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OIG releases CFPB and Fed list of open recommendations
On April 22, the OIG, which oversees the CFPB and the Fed, released two audit and evaluation reports that noted previously identified recommendations to improve or correct issues that remain open as of March 31, including some recommendations that have been open for more than six months. With respect to the CFPB, the OIG identified 18 recommendations that remain open; with respect to the Fed, the OIG identified 65 open recommendations. The open recommendations made to the CFPB stem from OIG reports on strengthening its offboarding process in 2018, auditing the Bureau’s information security program in 2018, 2022, and 2023, and technical testing results for the Bureau’s legal enclave in 2020. The open recommendations to the Fed stem from OIG reports relating to, among others (i) information security; (ii) cybersecurity; (iii) security control of the Fed’s public website; (iv) the Fed’s Financial Market Utility Supervision Program; and (v) enterprise risk management. Notably, a small subset of the recommendations that remain open are nonpublic.
CFPB publishes the mortgage servicer edition of its Supervisory Highlights
On April 24, the CFPB published its 33rd edition of its Supervisory Highlights which covers select examinations and violations regarding mortgage servicing from April 1, 2023, through December 31, 2023. This edition of Supervisory Highlights focused on alleged violations of law identified in CFPB examinations including (i) charging illegal junk fees including impermissible property inspection and late fees; (ii) UDAAP violations; and (iii) violations of Regulation X loss mitigation requirements. The Bureau made clear in its press release that it plans to continue its focus on combatting junk fees within and beyond the mortgage servicing space.
The CFPB highlighted several violations of law resulting from mortgage servicers’ payment processing practices including the charging of property inspection fees in connection with certain Fannie Mae loans in violation of investor guidelines. To rectify this, servicers addressed system errors causing the fees in question, enhanced oversight, and were instructed to compensate affected borrowers. Other payment processing-related violations identified by the Bureau included failure to adequately describe fees in periodic statements by using the term “service fee” to describe 18 different fee-types, and failure to make timely disbursements from escrow accounts in violation of Regulation X.
The Bureau also identified unfair practices relating to the charging of late fees in excess of the amount authorized in the loan agreement or after consumers had entered into loss mitigation agreements, which should have prevented late fees. Servicers identified as having engaged in such violations were required to refund the fees to consumers and improve internal processes in response to the findings.
The CFPB also identified violations of law relating to loss mitigation and loan modifications. Examiners noted that some servicers failed to provide a written notice confirming the receipt of loss mitigation applications and informing consumers of whether the application was complete or incomplete. Further, some servicers failed to provide timely and complete notices of loss mitigation options. Additionally, some servicers, in violation of Regulation X, failed wo waive existing fees after borrowers had accepted Covid-19 hardship loan modifications.
Examiners also found that certain servicers committed deceptive practices by sending out delinquency notices incorrectly stating that consumers had missed payments and needed to apply for loss mitigation when those consumers were actually up to date on their payments, enrolled in trial modification plans, or had inactive loans (such as those already paid off or in the process of a short sale).
Finally, the Bureau identified violations of law relating to (i) live contact and early intervention requirements in connection with delinquency and (ii) failure to retain adequate records.
CFPB petitions 5th Circuit to keep credit card late fee case in D.C.
On April 18, the CFPB asked a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit to reconsider its earlier decision to grant a petition for a writ of mandamus requiring the U.S. District Court for the Northern District of Texas to claw back its earlier transfer of industry’s challenge to the CFPB’s credit card late fee rule to Washington D.C. (covered by InfoBytes here). The CFPB urges the 5th Circuit to grant a panel rehearing, suggesting that the panel’s earlier decision rested on “flawed factual premises” and would be “unworkable for courts.”
