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Nearly seven months into Mick Mulvaney’s tenure as Acting Director of the Bureau of Consumer Financial Protection (Bureau), the agency issued just its second enforcement action under his leadership on June 13, 2018. You may have missed it, as the press release was not pushed out through the Bureau’s email notifications and the cursory press release may have flown under your radar. The settlement is with a parent company and its subsidiaries that originated, provided, purchased, serviced, and collected on high-cost, short-term secured and unsecured consumer loans. The consent order contains allegations of violations of the prohibition on unfair practices under the Consumer Financial Protection Act and of the Fair Credit Reporting Act, and requires the respondents to pay a $5 million civil money penalty. Notably, the consent order does not require any consumer redress, despite Mr. Mulvaney’s stated intent to only pursue cases with “quantifiable and unavoidable” harm to consumers.

Debt Collection Practices

The Bureau alleges that respondents engaged in unfair in-person debt collection practices, including discussing debts in public, leaving the respondents’ “field cards” (presumably identifying the respondents) with third parties (including the consumers’ children and neighbors), and visiting consumers’ places of employment. The Bureau alleges that these practices were unfair because they caused substantial injury such as humiliation, inconvenience, and reputational damage; consumers could not reasonably avoid the harm because consumers were not informed of whether and when such visits would occur and could not stop respondents from engaging in the visits; and any potential benefit in the form of recoveries were outweighed by the substantial injury to consumers. The consent order notes that respondent attempted 12 million in-person visits to more than 1.3 million consumers over a five-year period, and requires respondents to cease in-person collection visits at consumers’ homes, places of employment, and public places.

The Bureau also alleges that the respondents made collection calls to consumers at their places of employment even after being told that the consumers could not receive calls at work, and called third parties in a manner that risked disclosing the debts. The Bureau further alleges that respondents did not heed cease-contact requests with respect to these parties. The Bureau alleges that such practices were unfair for the same reasons as the in-person collection practices described above.

Despite Mr. Mulvaney’s emphatic rejection of regulation by enforcement, the debt collection allegations in this consent order center around practices that lack any formal rulemaking. First, it appears that the Bureau is applying the guidance issued in its December 2015 bulletin, regarding unfair, deceptive and abusive acts and practices (UDAAP), which notes that in-person debt collection practices at consumers’ homes or places of employment can result in violations of the prohibition on UDAAP and the FDCPA due to the risk of disclosure of debts to third parties and the risk that such communications are at a time or place known to be inconvenient to the consumer. Second, the Bureau appears to be applying its July 2013 bulletin, which notes that prohibited practices under the FDCPA can be considered UDAAPs when employed by first-party debt collectors. Finally, the allegations suggest that the Bureau believes that debt collectors should inform consumers of their policies or practices regarding in-person collection visits despite no regulatory requirement to do so.

Credit Furnishing Practices

The Bureau alleges that respondents did not have in place any written policies and procedures regarding credit furnishing. The Bureau further alleges that the respondents furnished inaccurate information to credit reporting agencies, were slow to correct errors, overwrote corrected errors, and failed to furnish the date of first delinquency on certain accounts to credit reporting agencies. The consent order requires the respondents to consult an independent consultant to implement and maintain reasonable credit furnishing policies and procedures and to review all information furnished to a credit reporting agency since July 21, 2011.

More of the Same?

The settlement has many of the familiar trappings of the old Bureau in terms of the kind of conduct at issue and the corrective action required of the respondents (a Compliance Plan, etc.). But the consent order also reflects what appear to be new approaches to some issues. The consent order’s description of how the respondents’ actions were unfair, for example, is more fulsome than prior consent orders, including an acknowledgement that the collection tactics at issue may have a “marginal benefit in the form of more recoveries.” While this suggests that Mr. Mulvaney’s Bureau may be more thoroughly considering the third prong of unfairness (which requires a balancing of likely consumer injury with advantages to consumers or competition) than the previous leadership, the consent order still summarily concludes that the “marginal benefit” does not outweigh likely consumer injury. This conclusion is not supported by any empirical findings, notwithstanding Mr. Mulvaney’s assertion that the Bureau will engage in more quantitative analysis and his establishment of an Office of Cost Benefit Analysis. Time will tell whether the move to empirical analysis will be limited to rulemaking or will make its way to the enforcement realm as well.

