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FTC Resolves "Operation Collection Protection" Charges; Bans Companies from Debt Collection Business
On September 7, the FTC announced separate stipulated orders (here and here) against two groups of debt collectors to resolve November 2015 charges that their debt collection practices were deceptive, abusive, and unfair in violation of the FTC Act and the Fair Debt Collection Practices Act (FDCPA). According to the FTC, the first group of debt collectors (i) attempted to collect on debts consumers claimed they did not owe; (ii) failed to verify the debts; and (iii) impersonated law enforcement, threatened non-compliant consumers with arrests and lawsuits, and made accusations of bank fraud. In addition to barring the defendants from debt collection activities and from “misrepresenting material[] facts about any financial-related products or services,” the order imposes a judgment of more than $4.47 million. Regarding the second group of debt collectors, the FTC alleged that, in addition to threatening consumers with arrest if purported debts went unpaid and harassing friends, family members, and employees in an attempt to collect debts, they sent “alarming and deceptive text messages to trick consumers into contacting them, without identifying themselves as debt collectors.” Pursuant to the final judgment, the defendants must pay a judgment of approximately $27 million. The order imposes a separate judgment of $11,000 on the individually named defendant.
Filed in federal district court of New York, the actions were part of the FTC’s Operation Collection Protection, a federal-state-local initiative that has brought a total of 148 debt collection-related actions to date.
White House Releases Report on the Dodd-Frank Act and Community Banking; ABA Refutes Claims
Recently, the White House Council of Economic Advisers issued a report titled “The Performance of Community Banks Over Time.” Seeking to address industry concern that Dodd-Frank regulations have negatively impacted community banks, the report presents research related to bank branching patterns and macroeconomic conditions as “evidence” to the contrary, maintaining that “community banks have remained healthy as the Dodd-Frank financial reform has been implemented.” The report presents the following five key points as indication that community banks “remain strong” under the Dodd-Frank Act: (i) with the exception of smallest community banks, the lending growth rate has increased since the financial crisis in 2010; (ii) evidence fails to suggest that Dodd-Frank led to a decline in the number of community banks across counties; (iii) since 1994, for community banks with assets between $100 million and $10 billion, the average number of branch offices has increased; (iv) the decline in the number and market share of community banks with assets totaling less than $100 million is a result of growth; and (v) a combination of macroeconomic factors, such as low equilibrium interest rates, contribute to “a substantial portion of the drop in new bank entry in recent years.” In closing, the report reasons that the Obama Administration “has taken important steps to ensure that regulatory requirements are implemented in a fair and equitable manner for community banks.”
ABA president Rob Nichols released a statement challenging the report’s findings, claiming a “serious disconnect between [the] report and the daily reality for America’s hometown banks and the communities they serve.” Although Nichols acknowledges that the Dodd-Frank Act is not the only contributing factor causing community banks to close, he suggests that the “more than 24,000 pages of proposed and final rules belies the idea that Dodd-Frank had no impact” and emphasizes that “[c]omprehensive regulatory relief is long overdue for community banks.”
SEC Appoints New Deputy Associate Director in Division of Investment Management's Rulemaking Office
On September 7, the SEC named Sarah G. ten Siethoff Deputy Associate Director in the Division of Investment Management’s Rulemaking Office. Since joining the SEC in 2008, Ms. ten Siethoff has served in various roles in the Division’s Rulemaking Office, including Assistant Director, Senior Special Counsel, and Senior Counsel. In her new role, Ms. ten Siethoff will, among other things, recommend rulemaking and other policy initiatives under the Investment Company and the Investment Advisers Acts of 1940. Prior to joining the SEC in 2008, Ms. ten Siethoff worked as an associate in private practice.
Special Alert: More Turbulence for Marketplace Lending - CFPB Prevails in "True Lender" Litigation
After what seems to be an extended season of heavy weather for marketplace lending, a federal district court in California unleashed a late-Summer lightning storm in Consumer Financial Protection Bureau v. CashCall, Inc. In a CFPB action leveled against the so-called “tribal model” of online lending, the court held that defendants, CashCall and its affiliated entities and owner, engaged in deceptive practices by collecting on loans that exceeded the usury limits in various states. Although the case focused on the tribal model – a structure where the loan is made by an entity located on tribal land and subsequently transferred to an assignee not affiliated with the tribe – the court’s opinion raises critical issues about the extent to which its analysis applies to the more common “bank partnership model” of marketplace lending.
Click here to view the full Special Alert.
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Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.
- Walter E. Zalenski, (202) 461-2910
- John P. Kromer, (202) 349-8040
- Jeffrey P. Naimon, (202) 349-8030
CFPB Monthly Complaint Report Highlights Bank Account and Service Complaints
The CFPB recently issued its monthly report of consumer complaint trends for August. The report spotlights complaints regarding bank accounts and account services, noting that issues related to checking accounts are among the most common complaint (64%). Specifically, the report highlights consumer complaints about the increasing use of credit reporting data to screen customers prior to account opening, with consumers often complaining that they learn of negative reporting information for the first time when trying to open an account and that they have difficulty addressing potential reporting errors. The report also describes consumer frustration with overdraft fees, including when such fees are incurred for small-dollar purchases. Consumers also expressed confusion over eligibility requirements for promotional offers when opening new accounts, and submitted complaints involving “disputes over whether the consumer had met the required terms for a promotional offer.” In addition, the report noted concerns about financial institutions’ error resolution processes, including concerns with drawn-out response times for disputed transactions.
