Recently, three Republican members of the U.S. House of Representatives’ Financial Services Committee, Patrick McHenry, Mike Flood, and French Hill, sent a joint letter to the Consumer Financial Protection Bureau (CFPB or Bureau) urging the agency to reopen the comment period and reconsider its November 2023 proposed rule regarding digital consumer payment applications. 

As discussed here, the Bureau is seeking to amend existing regulations by adding a new section to define larger participants that offer digital wallets, payment applications, and other services to fall within the CFPB’s supervisory scope. The Congressmen urge the CFPB to open the comment period on the proposed rule for an additional 60 days arguing that “[a]s it currently stands, this rule would introduce more regulatory uncertainty into the payment industry, particularly with respect to third-party service providers and digital asset companies.”

Specifically, under the proposed rule the CFPB seeks to supervise large nonbanks that provide peer-to-peer (P2P) payments, funds transfers, or wallet functionalities through a digital payment application. The proposed rule would subject companies that offer one or more of the covered activities to the CFPB’s supervisory authority, which would allow the CFPB to conduct examinations and assess compliance with all federal consumer financial protection laws and regulations enforced by the CFPB, not merely the ones relating to digital payments.

The comment period on the proposed rule closed on January 8, but the Congressmen argue it should be reopened for various reasons:

• The proposed rule does not adequately justify the need to expand the Bureau’s regulatory scope into the payments industry. For example, the proposed rule fails to provide any evidence of non-compliance with federal consumer financial laws or explain how it would be addressed by this new regulation. As such, the Congressmembers urge the CFPB to provide sufficient justification demonstrating the need for the proposed rule, including a more detailed analysis of the scope of the proposed rule and its impact. “Absent such justification, the CFPB should forgo finalizing the rule.”

• As written, it is unclear whether the proposed rule covers third party service providers and, if so, to what extent. “Service provider” is broadly defined under the Dodd-Frank Act and so relying on the statutory definition leaves many unanswered questions regarding how the CFPB intends to conduct oversight of third-party service providers to covered entities offering consumer payment applications.

• It is unclear when the rule would apply to specific entities. On one hand, the proposed rule explicitly states that fiat-to-crypto and crypto-to-crypto transactions conducted on an exchange would not be covered. However, it remains unclear if this exclusion would exempt digital asset exchanges entirely, or only in instances where they offer services limited to the conversion of fiat-to-crypto and crypto-to-crypto transactions. Likewise, the proposed rule’s language pertaining to digital asset wallet providers raises questions as to which entities would be included under CFPB’s purview.

Notably, the day after the Republican Congressmen submitted their letter to the Bureau, three Democratic U.S. Senators issued a letter supporting the proposed rule.

The CFPB recently published a notice in the Federal Register indicating that it is seeking approval from the Office of Management and Budget (OMB) for the collection of additional auto finance data pursuant to its authority under the Dodd-Frank Act .

In February 2023, the CFPB announced that it had issued market monitoring orders to nine large auto lenders requesting information about their auto lending portfolios.  The CFPB published a sample order on its website.

The requests within the order asked for detailed loan level data regarding originations and servicing from January 1, 2018 through December 31, 2022.  For example, the originations section asked for 23 different categories of data (plus sub-categories) regarding vehicle pricing and loan terms and another 23 categories of data regarding the dealer, lender, and borrower(s).  The servicing section included, among other requests, a request for 28 different data categories regarding repossessions and voluntary surrenders.

In the notice of its new request to OMB, the CFPB refers to the February 2023 orders as the “initial Auto Finance Data Pilot” project  (Pilot).  It states that the data from the Pilot both confirmed the benefit of additional data collection to fully carry out the CFPB’s mission, to fulfill the CFPB’s mandate to monitor the auto finance market for risks to consumers, and to inform the way the CFPB would propose to collect data in the future.  

The CFPB is now proposing to collect data in the following two processes:

• An annual collection of a set of data from lenders that originate greater than 20,000 auto loans in the previous calendar year.  The data collection would mirror the data collected in the Pilot.

• An annual collection of a set of data from lenders that originate greater than 500 auto loans and fewer than 20,000 auto loans in the previous calendar year.  The data collected would be information on the number of vehicles repossessed and the number of loan modifications. 

