau stressed that the proper course would be to grant its petition, set the case for argument in April, and add the additional questions raised by respondent in their cross-petition.

    Courts CFPB U.S. Supreme Court Appellate Fifth Circuit Payday Lending Payday Rule Constitution Enforcement Funding Structure

  • CFPB issues HMDA reference chart for 2023

    Federal Issues

    On February 9, the CFPB published the 2023 Reportable HMDA Data: A regulatory and reporting overview reference chart. The chart serves as a reference tool for data points that are required to be collected, recorded, and reported under Regulation C, as amended by HMDA rules, which were most recently issued in April 2020 (covered by InfoBytes here). The chart also provides relevant regulation and commentary sections and guidance for when to report “not applicable or exempt” as found in Section 4.2.2 of the 2022 Filing Instructions Guide. The Bureau notes that the “chart does not provide data fields or enumerations used in preparing the HMDA loan/application register (LAR).” For additional information on preparing the HMDA LAR, financial institutions should consult FFIEC guidance here.

    Federal Issues CFPB HMDA Mortgages Compliance

  • CFPB reports drop in overdraft/NSF revenue from pre-pandemic levels

    Federal Issues

    On February 7, the CFPB published a “Data Spotlight” reporting that bank overdraft/non-sufficient fund (NSF) fee revenue has declined significantly compared to pre-pandemic levels. According to the Bureau, recent analysis found that overdraft/NSF fee revenue (i) was 43 percent lower in the third quarter of 2022 than in the third quarter of 2019 (representing a suggested decrease of $5.1 billion in fees on an annualized basis); (ii) was 33 percent lower over the first three quarters of 2022 when compared to the same period in 2019; and (iii) has declined each quarter since the fourth quarter of 2021. The report presented snapshots of overdraft/NSF fee revenue by quarter between Q1 2019 and Q3 2022, and discussed changes in banks’ consumer deposit account revenue from other listed fees. The Bureau observed that there has been a lack of correlating increases in other listed checking account fees, which may suggest that banks are not replacing overdraft/NSF fee revenue with other checking account fees such as periodic maintenance fees and ATM fees. The Bureau noted that it will continue to monitor overdraft/NSF fees and said it is considering related rulemaking activities. The agency announced it also intends to track other listed account fees to determine whether and to what extent these fees may be creating barriers to account access.

    Federal Issues CFPB Overdraft Consumer Finance NSF Fees

  • Special Alert: CFPB’s RESPA advisory addresses online mortgage-comparison platforms

    Federal Issues

    The Consumer Financial Protection Bureau (CFPB) issued guidance yesterday making clear that those who operate or participate in online mortgage-comparison shopping platforms will be closely scrutinized for compliance with the prohibition on payments for referrals to mortgage lenders. “Companies operating these digital platforms appear to shoppers as if they provide objective lender comparisons, but may illegally refer people to only those lenders paying referral fees,” the agency said. Here’s what you need to know:

    What happened?

    The CFPB issued an Advisory Opinion on how the Real Estate Settlement Procedures Act (RESPA) applies to online mortgage-comparison platforms. The agency said platform operators violate RESPA “when they steer shoppers to lenders by using pay-to-play tactics rather than providing shoppers with comprehensive and objective information.” Specifically, the agency said operators receive a prohibited referral fee when they use or present information in a way that steers consumers to mortgage lenders in exchange for a payment or something else of value.

    Federal Issues Agency Rule-Making & Guidance CFPB Consumer Finance RESPA Digital Platform Competition Mortgages Referrals Section 8 Advisory Opinion

  • Agencies remind banks of HMDA reporting changes on closed-end mortgages

    On February 1, the OCC reminded banks and OCC examiners that the loan origination threshold for reporting HMDA data on closed-end mortgages has changed due to a court decision issued last year, which addressed challenges made by a group of consumer fair housing associations to changes made in 2020 by the CFPB that permanently raised coverage thresholds for collecting and reporting data about closed-end mortgage loans and open-end lines of credit under HMDA (covered by InfoBytes here.) Due to a court order vacating the 2020 HMDA Final Rule as to the loan volume reporting threshold for closed-end mortgage loans, the OCC explained that the loan origination threshold for reporting HMDA data on closed-end mortgage loans reverted to the threshold established by the 2015 HMDA Final Rule.

    According to Bulletin 2023-5, the threshold for reporting HMDA data is now 25 closed-end mortgage loans originated in each of the two preceding calendar years rather than the 100-loan threshold set by the 2020 HMDA Final Rule. “Banks that originated at least 25 closed-end mortgage loans in each of the two preceding calendar years but fewer than 100 closed-end mortgage loans in either or both of the two preceding calendar years (referred to collectively as affected banks) may need to make adjustments to policies and procedures to comply with reporting obligations,” the OCC said. The agency added that it does not plan to assess penalties for failures to report closed-end mortgage loan data on reportable transactions conducted in 2022, 2021 or 2020 for affected banks that meet other coverage requirements under Regulation C.

    The FDIC and Federal Reserve Board also issued similar guidance (see FIL-06-2023 and CA 23-1).