As usual, the August report features a geographic spotlight, this time focusing on complaint trends in Ohio generally and the Columbus metro area specifically. The report noted that 29,400 of the 954,000 complaints received as of August 1, 2016 came from Ohio-based consumers, and that consistent with the national trend, Ohio consumers most often submit complaints about debt collection (28%). Mortgage-related and credit reporting complaints follow as the second and third most-complained-about products, respectively, in both Ohio and Columbus.
Holly Petraeus to Retire from CFPB
On August 26, USAJOBS posted an opening for CFPB Assistant Director, Office of Servicemember Affairs. Currently, Holly Petraeus serves as the CFPB’s Assistant Director, Office of Servicemember Affairs, but during the Association of Military Banks of America Fall Workshop earlier this week Ms. Petraeus announced that she plans to retire from the CFPB. The CFPB has yet to release an official statement regarding Petraeus’s retirement.
FTC Seeks Public Comment on the Safeguards Rule
On August 29, the FTC announced that it is requesting public comment on its Standards for Safeguarding Customer Information Rule (the Safeguards Rule). As required by the Gramm-Leach-Bliley Act, the Commission promulgated the Safeguards Rule to require all “financial institutions” over which the FTC maintains authority to “develop, implement and maintain a comprehensive information security program for handling customer information” (emphasis added). The FTC seeks comments on several specific questions relating to (i) the Safeguards Rule’s economic impact and benefits; (ii) potential conflict between the Safeguards Rule and state, local, or other federal laws or regulations; and (iii) how technological, economic, or other industry changes will affect the Safeguards Rule. Comments are due by November 7, 2016.
FDIC Releases Summer 2016 Supervisory Insights
The FDIC recently released its Summer 2016 Supervisory Insights, which in addition to providing an overview of newly released supervisory guidance and regulations, includes the following two articles: “De Novo Banks: Economic Trends and Supervisory Framework” and “‘Matters Requiring Board Attention’ Underscore Evolving Risks in Banking.” The first article summarizes (i) trends in de novo formation; (ii) the application process for deposit insurance; (iii) the FDIC’s supervisory approach to de novo institutions; and (iv) FDIC initiatives intended to “support the development, submission, and review of proposals to organize new institutions.” According to the FDIC Director Doreen Eberley, the “entry of new institutions helps to preserve the vitality of the banking sector, fill critical gaps in local banking markets, and provide credit services to communities that may not currently have a local financial institution.” The second article discusses Matters Requiring Board Attention (MRBA), which are identified in written reports of examinations (ROEs) and communicated to banks as significant operational issues warranting improvement. According to the FDIC, from 2014 through 2015, board and management issues were the most frequently listed MRBAs. For example, nearly half of the board and management-related MRBAs concern “corporate governance issues attributable to incomplete or ineffective policies,” while approximately 31% address audit concerns. Based off MBRA trends discussed in the article, the FDIC emphasized “the need for strong risk management policies and practices, particularly as credit volumes continue to increase during this current economic expansion.”
OCC Senior Deputy Comptroller Highlights the Importance of SCRA and MLA Compliance
On August 29, OCC Senior Deputy Comptroller Grovetta Gardineer delivered remarks at the 2016 Association of Military Banks of America Workshop, emphasizing the significance of banks’ compliance with the Servicemember Civil Relief Act (SCRA) and the Military Lending Act (MLA). Although Gardineer noted that SCRA-related issues have decreased since making SCRA compliance an examination focus, she stressed that room for improvement remains. Gardineer advised banks to perform due diligence with third-party vendors, noting that banks “will be held accountable for failures” by their third-party vendors. Gardineer further cautioned that, in light of the new MLA requirements taking effect on October 3, banks must ensure that they properly identify military borrowers entitled to the MLA’s expanded coverage, which will include “nearly all consumer credit covered under the Truth in Lending Act.”
SEC Announces $22 Million-Plus Whistleblower Award; Program Surpasses $100 Million in Awards
On August 30, the SEC announced that a whistleblower will receive more than $22 million for providing the SEC with a “detailed tip and extensive assistance” to help the agency uncover “well-hidden” securities fraud at the whistleblower’s company. The $22 million-plus award is the second largest SEC whistleblower award, following a $30 million award in September 2014. The SEC began the whistleblower program in 2011 and announced its first award in August 2012. Since then, the agency’s program has surpassed $100 million in total money awarded. More than 14,000 whistleblower tips have been submitted to the Whistleblower Office, with a total of 33 whistleblowers receiving monetary awards.