On March 18, the Hawaii Department of Commerce and Consumer Affairs published a notice advising collection agencies that due to changes in state licensing laws in Indiana, Nevada, and North Dakota, those states no longer qualify as “reciprocal states” such that licensure in those states can be used to obtain or renew a Hawaii collection agency designation. Hawaii law allows an out-of-state collection agency to obtain a state collection agency designation by demonstrating the company is licensed under the laws of a state (i) whose requirements to be licensed, permitted, or registered as a collection agency are substantially similar to Hawaii’s requirements; and (ii) that allows similar reciprocal arrangements for Hawaii-licensed agencies. The Department advises that any agency currently using one of the three states identified as the basis for its Hawaii collection agency designation must identify a new reciprocal state on its renewal application. Colorado, Illinois, Michigan, Minnesota, Nebraska, New Mexico, and Wisconsin are identified by the Department as states that meet its definition of a reciprocal state. Because the renewal constitutes a change to the current information on file, the Department will not accept an “online” license verification in lieu of a completed original “Verification of License” form.
FTC Settles Suit Against Tribe-Affiliated Lenders; Dispute Over CFPB Investigation Of Tribe-Affiliated Lenders Moves To Federal Court
On April 11, the FTC announced that a tribe-affiliated payday lending operation and its owner agreed to pay nearly $1 million to resolve allegations that they engaged in unfair and deceptive acts or practices and violated the Credit Practices Rule in the collection of payday loans. The FTC alleged that the lenders illegally tried to garnish borrowers’ wages and sought to force borrowers to travel to South Dakota to appear before a tribal court, and that the loan contracts issued by the lenders illegally stated that they are subject solely to the jurisdiction of the Cheyenne River Sioux Tribe. The announced settlement payment includes a $550,000 civil penalty and a court order to disgorge $417,740. The companies and their owner also are prohibited from further unfair and deceptive practices and are barred from suing any consumer in the course of collecting a debt, except for bringing a counter suit to defend against a suit brought by a consumer.
Also on April 11, in a separate matter related to federal authority over tribe-affiliated lending, a group of tribe-affiliated lenders responded in opposition to a recent CFPB petition to enforce civil investigative demands (CIDs) the Bureau issued to the lenders. In September 2013, the CFPB denied the lenders’ joint petition to set aside the CIDs, rejecting the lenders’ primary argument that the CFPB lacks authority over businesses chartered under the sovereign authority of federally recognized Indian Tribes. The lenders subsequently refused to respond to the CIDs, which the CFPB now asks the court to enforce. The CFPB argues that the lenders fall within the CFPB’s investigative authority under the terms of the Consumer Financial Protection Act, which the CFPB argues is a law of general applicability, including with regard to Indian Tribes and their property interests. The lenders continue to assert that they are sovereign entities operating beyond the CFPB’s reach.
On March 20, the CFPB released its third annual report summarizing its activities in 2013 to implement and enforce the FDCPA. The report describes the CFPB’s and the FTC’s shared FDCPA enforcement authority, incorporates the FTC’s annual FDCPA update, and reiterates the intention of both the FTC and the CFPB to exercise their authority to take action—both independently and in concert—against those in violation of the FDCPA.
The report highlights the debt collection-related complaints the Bureau has received—over 30,000 since the CFPB began accepting and compiling consumer complaints in July 2013, making the third-party debt collection market the largest source of consumer complaints submitted to the CFPB. The report states that the majority of the complaints the CFPB has received involve attempts to collect debts not owed and allegedly illegal communication tactics. The report also identifies several changes within the debt collection industry over the past year that will remain points of emphasis for the CFPB, including the expansion of the debt buying market, the growth of medical debt and student loan debt in collection, and the use of expanded technologies to communicate with debtors.
On March 6, the CFPB issued a notice that it intends to conduct a mail survey of consumers “to learn about their experiences interacting with the debt collection industry.” The notice states that the Bureau, as part of its information gathering related to its debt collection rulemaking, will ask consumers about (i) whether they have been contacted by debt collectors in the past; (ii) whether they recognized the debt that was being collected; (iii) interactions with the debt collectors; (iv) preferences for how they would like to be contacted by debt collectors; (v) opinions about potential regulatory interventions in debt collection markets; and (vi) knowledge of legal rights regarding debt collections. Comments on the proposed survey are due by May 6, 2014.
