The Consumer Financial Protection Bureau (CFPB) proposed Friday to temporarily relax the scope of upcoming changes to Regulation C, which implements the Home Mortgage Disclosure Act (HMDA), by raising one threshold for HMDA reporting. Under Regulation C amendments previously finalized and scheduled to take effect in 2018, HMDA reporting requirements would apply to any financial institution originating 100 or more open-end home equity lines of credit (HELOCs) per year over the prior two years. Under the new proposal, the HMDA reporting requirements would apply through calendar year 2019 to institutions that originated 500 or more HELOCs per year over the prior two years. In the meantime, the CFPB would conduct further studies to help determine whether to permanently change this threshold. Continue Reading CFPB Offers Smaller HELOC Lenders Temporary Relief from HMDA Coverage; HMDA Changes Still Loom In the Future
On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) dropped the other shoe and issued final rules prohibiting “providers of consumer financial products and services in the core consumer financial markets of lending money, storing money, and moving or exchanging money” from “using a pre-dispute arbitration agreement to block consumer class actions in court.” The final rules also require covered providers to insert language “reflecting this limitation” in contracts with pre-suit arbitration clauses. Completing the trifecta, the new rules require “providers that use pre-dispute arbitration agreements to submit certain records relating to arbitral and court proceedings to the Bureau,” which will use the information to monitor use of arbitration clauses regarding “whether there are developments that raise consumer protection concerns that may warrant further Bureau action.” The CFPB also intends to create a website providing “greater transparency into the arbitration of consumer disputes.” Continue Reading The Sound of Shoes Dropping: CFPB Moves to Bar Class Action Waivers
The long-awaited Tenth Circuit Court of Appeals decision in the case of Fourth Corner Credit Union v. Federal Reserve Bank of Kansas City was issued this week. In short: the would-be credit union, formed to serve participants in the state-legal marijuana sector, lives to fight another day—but minus its original purpose for existing.
Fourth Corner Credit Union was originally formed to solve an acute problem for marijuana-related businesses (MRBs) and individuals associated with MRBs: the inability to obtain mainstream banking services. Without access to bank or credit union accounts, MRBs remain chiefly cash-based businesses, left to their own devices to figure out how to store money and move it around, including how to pay employees and vendors, and to keep cash safe from theft. Continue Reading Fourth Corner Credit Union Obtains Pyrrhic Victory for Marijuana Banking
While the future of health care legislation has been dominating headlines, some quiet but important developments in Washington regarding the future of federal financial regulation have also been taking place. These developments do not significantly clarify the path forward; much of the uncertainty about which we have written here remains. But recent developments do signal issues to monitor in the near and longer term.
The Trump Administration has announced nominations for two important federal bank regulatory posts. Continue Reading Federal Financial Reform: Where Does It Stand?
On June 12, 2017, the United States Supreme Court held that a buyer of defaulted consumer debt was not subject to the Fair Debt Collection Practices Act (“FDCPA”). The question of whether such debt buyers fit within the FDCPA’s definition of “debt collector” has long been a subject of contention. While this result will not shield debt buyers entirely from the FDCPA’s purview, it does provide additional defenses against FDCPA liability and has broad potential implications for other consumer protection actions.
In Henson v. Santander Consumer USA, the petitioner had defaulted on a car loan owed to CitiFinancial Auto, which then sold the debt to Santander, which attempted to collect on the debt. The petitioner alleged that Santander’s collection methods violated the FDCPA. Continue Reading Debt Buyers Get Some FDCPA Relief from Supreme Court: Case Offers Insights But Leaves Some Questions Unanswered
On May 24, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in the case of PHH vs. CFPB. The case, arising out of a CFPB enforcement action under the Real Estate Settlement Procedures Act (RESPA), also addresses the fundamental issue of whether the CFPB’s leadership structure is permissible under the Constitution.
The en banc consideration of the case followed the opinion of a three-judge panel of the D.C. Circuit that found the Bureau’s structure unconstitutional because it features a single director who is not removable at will by the President. While other federal agencies are led by a single person—including a fellow financial regulator, the Office of the Comptroller of the Currency (OCC)—the court dismissed the similarity in a footnote, distinguishing the OCC structure in noting that the authorizing statutory language is not identical. Continue Reading En Banc Oral Argument in PHH vs. CFPB Case Continues the CFPB Saga, Pits Federal Government Against Itself
NetSpend Corporation (NetSpend) recently agreed to settle with the Federal Trade Commission (FTC) regarding allegations that NetSpend deceived consumers about certain aspects of NetSpend’s reloadable prepaid cards. NetSpend will pay $40 million in restitution to customers and $13 million to the FTC under the enforcement order. Providers of consumer financial products and services—not just prepaid card providers—should carefully review the FTC’s allegations. The allegations provide insights on practices the FTC perceives to be deceptive, and how to avoid engaging in them. Continue Reading Federal Trade Commission Action Against NetSpend Has Relevance Beyond the Prepaid Card Industry
On May 10, 2017, the Consumer Financial Protection Bureau (CFPB) announced steps toward issuing regulations to impose data reporting requirements on the small business lending industry, a rulemaking required under the Dodd-Frank Act of 2010. To help it draft a proposed rule, the CFPB requested public feedback through a Request for Information (RFI) Regarding the Small Business Lending Market. At the same time, the CFPB released a white paper, Key Dimensions of the Small Business Lending Landscape, discussing the data currently available regarding small business lending. Continue Reading CFPB Asks for Input on Small Business Lending Data Collection; Agency Sees Small Business As Fair Lending Priority
As the battle over the Office of the Comptroller of the Currency (OCC)’s proposed financial technology (“fintech”) charter continues, investors in fintech companies should consider what it would mean for their business strategies if fintech companies actually did become banks. From an investor’s perspective, is there upside or downside to a fintech company becoming a bank?
First, there are advantages to status as a bank. In particular, it could liberate fintech companies from certain onerous state-by-state requirements, such as licensing requirements and interest rate limits. Especially for fintech companies whose businesses center on money transmission or consumer lending—activities that are particularly affected by these state laws—this could be a huge advantage. Continue Reading What Investors in Fintech Companies Need to Know About ‘Fintech Banks’
This month marks the one-year anniversary of the Financial Crimes Enforcement Network (FinCEN)’s long-awaited beneficial ownership rule, which imposes certain Customer Identification Program (CIP) requirements under the Bank Secrecy Act (BSA). FinCEN proposed the rule in 2014 and finalized it in May 2016. FinCEN has also issued Frequently Asked Questions Regarding Customer Due Diligence Requirements for Financial Institutions, which provides guidance in understanding and implementing the new rule. All financial institutions subject to the rule must begin complying with it no later than May 11, 2018.
The rule will impose new compliance obligations on federally regulated banks, federally insured credit unions, mutual funds, brokers or dealers in securities, futures commission merchants, and introducing brokers in commodities. Continue Reading Key Steps in One-Year Countdown to Compliance with FinCEN’s Beneficial Ownership Rule