According to the CFPB, the panel relied on the incorrect assumption that “credit card issuers needed to have printed and distributed disclosure materials about the late fees to customers by March 29” to comply with the final rule. The Bureau asserted this was a “manufactured” deadline. The CFPB also stressed that TILA does not require the Bureau to provide advance notice for a reduction in the maximum late fee. Further, the Bureau’s petition expanded into four misconstrued facts, such as that it was not true that the panel needed to grant the plaintiffs’ alleged claim for “urgent relief,” that the plaintiffs’ preliminary injunction motion needed to be decided quickly, that the plaintiffs were “entitled” to a quick resolution, and that the panel erred again in deciding that the final late fee rule did not require compliance until May 14 (thus leaving six more weeks for a decision).
Second, the CFPB argued that the panel’s new standard for assessing whether a preliminary injunction was denied would be “unworkable” for courts in practice and would improperly interfere with the district courts’ authority to manage their dockets when plaintiffs seek preliminary injunctive relief. The Fifth Circuit has asked the plaintiffs to respond to the petition for rehearing by April 29, 2024.
Separately, the Fifth Circuit has set a schedule for “expedited briefing” on the appeal of the district court’s “effective denial” of plaintiffs’ motion for a preliminary injunction. The briefing, however, will not conclude until May 17, 2024, days after the CFPB’s credit card late fees rule goes into effect. The Fifth Circuit has not yet ruled on plaintiffs’ pending motion for a stay pending appeal, raising the prospect that the credit card late fees will go into effect only to be enjoined soon thereafter.
Republican House Financial Services Committee members seek clarity on 1071 rule implementation timeline
On April 18, Republican members of the House Financial Services Committee sent a letter to CFPB Director Rohit Chopra to express concern over the lack of clarity regarding the implementation timeline of the CFPB’s small business data collection rule, referenced as the 1071 Rule. As previously covered by InfoBytes, in October of last year, a Texas District Court issued a preliminary injunction that required the CFPB to halt implementation of the 1071 Rule, and directed the Bureau to extend the rule’s compliance deadline “to compensate for the period stayed.” In the letter, republican lawmakers stress that the CFPB has been “reluctant” to confirm whether it will comply with the court order, which has led to confusion among regulated financial institutions regarding compliance timeframe with the 1071 Rule. The letter also highlights that some prudential regulators are reportedly advising institutions to prepare for compliance by October 1, despite the court order. Accordingly, Republican members urge the CFPB to provide clear guidance affirming compliance with the court order and extending deadlines accordingly, including with respect to the rule’s transition period for data collection and reporting requirements.
CFPB supports Connecticut’s bill to ban medical debt on credit reports
On April 15, the CFPB released a letter written by Brian Shearer, the Assistant Director within the Office of Policy Planning and Strategy, throwing the Bureau’s support behind Connecticut’s new bill to bar medical debt on credit reports. The proposed bill, SB 395, has passed its committee in the first chamber. This legislation would align Connecticut with similar legislation in Colorado and New York, and the CFPB noted that the “preemption of state law is narrow under both the [FDCPA] and the [FCRA], and states may… limit the inclusion of information about a person’s allegedly unpaid medical bills on consumer reports.” The CFPB announced in September 2023 its NPRM to prohibit creditors from using medical bills in underwriting decisions (as covered by InfoBytes here). According to the letter, “[m]edical debt is categorically different from most types of consumer tradelines that typically appear on consumer reports. Consumers frequently incur medical bills in unique circumstances that differ from other forms of credit extension, and CFPB research has found that medical debt is less predictive of future consumer credit performance than other tradelines.”
CFPB’s Frotman speaks on medical debt collections and rental financial products
On April 11, the General Counsel of the CFPB, Seth Frotman, delivered a speech at the National Consumer Law Center/National Association of Consumer Advocates Spring Training, highlighting how the FDCPA and the FCRA cover often-overlooked sectors of consumer finance, including medical collections and landlord-tenant debts. As to medical billing, collections, and credit reporting, Frotman noted that the CFPB has received more than 15,000 complaints in the past two years, as explained previously in the CFPB’s most recent FDCPA annual report (covered by InfoBytes here). These complaints led to the CFPB initiating a rulemaking process to “remove medical bills from credit reports.” Frotman highlighted that many states have taken similar initiatives: Colorado and New York both enacted laws prohibiting the reporting of medical debt, and the CFPB encouraged more states to follow their lead; Connecticut recently introduced legislation banning medical debt in SB 395. Of interest, Frotman noted that when the CFPB contacted debt collectors about suspected bills, they often closed the account – suggesting that these collectors “do not have confidence that this money [was] actually owed,” indicating that collectors could be seeking to collect an invalid medical debt from consumers.