On March 5, the FTC released a summary of its 2013 debt collection activities, which it submitted to the CFPB on February 21, 2014. The report highlights that one of the FTC’s highest priorities is to continue targeting debt collectors that engage in deceptive, unfair, or abusive conduct. In particular, the FTC is actively pursuing debt collectors that secure payments from consumers by falsely threatening litigation or otherwise falsely implying that they are involved in law enforcement. In 2013, the FTC filed or resolved seven actions alleging deceptive, unfair, or abusive debt collection conduct. The FTC also took action against the continuing rise of so-called “phantom debt collectors.” The report also summarizes the FTC’s amicus program, and education, public outreach, research, and policy activities, including its Life of a Debt Roundtable Event, which examined data integrity in debt collection and the flow of consumer data throughout the debt collection process.
On March 5, the Superior Court of New Jersey, Appellate Division issued an opinion clarifying the proof necessary for debt buyers to prevail on efforts to collect an assigned debt on a closed and charged-off credit card account. New Century Fin. Servs. Inc. v. Oughla, Nos. A-6078-11T4, A-6370-11T1, 2014 WL 839180 (N.J. Sup. Ct. App. Div. Mar. 5, 2014). In a consolidated appeal of two trial court decisions, debtors sought to reverse the trial court’s orders granting summary judgment to two debt buyers seeking to collect on charged-off credit card debt they had purchased from sellers who derived their ownership from credit card issuers. The appeals court explained that to collect such debt, debtors must prove (i) ownership of the charged-off debt, which it can do through business records documenting its ownership, and (ii) the amount due at the time the card issuer charged off the debt. The court also determined that (i) an electronic copy of the last billing statement is sufficient to demonstrate the amount due at charge-off; (ii) the validity of a debt assignment is not undermined by a failure to provide notice of the assignment to the debtor, and (iii) that a debt can be assigned without specifically referencing the debtor’s name or account number. The court held in these companion cases that one of the debt buyers established ownership through proper authentication and certification of business records, while the other debt buyer failed to provide sufficient proof of the full chain of ownership of its claim to meet its burden. The court affirmed summary judgment for one buyer and reversed and remanded the other buyer’s case accordingly.
On February 28, the UK Financial Conduct Authority (FCA) announced final rules for consumer credit providers, including new protections for consumers in credit transactions. The FCA states that the most drastic changes relate to payday lending and debt management. For example, with regard to “high-cost short-term credit,” the new rules will (i) limit to two the number of loan roll-overs; (ii) restrict to two the number of times a firm can seek repayment using a continuous payment authority; and (iii) require creditors to provide a risk warning. Among other things, the new rules also establish prudential standards and conduct protocols for debt management companies, peer-to-peer lending platforms, and debt advice companies. The policy statement also describes the FCA’s risk-based and proactive supervisory approach, which the FCA states will subject firms engaged in “higher risk business” that “pose a potentially greater risk to consumers” to an “intense and hands on supervisory experience” and will allow the FCA to levy “swift penalties” on violators. The new rules take effect April 1, 2014. The FCA plans next to propose a cap on the cost of high-cost, short-term credit.
CFPB Supplements Consumer Reporting Guidance, Holds Consumer Advisory Board Meeting, Issues Consumer Reporting Complaints Report
On February 27, the CFPB issued supplemental guidance related to consumer reporting and held a public meeting focused on consumer reporting issues. The CFPB also released a report on consumer reporting complaints it has received.
The CFPB issued a supervision bulletin (2014-01) that restates the general obligations under the Fair Credit Reporting Act for furnishers of information to credit reporting agencies and “warn[s] companies that provide information to credit reporting agencies not to avoid investigating consumer disputes.” It follows and supplements guidance issued last year detailing the CFPB’s expectations for furnishers.
The latest guidance is predicated on the CFPB’s concern that when a furnisher responds to a consumer’s dispute, it may, without conducting an investigation, simply direct the consumer reporting agency (CRA) to delete the item it has furnished. The guidance states that a furnisher should not assume that it ceases to be a furnisher with respect to an item that a consumer disputes simply because it directs the CRA to delete that item. In addition, the guidance explains that whether an investigation is reasonable depends on the circumstances, but states that furnishers should not assume that simply deleting an item will generally constitute a reasonable investigation.
