Presenters. Purpose. Preparing for the CFPB and other Consumer Credit Issues. Walter Witthoff: Iowa Student Loan. Todd, Bremer & Lawson, Inc.

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1 Preparing for the CFPB and other Consumer Credit Issues 2011 COHEAO Mid-Year Conference Presenters Lori Hartung: Todd, Bremer & Lawson, Inc. Walter Witthoff: Iowa Student Loan Purpose The Consumer Financial Protection Bureau opened its doors for business on July 21, The CFPB is responsible for enforcing and drafting implementing regulations to certain consumer credit protection laws such as the Truth in Lending Act. This session intends to provide a high level overview of the CFPB and the Truth in Lending Act. 1

2 Also Lori Hartung will provide an analysis of The Telephone Consumer Protection Act. DISCLAIMER The information presented in this session represents the views and opinions of the presenters and does not constitute the opinion or endorsement of, or promotion by, Iowa Student Loan, Todd, Bremer & Lawson, Inc. or COHEAO. Also, this session is for information purposes only and should not be construed as legal advice. The reader or audience participant is encouraged to consult with legal counsel before making any policy decisions based on the information contained herein. The Consumer Financial Protection Bureau (CFPB) The Dodd-Frank Wall Street Reform and The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 established the CFPB. 2

3 Scope Of CFPB s Duties The CFPB supervises banks with more than $10 billion of assets, credit unions, and other non-bank financial companies Non-banks include payday lenders, mortgage brokers, student loan lenders The CFPB enforces federal consumer laws such as the Truth in Lending Act Scope Of CFPB s Duties, cont d The CFPB is prohibited from beginning supervision of non-bank financial firms, such as those that provide student, payday and mortgage loans, until it has a confirmed director. But its power to supervise firms such as Bank of America Corp., Citigroup Inc. and J.P. Morgan Chase & Co. went into effect on July 21, Elizabeth Warren Loved by Democrats Feared as a regulatory zealot by Republicans 3

4 Richard Cordray President Obama nominated Richard Cordray, former Ohio Attorney General, to run the CFPB A recess appointment? For the bureau to be fully empowered, it must be headed by a Senate-confirmed director. GOP Demands Changes To CFPB In a letter to President Obama 44 Republican senators said they won't confirm anyone as director until certain changes are made Since Senate confirmation requires 60 votes, the Republican resistance ensures no nominee will be confirmed 4

5 Republicans want to: Replace the position of CFPB director with a five-member commission Give Congress authority over CFPB funding, and Design ways to make it easier to overturn CFPB rules What Can The CFPB Do Without A Director? Investigate financial firms Bring enforcement actions for violating existing laws There Would Be Restrictions Any investigation would have to be based in Any investigation would have to be based in the powers being transferred from the Federal Trade Commission, the Federal Deposit Insurance Corp. and other federal regulators. 5

6 CFPB Has A Mighty War Chest The CFPB receives up to 10 percent of the operating budget of the Federal Reserve as much as $500 million. The CFPB will be somewhat a part of the Federal Reserve Board, but not subject to the Fed s authority. CFPB Will Be Self-Directing The CFPB will decide its own budget and will not be required to ask Congress for money. The CFPB will have no governing board, only a director whose rulings can t be vetoed. Where Will CFPB Focus Its Resources? Professor Warren told a group of community bankers in San Antonio that the biggest part of its budget will be used to police 80,000 nonbank firms that are involved in payday loans, student lending, debt collecting and the mortgage business. 6

7 What The CFPB Is Empowered To Target: Unfair Or Deceptive Acts Or Practices Unfair or deceptive acts or practices have been subject to federal jurisdiction. Since 1938 the Federal Trade Commission has enforced the rule For the CFPB, the word abusive was added The CFPB will define what is abusive and what isn t What is abusive? Any financial service or activity that takes advantage of a consumer s s inability to understand the risks, costs or conditions of loans, mortgages and credit cards. CFPB priorities Reg Z/RESPA Credit card rule changes Rules on practices considered by the CFPB to be unfair and deceptive Mortgage rules: Servicing standards, prepayment penalties Arbitration 7

8 What Might The Future Hold? Walter s crystal ball: CFPB will gain the capability to gather more data and build the capability to analyze it to detect violations All lenders and servicers will be required to obtain a federal license The licensed lender will be required to provide information to the CFPB about its activities. These documents must be sent by request from the CFPB and they will also be used by other regulatory agencies to monitor transaction activities. Failure to send a report upon request would be grounds for legal penalties, as student loan companies will be expected to comply with regulatory rulings designed to facilitate monitoring, regulation, and consumer safety Student Loan Report Conventional wisdom has it that student loans will not on the CFPB s radar screen until next summer when the student loan report is due. Of course, it is likely that the report has already been written. How To Prepare For CFPB Strengthen the compliance function Punitive loan provisions? Be conservative Get a feel for the flow of regulatory direction Know your appetite for risk Stay in touch with colleagues and your trade associations 8