On rental collections and credit reporting, Frotman noted an increase in the “financialization” of the landlord and tenant relationship, such as products to finance security deposits or rent and offering rent-specific credit cards. Frotman also noted that corporate landlords, who have increased their share of the rental housing market, have increased the demand for “tenant screening” products that score prospective tenants. Frotman expressed concern that the algorithms relied on by these tenant screening products have been opaque and even discriminatory. The speech highlighted the CFPB’s focus on tenant screening as part of the Bureau’s increased attention toward debt collection and credit reporting companies generally in the rental industry. For instance, the CFPB noted that law firms that operate as “eviction mills” (i.e., firms that “rubber stamp” eviction actions without performing a meaningful review) could be held liable under the FDCPA.
Democratic senators pen letter to trade org. that brought suit against CFPB’s credit card late fee rule
On April 14, two Democratic senators, Sen. Elizabeth Warren (D-MA) and Sen. Sheldon Whitehouse (D-RI), wrote a letter to the head of a commercial trade organization that brought a lawsuit against the CFPB, challenging the CFPB’s rule capping credit card late fees. As previously covered by InfoBytes, the trade organization and other business groups sued the CFPB, challenging its recent final rule limiting most credit card late fees to $8. The senators wrote that the trade organization’s decision to sue was “outrageous and unwarranted” as the senators sought an explanation for the opposition.
The senators stated that the lawsuit was “frivolous,” and argued that the trade organization neglected “Main Street businesses” and instead was “doing the dirty work of its big bank members” who charged these high fees. Bolstering their position that the rule would cover large credit card issuers only, the senators noted that the rule would be expected to apply to less than one percent of the 4,000 financial institutions offering credit cards. Further, the senators argued that this lawsuit was a pattern of the trade organization representing the interests of large corporations, citing a report that found that only 23 of the 28 million small businesses in the U.S. benefited from the trade organization’s litigation. In seeking an explanation, the senators requested answers to a series of questions, including “How did [the trade organization] reach the decision to sue the CFPB to stop the agency from putting this rule in place?” and “Has the [trade organization] conducted an economic analysis of how the CFPB proposal would impact its members?”
CFPB finalizes rule to change its supervision designation procedures for nonbanks
On April 16, the CFPB issued a procedural rule to change how the Bureau will designate nonbanks for supervision. Under the CFPA, the CFPB was authorized to supervise a nonbank covered person if the Bureau had reasonable cause to determine if the nonbank covered person was engaged in financial services-related conduct that posed a risk to consumers. In 2013, the CFPB issued a rule providing procedures to govern supervisory designation proceedings under this authority; in 2022, the CFPB published a final rule amending the procedural rule to allow it to publicize its resolution of any contested designation proceeding (covered by InfoBytes here). In late February 2024, the CFPB transitioned to a new organizational structure for its supervision and enforcement work, and this rule will reflect the technical changes of the new structure in the context of supervisory designation proceedings.
According to the Bureau, there were small differences between two separate provisions under the 2013 rule that allowed nonbanks to consent to the CFPB’s exercise of supervisory authority. The new procedural rule will combine these provisions and clarify a few points of distinction from the two original provisions, including (i) a consent agreement does not constitute an admission; and (ii) supervision durations following consent agreements can be negotiated on a case-by-case basis, instead of applying a default duration of two years.
Regarding the Supervision Director’s notice of reasonable cause, the rule will expand the possible methods of delivery to include other methods that are “reasonably calculated to give notice.” Additionally, the rule states that the initiating official may withdraw a notice, and that they may file a written reply to the notice recipient’s response, neither of which was not contemplated under the previous rule. The Bureau said these changes could allow for more transparency in the decision-making process.
