TONAWANDA, N.Y. — Huntington Debt Holding, a nationally licensed receivables management firm located in Tonawanda, New York, has supported dozens of charitable organizations since its inception. As a way to continue support on a monthly basis, Huntington Debt Holding will be donating to FeedMore WNY, Tunnel to Towers, and St. Jude’s Hospital each month. 

With a profound belief in the power of collective action and compassion, Huntington Debt Holding stands alongside these organizations in their endeavors to positively impact society.

Feeding Western New York

FeedMore WNY, a regional food bank serving Western New York, stands at the forefront of the fight against hunger and food insecurity. Through its comprehensive network of food distribution programs, meal services, and community outreach initiatives, FeedMore WNY addresses the immediate needs of individuals and families facing hunger while also striving for long-term solutions. By supporting FeedMore WNY, Huntington Debt Holding contributes to ensuring that no one in the community goes without access to nutritious food, fostering resilience and well-being among its residents.

Honoring Heroes, Empowering Families

Tunnel to Towers Foundation honors the legacy of FDNY firefighter Stephen Siller, who sacrificed his life on September 11, 2001, by providing support to military and first responder families, veterans, and Gold Star families. 

Through its various programs, including mortgage-free homes, adaptive smart homes, and financial assistance, Tunnel to Towers offers tangible support to those who have served and sacrificed for the safety and freedom of others. Huntington Debt Holding’s partnership with Tunnel to Towers reflects its deep appreciation for the dedication and sacrifice of first responders and military personnel, ensuring that their families receive the support they deserve.

Healing Hope for Children

St. Jude’s Hospital, renowned for its pioneering research and compassionate care, stands as a beacon of hope for children battling cancer and other life-threatening diseases. Through its groundbreaking research initiatives and commitment to providing free treatment to every child, St. Jude’s ensures that families facing the unimaginable burden of childhood illness receive the support they need without the additional strain of financial worries. Huntington Debt Holding’s support for St. Jude’s Hospital underscores its commitment to ensuring that every child has the chance to live a healthy and fulfilling life, regardless of their circumstances.

Community Support is a Necessity

In a world where communities face myriad challenges, the importance of corporate support for organizations like FeedMore WNY, Tunnel to Towers, and St. Jude’s Hospital cannot be overstated. 

Huntington Debt Holding’s unwavering commitment to these organizations exemplifies its dedication to making a meaningful difference in the lives of those in need. By standing alongside these organizations, Huntington Debt Holding not only fulfills its corporate social responsibility but also embodies the spirit of compassion and solidarity that defines a truly caring community.

About Huntington Debt Holding

Huntington Debt Holding, LLC is a nationally licensed receivables management firm that specializes in the acquisition and management of non-performing accounts receivable portfolios and is proud to be a trusted partner to some of the nation’s largest issuers. HDH upholds the highest standards of compliance and integrity to provide a positive experience throughout every transaction. Huntington Debt Holding is located in Tonawanda, New York.

The insideARM editorial team aims to bring you the 3 things from the ARM Industry that you need to know each week. This week that included a piece about AI implementation, another state enacting a data privacy law, and the CFPB’s consumer complaint information. Keep reading for a breakdown of last week’s news and why we felt you needed to know about it.

Tuesday, we brought you an article about what questions you need to be asking if you are looking to incorporate AI into your operations. The questions centered around communications with consumers and how AI can help debt collectors and agencies keep up with the changes in consumer demographics, communications preferences, and new contact strategies. As AI utilization becomes more widespread, each organization should take the time to consider the right approach for their business goals. 

On Wednesday, we highlighted an article from Maurice Wutscher, LLP, that alerted the ARM industry to another state enacting a Data Privacy Law. On April 4, 2024, Kentucky became the 15th state to tackle data privacy when the governor signed the Kentucky Consumer Data Protection Act into law. Though the legislation seems reasonable and shouldn’t prove to be problematic for the collection industry, with the ever-growing list of states enacting these types of laws, we should still be paying attention.

With Thursday’s news, we wanted to draw attention to an article from Ballard Spahr addressing the CFPB’s 2023 Consumer Response Annual Report. The report shows that the vast majority of consumer complaints related to credit reporting with a focus on inaccurate information. The complaints about debt collection centered on whether the debt was actually owed, while the complaints in the credit card arena were largely disputing unauthorized transactions. These insights can help you guide your organization’s focus on compliance matters. 