As we noted when the CFPB issued the initial market monitoring orders last year, the CFPB has been focused on rising auto prices and a corresponding increase in loan amounts, monthly payment amounts, and delinquencies, especially in the subprime and deep subprime market segments. 

These types of data collections typically result in the issuance of a report that is a precursor to new guidance or rulemaking.  It is likely that the CFPB will receive objections to the new data collection from industry. 

Early this morning, and just in time for Thursday’s State of the Union Address, the Consumer Financial Protection Bureau (CFPB) issued a press release announcing its much-anticipated Credit Card Late Fee Rule (Rule). Claiming to “close a loophole,” the Rule reduces a typical fee of $32.00 to $8.00 and ends automatic inflation adjustment for issuers with 1 million or more open accounts. 

According to the CFPB, credit card companies have increased fees despite moving to cheaper, digital processes. In a published statement released contemporaneously with the announcement of the Rule, CFPB Director Rohit Chopra stated the CFPB’s research shows late fee revenue generated by the credit card industry is more than five times the companies’ associated costs.  

The Final Rule, which changes very little (if anything) from the original proposal, institutes the following:

• Lowers the immunity provision dollar amount for late fees to $8. The CFPB says its analysis shows a late fee of $8 is sufficient for larger card issuers to cover collection costs incurred due to late payments.

• Ends abuse of the automatic annual inflation adjustment. The CFPB claims that issuers hiked their late fees in lockstep each year without evidence of increased costs. The CFPB will monitor market conditions and adjust the $8 late fee immunity threshold as necessary.

• Requires credit issuers to show their math. The Rule will allow larger card issuers to charge fees above the $8 late fee threshold so long as they can prove the higher fee is necessary to cover their actual collection cost. 

The Rule does not change the credit card issuer’s ability to raise interest rates, reduce credit lines, and take other actions to deter consumers from paying late. 

After listing the main tenets of the Rule, the tone of the press release shifted. Per the CFPB, the rule is part of its continued efforts to address problems and foster competition in the $1 trillion credit card market. In support of those efforts, the CFPB raised its findings on APR margins charged by the largest issuers, data that the CFPB says shows small banks and credit unions offer significantly lower rates, the CFPB’s recent guidance to rein in “rigged comparison-shopping results” for credit cards and other products, and recent enforcement actions.

The Final Rule can be found here. History and comments are linked here.

insideARM Perspective

The 338-page Rule was released less than two hours before this article was published. Therefore, the above covers the main points cited by the CFPB in its press release. In the coming days, we at insideARM, along with our news partners, will publish more details and insight regarding the Rule’s substance and its official comments. In other words, this is a developing story and we will bring you more details and analysis as it becomes available, and once we’ve all had a chance to meaningfully review the Rule and its implications.

That said, noticeably absent from the press release and Director Chopra’s prepared remarks is any mention of the Rule’s downstream effects. The press release and the prepared remarks frame the issue as a simple one; to summarize, “credit card issuers charge too much for late fees, let’s make them charge less = a win for everyone.” Rarely is it ever that simple.

As reported in insideARM last year, when the proposed rule was first released, both the Consumer Bankers Association, the American Bankers Association, and Auriemma Roundtables* cautioned that if finalized as-is (which is exactly what has happened), the Rule would ultimately limit consumers’ access to financial products and would effectively penalize those who pay on time.  In a complex financial ecosystem, actions have consequences, rules have both intended and unintended effects. This rule wasn’t created in a vacuum and won’t exist in one.  

Read the Consumer Bankers Association Statement here.

Read the American Bankers Association Statement here. 

A summary of the Auriemma Roundtables Comment can be found here.

————————

*Note: Auriemma Roundtables owns insideARM (acquisition press release here)

The Federal Reserve just released its fourth quarter 2023 credit card charge-off and delinquency data with both reaching a 12-year high.

The charge-off rate increased from the third quarter’s 3.48% to 3.96%, for the first time surpassing the pre-pandemic level of 3.65%. The delinquency rate increased from 2.83% to 2.97%. The delinquency rate is often an early indicator of the future charge-off rate. The Q4 trend suggests a continued increase in charge-off volume should be expected, although the rate of that increase may be leveling off as the increase slowed.

Another observation is that for seven years before the pandemic the delinquency rate stayed in a narrow 2.0 – 2.5% band.  This band was at a lower rate than several previous decades of data. Now for three quarters, the delinquency rate has been above this pre-pandemic seven-year band.

