June 22, Gerald S. Sachs, Of Counsel Paul Hastings LLP. (202)

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1 Current trends and priorities of the Consumer Financial Protection Bureau (CFPB), including recent enforcement activity and its small dollar lending proposed regulation June 22, 2016 Gerald S. Sachs, Of Counsel Paul Hastings LLP (202) Paul Hastings LLP

2 Overview - CFPB CFPB Basic Jurisdiction Enforcement Trends Mortgage Payment Processing Auto Finance (Fair Lending) Debt Collection and Debt Relief Regulations Small Dollar Lending Rule Prepaid Card Rule Arbitration and Class Action Waiver Rule 2

3 CFPB Jurisdiction Large Banks (over $10 billion) Service providers or those that provide substantial assistance. Supervision and enforcement authority. Non-Banks Service providers or those considered a related person. Supervision and Enforcement authority Mortgage origination and servicing Payday lending / small dollar lending Student lending private Credit reporting Debt collection Auto finance Enforcement authority Debt relief and credit repair. Dist. D.C. recently ruled no jurisdiction over college accreditation company court denied civil investigative demand issued by CFPB. 3

4 CFPB Enforcement Trends Mortgage The Real Estate Settlement Procedures Act (RESPA) Marketing Services Agreements are high-risk, but not per se unlawful. Any payments related to mortgage transactions may receive higher scrutiny. CFPB going after low-level individuals e.g. one mortgage banker. I was bullied into entering the consent order.... Payment Processing ACH Transactions Is the CFPB giving force to NACHA s Rules? Do you conduct thorough due diligence before onboarding. Do you monitor returns? Data security do you do what you advertise? 4

5 CFPB Enforcement Trends Auto Finance Fair lending initiative do you offer a discretionary dealer compensation model, if so you may receive higher scrutiny. APR and Fees are you disclosing all mandatory fees? Debt Collection and Debt Relief Can you thoroughly support your collection efforts? How are ensuring accurate reporting of information, if you report even publicly available information? What are you promising for debt relief and when are you getting paid? 5

6 CFPB Enforcement Trends - Going after Individuals Substantial Assistance banks and non-banks Any person who knowingly or recklessly assist a covered person (anyone who offers or provides a financial product or service). 12 USC Related Person only for non-banks Any director, officer, or employee charged with managerial responsibility for, or controlling shareholder of, or agent for; Any shareholder, consultant, joint venture partner, or other person, as determined by the Bureau (by rule or on a case-by-case basis) who materially participates in the conduct of the affairs; or Any independent contractor (including any attorney, appraiser, or accountant) who knowingly or recklessly participates in any violation of any provision of law or regulation, or breach of a fiduciary duty. 12 USC 5481(25). In 2016 CFPB has named individuals in at least 7 of 15 actions. This should send a strong message that the law must be followed not only by large financial institutions, but also by the individuals who work for them. CFPB Director Richard Cordray, May 26,

7 CFPB Regulations Update Published agenda for Spring 2016 Final Rule Stages: Mortgage and Prepaid Cards Proposed Rule Stage: Payday and Deposit Advance; Arbitration; GLBA; and Mortgage Pre-rule Stage: Overdraft; Debt Collection; Business Lending Data (ECOA); Supervision Installment and Auto Title Loan Markets 7

8 CFPB Small Dollar Loan Rule - Proposed Loans with a term of 45 days or less. Loans with a term greater than 45 days, provided that: All-in annual percentage rate greater than 36% and Either repaid directly from the consumer s account or income or secured by a vehicle. Does not cover the following loans: Extended solely to finance the purchase of a car or other consumer good in which the loan is secured by the good; Home mortgages and other loans secured by real property or a dwelling if recorded or perfected; Credit cards; student loans; non-recourse pawn loans; and overdraft services and lines of credit. Ability-to-Repay Test (ATR) Ability to make payments on loan and meet other major financial obligations without re-borrowing within 30 days of original loan. If cannot meet ATR: Short-Term Loan: < $500: no more than 3 loans provided each loan is less than original and provided no more than 6 loans in 12 month period or be in debt for more than 90 days. Long-Term Loan: NCUA Payday Alternative Loan Program ($200 < $1,000, repayment fully amortizing with term between 46 days and 6 months with interest no more than 28% and app. fee $20 or less. All-in APR not to exceed 36% (excluding origination fee up to $50, repayment in 2 or more payments that tare fully amortizing with term between 46 days and 24 months. Lender default rate not to exceed 5% or must refund all fees. 8

9 Other CFPB Regulations and Trends Prepaid Cards: CFPB Proposes Comprehensive New Regulatory Regime for Prepaid Cards id=cd0de c-ff00004cbded Arbitration: Class (Not) Dismissed: CFPB Proposes New Rule Prohibiting Mandatory Arbitration Clauses, Encourages Consumer Class Action Law Suits id=8e53e c-ff00004cbded No Action Letters: CFPB No-Action Letters: Is There a Benefit? id=7aa8e c-ff00004cbded Language Access Issues: Regulatory Scrutiny of Language Discrimination in the Marketing and Offering of Consumer Financial Products and Services id=0601e c-ff00004cbded 9

10 Gerald (Gerry) Sachs advises clients on all aspects of consumer financial services law, regulatory enforcement, privacy and data security, and litigation. Mr. Sachs brings his experience as a former Senior Counsel for Enforcement Policy and Strategy at the Consumer Financial Protection Bureau, Assistant United States Attorney, and attorney for the Federal Trade Commission to successfully assist clients resolve regulatory questions, defend against administrative investigations, actions, and any litigation. Direct: geraldsachs@paulhastings.com 10

12 Our Offices NORTH AMERICA EUROPE ASIA Atlanta 1170 Peachtree Street, N.E. Suite 100 Atlanta, GA t: f: Chicago 191 North Wacker Drive Thirtieth Floor Chicago, IL t: f: Houston 1000 Louisiana Street Suite 5400 Houston, TX t: f: Los Angeles 515 South Flower Street Twenty-Fifth Floor Los Angeles, CA t: f: New York 75 East 55th Street New York, NY t: f: Orange County 695 Town Center Drive Seventeenth Floor Costa Mesa, CA t: f: Palo Alto 1117 S. California Avenue Palo Alto, CA t: f: San Diego 4747 Executive Drive Twelfth Floor San Diego, CA t: f: San Francisco 55 Second Street Twenty-Fourth Floor San Francisco, CA t: f: Washington, D.C th Street, N.W. Washington, DC t: f: Brussels Avenue Louise 480-5B 1050 Brussels Belgium t: f: Frankfurt Siesmayerstrasse 21 D Frankfurt am Main Germany t: f: London Ten Bishops Square Eighth Floor London E1 6EG United Kingdom t: f: Milan Via Rovello, Milano, Italy t: f: Paris 96, boulevard Haussmann Paris, France t: f: Beijing 19/F Yintai Center Office Tower 2 Jianguomenwai Avenue Chaoyang District Beijing , PRC t: f: Hong Kong 21-22/F Bank of China Tower 1 Garden Road Hong Kong t: f: Seoul 33/F West Tower Mirae Asset Center1 26, Eulji-ro 5-gil, Jung-gu, Seoul, , Korea t: f: Shanghai 35/F Park Place 1601 Nanjing West Road Shanghai , PRC t: f: Tokyo Ark Hills Sengokuyama Mori Tower 40th Floor, Roppongi Minato-ku, Tokyo Japan t: f: For further information, you may visit our home page at or us at info@paulhastings.com

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