We will be posting weekly recaps every Monday. If you missed the recap from the week of April 8th, click here to get caught up!

If you would like to talk about these issues and more with other industry professionals, click here to learn more about Research Assistant at insideARM to join our weekly peer group meeting.

Moss & Barnett is pleased to announce that attorney Issa K. Moe has rejoined the firm.

Issa returns to the firm after serving as General Counsel for ACA International, a trade association for the accounts receivable management industry. He focuses his practice on representing clients in litigation and providing counsel to clients on compliance, risk management, and general business matters. Issa regularly advises clients on compliance with consumer financial laws and regulations, including the Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA), and Telephone Consumer Protection Act (TCPA). He also represents clients in class action litigation and regulatory actions brought under those and similar financial laws and regulations.

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Issa has extensive in-house legal experience as both General Counsel and Chief Compliance Officer for companies. In those roles, he built compliance management systems, managed client and regulator audits, examinations, and other proceedings, and handled a wide variety of business and corporate legal matters. Issa also has extensive experience representing debtors, creditors, trustees, and other parties in bankruptcy matters, including preference and fraudulent transfer actions.

Issa received his J.D., cum laude, from the University of Pennsylvania Carey Law School and his B.A. from the University of Virginia.

The CFPB published its Consumer Response Annual Report for 2023, which discusses the consumer complaints received by the CFPB in that year and how companies responded to those complaints. The CFPB monitors consumers’ complaints and companies’ responses in order to glean information about the types of challenges consumers are experiencing with financial products and services. As a part of its monitoring, the CFPB reviews a sample of complaints and company responses to ensure the responses are accurate, timely, and complete.

 The CFPB also monitors for patterns and trends in the types of complaints submitted by consumers and the companies who are the subject of complaints for purposes of prioritizing CFPB action. In 2023, the CFPB sent more than 1.3 million complaints to more than 3,400 companies for review and response. Of these, 79% related to credit and consumer reporting, 7% related to debt collection, 4% related to credit cards, 4% related to checking and savings accounts, and 2% related to mortgages. A smaller percentage of complaints were related to a variety of other product types, including money transfer services, auto loans, and student loans.

Credit and Consumer Reports 

According to the report, the vast majority of complaints (1.1 million complaints) were related to credit and consumer reporting issues, with over 1 million of them directed to the three nationwide consumer reporting agencies (CRAs). In 2023, the most common complaint was about incorrect information on a credit report. Consumers complained about inaccurate information pertaining to account balances, account opening dates, payment dates, bankruptcies, payment statuses, inquiries, and personal information. Some consumers complained about the need to follow up with CRAs multiple times in order to address issues, such as fixing inaccurate information, or resolving matters that were not properly investigated.

The CFPB noted an increase in consumer complaints about identity theft. Consumers complained about credit bureaus reporting new accounts and credit inquiries appearing on their credit reports that they did not initiate and did not recognize. Consumers reported having difficulties removing the inaccurate information, even after providing additional evidence, such as police reports or FTC documentation regarding the identity theft claim. According to the CFPB, CRAs had inconsistent approaches to responding to these complaints, including removing some, but not all, inaccurate information, blocking some of the disputed accounts, denying the requests entirely, or requesting more proof for identity theft claims. The CFPB states that consumers described frustration with the time and cost associated with contacting CRAs and data furnishers to have inaccurate information removed. Consumers also reported difficulties in receiving information from CRA representatives when they attempted to gain a better understanding of how their credit score is calculated, and how inaccurate information affects the score. Last year, we blogged about another CFPB report on the complaints submitted to the CFPB regarding the three nationwide CRAs, which echo many of the same issues discussed in this year’s report.

Debt Collection 

The CFPB reports receiving approximately 109,900 debt collection complaints, regarding both first-party and third-party collectors. Of the debt collection complaints, the common issue described by consumers was that they did not owe the debt, which the CFPB states has been the predominant issue reported by consumers since the Bureau began accepting debt collection complaints in 2013. In many of these instances, consumers requested that debt collectors validate debts that had been disputed. Consumers also complained of harassing or abusive communications from debt collectors, which included high frequency of calls and receiving calls outside of permitted hours. The Bureau reports that older consumers and servicemembers both submitted a higher number of complaints regarding mortgage debt, claiming that the debt was not owed or that it was discharged in bankruptcy. The company responses to these complaints often included an explanation that the debts were valid. We have blogged on a variety of debt collection issues recently, as debt collection complaints continue to draw the attention of both federal and state regulators.

