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Financial Services Law Insights and Observations


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  • Maryland updates prohibited items reported on consumer credit reports

    State Issues

    On May 9, the Governor of Maryland approved SB 41 (the “Act”) which will change the requirements on prohibitions for consumer reporting agencies as to what information they may include in consumer credit reports.

    The Act will prohibit consumer reporting agencies from reporting bankruptcies more than 10 years before the credit report would be issued, suits and judgments of more than seven years, paid tax liens greater than seven years, accounts placed for collection of more than seven years, arrest records or other crime reports of greater than seven years, and “any other adverse information that predates the report” by more than seven years. These reporting prohibitions do not apply to credit transactions with a principal amount of at least $150,000, as well as both the underwriting of life insurance with a face value of at least $150,000 or the employment of someone with a salary of at least $75,000. The Act will go into effect on October 1.

    State Issues Maryland Credit Report Consumer Reporting Agency Debt Collection

  • 11th Circuit rejects a proposed TCPA class action settlement


    On May 13, the U.S. Court of Appeals for the Eleventh Circuit vacated and remanded a proposed TCPA class action settlement agreement. The class, consolidated from three class actions, accused the defendant, the “world’s largest services platform for entrepreneurs,” of violating the TCPA by using an automatic telephone dialing system to send unwanted calls and text messages to promote its products. The $35 million settlement and attorney’s fees, up to $10.5 million, was approved preliminarily in 2020.

    According to the appellate court’s opinion, the district court abused its discretion in approving a proposed $35 million settlement because it: (i) did not consider the 2018 amendments to Rule 23(e)(2); (ii) overlooked possible collusion in the settlement agreement; and (iii) inadequately informed class members about the case. Additionally, the court incorrectly calculated the attorneys’ fees and wrongly treated the settlement as a common fund rather than a claims settlement. The class’s counsel was criticized for appearing to represent their own interests over those of the class since they were supposed to receive $10.5 million in fees. The court also found issues with the opt-out process, which was deemed overly complex and likely to discourage class members from opting out. As a result, the judgment was vacated.

    Courts Eleventh Circuit Appellate TCPA Settlement

  • District Court denies mortgage lender’s motion to dismiss against CFPB


    On May 2, the U.S. District Court for the Southern District of Florida denied a mortgage lender’s motion to dismiss. The CFPB sued the lender in October 2023 for violating HMDA and Regulation C by intentionally misreporting data regarding borrower race, ethnicity, and sex pursuant to a data reporting requirement from a prior consent order. In a sample of the defendant’s data reporting submission, the CFPB allegedly found 51 data errors across seven data fields. The court sided with the CFPB on all four grounds raised in the lender’s motion to dismiss. First, the court found that the CFPB pleaded a plausible violation of the HMDA, sufficient to survive a motion to dismiss. Second, the court rejected the lender’s arguments that HMDA and Regulation C are “unconstitutionally vague” because they established a standard for covered loan data that meets a constitutional standard. Third, the court sided again with the CFPB in finding that the injunctive relief at issue did not qualify as an “obey the law” injunction since it provided reasonable clarity of what was required of the lender. And fourth, the court upheld the funding structure of the CFPB as constitutional, therein following guidance from the Second Circuit in upholding the structure as constitutional.

    Courts CFPB HDMA Regulation C Enforcement

  • Court grants summary judgment for lack of disputed debt evidence


    On May 7, the U.S. District Court for the Western District of Oklahoma entered into an order granting summary judgment in favor of the defendant, a debt recovery agency, on the basis that the plaintiff, an individual, failed to prove that the defendant knowingly provided false information to credit agencies in violation of the FDCPA. In this case, the plaintiff alleged violations of the FDCPA due to the defendant’s failure to report his debt as disputed to credit agencies.

    The plaintiff claimed that he disputed the debt during a phone call with the defendant by questioning the balance owed on his account. Upon reviewing the call recording and other evidence, the Court found that the plaintiff did not actually dispute the debt during the call and instead asked about the charges. Since there was no evidence of an actual dispute, the Court granted summary judgment in the defendant’s favor.

