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Financial Services Law Insights and Observations


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  • CFPB finds issues in servicemember use of payment apps

    Federal Issues

    On June 20, the CFPB released its Office of Servicemember Affairs Annual Report, highlighting financial threats associated with military families’ use of digital payment apps. The report analyzed complaints submitted by military families, veterans, and servicemembers (totaling 66,400 complaints in 2022 alone, a 55 percent increase from 2021). Notably, servicemembers’ complaints exceeded the percentage filed by all consumers for topics including debt collection, credit cards, mortgages, and more.

    Top complaints are linked to: (i) fraud and scams when using digital payment apps; (ii) identity theft and unauthorized account access; and (iii) failure of digital payment app providers to provide timely solutions to servicemember complaints. The Bureau explained that servicemembers can be exposed to greater risks of fraud and scams when using a digital payment app—“[o]ften during a permanent change of duty station, servicemembers face the need to secure housing, a new automobile, or daycare during a short window, which often requires them to conduct more online transactions using digital payment apps.” The Bureau also found that servicemembers are prime targets for identity theft, noting that servicemembers complained that digital payment service providers give insufficient support in response to their complaints.

    To address the emerging risks, the Bureau recommended that digital payment app providers invest in privacy and security technology for their apps to combat fraudulent activity. The Bureau also suggested providers improve their responsiveness, especially in the case of military families who may be on a tight timeline during a permanent change of station or deployment. The Bureau also recommended that providers implement tailored policies on fraud losses and automatic fraud detection in recognition of the unique circumstances military families face. 

    Federal Issues Fintech CFPB Consumer Finance Payments Servicemembers

  • Property manager settles with DOJ on SCRA violations

    Federal Issues

    On June 13, the DOJ announced a settlement with a property management company resolving allegations that it charged nine servicemembers early termination fees after receiving military orders to relocate, in violation of the Servicemembers Civil Relief Act (SCRA) (see DOJ complaint here.) The SCRA affords protections to servicemembers who terminate a lease upon entering military service or receiving military orders to relocate, and prohibits landlords from imposing early termination charges on such servicemembers. Under the terms of the proposed consent order, the defendant will be required to pay $51,587 to the servicemembers and an additional $22,500 civil penalty. The DOJ also noted that the company must repair the servicemembers’ tenant database entries, implement new policies and procedures that comply with the SCRA, and train its employees on the SCRA.

    Federal Issues Department of Justice SCRA Servicemembers Enforcement Consumer Finance

  • District Court says MLA’s statute of limitations begins upon discovery of facts


    The U.S. District Court for the Eastern District of Virginia recently granted an installment lender’s motion to dismiss, ruling that most of the class members’ claims are time-barred by the Military Lending Act’s (MLA) two-year statute of limitations. Plaintiffs are active duty servicemembers who entered into installment loans with the defendant. Claiming four violations of the MLA, plaintiffs alleged the defendant (i) extended loans with interest rates exceeding the MLA’s 36 percent interest rate cap; (ii) extended loans that involved roll overs of prior loans; (iii) required plaintiffs to agree to repayment by allotment (with a backup preauthorized electronic fund transfer) as a condition to receiving a loan; and (iv) required plaintiffs to provide a security interest in their bank accounts as a condition for receiving a loan. Plaintiff sought to certify a class covering the five years preceding the date the complaint was filed. Defendant moved to dismiss, arguing that plaintiffs have only been harmed by technical violations of the MLA and did not suffer a concrete injury. Plaintiffs countered that the defendant’s MLA violations caused them to sustain injuries from making payments, including interest payments, “on loans that were ‘void from [their] inception’ [] due to their unlawful refinancing, allotment, and security interest requirements.”

    The court reviewed a significant issue raised by the parties’ differing interpretations of the MLA’s statute of limitations and its applicability to plaintiffs’ loans. Specifically, the parties disagreed as to whether “discovery by the plaintiff of the violation,” which triggers the two-year limitations period, requires that a plaintiff only discover the facts constituting the basis for the violation, as argued by the defendant, or instead requires that a plaintiff also know that the MLA was violated, as the plaintiffs argued. While acknowledging that the text in question is inconclusive, the court stated that since the MLA “does not require ‘discovery’ of both the ‘violation’ and ‘liability’ but only the ‘violation that is the basis for such liability,’ the text appears to support the interpretation that only discovery of the violative conduct is required, and

    not discovery of the actionability of that conduct.” The court also reviewed other federal statutory discovery rules where other courts “have consistently found that ‘discovery’ requires that a plaintiff have knowledge only of the facts constituting the violation and not the legal implications of those facts.” Relying on this, as well as other court interpretations, the court determined that “the two-year limitations period is triggered when a plaintiff discovers the facts

    constituting the basis for the MLA violation and not when the plaintiff recognizes that these facts

    support a legal claim.” Thus, the court found that most of the loans underlying the claims are time-barred.