Credit Card 

According to the report, the CFPB received approximately 70,000 credit card complaints. The most commonly reported issue concerned inaccurate or unauthorized purchases shown on credit card statements, which the CFPB notes is a complaint category that has increased over the past few years. Some consumers claim that after reporting unauthorized transactions and being told to expect a permanent or temporary credit to their account, they never received the credit. Some consumers report being instructed by card companies to contact merchants directly for resolution. When attempting to address card statement issues, consumers reported that they experienced “extended hold times and unhelpful representatives, received incomplete and incorrect information, and had calls disconnected […] and having to make multiple calls to resolve issues.” Other credit card issues included not receiving promotion benefits or the closing of credit card accounts without notification.

Checking and Savings Accounts. The common issue regarding checking and savings accounts reported by consumers was difficulties in managing an account. Many consumers complained about unauthorized transactions posted on their accounts, often involving peer-to-peer platforms. Additionally, consumers experienced difficulties, such as long wait times and disconnected calls, when contacting companies to resolve issues. Companies often apologized for the inconveniences and customer service issues. According to the CFPB’s report, consumers complained about being charged overdraft fees on transactions that were not paid or were unauthorized, and that companies changed the posting order of transactions leading to increased overdrafts. Companies often explained to consumers that overdraft fees are based on account activity, but companies sometimes refunded overdraft fees as a “courtesy.”

Mortgage

The majority of mortgage complaints were about conventional mortgages, specifically trouble during the payment process. Many consumers complained about forbearance and loss mitigation processes, claiming they received confusing or conflicting information about deferral options and that companies failed to comply with Homeowner Assistance Fund plans. Consumers also complained about having a hard time reaching servicers, and that phone calls and emails went unanswered. Consumers complained about late and other fees, negative credit reporting, loss mitigation delays, and foreclosure threats when resuming payments after filing for bankruptcy or ending a forbearance period. Companies indicated a variety of reasons for these issues, such as consumers making late payments, submission of incomplete loss mitigation applications, and mortgage servicer system errors causing incorrect fees to be charged, but that were refunded.

Other

In addition to the issues discussed above, the report covers consumer complaints for personal loans, prepaid cards, credit management, payday loans, title loans, and deposit advances. While there are differences in the number of complaints per product type, the percentages regarding complaints resolved with monetary relief, resolved with non-monetary relief, closed with an explanation provided or closed with an administrative response when action could not be taken, in general appear to be about the same across complaint types. The CFPB indicated that companies overwhelmingly met the timeliness expectations for responding to complaints, with about 99.6% of complaints being met with a timely response. Generally, companies responded with relief or with an explanation to consumers about issues the consumer may have misunderstood regarding their financial product or service. The Bureau encourages companies to use complaint information to gain knowledge about their business, potential risks, and consumer needs.

CHESAPEAKE, Va. — Spring Oaks Capital, LLC is pleased to announce the hiring of Ellen Doherty as Controller. Ellen will be based in the Company’s headquarters in Chesapeake, Virginia and report directly to Chief Financial Officer John McNeill. 

Ellen brings an extensive background in financial services, including prior roles as Director of Accounting at Tidewater Mortgage Services, Assistant Controller at LoanCare, and VP, Controller and Senior Accounting Officer at Hampton Roads Bankshares. In her role as Controller at Spring Oaks Capital, she will be responsible for all accounting functions across the operating company and its affiliates.

John McNeill, CFO, stated, “We are excited to have someone of Ellen’s talent and experience join the Spring Oaks Capital finance team. The Company has been experiencing rapid growth, and Ellen is an important addition to our highly experienced management team.”

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About Spring Oaks Capital, LLC

Spring Oaks Capital is a national financial technology company, focused on the acquisition of credit portfolios. The Company subscribes to an employee and consumer-centric operating philosophy that creates high-value jobs, a significant performance lift, and the highest standards of compliance. Spring Oaks’ business strategy is rooted in innovative data-driven technology to maximize collection results and a contact platform that offers multi-channel options to meet each consumer’s communication preference. To learn more about Spring Oaks, please visit www.springoakscapital.com.