Additionally, despite the allegations of substantial injury from the debt collection conduct at issue, the consent order does not require any financial consumer redress or cancellation of debts for impacted consumers. While the Bureau has been inconsistent in this regard in its past debt collection actions, it has typically required such consumer redress. For example, in a prior action involving in-person debt collection, the Bureau required that consumers be refunded any payments made within 90 days of an in-person collection visit.

It is dangerous to read too much into any one enforcement action, but what does appear clear is that the Bureau’s enforcement machinery is slowly creaking back to life after a near-freeze at the beginning of Mr. Mulvaney’s tenure. Future actions will reveal whether he was serious about there being “more math” (i.e., quantitative analysis) in the Bureau’s future and whether this action reflects a new approach to consumer redress.

The ABA Business Law Section is holding its 2018 Spring Meeting in Orlando next week and will offer nearly 90 CLE programs and many more committee meetings and events.

Mayer Brown’s Matthew Bisanz will co-moderate, and Anjali Garg will participate on, a panel on April 13th discussing current developments in UDAP/UDAAP enforcement involving financial institutions, including considerations for advertising disclosures and the potential for increased state enforcement activity. Matthew and Anjali are members of Mayer Brown’s Financial Services Regulatory and Enforcement Group in Washington, DC.

Also on April 13th, restructuring partner Luciana Celidonio (Tauil & Chequer, São Paulo) will participate on a panel exploring the issues and actors involved in international bond defaults.

For more information, please visit the event webpage.

On February 7, 2018, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) released the third installment of its call for comments on the Bureau’s functions. The latest request for information (“RFI”) on the CFPB’s enforcement processes should spark the interest of previously investigated and yet-to-be investigated entities alike. Comment letters should include specific suggestions on how the Bureau can change the enforcement process and identify specific aspects of the CFPB’s existing enforcement process that should be modified. In addition to considering the regulations governing CFPB investigations, 12 C.F.R. part 1080, commentators should consider reviewing the CFPB Office of Enforcement’s Policies and Procedures Manual, which governs the enforcement process. According to the RFI, commentators should include supporting data or information on impacts and costs, where available.

The RFI requests comments on the following topics:

Continue Reading Change is Coming: The CFPB Requests Comments on Its Enforcement Process

Pay-by-phone fees continue to attract the Consumer Financial Protection Bureau’s attention. Compliance Bulletin 2017-01, issued on July 27, 2017, indicates that the following acts or practices may constitute unfair, deceptive, or abusive acts or practices (“UDAAP”) or contribute to the risk of committing UDAAPs:

  1. Failing to disclose the prices of all available phone pay fees when different payment options carry materially different fees;
  2. Misrepresenting the available options or that a fee is required to pay by phone;
  3. Failing to disclose that a phone pay fee would be added to a consumer’s payment, which could create the misimpression that there is no service fee; and
  4. Lack of employee monitoring or service provider oversight, which may lead to misrepresentations or failure to disclose available options and fees.

The Bureau has previously raised concerns about phone pay fees. In a 2014 enforcement action, the Bureau and the Federal Trade Commission alleged that a mortgage servicer engaged in deceptive acts or practices by misrepresenting that the only payment method consumers could use to make timely payments was a particular method that required a convenience fee. In 2015, the Bureau took action against a bank for allegedly misrepresenting that a phone pay fee was a processing fee rather than a fee to enable the payment to post on the same day. The bank also allegedly failed to disclose other no-cost payment options. This week’s Bulletin 2017-01 suggests that companies should disclose such fees in writing to consumers, as opposed to relying solely on phone representatives to  explain the fees to consumers.

Bulletin 2017-01 also reiterates that certain practices in connection with phone pay fees may conflict with the Fair Debt Collection Practices Act (“FDCPA”). For example, Bureau examiners have found alleged violations of the FDCPA where the underlying consumer debt contract did not expressly permit the charging of phone pay fees and where the applicable state law was silent on the fees’ permissibility. The Bureau indicated last year that it may propose rules under the FDCPA to clarify that debt collectors may charge convenience fees only where state law expressly permits them or the consumer expressly agreed to them in the contract that created the underlying debt.

The Bulletin recommends that companies review their phone pay fee practices, including reviewing applicable state and federal laws, underlying debt contracts, service provider procedures, other consumer-facing materials, consumer complaints, and employee incentive plans for potential risks.

