On May 15, 2020, the House passed the Health and Economic Recovery Omnibus Emergency Solutions Act, or “HEROES Act”, which is a 1,815-page bill that affords $3 trillion in relief to consumers and businesses impacted by COVID-19. The bill includes a number of provisions, including another round of $1,200 payments to most Americans, hazard pay for frontline workers, and funding for local and state governments. The bill also includes proposed amendments to the Fair Credit Reporting Act (“FCRA”). Unfortunately, these well-intentioned amendments to FCRA do not appear to have been thought through well and, practically speaking, would have dire consequences if implemented.

First, the bill prohibits both consumer reporting agencies (“CRAs”) or data furnishers from reporting of any adverse information that occurred during a “major disaster” declared by the President. With respect to CRAs, the bill states:
Continue Reading HEROES Act Includes Potentially Disastrous FCRA Amendments

In a consumer class action, the United States Court of Appeals for the Seventh Circuit was called on to decide whether “consumer reporting agencies to determine the legal validity of disputed debts.” Denan v. Trans Union LLC, No. 19-1519, 2020 U.S. App. LEXIS 14930, at *1-2 (7th Cir. May 11, 2020). Joining the First, Ninth, and Tenth Circuits, the Seventh Circuit found that “a consumer’s defense to a debt is a question for a court to resolve in a suit against the [creditor,] not a job imposed upon consumer reporting agencies by the FCRA.”  Id. at *12 (internal quotations omitted).

In Denan, the plaintiffs obtained loans from tribal payday lenders. Those loans charged interest rates in excess of 300% and, according to the loan agreements, were governed by tribal law, not state law. The plaintiffs claimed that because the loans violated state usury laws, they were “legally invalid.”  Id. at *4. But instead of bringing suit against the tribal lenders, who may have been protected by sovereign immunity, the plaintiffs brought a putative class action against consumer reporting agency (or CRA) Trans Union, alleging it violated 15 U.S.C. § 1681e(b) for failing to assure the “maximum possible accuracy” of reported information.
Continue Reading Credit Reporting Agencies Are Not Required to Determine What Is a “Legally” Valid Debt

In response to the COVID-19 pandemic, many lenders are being flexible when it comes to consumers’ making payments. The Consumer Financial Protection Bureau (“CFPB”) added some structure to those efforts by releasing a policy statement that outlines the responsibility of credit-reporting companies and furnishers during the COVID-19 pandemic.

The CFPB seeks to encourage lenders to continue to work with consumers affected by COVID-19 with various forms of payment flexibility, including allowing consumers to defer or skip payments, whether as required by the CARES Act or voluntarily. And the CFPB’s statement recognizes that many furnishers and credit reporting agencies are also experiencing hardships due to the pandemic, including staffing and resource constraints.
Continue Reading Credit Reporting During the COVID-19 Pandemic: What You Need to Know

On Monday, November 18, 2019, the Office of the Comptroller of Currency (“OCC”) announced that it is seeking public comment on a proposed rule to clarify the “valid when made” doctrine in the wake of a decision from the United States Court of Appeals for the Second Circuit, Madden v. Midland Funding, that undermined and largely rejected it. The Notice of Proposed Rulemaking (“NPRM”) can be found here. This rulemaking could restore certainty regarding the legality and enforceability of loans that comprise a significant component of lending activity.

The “valid when made” doctrine is a longstanding rule that a loan’s interest rate remains legal and enforceable as long as it was legal when the loan was made, regardless of whether a third party ultimately ends up holding the loan. In Madden, the Second Circuit undermined, and largely rejected, the doctrine and thus called into question the legality and enforceability of a large swath of the consumer debt. The loans challenged in Madden were originated by banks and subsequently sold, assigned, or otherwise transferred to non-bank entities. 
Continue Reading OCC Seeks Comment as Part of New Rulemaking to Clarify “Valid When Made” Doctrine