Kentucky Gov. Andy Beshear on April 4 signed into law House Bill 15, the Kentucky Consumer Data Protection Act, making Kentucky the 15th state to enact a comprehensive consumer data privacy law following California, Virginia, Colorado, Utah, Connecticut, Iowa, Indiana, Tennessee, Montana, Texas, Oregon, Delaware,  New Jersey, and New Hampshire.  The law will go into effect Jan. 1, 2026.

Applicability

The Act applies to persons that conduct business in Kentucky or produce products or services that are targeted to Kentucky residents and that during a calendar year control or process personal data of at least:

1. 100,000 consumers; or
2. 25,000 consumers and derive over 50% of gross revenue from the sale of personal data.

Exemptions

Exemptions include, but are not limited to:

1. Financial institutions, their affiliates, or data subject to Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, et seq.;
2. Covered entities or business associates governed by the privacy, security, and breach notification rules established pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”);
3. Protected health information under HIPAA;
4. The collection, maintenance, disclosure, sale, communication, or use of any personal information to the extent that such activity is regulated by and authorized under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.

Consumer Rights

Consumers have the right to:

1. Confirm whether a controller is processing their personal data and to access such personal data;
2. Correct inaccuracies in their personal data, taking into account the nature of the personal data and the purposes of processing the data;
3. Delete personal data provided by or obtained about the consumer;
4. Obtain a portable copy of the personal data that they previously provided to the controller;
5. Opt-out of the processing of the personal data for purposes of targeted advertising, the sale of personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.

Sensitive Data

A controller may not process sensitive data concerning a consumer without obtaining the consumer’s consent, or, in the case of the processing of sensitive data collected from a known child, process the data [except] in accordance with the federal Children’s Online Privacy Protection Act 15 U.S.C. § 6501, et seq.

“Sensitive data” means a category of personal data that includes:

1. Personal data indicating racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status;
2. The processing of genetic or biometric data that is processed for the purpose of uniquely identifying a specific natural person;
3. The personal data collected from a known child; or
4. Precise geolocation data.

Contract Requirements

A contract between a controller and a processor must govern the processor’s data processing procedures with respect to processing performed on behalf of the controller and clearly set forth instructions for processing personal data, the nature and purpose of processing, the type of data subject to processing, the duration of processing, and the rights and obligations of both parties.  The contract must also require that the processor:

1. Ensure that each person processing personal data is subject to a duty of confidentiality with respect to the data;
2. At the controller’s direction, delete or return all personal data to the controller as requested at the end of the provision of services, unless retention of the personal data is required by law;
3. Upon the reasonable request of the controller, make available to the controller all information in its possession necessary to demonstrate the processor’s compliance with the obligations in the Act;
4. Allow, and cooperate with, reasonable assessments by the controller or the controller’s designated assessor, or the processor may arrange for a qualified and independent assessor to conduct an assessment of the processor’s policies and technical and organizational measures in support of the obligations under the Act, using an appropriate and accepted control standard or framework and assessment procedure for such assessments. The processor must provide a report of the assessment to the controller upon request;
5. Engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the obligations of the processor.

Data Impact Assessments

A controller must conduct and document a data impact assessment of each of the following processing activities:

1. The processing of personal data for the purposes of targeted advertising;
2. The processing of personal data for the purposes of selling personal data;
3. The processing of personal data for the purposes of certain profiling;
4. The processing of sensitive data; and
5. Any processing that presents a heightened risk of harm to consumers.

Enforcement
The Attorney General has exclusive authority to enforce violations. For any violation that is not cured within 30 days of notice, the Attorney General may seek damages up to $7,500 for each violation.

Impression

The Kentucky Consumer Data Protection Act is sensible legislation that balances the rights of consumers with the impact on businesses. The Act follows the pattern of many post-California comprehensive data privacy laws and should not present overly burdensome compliance challenges for those that must comply with one or more of the other laws. For a chart comparing the state comprehensive data privacy acts, and more information and insight from Maurice Wutscher on data privacy and security laws and legislation, click here.

Discussions about implementing Artificial Intelligence seem to be everywhere these days, and the Collections Industry is no exception. Some debt collectors have been early AI adopters, yet others have chosen to sit on the sidelines and see how the landscape develops. Here are three questions to consider when evaluating whether AI is right for your organization.  

How is your organization handling changing communication styles and the expectations of younger consumers? 

