American Bar Association Consumer Financial Services Young Lawyers Subcommittee. September 10, 2014

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1 A Survey of Activities Identified as Unfair, Deceptive, or Abusive by the CFPB by Adam D. Maarec, Davis Wright Tremaine LLP John C. Morton, Gordon Feinblatt LLC American Bar Association Consumer Financial Services Young Lawyers Subcommittee I. Introduction September 10, 2014 In January 2014, we released a survey of activities identified as unfair, deceptive or abusive (UDAAP) by the CFPB in 2012 & This article updates the previous survey with additional enforcement actions brought by the CFPB between January 1, 2014 and June 30, It has also been expanded to cover enforcement actions by state attorneys general and consumer financial services regulators using federal UDAAP powers created by the Dodd-Frank Act. 1 The CFPB and state attorneys general and consumer financial services regulators often coordinate their enforcement activities, so these actions like actions initiated directly by the CFPB also provide insight into the specific types of practices that could be considered UDAAP violations. We intend to publish periodic updates to this article cataloging all new CFPB UDAAP enforcement actions and related state enforcement actions using federal UDAAP powers. II. Identification of Unfair, Deceptive, and Abusive Practices by the CFPB and by the States Between January 1, 2014 and June 30, 2014, the CFPB engaged in three public enforcement actions based on alleged UDAAP practices. Additionally, during the same period, state attorneys general in Illinois and Mississippi, and the New York Department of Financial Services, used their new federal UDAAP authority for the first time. Taken together, past UDAAP actions provide a road map from which industry participants may identify practices that are considered problematic and avoid engaging in those same practices in the future. UDAAP enforcement actions during the period of this summary generally are split between the following types of activities: (1) marketing; and (2) mortgage loan servicing. 1 Dodd-Frank Wall Street Reform and Consumer Protection Act, 12 U.S.C et seq. (the Dodd- Frank Act ); see, e.g., 12 U.S.C (2014).

2 The summaries of each UDAAP action below are intended to provide a straightforward identification of the specific acts or practices that were targeted by the CFPB. III. CFPB Actions a. Bank of America April 2014 Bank of America settled allegations by the CFPB related to deceptive telemarketing of credit card debt protection products and unfair billing practices in connection with identity theft protection products. 2 The debt protection product was offered through inbound telemarketing, during credit card activation calls and customer service calls, and through outbound telemarketing. The following alleged telemarketing practices were considered deceptive by the CFPB: Representing that a 30-day free-look period, where product fees were incurred but would be reimbursed if the product was cancelled, was a free month of service; Enrolling without adequate consent by: o Representing that additional steps were required to enroll after the telemarketing call when enrollment was actually being immediately processed; o Representing that consent was being provided to receive additional information when consent was actually provided as a basis for enrollment; Representing the duration of benefits was longer than what was actually provided in the product s terms and conditions; Representing that a death benefit of up to $25,000 was available when the benefit was actually for amounts outstanding on the credit card at death up to $25,000; and Representing that benefits were automatic upon providing notice of an event to the bank when a specific benefit request and approval process had to be followed. With respect to unfair billing practices, the bank offered to monitor three credit bureau reports for identity theft but allegedly failed to actually conduct that monitoring, and despite that failure, continued to charge consumers the full price of the monitoring services. The CFPB alleged that, since customers were unable to know that the bank was not actually performing the complete monitoring services, the practice was unfair. The bank s compliance monitoring, service provider management, and quality assurance allegedly failed to provide effective oversight and did not prevent, identify, or correct these improper sales practices. Without admitting or denying any findings of fact or violations of law or wrongdoing, the bank settled the CFPB s UDAAP allegations. With respect to the telemarketing of debt 2 See In re Bank of America, N.A. and FIA Card Services, N.A., Consent Order, available at 2