9 CFPB And The Truth in Lending Act What does the CFPB have to do with the Truth in Lending Act? What is the Truth in Lending Act? The TIL Act (15 USC 1601 et seq; 82 Stat. 146; Pub L ) was enacted to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him [sic] and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices. TIL Act The Truth in Lending Act Has Grown In Scope The Truth in Lending Act was originally conceived to provide an apples-to-apples comparison of loan products, but the Private Student Loan Transparency and Improvement Act of 2008 added enhanced student loan disclosure requirements and prohibited certain practices for creditors making student loans. 9

10 The Truth in Lending Act Is a Complex Law The TIL Act arguably permeates the student loan lender s loan making process more so than any other federal law. Student Loan providers must create complex electronic and manual systems designed to issue accurate and timely notices to consumers. APR calculations are particularly complex in student loans because of the nature of interim (generally in-school) periods. What is Regulation Z? Regulation Z (12 CFR part 226) is the implementing regulation for the TIL Act. Practically speaking, we refer to Reg Z to understand the timing and content of disclosures for student loans. In addition, Reg Z prescribes how lenders can advertise and outlines requirements for the calculation of annual percentage rate under the actuarial method, found within Appendix J. What Federal Agency Issues Regulation Z? Until now, the Board of Governors of the Federal Reserve System had statutory responsibility for implementing Reg Z The CFPB now has responsibility for implementing Reg Z It is important to note that, except for certain aspects of the self-certification form, the U.S. Department of Education has no rule-making authority relative to private student loans and Regulation Z. Your guidance regarding Reg Z, even concerning the student loan provisions, should come from the CFPB 10

11 What is the Official Staff Commentary? The TIL Act is implemented by Reg Z. The Fed Board has delegated to officials in the Board s Division of Consumer and Community Affairs authority to issue official staff interpretations of Reg Z. Of course, the CFPB will now do this. Generally good faith compliance with the Commentary affords creditors protection from liability under section 130(f) of TIL Act. The Commentary is a substitute for individual staff interpretations; it is updated periodically to address significant questions that arise. Putting It All Together Congress made the Truth in Lending Act into law. Reg Z implements the TIL Act. The CFPB is required to issue regulations for Reg Z and will write the staff interpretations of Reg Z in the form of the Commentary Moreover, the CFPB will absorb enforcement responsibilities relating to Reg Z. For schools, this enforcement responsibility shifted from the Federal Trade Commission to the CFPB Transparency Act of 2008 Senator Christopher Dodd (D-Connecticut) proposed legislation which found its way into the federal Higher Education Opportunity Act (HEOA) as title X of the Act, entitled Private Student Loan Transparency and Improvement Act of

12 What Does the Private Student Loan Transparency and Improvement Act of 2008 Do? The Private Student Loan Transparency and Improvement Act of 2008 : Technically adds new subsection 128(e) and section 140 to the federal Truth in Lending Act (TIL Act) Creates a new regime of disclosures Adds certain consumer protections such a 30 day waiting period and a 3 day rescission period If You re A School, This Is How It Works As a general rule, if the school is a creditor, and if the loan is not excluded or exempt from being a private education loan, then the school-as-lender must provide the new disclosures and collect the self certification form for that loan. Why are private student loans special? Students are considered a vulnerable population The problems are particularly prevalent in the for-profit higher education sector where all too often, schools prey on vulnerable students dreams of betterment through education. Written testimony of Deanne Loonin, Director of National Consumer Law Center s Student Loan Borrower Assistance Project 12

13 The Great Private Education Loan Scare "This is the West, sir. When the legend becomes fact, print the legend." From The Man Who Shot Liberty Valance Neither Fish Nor Foul Private student loans now have their very own rank in the banking hierarchy, which makes them the duckbill platypus of the banking world and these animals are entitled to their very own section of the Truth in Lending Act Wow! 13

14 THE TELEPHONE CONSUMER PROTECTION ACT TCPA BASICS Telephone Consumer Protection Act of 1991 Primary law governing the conduct of telephone solicitations Established the following: Do Not Call Registry Limit on Automated Dialer use Limit # of abandoned calls by telemarketer Clearly identify electronic prerecorded messages Modified the unsolicited facsimile advertising requirements DO NOT CALL REGISTRY Prohibit initiating any telephone solicitation to anyone who placed their number on a do-not-call list E ti th t l t th dit d ll ti Exemptions that apply to the credit and collection industry: Established business relationship exemption Prior express permission exemption 14