Communication methods are changing. Though letters and phone calls may have worked in the past, as the population changes, our methods of communication should change too. Traditional methods of communication, such as letters and outbound dialing, do not seem to work with younger generations the way they have with previous generations.  Delinquencies have been consistently increasing among most types of debt; notably, credit card delinquencies have been rising among younger borrowers.  

Has your organization evaluated whether AI solutions augmented by text, email, and chat will help you reach these younger consumers? 

Are you really communicating with consumers how they want to communicate?  

Generally speaking, we know that different generations have different preferences for how they choose to communicate, but is your organization offering enough options to cover the generational divide as well as the preferences of people who may fall outside the typical generational expectation?     

To make it as convenient as possible for consumers, you should aim to offer multiple communication channels, such as voice, chat, email, and text so that each consumer and demographic can interact with you via the channel of their choice.  Employing multiple communication channels—voice, text, email, and chat—can give consumers a significantly more positive customer experience.  

Has your organization analyzed how AI can help you employ these channels to capture the consumers preference, beyond just adding notes, or toggling a button in your system of record? 

Is your contact strategy stale or is it dynamic and evolving? 

Collection agencies now need to compete with multiple entities to recover payments from consumers, and the agencies’ communication strategy is key. Given the complex and fast-changing nature of the accounts receivables industry, it’s imperative for organizations to evaluate their digital transformation journeys and stay ahead of their competition.  

AI allows organizations who adopt multiple channels to communicate with consumers to better understand behavior and preferred channels across types of debt and demographics. Consumer segmentation provided by AI can give your organization invaluable knowledge of your portfolio, informing key business decisions. 

Have you looked at how AI solutions can steer your organization away from a static collection strategy based on old assumptions and help you drill down your collection strategy in real time? 

Read more in How AI-powered Multichannel Outreach Is Transforming the Collections Industry.

Our team at insideARM tries to pick the one piece of news those in the ARM industry need to know each day to keep up to date with the changes in debt collection. Last week we did just that, bringing you an article about the future of medical debt in California, a key 5th Circuit decision for FDCPA cases, and a breakdown of the myriad of activity from the CFPB in the month of March. Here’s our recap of the weekly news and why we felt you needed to see it.

Tuesday’s news highlighted a Troutman Pepper article about a bill working its way through the California legislature regarding medical debt. While Senate Bill 1061 does not include debt charged to a credit card as “medical debt,” it would remove medical debt from credit reports. California would follow Colorado and New York in banning credit reporting on medical debt. The trend of attacking medical debt across the country shows no signs of stopping.

On Wednesday, we brought you an FDCPA update in the 5th Circuit, as an Appeals court reversed a Louisiana court’s judgment and found that a law firm (hired by the State of Louisiana) had violated the FDCPA. The court reasoned that the firm violated the FDCAP by threatening legal action while not disclosing to the consumer that the debt might be time-barred, mischaracterizing the debt, and attempting to recover attorneys’ fees without a lawful basis. Let this serve as a reminder to closely monitor aged accounts and those approaching the statute of limitations.

Thursday, we focused on the CFPB and all its activity in March of 2024 with Hudson Cook’s CFPB Bites. This detailed breakdown included information about the lawsuit against the CFPB over the Late Fee rule, the CFPB’s first time exerting authority over a non-consenting nonbank consumer lender, as well as the CFPB’s thoughts on UDAAP in New York, real estate, and data privacy. It is clear that the CFPB has been very active in the first quarter of 2024 and, when the CFPB is this active, the ARM Industry needs to stay on its toes.

We also brought you insight into technology related to a consumer’s capacity to pay

Recaps like this will be posted every Monday. If you missed the recap from the week of April 1st, you can find it here.

If you would like to talk about these issues and more with other industry professionals, learn more about Research Assistant at insideARM to join our weekly peer group meeting.

The CFPB continued their busy 2024 with a lot of activity in March. In this article, we’ll share some of our top CFPB “bites” of the month so you can stay on top of recent developments.   

Bite 10: CFPB Issues Statement on Privacy and Personal Data

On February 28, 2024, the CFPB issued a statement on privacy and personal data, responding to an executive order President Biden issued the same day. President Biden’s executive order imposed various requirements on the Department of Justice and Homeland Security, as well as other agencies, all intended to protect Americans’ sensitive personal data from countries of concern. The Executive Order specifically encouraged the CFPB to consider taking steps to protect Americans from data brokers that are illegally assembling and selling extremely sensitive data, including that of U.S. military personnel. The CFPB indicated that consistent with the executive order and the Fair Credit Reporting Act, it will propose rules to limit activities of data brokers, including those that sell personal data to overseas entities. CFPB Director Rohit Chopra released a statement saying that the executive order is a reminder of the urgent need to protect the personal data of Americans, and that the CFPB will propose new rules to safeguard families and national security.