The Federal Reserve’s charts for the data referenced follow. The charts are easily downloadable in several formats.

Charge-off Rate on Credit Card Loans

Deliquency Rate on Credit Card Loans

On February 12, the FTC provided the CFPB with an annual summary of its 2023 enforcement, research and policy development, and educational-related initiatives on ECOA, as Dodd-Frank allows the Commission to enforce ECOA and any CFPB rules applicable to entities within the FTC’s jurisdiction. The letter emphasized the commitment of each agency to enforce laws protecting civil rights, fair competition, consumer protection, and equal opportunity in the development and use of automated systems and artificial intelligence. 

Additionally, the letter stated the FTC continued its involvement in initiatives such as military outreach and participation in interagency task forces on fair lending. Its initiatives focused on consumer and business education regarding issues related to Regulation B and guiding fair lending practices. The Commission also highlighted 

1. an enforcement action against a group of auto dealerships alleging ECOA and its implementing Regulation B violations in connection with the sale of add-on products; 
2. refund checks sent as a result of the settlement of two enforcement actions against auto dealerships in which it was alleged that the dealerships violated ECOA and Regulation B by discrimination against Black and Latino consumers by charging them higher financing costs; and 
3. an amicus brief submitted to an appeals court in support of the CFPB’s appeal to the U.S. Court of Appeals for the Seventh Circuit of the lower court’s decision regarding the applicability of ECOA to individuals other than “applicants.” 

On February 16, the CFPB issued a procedural rule updating its process for financial institutions that appeal the Bureau’s supervisory findings. The CFPB examined financial institutions to ensure they followed federal consumer financial law. After an examination or targeted review, supervised entities may appeal their compliance rating or any other findings.

First, the procedural rule expanded the pool of potential members for the appeals committee within the CFPB. Now, any CFPB manager with relevant expertise who did not participate in the original matter being appealed can be considered, rather than previously only managers from the Supervision department. The CFPB’s General Counsel will assign three CFPB managers and legal counsel to advise them. 

Second, the revised process introduced a new option for resolving appeals—in addition to upholding or rescinding the original finding, matters can now be remanded back to supervision staff for further consideration, potentially resulting in a modified finding. The Bureau also recommended in its procedural rule that entities engage in “open dialogue” with supervisory staff to discuss their preliminary findings to attempt to resolve disputes before an examination is final.

Third, institutions now can appeal any compliance rating issued to them, not just negative ratings, as was the case previously. Fourth, the updated process included additional clarifications and specifies that it applied to pending appeals at the time of its publication. 

ROCHESTER, N.Y. — Continental Service Group, LLC d/b/a ConServe, announces that they have once again earned a spot on Training magazine’s, 2024 Training APEX Awards. The Training APEX Awards ranking is determined by assessing a range of qualitative and quantitative factors, including financial investment in employee development, the scope of development programs, how closely such development efforts are linked to business goals and objectives, and their effectiveness of business outcomes resulting from training.

“The 2024 Training APEX Awards winners are the shining stars in the learning and development industry,” notes Training Editor/Publisher Lorri Freifeld. “They light the way for engaging, innovative, and continuous learning. We are thrilled to recognize their stellar accomplishments and dedication to helping their employees and organizations grow and succeed.”

“Our Organizational Development team, aligned with ConServe’s corporate Mission, Vision, and Values, delivers exceptional training, emphasizing compliance and ethics,” said George Huyler, ConServe Vice President of Human Resources. David Bucciarelli, Director of Organizational Development at ConServe said, “I’m proud of ConServe and our training team for earning the Training APEX Award for the tenth consecutive year. This acknowledgement from industry experts reinforces our position as a leader in providing exceptional training initiatives and programs that nurture talent within the organization.”

The rankings of leading organizations that excel at employee training was revealed on February 26, 2024 at the Training APEX Awards held in Orlando, Florida.