15 AUTOMATIC DIALERS Auto-dialers, predictive dialers or artificial or prerecorded voice may not place calls to emergency numbers, health care facilities, wireless services or any other number the consumer is charged for the call This applies to all parties including collection activity Two exceptions: If the call is made for emergency purposes With prior expressed consent of the called party EXPRESSED CONSENT FCC issued declaratory ruling on 1/4/08: Consumer provides expressed consent to be called on a wireless number via auto-dialer or prerecorded message if she knowingly releases the wireless number to the calling entity Also clarifies that a consumer who gives prior consent to the creditor also give prior consent to the debt collector calling on behalf of the creditor EXPRESS CONSENT NOTICE No specific language that must be used to obtain prior express consent from a consumer to place an auto-dial or prerecorded msg. ACA has provided sample express consent notice language. Fastfax #

16 SAMPLE NOTICE You agree, in order for us to service our account or to collect any amounts you may owe, we may contact you by telephone at any telephone number associated with your account, including wireless telephone numbers, which could result in charges to you. We may also contact you by sending text messages or s, using any e- mail address you provide to use. Methods of contact may include using pre-recorded/artificial voice messages and/or use of an automatic dialing device, as applicable. I/We have read this disclosure and agree that the Lender/Creditor may contact me/us as described above. PRERECORDED MESSAGES FCC rules generally restrict the use of prerecorded messages However, the FCC considers debt collection call delivered by a prerecorded message to be calls made for a commercial purpose that do not include telephone solicitation PRERECORDED MESSAGES It is acceptable for third party debt collectors to leave prerecorded messages with consumers As long not including info on other products or services or up-selling Calls made for debt collection purposes that include a discussion of payment methods are not considered dual purpose or up-selling calls and therefore not prohibited See ACA Fastfax #

17 PRERECORDED MESSAGES Credit grantors/merchants may also leave prerecorded messages for the purpose of communicating with their customers in connection with the collection of a receivable for the same reason and same conditions of a third party debt collector In addition credit grantors/merchants may deliver advertisements via prerecorded message of they restrict the delivery of such messages to those with whom they have an established business relationship at the time the call is being made or obtained consumer consent in writing IDENTIFYING PRERECORDED MESSAGES It is necessary for the debt collector, credit grantor, merchant to satisfy the identification requirements Beginning of message, clearly identify the business, individual or entity responsible for initiating the call If a business is making the call the same name that is registered to the State Corporation Commission After the msg state clearly the telephone # of the entity. May not be a 900 number or any number that charges exceed local or long distance charges IDENTIFYING PRERECORDED MESSAGES FCC has clarified that parties making calls for the purpose of debt collection are not required to identify the caller s state-registered name in msg if doing so would conflict with federal or state laws, such as the FDCPA provisions i barring third party disclosure Where conflict exits, the debt collector may identify by individual name 17

18 WRONG PARTY CALLS Debt collector may face liability under TCPA and corresponding FCC regulations for autodialed and prerecorded calls placed to the wrong individual Different requirements for residential lines versus wireless numbers ERRONEOUS CALLS TO RESIDENTIAL # S Debt collection calls to a consumer s residential number are exempt from the general ban of prerecorded msg Conflicting case law calls into question whether prerecorded message calls erroneously made to a residential # of a non-consumer under the exception for debt collection calls TCPA and FCC do not directly address this issue, at least one court issued erroneous prerecorded msg are subject to TCPA ERRONEOUS CALLS TO WIRELESS # S Similar to residential calls, the TCPA and FCC do not expressly exempt erroneous calls to wireless # s from the TCPA These calls most likely subject to TCPA based on the following: Prerecorded or auto-dialed calls can only be made to a wireless number if the called party has give express consent 18

19 ERRONEOUS CALLS Until case law, FCC or CFPB provide a definitive answer on these issues, entities should take precautions to ensure numbers dialed using auto-dialers or prerecorded msg are accurate & up-to-date Have policies and procedures to remove numbers after an individual notifies the collector the call was placed in error TCPA FEDERAL JURISDICTION The FCC enforces the majority of the provisions set forth in the TCPA The FCC, State AGs and Individuals may bring civil action The FCC also has authority to issue citations. For willful violators can reach up to $10,000 for each violation or each day of a continuing violation. Continuing violations capped at $75,000 Questions? 19

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