Bite 9: Director Chopra’s Remarks at Financial Data Summit

On March 13th, Director Chopra spoke at the Financial Data Exchange Global summit to discuss the CFPB’s goal to shift the country towards open banking. He said that it is widely known that the United States has a “clunky system” when it comes to switching financial service providers and gave the example that moving a checking account involves resetting direct deposits and recurring bill payments, printing new checks, and obtaining a new card device. According to Director Chopra, this clunky system is the reason the largest banks maintain their depositor base even though they have not changed their rates. Chopra said that open banking will involve less red tape and allow for more seamless switching between institutions. He noted that the CFPB has proposed rules to serve as a key foundation in the shift towards open banking. Director Chopra went on to address growing discussion about how to set relevant industry standards without micromanaging or dictating prescriptive technical details. He concluded his remarks by recommending that financial institutions prepare now, before the CFPB finalizes its rulemaking this fall.

Bite 8: Director Chopra Submits Letter on Appraisal Foundation

On March 18, 2024, Director Chopra submitted issued a public letter to other federal financial regulators after a recent hearing hosted by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council (FFIEC). The letter concerned the Appraisal Foundation, which is a not-for-profit corporation that sets qualifications and standards for appraisers. Congress established the FFIEC’s Appraisal Subcommittee in 1989 to monitor and review the Appraisal Foundation. Last year, the Subcommittee started a series of hearings focused on appraisal bias. Following a hearing on February 13th, Director Chopra claimed that the Appraisal Foundation serves as a lawmaking body but is not accountable to the public or subject to competitive market forces. Director Chopra alleged deficiencies in the foundation’s conflict of interest policies, an insular governance structure that favors private interests, and a lack of transparency. Director Chopra stated that the foundation plays a controlling role in the key issues that may contribute to appraisal bias.

Bite 7: CFPB Weighs in on State UDAAP Laws

On March 19, 2024, the CFPB announced that it wrote a letter to New York Governor Kathy Hochul and other state leaders highlighting the importance of banning abusive conduct. Legislative reforms in New York would expand the state’s consumer protection laws to address abusiveness, and in its letter, the CFPB indicated that this ban would be an important tool in the state’s arsenal. According to the CFPB, the Consumer Financial Protection Act empowers state attorneys general, state regulators, and certain banking regulators to address consumer protection laws.

Bite 6: CFPB Asks for Public Input on Closing Costs and Fees

On March 8, 2024, the CFPB announced that it is seeking consumer input and market research to better understand how closing costs impact households and families. According to the CFPB, total loan costs for mortgage loans, which include origination fees, appraisal and credit report fees, title insurance, discount points, and other fees rose sharply, increasing by 21.8% on home purchase loans from 2021 to 2022, to a median amount of nearly $6,000. The CFPB said that these fixed costs do not fluctuate based on loan amount, and therefore have an outsized impact on borrowers with smaller mortgages. According to the CFPB, high closing costs are increasing due to a lack of competition in the market. The CPFB noted that it will continue to analyze data and consumer input, which it may use to issue rules and guidance, while continuing to use its supervision and enforcement tools in this industry.

Bite 5: CFPB Issues New Guidance on Comparison Shopping

On February 29, 2024, the CFPB issued a new Circular explaining how comparison-shopping tools may violate consumer protection laws when they steer consumers due to incentives like “kickbacks.” According to the CFPB, consumers often encounter manipulated results or practices the CFPB calls “digital dark patterns” when using comparison-shopping tools for financial services. The CFPB claims that manipulated results appear because some providers pay financial kickbacks, sometimes referred to as “bounties” to create the lists of results that consumers see. According to the Circular, comparison-shopping tools may violate the federal prohibition on abusive conduct, because these comparison sites may take “unreasonable advantage” of consumers relying on the comparison-shopping tool to act in their interests.