    Courts FDCPA Credit Report Oklahoma

  • CFPB and Fed adjust dollar thresholds for Regulation CC

    Agency Rule-Making & Guidance

    On May 13, the CFPB and the Fed announced inflation-adjusted changes to Regulation CC, which governed the availability of customer funds from bank deposits. The final rule altered the minimum amounts that must be made available for withdrawal by the next business day for certain types of check deposits and modified the funds from certain checks deposited into new accounts that are subject to next-day availability. Mandated by Dodd-Frank, these adjustments were based on the five-year change in the CPI for Urban Wage Earners and Clerical Workers from July 2018 to July 2023. The updated thresholds will go into effect on July 1, 2025.

    Agency Rule-Making & Guidance Federal Issues CFPB Regulation CC Federal Reserve

  • FTC’s Safeguards Rule notification requirement under GLBA now in effect

    Agency Rule-Making & Guidance

    On May 14, the FTC published a business blog post announcing the Safeguards Rule, an amendment to the GLBA, is in effect as of May 13. The Safeguards Rule applies to financial institutions subject to the FTC’s jurisdiction and aims to protect customers' private personal information through data breach reporting requirements.

    Additional revisions to the Rule related to data breach reporting were announced in October 2023, with amendments requiring covered companies to notify the FTC within 30 days of a security breach impacting at least 500 consumers. For reporting, businesses must use a new online form provided by the FTC. The Rule complements existing business security measures and does not negate other state and federal legal obligations. Businesses can refer to FTC guidance for further details on the rule and compliance requirements.


    Agency Rule-Making & Guidance FTC Privacy, Cyber Risk & Data Security

  • FSOC releases report on nonbank mortgage servicing

    Federal Issues

    On May 10, the Financial Stability Oversight Council (FSOC) released a report analyzing the growing nonbank mortgage servicing sector. The report discussed the sector’s significant market share, strengths and vulnerabilities particularly in financial stress scenarios. The FSOC emphasized the potential for these vulnerabilities to affect financial stability including income, balance sheets, and access to credit simultaneously, and the need for enhanced resilience measures. To combat these issues, the FSOC suggested a series of recommendations to promote safe and sound operations, address liquidity pressures in the event of stress, and ensure continuity of servicing operations.

    The FSOC’s recommendations included urging state regulators to improve oversight and prudential standards, suggesting Congress grant FHFA and Ginnie Mae greater authority to enforce safety and soundness standards. Furthermore, the report suggested that Congress would authorize Ginnie Mae and encourage state regulators to share information with each other and with Council member agencies. The Council also recommended that Congress would consider legislation to provide Ginnie Mae with the authority to expand the Pass-Through Assistance Program into a more effective liquidity backstop for mortgage servicers participating in the program during periods of severe market stress. The report further proposed the creation of a fund to support servicing continuity in times of servicer failure, including loss-mitigation activities for borrowers and the advancement of monthly payments to investors.

    The Director of the CFPB, Rohit Chopra, released a statement in response to the FSOC’s report. Chopra emphasized the importance of the mortgage market to the economy, and the significant role played by nonbank mortgage companies. He expressed concern about the lack of oversight of nonbanks in comparison to banks and said that the Bureau will soon propose a rule “to strengthen certain homeowner protections.” He also mentioned that regulators were concerned about nonbanks’ lack of supervision and sensitivity to market volatility given their often-limited cash reserves and heavy dependence on bank borrowing.

    If a large nonbank mortgage company were to fail, Chopra said that borrowers could face chaos: payment issues, no customer service, and foreclosure risks, as well as generally limited access to credit, especially for low- and moderate-income households. Chopra also mentioned that the report does not discuss specific measures for addressing these risks within the FSOC and suggested appropriate tools for managing such risks will be a future effort. Chopra expressed concern that current rules do not sufficiently protect borrowers exposed to foreclosure and “junk fees” and stated that the CFPB will conduct a thorough evaluation to determine if any significant nonbank mortgage firms would meet the criteria for heightened supervision and regulation by the Fed as well as work on a proposed rule to mitigate losses by including foreclosure protections from the earliest stage of mortgage servicing, even if the servicer does not yet have all the documents.

