On November 12, the CFPB released “Planning for Retirement,” an online tool intended to help older consumers make informed decisions regarding Social Security retirement benefits. On the same day, the CFPB published a report titled “Issue Brief: Social Security Claiming Age and Retirement Security.” According to the report, many consumers decide to collect Social Security benefits at the earliest possible age of 62 without (i) knowing the full retirement age range of 66 to 67, depending on the person’s birth year; and (ii) understanding the effects of collecting Social Security claims before the full retirement age, such as the substantial reduction of monthly benefits. The CFPB’s new interactive tool (i) uses Social Security Administration formulas to help consumers estimate how their age will affect their Social Security retirement benefits; (ii) provides claiming tips relevant to a consumer’s specific situation; and (iii) provides suggested action steps to help consumers plan their retirement.
Special Alert: CFPB Issues Guidance Regarding Preauthorized Debit Transactions Under the Electronic Fund Transfer Act and Regulation E
On November 23, 2015, the Consumer Financial Protection Bureau (“CFPB”) released Compliance Bulletin 2015-06 (“Bulletin”), which provides industry guidance on the Electronic Fund Transfer Act (“EFTA”) and Regulation E requirements for obtaining consumer authorizations for preauthorized electronic fund transfers (“EFTs”). The CFPB issued this Bulletin, in part, because it observed during its examinations that some companies are not fully complying with the EFTA and Regulation E. Principally, this Bulletin addresses two areas of concern: (i) obtaining the customer’s authorization for preauthorized EFTs over the telephone; and (ii) providing a copy of the authorization to the customer. Read more…
On November 10, CFPB Director Richard Cordray delivered remarks at the annual American Bankers Association convention. Cordray addressed efforts by the CFPB and financial institutions to collaborate in strengthening financial education, identifying the following areas of focus: (i) working with schools and teachers to provide young people with the knowledge and skills necessary to become financially successful adults; (ii) encouraging workplace financial education; and (iii) educating older Americans and those who care for them on how to avoid financial scams. Cordray called on community banks to implement financial education programs in school systems, urging bank leaders to “set the goal of making sure that financial education is required learning in all 50 states.” Cordray encouraged banks to lead by example in promoting financial education in the workplace, and to “make it a priority to educate their own employees and help them develop and use sound financial strategies, including savings for both emergencies and retirement.” Finally, Cordray applauded banks for launching the “Safe Banking for Seniors” campaign and urged them to do more to protect older consumers from financial exploitation, noting that bankers are often the first to spot red flags and should act quickly to report any suspected abuse.
Recently, the District Court for the District of Columbia issued an opinion recognizing a company’s right to maintain privacy when challenging a CFPB Civil Investigative Demand (CID). John Doe Company No. 1 v. CFPB, No. 1:15-cv-1177 (D.D.C. Oct. 16, 2015). After receiving a CID from the Bureau, the Plaintiffs requested that the CFPB allow counsel to be present at a voluntary investigative hearing; the Plaintiffs’ request and subsequent petition to the CFPB were denied. On July 22, 2015, Plaintiffs filed a complaint against the CFPB seeking a temporary restraining order (TRO) and a motion to seal the case, arguing that sealing was appropriate because (i) CFPB investigations are normally nonpublic; and (ii) sealing the case would protect Plaintiffs from the harm that an ongoing investigation would cause if it were disclosed to the public. The court applied a six-factor test established by the D.C. Circuit in United States v. Hubbard to determine whether the court records should be released, considering the need for public access to the documents, the strength of the property and privacy interests involved, the possibility of prejudice against the Plaintiffs, and other factors. In a “compromise [to maximize] the amount of information available to the public while still protecting the privacy interest Plaintiffs assert,” the court ruled to unseal the case but ordered Plaintiffs to file redacted versions of all files pertaining to the case, omitting the names of Plaintiffs and “any other information reasonably likely to lead to the disclosure of Plaintiffs’ identities.”