3 protection products, the bank agreed to provide approximately $286 million in restitution to consumers (but no less than $215 million) and $15 million in civil money penalties. With respect to the billing of credit protection products, the bank agreed to provide approximately $459 million in restitution and $5 million in civil money penalties. b. Synchrony Bank (GE Capital Retail Bank) June 2014 Synchrony Bank (GE Capital Retail Bank) settled CFPB allegations of deceptive telemarketing of credit card debt protection products and the discriminatory offering of credit relief promotions under the Equal Credit Opportunity Act. 3 In this case, debt protection products were offered as add-on products through two inbound telemarketing channels: during credit card activation calls and customer service calls. The consent order alleges that the bank did not require scripts to be used in the customer service telemarketing channel, did not adequately disclose that a purchase was occurring, and misrepresented the product s costs, terms, benefits and benefits redemption process. The following alleged telemarketing practices were considered deceptive: (1) Stating that a fee could be avoided if the card balance was paid in full each month when, in fact, the card had to be paid in full before the statement was issued for the fee to be avoided; (2) After being made aware of a consumer s circumstances that would make them ineligible for one or more of the debt protection products, failing to make the consumer aware of the product s relevant limitations; (3) Misrepresenting that a part of the call was to handle ministerial tasks rather than for solicitation purposes; and (4) Misrepresenting that the product was only available for a limited time. The bank s add-on product compliance monitoring, service provider management, and quality assurance allegedly failed to provide effective oversight and did not prevent, identify, or correct these improper sales practices. Without admitting or denying any findings of fact or violations of law or wrongdoing, the bank settled the CFPB s UDAAP allegations. With respect to the telemarketing of debt protection products, the bank agreed to provide approximately $56 million in restitution to consumers. The bank also agreed to pay a $3.5 million civil money penalty to settle both the UDAAP and discrimination allegations. c. ITT Educational Services February 2014 The CFPB filed a civil complaint against ITT Educational Services, Inc., a for-profit college, alleging unfair and abusive acts and practices in connection with its offering and 3 See In re Synchrony Bank, Consent Order, available at The allegations of discrimination under the Equal Credit Opportunity Act, which were brought in conjunction with the U.S. Department of Justice, are beyond the scope of this article. 3

4 provision of private student loans. 4 ITT s financial aid office would assist consumers with applications for federal student loans to fund their college tuition. But where federal student loans were inadequate to pay the entire tuition, ITT offered a temporary zerointerest loan to pay for the tuition gap. The CFPB alleged that the following practices were unfair and resulted in coercing consumers to refinance their temporary zero interest loans with private student loans: Rushing through an automated application process; Using high-pressure sales tactics, including pulling students from class and refusing to provide transcripts and diplomas; Leveraging consumers : 1) limited ability to repay the temporary zero interest loan; 2) limited ability to transfer academic credits; and 3) fear of losing their entire investment in an ITT education under threat of expulsion from ITT; and Exploiting consumers expectations of job opportunities and sufficient earning capacity to repay their private student loans. In addition, the CFPB alleged that ITT was engaging in the following abusive acts or practices when convincing consumers to refinance their temporary zero interest loans with private student loans: Encouraging consumers to take out high-risk private student loans that ITT knew were likely to default; Taking unreasonable advantage of consumers limited resources to pay for the tuition gap out of pocket or ability to obtain other private student loans; Using aggressive sales tactics, including the threat of expulsion; Controlling the complex financial aid process; Soliciting consumers reliance and trust but failing to act in their best interest, for example, by failing to disclose that the financial aid staff s compensation was based on volume like a sales staff ; and Using private student loans for the purpose of window-dressing ITT s financing statement and increasing its stock price. IV. State Actions a. Illinois v. CMK Investments, Inc. d/b/a All Credit Lenders March 2014 The Illinois Attorney General filed a civil action against an installment lender, All Credit Lenders, issuing payday (wage-assigned) loans for allegedly deceptive and abusive acts 4 See Consumer Financial Protection Bureau v. ITT Educational Services, Inc., Case No. 1:14-cv-292 (S.D. IN, February 26, 2014). 4