    However, for loans that fell within the applicable limitations period, the court granted defendant’s motion to dismiss for failure to state a claim, concluding, among other things, that a creditor is not prohibited from taking a security interest in a plaintiff’s bank account by way of a preauthorized electronic fund transfer provided the military annual percentage rate does not exceed the allowable 36 percent (a claim, the court noted, plaintiffs dismissed and did not otherwise address). Moreover, the court determined that plaintiffs failed to allege that the defendant was a “creditor” under the narrower definition used by the MLA in its refinancing and roll-over prohibition or that the defendant’s “characterization of the convenience of repayment by allotment amounted to a misrepresentation or concealment of facts giving rise to plaintiffs’ MLA claim.”

    Courts State Issues Virginia Military Lending Act Consumer Finance Class Action Servicemembers Interest Rate

  • DOJ initiates SCRA action over auto auctions and dispositions

    Federal Issues

    On March 3, the DOJ filed a complaint in the U.S. District Court for the Eastern District of North Carolina against a North Carolina-based towing company for allegedly auctioning off, selling, or disposing of vehicles owned by servicemembers through the use of court judgments obtained without filing proper military affidavits. Under the Servicemembers Civil Relief Act (SCRA), plaintiffs seeking a default judgment must “file an accurate military affidavit stating whether or not the defendant is in military service, or that the plaintiff is unable to determine the defendant’s military service status.” Towing companies are also required by the statute to make a good faith effort to determine if a defendant is in military service. A court may not enter a default judgment in favor of a plaintiff until after a servicemember has been appointed an attorney.

    According to the complaint, the towing company disposed of servicemembers’ vehicles without complying with these requirements from at least 2017. The DOJ further claims that several factors should have alerted the towing company to the fact that the vehicles belonged to a servicemember, including that many of the vehicles were originally towed from locations on or near a military installation and many of the vehicles “had military decals, patches, and decorations, were financed through lenders geared towards members of the military, and contained military uniforms and paperwork, including orders.” The DOJ seeks damages for the affected servicemembers and civil penalties, as well as a court order enjoining the towing company from engaging in the illegal conduct.

    Federal Issues Courts DOJ Enforcement SCRA Servicemembers Consumer Finance

  • CFPB reports on servicemember identity theft

    Federal Issues

    On January 12, the CFPB released an Issue Spotlight discussing identity theft affecting servicemembers. According to the report, servicemembers, veterans, and military family members are more likely to report identity theft than civilians, with military consumers reporting almost 50,000 cases of identity theft to the FTC in 2021. The Bureau also noted that a steady income could make servicemembers a target for identity thieves looking to create fraudulent credit accounts or tap into bank accounts, and warned that frequent relocation may also increase servicemembers’ risk of identity theft. 

    Many servicemembers and all officers are required to pass a national security clearance check that includes a review of their credit history and ability to meet their financial obligations. The report found that security clearances are “continuously evaluated” with credit checks being part of the process. If a review reveals a history of failing to meet financial obligations, being in excessive debt, or having a high debt-to-income ratio, a servicemember’s security clearance may be revoked. Bad credit can also lead to rejected or higher-cost rental or mortgage applications, limiting housing options the Bureau said.

    The report also found that unrecognized debt is often the first sign of identity theft. Between 2014 and 2022, military consumer complaints to the CFPB about debts that resulted from identity theft increased nearly fivefold, from more than 200 annually in 2014, to more than 1,000 in 2022. The Bureau noted that addressing credit report inaccuracies related to identity theft can be “a particularly complicated process.” The report also provided recommendations for servicemembers on how to protect their credit, such as reviewing credit reports regularly and disputing inaccurate information and taking advantage of free credit monitoring services.