The CFPB promises to continue to monitor furnishers’ compliance with FCRA regarding consumer disputes of information they have furnished to CRAs. Furnishers should take immediate steps to ensure they are fulfilling their obligations under the law. Read more…
On January 31, the U.S. Court of Appeals for the Fourth Circuit held that the FDCPA does not impose a requirement that debt disputes be presented in writing and permits debtors to orally dispute the validity of a debt. Clark v. Absolute Collection Serv., Inc., No. 13-1151, 2014 WL 341943 (4th Cir. Jan. 31, 2014). A debt collector moved to dismiss a suit in which the debtor sought to invalidate a debt because the debt collection notice required the debtor’s dispute to be in writing. The debtor argued the notice violated FDCPA section 1692g(a)(3), which provides the basic right to dispute a debt. The debtor also claimed that the writing requirement was a false or deceptive means of collection in violation of section 1692e(10). Considering only the first argument on appeal, the Fourth Circuit joined the Second and Ninth Circuits, but split from the Third Circuit, and held that the “FDCPA clearly defines communications between a debt collector and consumers” and section 1692g(a)(3) “plainly does not” require a written communication to dispute a debt. The court rejected the debt collector’s argument that 1692g(a)(3) imposes an inherent writing requirement.
Eleventh Circuit Holds Collection Fee Based On Percentage Of Principal Owed In Violation Of Contract Terms Violated FDPCA
On January 2, the U.S. Court of Appeals for the Eleventh Circuit held that a debt collector violated the FDCPA by collecting a fee based on a percentage of the principal owed when the contract allowed a fee only for the actual cost of collection. Bradley v. Franklin Collection Serv., Inc. No. 10-1537, 2014 WL 23738 (11th Cir. Jan. 2, 2014). The debtor filed suit claiming, among other things, that the collector violated FDCPA Section 1692f, which prohibits unfair or unconscionable means of collection, including “collection of any amount . . . unless such amount is expressly authorized by the agreement creating the debt or permitted by law,” when it charged a fee that was not the actual cost of collection but rather liquidated damages. The court found that the contract only obligated the debtor to pay “all costs of collection,” i.e. the actual costs of collection and not a percentage-based fee where that fee did not correlate to the costs of collection. The court explained that the collector failed to prove that the percentage-based collection fee—which the collector assessed before attempting to collect the balance due—correlates to the actual cost of its collection effort. Addressing the issue for the first time, the Eleventh Circuit held that because the fee breached the agreement that obligated the debtor to pay only the “costs of collection”, the fee violated FDCPA Section 1692f. The court did not hold that the FDPCA prohibits the use of percentage-based collection fees, provided the contracting parties agree to such an arrangement.
On January 13, the CFPB issued a notice extending the comment period for its advance notice of proposed rulemaking related to debt collection practices. The notice states that the comment period, which was set to end on February 10, 2014, has been extended through February 28, 2014 in response to numerous formal and informal requests for additional time.
On December 10, the Colorado Attorney General (AG) announced a lawsuit against a debt buyer and its principal for allegedly engaging in fraudulent conduct in attempting to collect charged-off debt purchased from two national banks. The complaint also names two debt collection companies to whom the debt buyer resold some of the debt acquired from the banks. The AG asserts that all three companies routinely used false affidavits to collect on the debt.
The complaint scrutinizes the agreements pursuant to which the banks transferred the charged-off debt to the debt buyer. The AG states that the agreements limited the information the banks were obligated to provide to the buyer, requiring it to purchase evidence of the debt from the banks as needed. If the buyer requested documents that the banks could not locate, the banks agreed to provide affidavits attesting to the validity of such debts.
According to the complaint, the debt buyer sought to maximize its profits by using such affidavits and other materials provided by the banks to fabricate similar documents. It then allegedly used those false materials to collect debts from Colorado consumers, or provided the fabricated materials to the debt collectors to whom it had resold some of the debt. The complaint notes that neither of the two debt collectors “had policies or procedures for the evaluation of the validity or accuracy of account documentation that they received regarding debt that they purchased or sought to collect on.”