In March 2017, the CFPB issued a special edition of its Supervisory Highlights addressing consumer reporting from the perspective of consumer reporting companies (“CRCs”) (commonly referred to as credit bureaus or consumer reporting agencies) and furnishers. This follows the CFPB’s February 2017 Monthly Complaint Report, which focused on complaints related to credit reporting. These publications, along with recent statements by Director Robert Cordray, suggest that the CFPB will be placing additional supervisory focus on credit reporting for both CRCs and furnishers of consumer information. Continue Reading Time for Some Spring (Credit Reporting) Cleaning

On October 19, a divided Ninth Circuit ruled that a trustee of a deed of trust who takes action to initiate non-judicial foreclosure is not a “debt collector” under the Fair Debt Collection Practices Act (FDCPA). See Ho v. ReconTrust Co., NA, No., 10-56884 (9th Cir. Oct. 19, 2016).  The court reasoned that because the object of a non-judicial foreclosure is to retake and resell the property that secures a debt, as opposed to collecting money from the borrower, the trustee was not acting as a “debt collector” under the statute.  In further support of its conclusion, the court reasoned that holding otherwise would create a conflict between the trustee’s duties under state law and its obligations under the FDCPA.

In reaching this conclusion, the majority expressly rejected the position put forth by the Consumer Financial Protection Bureau (CFPB), Continue Reading Ninth Circuit Rejects CFPB Amicus Position as Unpersuasive

Nearly three years after releasing its Advance Notice of Proposed Rulemaking on debt collection practices, the Consumer Financial Protection Bureau (CFPB) has finally offered some insight on its plans for issuing rules under the Fair Debt Collection Practices Act. On July 28, 2016, the CFPB released an outline of proposals that it is considering in preparation for the next step in the rulemaking process—convening a Small Business Review Panel. Read more about the proposals under consideration, particularly in light of past CFPB enforcement actions and guidance, in Mayer Brown’s Legal Update, available here.

 

*Mrs. Moyer is not admitted in the District of Columbia. She is practicing under the supervision of firm principals.

On June 29, 2016, the Consumer Financial Protection Bureau (CFPB) and the Department of Justice (DOJ) jointly filed a complaint against a regional bank alleging that the bank discriminated against African-American borrowers in many aspects of its mortgage lending services. The agencies alleged that the bank’s discriminatory practices violated both the Equal Credit Opportunity Act (ECOA) and the Fair Housing Act. Below we outline the primary allegations in the complaint, the main terms of the consent order, and the key takeaways from this recent action. This is the CFPB’s first use of mystery shoppers to identify discrimination in a fair lending enforcement action and may offer a sign of what’s to come. Continue Reading Mystery Shopping Revelations: CFPB, DOJ, Bring Action Against Regional Bank for Discriminatory Lending Practices Confirmed by Testers*

It has been a busy June for the Consumer Financial Protection Bureau (CFPB) in the auto lending space. On June 9, the CFPB released a “Know Before You Owe” shopping sheet for auto loans. On June 27, the CFPB published a report entitled “Consumer Voices on Automobile Financing” (the “Auto Financing Report”). This report contains information on consumers’ challenges in obtaining and understanding auto financing based on focus groups with consumers and narrative consumer complaints. On June 28, the CFPB released its monthly complaint snapshot highlighting consumers’ complaints on auto lending. In the midst of this, the CFPB also published a series of blog posts directed at consumers on how to shop for auto loans.

Although the majority of the CFPB’s documents and articles are focused on consumers, direct and indirect auto lenders can learn from the CFPB’s guidance. Before you drive away for the long weekend, here are some key highlights from the CFPB’s recent slew of auto financing information: Continue Reading Auto Lenders Take Note: Key Takeaways from the CFPB’s Recent Auto Financing Publications

The Board of Governors of the Federal Reserve System, the Consumer Financial Protection Bureau (“CFPB”), the Federal Deposit Insurance Corporation (“FDIC”), the National Credit Union Administration, and the Office of the Comptroller of the Currency (“OCC”) issued guidance on May 18, 2016 outlining the agencies’ supervisory expectations regarding customer account deposit reconciliation practices. The guidance does not impose any new requirements, but reminds institutions of the expectation that they implement policies and procedures to protect customers where there is a credit discrepancy (e.g., difference between the amount of the actual deposit and the amount credited to the customer’s account). Continue Reading CFPB and Prudential Regulators Issue Guidance on Deposit Reconciliation Practices