    Federal Issues CFPB Consumer Finance Servicemembers Identity Theft

  • CFPB concerned National Guard and reservists pay extra interest on loans

    Federal Issues

    On December 7, the CFPB released a report examining the use of the Servicemembers Civil Relief Act's (SCRA) interest rate reduction benefit. Among other things, the CFPB raised concerns that servicemembers pay extra interest each year as a result of not taking advantage of interest rate reductions to which they are entitled under the SCRA. The SCRA provides certain legal and financial protections to active duty servicemembers, such as the ability to reduce the interest rate on certain pre-service obligations or liabilities to a maximum of 6 percent. According to the Bureau, members of the National Guard and Reserves are likely to have financial obligations that predate a subsequent period of service. As a result, the interest rate reduction benefit could provide considerable financial value. However, the Bureau found that only a small fraction of activated Guard and Reserve servicemembers receive interest rate reductions. Specifically, the Bureau noted that: (i)  between 2007 and 2018, less than 10 percent of eligible auto loans and six percent of personal loans received a reduced interest rate; (ii) in addition to the $100 million of foregone benefits on auto and personal loans, members of the reserve component infrequently benefit from interest rate reductions for credit cards and mortgage loans; and (iii) for longer periods of activation, the utilization rate is low. The Bureau recommended that creditors apply SCRA interest rate reductions for all accounts held at an institution if a servicemember invokes their rights for a single account, and stressed that creditors should automatically apply SCRA rights. The Bureau also noted that more frequent information on SCRA rate reduction utilization would help inform and evaluate future efforts to expand servicemembers’ financial rights and protections.

    Federal Issues CFPB SCRA Servicemembers Consumer Finance Interest Rate

  • FTC, CFPB weigh in on servicemembers’ right to sue under the MLA


    On November 22, the FTC and CFPB (agencies) announced the filing of a joint amicus brief with the U.S. Court of Appeals for the Eleventh Circuit seeking the reversal of a district court’s decision that denied servicemembers the right to sue to invalidate a contract that allegedly violated the Military Lending Act (MLA). (See corresponding CFPB blog post here.) The agencies countered that the plain text of the MLA allows servicemembers to enforce their rights in court. Specifically, the agencies argued that Congress made it clear that when a lender extends a loan to a servicemember that fails to comply with the MLA, the loan is rendered void in its entirety. Moreover, Congress amended the MLA to unambiguously provide servicemembers certain legal rights, including an express private right of action and “the right to rescind and seek restitution on a contract void under the criteria of the statute.”

    The case involves an active-duty servicemember and his spouse who financed the purchase of a timeshare from the defendants. Plaintiffs entered into an agreement with the defendants, made a down payment, and agreed to pay the remaining balance in monthly installments carrying an interest rate of 16.99 percent, in addition to annual assessments and club dues. None of the loan documents provided to the plaintiffs discussed the military annual percentage rate, nor did the defendants make any supplemental oral disclosures. Additionally, the agreement contained a mandatory arbitration clause (the MLA prohibits creditors from requiring servicemembers to submit to arbitration) and purportedly waived plaintiffs’ right to pursue a class action and their right to a jury trial. Plaintiffs filed a putative class action lawsuit alleging the agreement violated the MLA on several grounds, and sought an order declaring the agreement void. Plaintiffs also sought recission of the agreement, restitution, statutory, actual, and punitive damages, and an injunction requiring defendants to comply with the MLA going forward.

    Defendants moved to dismiss, countering “that the plaintiffs lacked standing because they had not suffered any concrete injury and, even if they had, whatever injury they suffered was not traceable to the alleged MLA violations.” Defendants also argued that the loan was exempt under the MLA’s exemption for residential mortgages, and claimed that the MLA does not authorize statutory damages, nor did the plaintiffs state a claim for declaratory or injunctive relief. Further, defendants stated the court lacked jurisdiction to hear the case. The district court dismissed the lawsuit for lack of standing, agreeing with the magistrate judge that, among other things, plaintiffs “failed to allege ‘that the inclusion of the arbitration provision impacted [their] decision to accept the contract,’ and that they could not ‘seek[] relief based on a mere technicality that has not impacted them in any way.’”