On November 5, the CFPB published a report titled “Mobile Financial Services” to summarize the results of its June 2014 Request for Information on the opportunities and challenges associated with the use of mobile financial services (MFS) by traditionally underserved consumers. With 44% of unbanked individuals owning a smartphone, the report notes that MFS has the potential to be a promising tool for underbanked and unbanked consumers to manage their finances. According to the report, consumers using MFS save time and money because they can check their balances any time and have access to certain tools that help them manage their money. The report highlights mobile Remote Deposit Capture as particularly attractive to unbanked consumers because it allows them to take a picture of and deposit checks remotely, reducing the limitations of branch hours and locations. Additional key takeaways from the report include: (i) MFS would likely be most effective for underserved consumers if paired with consultative or assistance services; (ii) privacy and security concerns remain a significant risk; and (iii) digital access and digital financial literacy need improvement, such as enhancing affordable access to technology and educating consumers and intermediaries about safe and effective use of the technology.
On November 3, the CFPB released its latest Supervisory Highlights report, which covers examination findings from May 2015 to August 2015. According to the report, which summarizes supervisory observations in the areas of consumer reporting, debt collection, mortgage origination, mortgage servicing, student loan servicing, and fair lending, recent non-public CFPB supervisory actions resulted in $107 million in restitution to more than 238,000 consumers. The report recognizes that certain efforts were made by institutions to improve compliance, including (i) mortgage servicers making improvements to their compliance audits and conducting information technology reviews; and (ii) student loan servicers alerting borrowers of unpaid balances remaining after borrowers attempt to pay off their loans but fall short. The report also discusses the CFPB’s revised exam appeals process, which includes changes to the supervisory appeals process originally outlined in Bulletin 2012-07. Among other things, the revised exam appeals process extends the expected time to issue a written decision on appeals from 45 to 60 days, and “[p]revents an institution from appealing adverse findings or an unsatisfactory rating related to a recommended or pending investigation or public enforcement action until the enforcement investigation or action has been resolved.”
On October 29, the CFPB filed a complaint in the U.S. District Court for the Southern District of California against a California-based student financial aid operation and its owner (Defendants). According to the complaint, the Defendants represented that by paying a fee and sending in an application, consumers were applying for financial aid or the Defendants would apply for aid on behalf the students. The CFPB alleges, however, that consumers did not receive the promised services in exchange for their payment and that the Defendants collected more than $4 million from at least 76,000 consumers from January 2011 through the filing of the complaint. The CFPB alleges that the Defendants violated the CFPA by (i) deceiving students to pay for services that the Defendants did not actually provide; (ii) using letterhead that falsely indicated affiliation with the government and university financial aid offices; and (iii) pressuring students to enroll in the program and pay a fee by creating false deadlines and making deceptive statements about the consequences of missing the deadlines. The CFPB also alleges that the Defendants failed to provide privacy notices to consumers as required by Regulation P. The complaint seeks a civil money penalty, restitution to harmed consumers, and a prohibition against future violations.
On October 28, the U.S. District Court for the Northern District of Illinois filed a default judgment and order against a for-profit college company to resolve litigation with the CFPB. In a September 2014 lawsuit, the CFPB alleged that the company engaged in unfair and deceptive practices by making false and misleading representations to students to encourage them to take out private student loans. The CFPB also alleged that the company violated the FDCPA by taking aggressive and unfair action to collect on the loan payments when they became past due. The court order requires the company to pay approximately $531 million in redress to student borrowers, which the company is unable to pay because it has dissolved and its assets have been distributed in its bankruptcy case. The CFPB indicated that it will continue to seek additional relief for students affected by the company’s practices despite the company’s inability to pay the judgment.
On October 29, the CFPB announced a consent order with a national employment background screening provider and its affiliate for alleged violations of the FCRA. According to the CFPB, the company and its affiliate failed to (i) use reasonable procedures to assure maximum possible accuracy of the information in reports that they provided to employers; (ii) take appropriate measures to ensure that non-reportable information, such as civil suits and civil judgments older than seven years, was not included in reports; and (iii) comply with the requirement to maintain “strict procedures” to ensure complete and up to date information in reports or notify consumers when the reported information was likely to have an adverse effect on their ability to obtain employment. Under the terms of the consent order, the company and its affiliate are required to provide $10.5 million in relief to consumers and pay a $2.5 million civil money penalty. In addition, the company and its affiliate must revise their compliance procedures and hire an independent consultant to assess their policies, procedures, staffing levels, and systems.