    Federal Issues Nonbank Supervision Mortgages Mortgage Servicing

  • House questions CFPB's rules on NSF fees and impact on small businesses

    Federal Issues

    On May 9, the House Committee on Small Business expressed concerns in a letter addressed to CFPB Director, Rohit Chopra, on a proposed rule that would ban charging insufficient fund fees (NSF fees) on declined transactions (covered by InfoBytes here). The Committee argued this proposed rule could unduly complicate existing UDAAP regulations and impose additional burdens on small financial institutions.

    The letter stated the CFPB did not convene a Small Business Advocacy Review (SBAR) panel and questioned the CFPB’s claims that the rule would not significantly affect a substantial number of small businesses. The Committee suggested that the CFPB’s analysis, which minimizes the impact of NSF fees on small institutions’ revenue, might be flawed and that the rule could have a significant economic impact in terms of reporting requirements and compliance, warranting a review by an SBAR panel. The Committee also challenges the CFPB’s assertion that NSF fees for certain transactions are inherently “abusive,” arguing that the CFPB is overstepping its authority by attempting to ban “business practices” altogether rather than limiting abusive practices. Finally, the Committee requests information from the CFPB on several fronts, including the number of small financial institutions affected by the rule, the compliance burden, the CFPB’s methodology for identifying UDAAP, and the CFPB's stance on disclosures compared to other financial regulations and the FTC's approach.


    Federal Issues CFPB NSF Fees Agency Rule-Making & Guidance Fees

  • New York Fed reports on community development financial institutions

    Federal Issues

    On May 8, the New York Fed released a report examining both the origination and sale of loans by community development financial institutions (CDFIs) and found that loans of both types more than doubled from 2018 to 2022. According to the report, in 2022, CDFIs originated $67 billion and sold $14 billion of loans, which was a major increase since 2018, where CDFIs originated $29 billion and sold $6 billion of loans. This doubling also contributed to some market concentration: The 10 most active CDFIs in 2022 originated over 25 percent of the total origination volume and 75 percent of the total sold loan volume. The report stressed “nearly all loan sales to Ginnie Mae and life insurance companies” were sold from the most active sellers.

    On breakdown, the New York Fed found residential (single family) loans as the highest volume collateral data type, far outpacing lines of credit, multifamily, commercial real estate, and business. There were also a high number of CDFI originations in California and Florida, and credit unions were the most active originators over banks, thrifts, or loan funds.

    On May 14, a member of the Fed Board of Governors Lisa Cook spoke on how CDFIs impact communities positively and some of the challenges CDFIs face. Cook noted specifically that CDFIs often “continue their work with borrowers even after loans are made… helping them through rough spots, should borrowers experience difficulty repaying loans,” which were unique among the CDFI borrower-banking relationship. On challenges, Cook noted how demand for capital was outpacing the current supply: Federal funding tied to past pandemic relief programs have dried up, leading to the challenge of building out long-term capital sources for future CDFI demand. She closed by emphasizing the importance of the CDFI industry and her continued support of CDFIs.



    Federal Issues Bank Regulatory Federal Reserve New York Ginnie Mae

  • CFPB reports consumer complaints on credit card rewards programs

    Federal Issues

    On May 9, the CFPB issued a report on credit card rewards programs which highlighted the CFPB’s views on issues affecting millions of consumers. The report opened with a note that the CFPB received over 1,200 complaints regarding credit card rewards in 2023, reportedly a 70 percent increase since before the pandemic, and according to the CFPB, the research found that the benefits of rewards programs “fail to exceed” the costs of credit cards for many borrowers. The report identified four themes: consumers felt misled by vague or hidden conditions that do not match marketing materials from issuers; consumers lost out when card issuers devalue rewards; consumers faced obstacles when card issuers do not resolve redemption issues; and consumers lost rewards when accounts are closed.

    In a live panel between the Director of the CFPB, Rohit Chopra, Secretary of the DOT, Pete Buttigieg, and airline trade leaders on credit card reward programs, Chopra noted that there were 550 million credit cards in the U.S. which collectively account for over $1 trillion in consumer debt. Chopra also stated the CFPB will review how it can protect consumers against the devaluation of credit card points. In the panel, Chopra asked the trade groups what they would like the CFPB to do regarding credit card terms and conditions: some organizations asked for greater transparency in points systems, with one suggesting that credit card issuers’ ability to change terms mid-contract should be prohibited.

    Federal Issues CFPB UDAAP Credit Cards Rewards Programs


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