Long before eMortgages, electronic signatures, and mobile apps hit the secured lending scene, Lord Nottingham proposed that the English Parliament pass An Act for Prevention of Frauds and Perjuries in 1677 to prevent nonexistent agreements from being “proved” through false testimony. That statute and its progeny remain an important resource in today’s financial services industry. All states have adopted a version of the statute of frauds and many states have enacted statutes of frauds specifically designed to provide broad protection for financial institutions.  If used effectively, these “super” statutes of frauds can quickly dispose of claims and defenses related to credit agreements, allowing lenders to recover collateral, enforce notes and guarantees, and reduce the expense of litigation. These statutes should be one of the first tools lenders reach for when defending claims for breach of an unsigned credit agreement or prosecuting loan enforcement actions where claims and defenses related to credit agreements are asserted.

Continue Reading Win Your Lender-Liability Lawsuit and Enforce Your Loan Documents with this 342-year-old Statute

Amid the uncertainty over the future of the CFPB, another continuing question is whether state consumer protection authorities will act to fill gaps left by the CFPB’s inaction. State attorneys general have tools available to pursue financial services practices that they believe harm consumers, and some have announced intentions to do so. But to date, the states have not initiated a flurry of suits regarding consumer financial protection.

Under the leadership of purported Acting Director Mick Mulvaney, the CFPB has curtailed investigative and enforcement activities, which states could take as a cue to step in. In fact, Mulvaney seemingly exhorted states to do so, as in a speech to the National Association of Attorneys General where he said that the CFPB would look to states for “a lot more leadership when it comes to enforcement.”
Continue Reading Cutback of CFPB Activities Invites State Authorities to Act — But Will They?

It has been almost easy to forget that the PHH v. CFPB case started life as an appeal of an enforcement action taken by the Consumer Financial Protection Bureau (CFPB) for purported violations of the Real Estate Settlement Procedures Act (RESPA).  Technical RESPA issues quickly took a back seat in public discourse to the juicier issue in the case—whether the structure of the CFPB itself was unconstitutional. (Among the factors heightening the drama was the fact that, post-election, the new leadership at the Department of Justice reversed the Obama-era course in the litigation, directing its lawyers to argue against the CFPB and contend that the CFPB was unconstitutional.)

In the latest turn in the case, in a January 31 opinion, the US Court of Appeals for the DC Circuit brought the RESPA issues back to the fore — ironically, in an opinion that does not substantively discuss the RESPA issues. 
Continue Reading Latest PHH v. CFPB Ruling Brings RESPA and CFPB Enforcement Approaches Back in Focus

2018 has a tough act to follow, after a 2017 full of momentous developments—starting with a new Administration and wrapping up with a showdown over the right to serve as Acting Director of the Consumer Financial Protection Bureau (CFPB) (a fight that continues as of this writing, as discussed below).

But 2018 is unlikely to be a quiet year. In addition to developments in the CFPB leadership battle and other litigation, the year is expected to bring developments such as effective and compliance dates for major regulations on data protection, Bank Secrecy Act/anti-money-laundering (BSA/AML), mortgage servicing, and other topics, and could bring changes in supervisory focus at multiple federal agencies. 
Continue Reading Fasten Your Seatbelts: Are You Ready for Another Eventful Year?

The Consumer Financial Protection Bureau (CFPB)’s long-anticipated rulemaking on small-dollar lending took a surprising turn. The version of the CFPB’s small-dollar regulation proposed in 2016 would have covered a wide array of small consumer loans, and was further accompanied by a request for information on additional small-dollar products and practices not covered by the proposal, all of which implied that the CFPB had a far-reaching agenda for regulating small-dollar consumer credit and, as a first salvo, would fire off a sweepingly broad small-dollar regulation. But that is not what has happened so far. Rather, the final rule, announced on October 5, is narrowly drawn and centers on more limited, specific types of short-term payday loans.
Continue Reading What Does the CFPB’s Payday Rule Mean for the Future of Small-Dollar Lending?

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