CFPB Orders Auto Finance Company to Pay Over Three Million for Alleged Unfair Debt Collection Practices
On October 28, the CFPB filed an administrative order against an Ohio-based auto lender specializing in extending credit to servicemembers. The CFPB alleged that the company violated the CFPA by engaging in unfair, abusive, and deceptive debt collection practices, including: (i) contacting and threatening to contact servicemembers’ commanding officers to inform them of delinquencies and alleged military violations requiring discipline; (ii) exaggerating the potential disciplinary actions, such as demotion, loss of promotion, and discharge, that servicemembers may face if they failed to make payments; (iii) representing that the company could commence an involuntary allotment or wage garnishment without obtaining a court judgment; and (iv) threatening legal action when the company did not intend to take legal action at the time. Among other things, the consent order requires that the company: (i) refund or credit over $2 million to consumers; and (ii) pay a $1 million civil money penalty.
On October 27, following a March 4 CFPB Office of the Inspector General report on the CFPB’s diversity and inclusion efforts, the CFPB released a five-year Diversity and Inclusion Strategic Plan. Based on regulations and guidance from the Equal Employment Opportunity Commission and the Dodd-Frank Act, the plan is built around the following objectives: (i) recruit a diverse workforce; (ii) enable individuals to contribute to their full potential; (iii) ensure sustainability of the plan; (iv) increase opportunities for minority and women owned businesses; and (v) assess diversity practices of regulated entities. Regarding the fifth objective, the report states that, through the Office of Minority and Women Inclusion, the CFPB will use interagency policy standards to assess regulated entities’ diversity and inclusion policies and procedures and collect baseline data that will serve as a survey of best practices for institutions.
On October 27, the CFPB released its Monthly Complaint Report focusing on credit card complaints. The CFPB has received over 79,000 credit card-related complaints since it began receiving those complaints in July 2011. According to the report, consumer complaint issues specific to credit cards include: (i) confusion over how late fees are assessed; (ii) confusion about how to dispute inaccuracies in billing statements; (iii) accounts being closed without consent; and (iv) inability to allocate payments as consumers desire. The report also notes that, as of October 1, the CFPB has handled about 726,000 complaints across all product lines since it started receiving complaints.
On October 19, the CFPB released tips on how state bar associations and other legal organizations and professionals in all states can adapt the CFPB’s Managing Someone Else’s Money guides, which were released nationwide in 2013, followed by state-specific guides for Virginia in August 2015, and Florida in September 2015. The four guides – (i) Agents under a power of attorney; (ii) Court-appointed guardians of property and conservators; (iii) Trustees; and (iv) Government-benefit fiduciaries – were designed to help financial caregivers manage another person’s finances and help protect them from financial scam and exploitation. While the CFPB intends to release state-specific guides for Arizona, Georgia, Illinois, and Oregon in early 2016, the agency’s recent release of tips, which includes a list of topics most frequently changed in the state-specific guides, encourages the remaining states and territories that have varying fiduciary laws to adapt similar guides: “We hope this replication package will empower state bar associations and other groups of lawyers, courts, state agencies, and other professionals to collaborate in producing state-specific versions of these guides.”
On October 15, the CFPB finalized a rule amending Regulation C to update the reporting requirements of the HMDA. The final rule changes what data financial institutions must provide to Federal agencies. Data points to be reported under the final rule include: (i) information on applicants, borrowers, and the underwriting process, including age, credit score, debt-to-income ratio; (ii) information about the property securing the loan, such as property value and additional information on manufactured and multifamily housing; (iii) information on the features of the loan, such as pricing information, loan term, interest rate, introductory rate period, non-amortizing features, and the type of loan; and (iv) unique identifiers, including the property address, loan originator identifier, and a legal entity identifier for the financial institution. For more on this rule, please read BuckleySandler’s Special Alert.
On October 14, the CFPB released its annual report of the CFPB Student Loan Ombudsman, which analyzes consumer complaints submitted from October 1, 2014 through September 30, 2015 and provides an examination of issues raised in its September student loan servicing report. The CFPB is predominantly concerned about the group of borrowers facing repayment issues with older federal student loans made by banks and private lenders under the Federal Family Education Loan Program (FFELP). According to the CFPB’s report, at least 30 percent of borrowers who participated in FFELP are either behind in their loan repayments or already in default. The report includes the following additional noteworthy data: (i) more than one in five of borrowers with federal loans made by private lenders are past-due, with more than 10 percent in forbearance; and (ii) 95 percent of borrowers with federal loans made by private lenders are not enrolled in income-driven repayment plans. The content of the report emphasizes the importance of the Department of the Treasury, Department of Education, and the CFPB’s joint statement to improve student loan servicing practices, promote borrower success, and minimize defaults.