About ConServe

ConServe is a top-performing accounts receivable management service provider specializing in customized recovery solutions for their Clients. Anchored in ethics and compliance, and steadfast in their pursuit of excellence, they are a consumer-centric organization that operates as an extension of their Clients’ valued brands. For over 38 years, they have partnered with their Clients to provide unmatched customer service while simultaneously helping them achieve their accounts receivable management goals. Visit them online: www.conserve-arm.com

About Training magazine

Training magazine is the leading business publication for learning and development and HR professionals. It has been the ultimate resource for innovative learning and development—in print, in person, and online—over the last 55-plus years. Training magazine and Training magazine Events are produced by Lakewood Media Group. For more information about the 2023 Training Conference & Expo, please visit: www.trainingconference.com

In Perrong v. Chase Data Corp., et al., a court in the Eastern District of Pennsylvania recently ruled that no personal liability attaches to the owner of a company for Telephone Consumer Protection Act (TCPA) violations.

The case arose out of the defendant companies selling “turnkey” calling and texting services. The defendants allegedly sent three text messages to the plaintiff asking him to call a number to discuss potential injuries and possible compensation. Plaintiff alleged that the texts were sent to generate leads for personal injury lawyers, and asserted violations of Section 227(b) of the TCPA, which prohibits automated calling by using a pre-recorded message. The defendants moved to dismiss.

The court found the plaintiff sufficiently alleged a violation against one company and would be allowed to amend his complaint against the successor company. However, the plaintiff’s claims against the owner were another matter.

The court initially noted that the claims against the owner were conclusory and merely recast the allegations against the company by arguing the owner was personally involved. But the deciding factor was Third Circuit precedent, which “raised ‘doubt’ as to whether ‘common-law personal participation liability is available against corporate officers under the TCPA.’” Specifically, the appellate court stated that Congress can and does impose personal-participation liability when it chooses, and there is no such language in the TCPA. Following other courts in the Third Circuit, the court dismissed the claims against the owner without leave to amend.

In February 2024 the Minnesota Debt Fairness Act was introduced in the Minnesota Legislature. The proposed law seeks to amend the law governing debt collection, garnishment, and consumer finance.  The Minnesota Governor’s office has announced support for the Act. The proposed bill includes new terms and definitions, new prohibitions on collection activity, and creates other new rules regarding consumer debt. If passed, the law will drastically change how debt is collected in Minnesota and is sure to have long-lasting consequences for debt collectors and consumers alike. 

Terms and Definitions:

The proposed language adds some new terms while expanding existing terms’ definitions. The bill would introduce the term “collecting party,” which seems to be a catchall phrase used to replace collection agency, debt buyer, and/or collector throughout the bill. The full definition is “a person who, in the ordinary course of business, regularly engages in debt collection on behalf of the person or others.” It’s possible that original creditors and hospitals may be considered a “collecting party” under this definition.

The bill would also expand the definition of a collection agency or licensee (both of which would be considered a “collecting party”) to include attorneys whose principle or sole practice is debt collection.

Prohibitions and Exemptions:

The proposed bill would add greater restrictions on collection activity and what can be collected. The standout changes include:

• A complete prohibition on credit reporting any medical debt.
• A ban on communications that use automatic telephone dialing systems, or AI/prerecord voices when a consumer has asked that they not be contacted in that way.
• A reduction of garnishable wages from 25% to 10%.
• An exemption from garnishment of up to $5,000.00 in a bank account.
• An increase of the floor for garnishment from 40 hours per week to 80 hours per week.
• A person would no longer be liable for medical services provided to their spouse.

Rules on Consumer Debt:

Arguably, the biggest changes involve the statute of limitations for consumer debt as well as judgments on consumer debt. The amendments would include:

• A reduction of a consumer debt judgment’s statute of limitation to 5 years (down from 10 years.)
• A judgment on a consumer debt cannot be renewed.
• Debts incurred after July 1, 2024, would have a 3-year statute of limitations.
• Consumers will have both a private right of action to enforce the debt collection statute as well as the ability to recover costs and attorney’s fees if they successfully defend against a collection suit.

Information about the bill can be found here and the proposed language can be found here.

insideARM Perspective:

This proposed bill raises concerns about the future feasibility of debt collection in the state of Minnesota. Not only are timelines going to be heavily accelerated by the statute of limitations changes, but the process and amount that can be collected will be greatly impacted as well. Most importantly, this bill may have long-term consequences for consumers as the legislators focus more on the symptoms of consumer debt rather than on the root causes.

The Minnesota legislature has already introduced the bill and is looking to move this through quickly. Therefore, everyone in the ARM industry should utilize any contacts they have and coordinate with advocacy groups to get the message across to the legislators that this bill is so restrictive it will ultimately hurt consumers in the long run.