Bite 4: CFPB and FTC Write Amicus Brief in Mortgage Case

On February 27, 2024, the CFPB announced that it joined the FTC in writing an amicus brief in an appeal case, arguing against fees that the agencies characterized as “unlawful junk fees.” In the original case, two mortgage borrowers separately sued their servicer over fees charged for making telephone and online payments. Allegedly, the creditor did not disclose those fees in the credit agreement, and applicable law did not expressly authorize the fees. The borrowers argued that the Fair Debt Collection Practices Act prohibits charging fees of this type. After the borrowers won, the servicer appealed to the Eleventh Circuit, arguing that the FDCPA’s protections do not apply to such fees, and that the borrowers agreed to the fees upon payment. The CFPB and FTC argued that the FDCPA applies to all fees related to the collection of a debt, and that servicers can only charge fees that lenders previously disclosed in the credit agreement or are expressly authorized by law. According to the agencies, this interpretation aligns with Congressional intent.

Bite 3: CFPB Orders Federal Supervision for Installment Lender

On February 23, 2024, the CFPB announced that it had published an order establishing supervisory authority over a national installment lender, using the authority granted to the CFPB under the Dodd-Frank Act. According to the CFPB, Congress gave the agency the authority to supervise nonbanks whose activities the CFPB has reasonable cause to determine pose risks to consumers. Back in 2022, the CFPB identified that it was failing to conduct oversight using that legal authority. Afterwards, the CFPB began to use this “dormant” authority and finalized its nonbank supervision procedural rules in November of 2022. When the CFPB issues a notice of a supervisory examination to an organization, the organization can either consent to supervision or contest the notice. The supervisory designation order in this case (“Order”) is the first one that the CFPB is conducting in a contested manner. In the Order, the CFPB claims it has “reasonable cause” to find that the lender’s activities constitute a risk to consumers, and addresses its interpretation of the “reasonable cause” standard, the meaning of “risk” under the statute, and the use of unverified consumer complaints on the CFPB’s portal. The Order specifies that the CFPB does not need to determine that an entity has violated federal laws or regulations to determine that the entity poses risks to consumers. Finally, the Order also notes that the CFPB can rely on consumer complaints it receives in making a risk-based supervision determination.

Bite 2: CFPB Issues Final Rule on Credit Card Late Fees

On March 5, 2024, the CFPB announced that it finalized a rule to cut credit card late fees for large card issuers, a move that the CFPB says will save consumers more than $10 billion annually. In 2009, the CARD Act banned credit card companies from charging excessive penalty fees. In 2010, the Federal Reserve Board issued an implementing regulation, stating that under the CARD Act, banks could only charge fees to recover costs associated with a late payment, with safe harbor amounts that would adjust with inflation. According to the CFPB, these safe harbor amounts have “ballooned” to $30 for a first late payment and $41 for subsequent late payments, even though credit card companies have moved to cheaper forms of payment processing. The new rule lowers the immunity provision fee to $8 for large card issuers and eliminates the automatic annual inflation adjustment. Instead, the CFPB will monitor market conditions and claims it will adjust the threshold. The rule provides that covered issuers can charge higher fees if they can show they are necessary to cover costs. The CFPB says this new rule is part of a continued effort to address problems and foster competition in the credit card market.

Bite 1: CFPB Sued Over Credit Card Late Fee Cap Rule

On March 7, 2024, several industry groups sued the CFPB over the credit card late fee rule. Banking groups and trade organizations sued the CFPB, asserting that the new rule capping credit card late fees punishes consumers who pay on time. According to the plaintiffs, the CFPB exceeded its authority and ignored Congressional intent. The plaintiffs note that Congress intended the fees to be high enough to deter late payments, ensure accountability, and compensate card issuers for the costs to process late payments. The complaint states that the new rule will cause irreparable harm through losses and costs, including the costs to service accounts that issuers would have never opened with this late fee cap, and will push the associated servicing costs on to all card holders, including those who have never made a late payment. The CFPB promised to defend the rule, saying that it will save consumers significant money and close a loophole that has turned late fees into a major revenue stream, and characterized late charges as “junk fees.” The CFPB also said that the plaintiffs engaged in “forum shopping” when they brought their case in the Northern District of Texas. The judge presiding over the case ordered the parties to submit briefs addressing their positions on the appropriate venue.