Concerning a supplemental oral response, the Bureau noted under the previous rule, a respondent nonbank entity presented supplemental oral responses to the Associate Director for Supervision, Enforcement, and Lending. In light of the elimination of the Associate Director position pursuant to a recent reorganization that split the Division of Supervision, Enforcement, and Fair Lending into a Division of Enforcement and a Division of Supervision, the rule provided that the Director of the Bureau will assume the Associate Director’s adjudicative roles and supervision-related functions. Therefore, the Director will be responsible for issuing a decision and order subjecting an entity to the Bureau’s supervision or terminating a proceeding.
The rule further stipulated that (i) an additional time limit for mail and delivery services are no longer warranted, since email would be “generally instantaneous”; (ii) there will be a 13,000-word limit for the proceeding filings; (iii) any changes to time or word limits can be decided between the initiating official and the respondent with a notice to the Director and will be subject to change by the Director.
Regarding the confidentiality of proceedings, the rule maintained a process for the CFPB to decide whether to publicly release final decisions and orders, including orders entered as a result of respondent failing to file a response and therefore defaulting. The Bureau did note, however, consent agreements entered into between the initiating official and the respondent will not be subject to public release under the rule.
The rule also established an issue exhaustion requirement, requiring respondents to raise arguments they have in their written response to the Bureau to avoid waiving the argument in future proceedings. The Bureau will invite public comments which must be submitted 30 days after publication in the Federal Register, although the rule will be exempt from the notice-and-comment rulemaking requirements under the APA as a rule of agency organization, procedure, or practice. The rule will be effective upon publication to the Federal Register, and it will apply to proceedings pending on the effective date, unless the Director determined that it will be “not practicable.”
Massachusetts’ attorney general issues AI guidance related to state UDAP law
On April 16, the Attorney General for Massachusetts (AG) released an advisory notice on how developers, suppliers and users of artificial intelligence (AI) should avoid “unfair and deceptive” practices to comply with consumer protection laws. The AG noted how AI systems could pose consumer harms, including through bias, lack of transparency, and data privacy issues – since consumers often lack the ability to avoid or test the “appropriateness” of AI systems forced upon them. Chapter 93A of Massachusetts law, the Massachusetts Consumer Protection Act, protected consumers against “unfair and deceptive” practices, the definition of which has changed over time. In addition to the consumer protection law, the AG highlighted several other state and federal consumer protections, including the ECOA, to bolster her advisory.
The AG’s advisory construed Chapter 93A to apply to AI, clarifying that the following practices may qualify as “unfair or deceptive”: (i) a company falsely advertising the quality of its AI systems; (ii) a company suppling a defective or impractical AI system; (iii) a company misrepresenting the reliability or safety of its AI system; (iv) a company putting an AI system up for sale in breach of warranty, meaning that the system was unfit for the purpose for which it was sold; (v) a company using multimedia content to impersonate or deceive (such as using a deep fake, voice cloning, or chatbots within fraud); (vi) or a company failing to comply with other Massachusetts’ statutes.
CFPB approves of Illinois’ new regulations on appraisal discrimination
On April 9, the CFPB released a comment letter supporting the Illinois Department of Financial and Professional Regulation’s decision to propose three rules prohibiting discrimination related to appraisals. The CFPB interpreted and issued rules under ECOA and would enforce its requirements. Illinois’ three proposed rules (38 IAC 345.280(c)(1)(A); 38 IAC 185.280(c)(1)(A); and 38 IAC 1055.240(c)(1)) would all update the Illinois code to prohibit discrimination under ECOA or the FHA, including a provision to deny loan applications where they should have been granted due to discrimination. “Discrimination against applications on a prohibited basis in violation, for example of the [ECOA] or [FHA], including… relying on giving force or effect to discriminatory appraisals to deny loan applications where the covered financial institution knew or should have known of the discrimination[.]” The CFPB commented in their letter that these provisions accurately described ECOA. The CFPB also noted that TILA’s Appraisal Independence Rule, which it has rulemaking authority under, does not conflict with a lender’s obligations to comply with civil rights laws including ECOA.