The Federal Communications Commission (FCC) has issued a final rule amending its regulations implementing the Telephone Consumer Protection Act (TCPA) to add new provisions addressing how consumers may revoke consent to receive autodialed or prerecorded voice calls or texts and the obligations of callers and texters to honor revocation of consent requests.

While the FCC generally asserts that these requirements are merely a codification of existing requirements, the new provisions could require significant operational changes.  The new provision on revocation of consent confirmation messages is effective 30 days after publication of the final rule in the Federal Register.  The new provisions on revocation of consent and the timeframe for honoring revocation of consent requests will be effective six months following publication in the Federal Register of a notice indicating that the Office of Management and Budget has completed any required review of the final rule.

Revocation of Consent.   

The final rule provides:

• Consumers may revoke prior express consent, including prior express written consent, to receive robocalls and robotexts by using any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender.  Callers or senders of text message may not designate an exclusive means to request revocation of consent.

• Any revocation request made using an automated, interactive voice or key press-activated opt-out mechanism on a robocall; using a response of “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” sent in reply to an incoming text message; or submitted at a website or telephone number provided by the caller to process opt-out requests constitute examples of a reasonable means to revoke consent.  If a called party uses any such method to revoke consent, the consent is considered definitively revoked and the caller or sender may not send additional robocalls or robotexts.

• If a reply to an incoming text uses words or phrases other than those listed above, the sender must treat the reply text as a valid revocation request if a reasonable person would understand those words to have conveyed a request to revoke consent.

• If a text initiator uses a texting protocol that does not allow reply texts, the text initiator must (1) provide a clear and conspicuous disclosure in each text to the consumer that two-way texting is not available due to technical limitations of the texting protocol, and (2) clearly and conspicuously provide reasonable alternative ways for a consumer to revoke consent.  (In its discussion of the final rule, the FCC uses a telephone number, website link, or instructions to text a different number to revoke consent as examples of “alternative ways.”)

• When a consumer uses a method to revoke consent not listed in the regulation, such as a voicemail or email to any telephone number or email address intended to reach the caller, a rebuttable presumption is created that the consumer has revoked consent when the called party satisfies their obligation to produce evidence that such a request has been made, absent evidence to the contrary.  When a consumer has demonstrated that they have made a revocation request and the caller disputes that the request has been made using a reasonable method, a totality of circumstances analysis will determine whether the caller can show that revocation request has not been made in reasonable manner.

In its discussion of the final rule, the FCC indicates that when consent is revoked in any reasonable manner, the revocation extends to both robocalls and robotexts regardless of the medium used to communicate the revocation.  In other words, the FCC states that “consent is specific to the called party and not the method of communication used to revoke consent.”  For example, if the consumer revokes consent using a reply text message, consent is deemed revoked not only for further robotexts but also for robocalls from the same caller.

Revocation of consent confirmation text messages.  

The final rule provides:

• A one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA, provided the confirmation text only confirms the opt-out request and does not include any marketing or promotional information, and is the only additional message sent to the called party after receipt of the opt-out request.

• If the confirmation text is sent within five minutes of receipt, it will be presumed to fall within the consumer’s prior express consent.  If it takes longer, however, the sender will have to make as showing that the delay was reasonable.

• If the text recipient has consented to several categories of text messages from the sender, the confirmation message can request clarification as to whether the revocation request was meant to cover all categories of messages from the sender.  The sender must cease all further robocalls and robotexts for which consent is required absent an affirmative response from the consumer that they do wish to receive further communications from the sender.

Timeframe for honoring revocation of consent requests.  

The final rule provides:

• A request to revoke prior express consent or prior express written consent made in any reasonable way must be honored within reasonable time not to exceed ten business days from receipt of such request.

• Package delivery companies must offer package recipients the ability to opt out of future delivery notification calls and messages and honor an opt-out request within a reasonable time from the date of the request, not to exceed six business days.

NPRM for Wireless Providers’ Text Messages.  

In addition to the Order, the FCC is seeking comment on whether the TCPA applies to robocalls and robotexts from wireless providers to their own subscribers and, as a result, such providers must have consent to make prerecorded voice, artificial voice, or autodialed calls or texts to their subscribers.