The AG claims that the creation, use, and distribution of the false bank documents violated the Colorado Fair Debt Collection Practices Act and the Colorado Consumer Protection Act. The AG also claims the debt buyer conducted collection activities in the state without obtaining a license, in violation of the state licensing law. The complaint seeks, among other things, civil penalties, actual damages, restitution, and disgorgement of all profits from the allegedly unlawful activities.
On November 20, the CFPB announced the resolution of an enforcement action against one of the largest payday lenders in the country. The consent order alleges that the lender and an online lending subsidiary made hundreds of payday loans to active duty military members or dependents in violation of the Military Lending Act, and that call center training deficiencies have allowed additional loans to be originated to spouses of active-duty members. The order also alleges unfair and deceptive debt collection practices, including so-called “robosigning” that allegedly yielded inaccurate affidavits and pleadings likely to cause substantial injury. In July, the CFPB issued a notice that it would hold supervised creditors accountable for engaging in acts or practices the CFPB considers to be unfair, deceptive, and/or abusive when collecting their own debts, in much the same way third-party debt collectors are held accountable for violations of the FDCPA.
Notably, this is the first public action in which the CFPB alleges that the supervised entities engaged in unlawful examination conduct. The Bureau asserts that the lender and subsidiary failed to comply with examination requirements, including by not preserving and producing certain materials and information required by the CFPB. Both the lender and its subsidiary are nonbanks and have not previously been subject to regular federal consumer compliance examinations; the CFPB does not allege that the exam failures were intentional violations potentially subject to criminal charges.
Pursuant to the consent order, the lender must pay $8 million in consumer redress, in addition to the more than $6 million the lender has already distributed to consumers for alleged debt collection and MLA violations. The lender also must pay a $5 million civil money penalty. The CFPB did not reveal how it determined the penalty amount or what portion of the fine is attributable to the alleged consumer-facing violations versus the alleged unlawful exam conduct. Finally, the order requires comprehensive compliance enhancement and imposes ongoing reporting and recordkeeping obligations for a period of three years.
In written remarks released by the CFPB, Director Cordray stated: “This action should send several clear messages to everyone under the jurisdiction of the Consumer Bureau. First, robo-signing practices are illegal wherever they occur, and they need to stop – period. Second, violations of the Military Lending Act harm our servicemembers and will be vigorously policed. Third, the Bureau will detect and punish entities that withhold, destroy, or hide information relevant to our exams.”
On November 13, the U.S. Court of Appeals for the Second Circuit held that where a creditor hires a third party to send collection letters but does not rely on the third party for any other bona fide efforts to collect the debts, the creditor can be held liable for violating the FDCPA under the statute’s false name exception to creditor immunity. Vincent v. The Money Store, No. 11-4525, 2013 WL 5989446 (2nd Cir. Nov. 13, 2013). In this case, a group of debtors filed a putative class action against a mortgage lender who purchased mortgages initially payable to other lenders and subsequently hired a law firm to send allegedly deceptive collection letters to borrowers on the lender’s behalf. Although creditors generally are not considered debt collectors subject to the FDCPA, the court determined in this case that a statutory exception to creditor immunity applied because the creditor, in the process of collecting its own debts, used a name other than its own, which typically would indicate that a third party is collecting or attempting to collect such debts. The court explained that the appropriate inquiry to determine whether a representation to a debtor indicates that a third party is collecting or attempting to collect is whether the third party is making bona fide attempts to collect the debts of the creditor or whether it is merely operating as a “conduit” for a collection process that the creditor controls. Because that inquiry requires a factual determination and because a jury could find that the law firm was acting only as a conduit for the lender, the lender could be held liable if the letters falsely indicated that the law firm was collecting the debt. The court affirmed the district court’s dismissal of the debtors’ TILA claims, holding that because the mortgage documents did not name the lender as the person to whom the debt was initially payable, the lender is not a “creditor” under TILA. However, after a review of TILA’s legislative history, the court identified for Congress an apparent oversight in TILA that “allows an assignee to escape TILA liability when it overcharges the debtor and collects unauthorized fees, where the original creditor would otherwise be required to refund the debtor promptly.” The court remanded the action for further proceedings.