    Bank Regulatory Federal Issues OCC FDIC HMDA Loan Origination Mortgages Regulation C CFPB Federal Reserve

  • District Court dismisses CFPB redlining action against nonbank lender


    On February 3, the U.S. District Court for the Northern District of Illinois dismissed with prejudice claims that a Chicago-based nonbank mortgage company and its owner violated ECOA by engaging in discriminatory marketing and applicant outreach practices. The CFPB sued the defendants in 2020 alleging fair lending violations, including violations of ECOA and the CFPA, predicated, in part, on statements made by the company’s owner and other employees during radio shows and podcasts from 2014 through 2017. (Covered by a Special Alert.) The complaint (which was later amended) marked the first time a federal regulator has taken a public enforcement action against a nondepository institution based on allegations of redlining.

    The Bureau claimed that the defendants discouraged African Americans from applying for mortgage loans from the company and redlined African American neighborhoods in the Chicago area by (i) discouraging their residents from applying for mortgage loans from the company; and (ii) discouraging nonresidents from applying for loans from the company for homes in these neighborhoods. The defendants moved to dismiss with prejudice, arguing that the Bureau improperly attempted to expand ECOA’s reach “beyond the express and unambiguous language of the statute.” The defendants explained that while the statute “regulates behavior towards applicants for credit, it does not regulate any behavior relating to prospective applicants who have not yet applied for credit.” The Bureau countered that courts have consistently recognized Regulation B’s discouragement prohibition even when applied to prospective applicants.

    In dismissing the action with prejudice, the court applied step one of Chevron framework (which is to determine “whether Congress has directly spoken to the precise question at issue”) when reviewing whether the Bureau’s interpretation of ECOA in Regulation B is permissible. Explaining that ECOA’s plain text “clearly and unambiguously prohibits discrimination against applicants”—defined as a person who applies for credit—the court concluded (citing to case law in support of its decision) that Congress’s directive only prohibits discrimination against applicants and does not apply to prospective applicants. The court stressed that the agency’s authority to enact regulations is not limitless and that the statute’s use of the term “applicant” clearly marks the boundary of ECOA.

    The court also rejected the Bureau’s argument that ECOA’s delegation of authority to the Bureau to adopt rules to prevent evasion means the anti-discouragement provision must be sustained provided it reasonably relates to ECOA’s objectives. The Bureau pointed to the U.S. Supreme Court’s decision in Mourning v. Fam. Publ’ns Serv., Inc. (upholding the “Four Installment Rule” under similar delegation language in TILA), but the court held that Mourning does not permit it to avoid Chevron’s two-step framework. Because the anti-discouragement provision does not survive the first step, the court did not reach whether the provision is reasonably related to ECOA’s objectives and dismissed the action with prejudice. The remaining claims, which depend on the ECOA claim, were also dismissed with prejudice.

    The firm will be sending out a Special Alert in the next few business days providing additional thinking on this decision.

    Courts Enforcement Redlining Consumer Finance Fair Lending CFPB CFPA ECOA Discrimination Regulation B

  • D.C. Circuit says CFPB’s Prepaid Rule does not mandate model disclosures for payment companies


    On February 3, the U.S. Court of Appeals for the D.C. Circuit reversed a district court’s decision that had previously granted summary judgment in favor of a payment company and had vacated two provisions of the CFPB’s Prepaid Rule: (i) the short-form disclosure requirement “to the extent it provides mandatory disclosure clauses”; and (ii) the 30-day credit linking restriction. As previously covered by InfoBytes, the company sued the Bureau alleging, among other things, that the Bureau’s Prepaid Rule exceeded the agency’s statutory authority “because Congress only authorized the Bureau to adopt model, optional disclosure clauses—not mandatory disclosure clauses like the short-form disclosure requirement.” The Bureau countered that it had authority to enforce the mandates under federal regulations, including the EFTA, TILA, and Dodd-Frank, and argued that the “EFTA and [Dodd-Frank] authorize the Bureau to issue—or at least do not foreclose it from issuing—rules mandating the form of a disclosure.”

    The district court concluded, among other things, that the Bureau acted outside of its statutory authority, and ruled that it could not presume that Congress delegated power to the agency to issue mandatory disclosure clauses just because Congress did not specifically prohibit it from doing so. Instead, the Bureau can only “‘issue model clauses for optional use by financial institutions’” since the EFTA’s plain text does not permit the Bureau to issue mandatory clauses, the district court said. The Bureau appealed, arguing that both the EFTA and Dodd-Frank authorize the Bureau to promulgate rules governing disclosures for prepaid accounts, and that the decision to adopt such rules is entitled to deference. (Covered by InfoBytes here.) However, the Bureau maintained that the Prepaid Rule “does not make any specific disclosure clauses mandatory,” and stressed that companies are permitted to use the provided sample disclosure wording or use their own “substantially similar” wording.

    In reversing and remanding the ruling, the appellate court unanimously determined that because the Bureau’s Prepaid Rule does not mandate “specific copiable language,” it is not mandating a “model clause,” which the court assumed for purposes of the opinion that the Bureau was prohibited from doing. While the Prepaid Rule imposes formatting requirements and requires the disclosure of certain enumerated fees, the D.C. Circuit stressed that the Bureau “has not mandated that financial providers use specific, copiable language to describe those fees.” Moreover, formatting is not part of a “model clause,” the appellate court added. And because companies are allowed to provide “substantially similar” disclosures, the appellate court held that the Bureau has not mandated a “model clause” in contravention of the EFTA. The appellate court, however, did not address any of the procedural or constitutional challenges to the Bureau’s short-form disclosures that the district court had not addressed in its opinion, but instead directed the district court to address those questions in the first instance.

    Courts CFPB Appellate D.C. Circuit Prepaid Rule Disclosures Prepaid Accounts Dodd-Frank EFTA TILA