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Consumer Financial Protection Bureau Update

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Consumer Financial Protection Bureau Update A degree of uncertainty hangs over the Consumer Financial Consumer Protection Bureau (CFPB) following the November 2017 res- Financial ignation of its first director, Richard Cordray. On his last day in office, Cordray appointed his chief of staff, Leandra English, Protection to the position of deputy director, intending that she become Bureau Update acting director upon his resignation. Immediately thereafter, President Donald Trump appointed Office of Management and Contributing Partners Budget Director Mick Mulvaney as acting director, prompting a legal challenge by English. On January 12, 2018, Judge Timothy Joseph L. Barloon / Washington, D.C. J. Kelly of the U.S. District Court for the District of Columbia Anand S. Raman / Washington, D.C. denied English’s motion for an injunction prohibiting Mulvaney Counsel from acting on behalf of the Bureau. Two days later, English filed a notice of appeal with the U.S. Court of Appeals for the District Austin K. Brown / Washington, D.C. of Columbia Circuit as well as a notice indicating that she would Darren M. Welch / Washington, D.C. seek expedited treatment of her appeal. Practice Area Specialist Meanwhile, Mulvaney has signaled that the Consumer Financial Protection Act and the agency will be moving in a radically Equal Credit Opportunity Act — remain Holly M. Sampson / Washington, D.C. different direction than during Cordray’s the same. tenure. In particular, he has stated that he will seek to slow down (and in some Enforcement Actions Spur cases reverse) Bureau rulemaking, and Litigation that the Bureau will adopt a significantly As in most years, the majority of the different approach to enforcement. And CFPB’s public enforcement actions in while Mulvaney’s tenure at the CFPB is 2017 were settled without litigation by temporary, the priorities of any confirmed agreed-upon consent orders. The Bureau director are expected to more closely announced numerous such settlements resemble Mulvaney’s than Cordray’s. last year across the consumer financial services industry, including: an action The changes that Mulvaney has proposed against Experian alleging that the credit would undoubtedly be welcomed by the bureau deceived consumers and violated financial services industry, which has the Fair Credit Reporting Act based on faced a challenging enforcement and the company’s description of its credit compliance environment under the CFPB. scores; an action against Fay Servicing In the Bureau’s first six years, it brought alleging that the mortgage servicer This article is from Skadden’s 2018 Insights. more than 200 actions, obtained nearly illegally began foreclosure proceedings $5 billion in consumer restitution and This memorandum is provided by Skadden, against certain homeowners; and an assessed more than $700 million in civil Arps, Slate, Meagher & Flom LLP and its action against certain American Express affiliates for educational and informational money penalties. During the same period, subsidiaries alleging discrimination purposes only and is not intended and the Bureau published more than 60 final against consumers on the basis of national should not be construed as legal advice. rules, along with numerous informal origin by offering terms and conditions on This memorandum is considered advertising guidance directives. under applicable state laws. its Spanish-language card products and products offered in Puerto Rico, the U.S. Four Times Square Although the cadence and nature of New York, NY 10036 Bureau enforcement and rulemaking are Virgin Islands and other U.S. territories 212.735.3000 likely to change, a look at past activities is that were less favorable than on their nonetheless instructive, as the underlying English-language card products and prod- laws that the Bureau enforces — including ucts offered in the 50 states. Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates skadden.com Consumer Financial Protection Bureau Update While all of these actions were resolved – Universal Debt Solutions, LLC (August Rule) in November 2017, with an effective without litigation, the number of 25, 2017). In a case alleging that a date of January 16, 2018. The rule requires companies that elected to contest CFPB number of payment processors partici- that before originating short-term loans, enforcement proceedings rather than pated in an unlawful debt collection lenders determine if a borrower can afford settle increased in 2017. Whether these scheme, the court dismissed all counts the loan payments while meeting basic decisions were related to the merits of the against the processors as a sanction living expenses. The rule also caps the cases or to Cordray’s imminent departure against the CFPB for its “bad faith” number of loans made in succession to a is a matter of some debate. What is clear, conduct in discovery and “blatant disre- borrower to three and creates additional however, is that a number of courts have gard” for the court’s instructions. loan payoff options for consumers. shown a willingness to reject CFPB liabil- ity and damages theories, a development To be sure, the CFPB obtained a number Significantly, the final rule was narrower that could spur even more challenges to of its own court victories in 2017 (includ- than the Bureau’s original proposal, which Bureau enforcement proceedings. In the ing a ruling from a Pennsylvania court would have extended ability-to-pay and litigation arena, notable decisions include: allowing its case against student loan other requirements to certain longer- servicer Navient to proceed). But the term installment loans with interest rates – Intercept Corp. (March 17, 2017). spate of court rulings against the CFPB in greater than 36 percent. Nonetheless, In a case alleging that a third-party 2017 likely means that more targets will industry opposition to the Payday Rule payment processor and its executives had decline to settle CFPB charges and take has been stiff, with many commenters “systematically enabled” certain debt their chances in court. asserting that the restrictions would leave collectors and lenders to collect debts millions of Americans with no access to that they were not legally owed, the court Mixed Results on Rulemaking credit. On January 16, 2018, the CFPB held that the CFPB’s complaint did not In 2017, the CFPB issued two rules announced that it intends to commence contain sufficient factual allegations to that generated significant public rulemaking to reconsider the Payday Rule. back up its claims. interest — one regulating the use of arbitration agreements, and another Finally, yet another of Cordray’s – Borders & Borders, PLC (July 13, 2017). requiring an ability-to-pay analysis noted achievements was undone in In a case alleging violation of the Real for certain consumer credit products, December 2017, when an opinion from Estate Settlement Procedures Act’s such as payday loans, before the loans the Government Accountability Office (RESPA) anti-kickback provisions in are originated. (GAO) effectively invalidated the the mortgage title insurance industry, Bureau’s 2013 compliance bulletin on the court granted summary judg- The arbitration rule, which would have the applicability of fair lending laws to ment against the Bureau, ruling that prohibited certain financial service indirect auto lending, stating that the the defendants satisfied the require- providers from using predispute arbitra- bulletin constituted a “rule” and there- ments for RESPA’s “affiliated business tion agreements to block consumer class fore was required to have been presented arrangements” safe harbor. actions in court, was issued in July 2017 for review under the Congressional and was to take effect two months later. Review Act. The GAO opinion not only – Nationwide Biweekly Administration, However, in what was widely viewed as negates any precedential weight of that Inc. (September 8, 2017). In a case in a rebuke to Cordray, Congress exercised bulletin, which the Bureau had relied which the CFPB sought $74 million in its rarely used prerogative under the on in obtaining several hundred million restitution from a company alleged to Congressional Review Act to issue a joint dollars in settlements, but also raises have misled consumers in connection resolution disapproving of the arbitra- questions about whether other CFPB with a mortgage “interest-minimizer” tion rule. In November 2017, President bulletins also may be subject to effective program, the court agreed that the Trump signed the joint resolution, thereby invalidation under the Congressional defendants’ conduct had been deceptive rendering the rule “of no force or effect.” Review Act. but declined to order them to pay any restitution, holding that the CFPB did Separately, the Bureau finalized the not meet its burden of establishing a Payday, Vehicle Title, and Certain High- basis for consumer restitution. Cost Installment Loans Rule (the Payday Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates 2 .
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