    Disagreeing with the district court’s ruling, the agencies argued that plaintiffs have a legal right to challenge the contract in court because (i) they made a down payment on an illegal and void loan; (ii) the injuries are traceable to the challenged conduct since “their monetary losses are the product of the illegal and void loan"; and (iii) their injuries “are redressable by an order of the court awarding restitution for the amounts that plaintiffs have already paid on the loan, and by a declaration confirming that the loan is void and that the plaintiffs have no obligation to make additional payments going forward.” The agencies asserted that courts have recognized that economic injury is exactly the sort of injury that courts have the power to redress. 

    Moreover, the agencies pointed out that the district court’s ruling “risks substantially curtailing private enforcement of the MLA and limiting servicemembers’ ability to vindicate their rights under the statute. It does so by reading the MLA’s voiding provision out of the statute and reading into the statute an atextual materiality requirement. But it may be very difficult, if not impossible, for servicemembers to demonstrate that certain MLA violations had a direct effect on their decision to procure a financial product or caused them to pay money they would not otherwise have paid.”

    Courts FTC CFPB Servicemembers Military Lending Act Appellate Eleventh Circuit Consumer Finance Disclosures Arbitration

  • DOE expands support for veterans/servicemembers and incarcerated individuals

    Federal Issues

    On October 27, the Department of Education (DOE) announced final rules cracking down on deceptive practices affecting veterans and servicemembers and expanding college access to incarcerated students. (See DOE fact sheet here.) The final rules, among other things, (i) implement a change to the “90/10 rule” made by the American Rescue Plan in 2021, which closed a loophole in the Higher Education Act that previously incentivized some for-profit colleges to aggressively recruit veterans and servicemembers in order to receive more DOE funding (going forward, these institutions may no longer count money from veteran and service member benefits toward a 10 percent revenue requirement); (ii) expand access to DOE’s Second Chance Pell Experimental Sites Initiative to allow incarcerated individuals in nearly all states to participate; (iii) provide incarcerated individuals with access to the FSA’s Fresh Start initiative, which will help borrowers with defaulted loans access income-driven low monthly payments as well as with access to Pell Grants; and (iv) clarify requirements and processes for post-secondary institutions when changing ownership, which may require institutions to provide additional financial protection or impose other conditions to protect against risks arising from the transaction.

    Federal Issues Agency Rule-Making & Guidance Department of Education Student Lending Servicemembers Consumer Finance

  • California amends protections for servicemembers and veterans

    State Issues

    On September 27, the California governor signed SB 1311 to enact the Military and Veteran Consumer Protection Act of 2022. The Act updates several provisions related to servicemembers and veterans, including amending existing law to provide that a person will be liable for an additional civil penalty of up to $2,500 for each violation if the person engages in “unfair competition, including any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising,” against one or more servicemembers or veterans. Additionally, the Act amends certain provisions related to enforcement of the federal Military Lending Act (MLA). Specifically, the bill makes “any security interest in personal property other than a motor vehicle, off-highway vehicle, trailer, or aircraft void if it would cause a loan procured by specified service members in the course of purchasing the personal property to be exempt from the [MLA].” The Act also makes “any security interest in a motor vehicle void if it would cause a loan procured by specified service members in the course of purchasing the motor vehicle to be exempt from the [MLA] and the loan also funds the purchase of a credit insurance product or credit-related ancillary product.” The Act takes effect January 1, 2023.

    State Issues State Legislation California Military Lending Act Servicemembers Consumer Finance

  • DOJ amends SCRA settlement with auto loan provider

    Federal Issues

    On September 28, the DOJ announced an amended settlement with an auto loan provider resolving allegations that it failed to fully provide qualified servicemembers with interest rate benefits afforded to them under the Servicemembers Civil Relief Act (SCRA). According to the DOJ, while monitoring the auto lender’s compliance with the original DOJ settlement, the DOJ found that the auto loan provider was failing to apply interest rate benefits back to the date orders were issued calling the servicemember to active duty, and that it had improperly delayed the approval of interest rate benefits to some servicemembers. Under this amended settlement agreement, the auto loan provider agreed to pay an additional $185,460 to 250 servicemembers who did not receive proper interest rate benefits. The DOJ also noted that each servicemember who did not receive interest rate benefits back to the date their orders were issued will receive a refund of any excess interest they paid, as well as an additional payment of three times the overpayment or $100, whichever is higher. The auto loan provider is required to pay an additional $40,000 civil penalty to the U.S. and must revise its SCRA policies and training regarding interest rate benefits for servicemembers.

    Federal Issues DOJ SCRA Servicemembers Enforcement Auto Finance


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