Extra Bite: FTC Updates Telemarketing Sales Rule

On March 7, 2024, the FTC announced an amendment to the Telemarketing Sales Rule, extending the rule to business-to-business calls. The TSR has been in place since 1995, and it applies to nearly all telemarketing activities, including calls that originate in the United States and calls made internationally to American consumers. The FTC says that it regularly reviews the rules it enforces to ensure that they are keeping up with advances in technology. The new final rule expands prohibitions against misrepresentations to include business to business telemarketing and revises the recordkeeping requirements for telemarketers. These recordkeeping changes include a requirement to maintain “call detail records” – which includes the phone number that placed and received each call, which the FTC says will help cut down on abuses that arise from spoofing or faking the calling number. The proposed additional change will extend the TSR to cover inbound telemarketing calls from consumers to technical support services, which the FTC says will help fight against scams that often start with a call to a consumer, or a pop-up notification, with a fraudulent warning that their computer is infected.

Extra Bite: FTC Settles Deception Case

On March 18, 2024, the FTC announced that two companies have agreed to settle with the agency over charges they made false promises to small businesses who were trying to use the Paycheck Protection Program during the COVID-19 pandemic. Under the settlement terms, one company will pay $33 million and the other will pay $26 million, in what the FTC said were the largest damages amounts ever secured by the agency under Section 19 of the FTC Act. Both companies are also subject to injunctions preventing them from making future misrepresentations. The FTC alleged that one of the companies deceptively advertised that consumers’ emergency loan applications would be processed in an average of 10-14 business days when the average processing actually took well over a month, and ignored repeated, urgent pleas by the applicants to withdraw their applications, which prevented these consumers from obtaining the emergency funds elsewhere. The other company allegedly advertised that small businesses and gig workers would successfully get PPP funding through its program, even though more than 60% of applications never resulted in funding. The FTC indicated that the company also made representations about the availability of helpful customer service that never materialized.

Still hungry? Please join Hudson Cook for our next CFPB Bites of the Month. If you missed any of our prior Bites, including the webinar that covered the above topics, request a replay on the Hudson Cook website here. 

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This article is provided for informational purposes and is not intended nor should it be taken as legal advice.  The views and opinions expressed in this article are those of the authors in their individual capacity and do not reflect the official policy or position of the partners of Hudson Cook, LLP or clients they represent.

Recently, the U.S. Court of Appeals for the Fifth Circuit ordered an FDCPA case to be reversed and remanded after the U.S. District Court for the Eastern District of Louisiana granted a motion for summary judgment.

The plaintiffs filed a putative class action alleging that the defendant law firm violated the FDCPA for misrepresenting judicial enforceability of a debt in their dunning letters. The case concerned Congress’s “Road Home” grant program, which was created to provide grants to repair and rebuild homes in the aftermath of Hurricanes Katrina and Rita. All Road Home grant recipients were required to disclose repair benefits previously received. The named plaintiffs in this case applied for and received Road Home grants but failed to disclose repair benefits previously received from FEMA or a privacy insurance carrier. 

In March 2008, the State’s contractor, ICF, noticed the potential double payments to the two named plaintiffs and placed an internal flag on their accounts in the Road Home database. After a decade, the defendant law firm was engaged to help recover these double payments. The defendants sent a dunning letter demanding repayment in 90 days or the defendants “may proceed with further action against you, including legal action.” The dunning letter further stated that “you may be responsible for legal interest from judicial demand, court costs, and attorneys fees if it is necessary to bring legal action against you.”

The plaintiffs filed suit under Section 1692e of the FDCPA and, in an amended complaint, alleged the defendants collected or attempted to collect time-barred debts, failed to itemize the alleged debts, and threatened to assess attorneys’ fees without determining if that right existed. The district court granted summary judgment to the defendants.

The 5th Circuit reversed on appeal. Concerning the first allegation of collecting or attempting to collect a time-barred debt, the court reasoned that while it does not violate the FDCPA to collect on a time-barred debt, a debt-collector “can run afoul of the FDCPA by threatening judicial action while completely failing to mention that a limitations period might affect judicial enforceability.”

Further, the appellate court found the dunning letters were “untimely even under the most liberal, 10-year time window” as the plaintiffs breached their agreements when they closed on their Road Home grants or when the State of Louisiana was provided actual notice of the alleged duplicative payments, both of which occurred more than 10 years before the dunning letters were received. The court also found that the defendants mischaracterized one plaintiff’s debt as the dunning letter said the amount owed was for insurance proceeds when it included a 30 percent penalty for lack of flood insurance. Finally, the court explained that because there was no lawful basis to recover attorneys fees, the defendants violated the FDCPA.