5 and practices. 5 The case represents the first time a state attorney general used the Dodd- Frank Act s UDAAP powers. The installment lender issued revolving credit plans secured by wage assignments, among other products, in Illinois. The state imposes an interest rate cap of 36% on such credit. Two revolving credit plan agreements cited in the case disclosed APRs of 18% and 24%, respectively. However, the applicable revolving credit plan agreement also included a mandatory Required Account Protection Fee of between $10 and $15 per $50 (depending on the disclosed APR) of outstanding balance at the end of each bi-weekly billing cycle as a condition of the credit. The Illinois Attorney General alleged that the Required Account Protection Fee obscured the product s actual cost and misled borrowers regarding the actual APR of the loan. In addition to alleged violations of the Illinois Consumer Fraud Act, the suit alleged that the lender took unreasonable advantage of consumers lack of understanding of the revolving credit plan s risks, costs and conditions, and therefore engaged in abusive acts or practices prohibited by the Dodd-Frank Act. The following alleged practices were considered abusive by the Illinois Attorney General: Failing to disclose the true nature and cost of the Account Protection Fee; Charging consumers for an Account Protection Fee of no benefit to some consumers generally, and specifically with respect to its cost; Requiring all borrowers to pay the Account Protection Fee even if some consumers could never receive benefits from the Account Protection Fee because such consumers had no potential to become unemployed; Misrepresenting the true overall cost of the loan; and Providing a periodic statement with a minimum payment that would not reduce the loan principal, resulting in a cycle of debt. b. Illinois v. ALTA Colleges, Inc. et. al. May The Illinois Attorney General amended her complaint in a lawsuit filed against a forprofit college ( ALTA ) and its owners to include counts alleging federal UDAAP violations. The complaint alleged that certain institutional financing programs offered by the defendants were consumer financial products falling under the coverage of the Dodd- Frank Act, 7 and that certain misrepresentations and omissions were made by the defendants resulting in the financing program being unfair and abusive to consumers. 5 See Illinois v. CMK Investments, Inc., 2014CH04694 (Cook County Cir. Ct., March 18, 2014). 6 See Illinois v. ALTA Colleges, Inc., et. al., 12CH01587 (Cook County Cir. Ct. May, 2014) U.S.C. 5481(5), (15)(A)(i), & (15)(A)(viii). 5

6 The following alleged practices were considered unfair and abusive by the Illinois Attorney General: Misrepresenting the total cost of tuition and payment obligations of students upon completion of the academic program; Pushing students into expensive, high-risk loans that defendants knew were likely to default; Taking unreasonable advantage of students who are put in a position calculated to foster an inability to protect their own interests in selecting or using defendants loans; Providing incomplete, inconsistent or misleading descriptions of the loan program; Engaging in rushed, high-pressure enrollment tactics, which combined with the above, result in students being unable to make informed decisions about material terms and conditions of the loan programs. c. Mississippi v. Experian Information Solutions, Inc The Mississippi Attorney General filed a complaint against Experian Information Solutions, Inc. alleging numerous violations of the federal Fair Credit Reporting Act and UDAAP violations under the Dodd-Frank Act 8 in connection with Experian s provision of credit reporting services to consumers. The following alleged practices were considered UDAAP violations by the Mississippi Attorney General: Engaging in deceptive marketing practices, including advertising free credit score reports when monthly fees were charged and misleading statements that lead consumers to believe they must purchase credit reports in order to file disputes; Misrepresenting that consumers receive all of the credit information provided to creditors about the consumer when all such information is not actually provided to consumers, thereby preventing consumers from being able to identify and address errors on their credit reports; Failing to employ reasonable procedures to ensure maximum possible accuracy ; requiring consumers to obtain recent credit reports in order to file disputes; failing to transmit all relevant information to credit report information furnishers; re-aging or allowing aged, re-aged, or obsolete accounts and accounts discharged in bankruptcy to show as due or past due on credit reports; and allowing deleted information to reappear on credit reports; 8 See Mississippi v. Experian Information Solutions, Inc., No. 1:14-cv LG-JMR (SDMS,, 2014). 6

7 Representing that it provides accurate credit reports, when allegedly it does not do so; and Failing to disclose the frequency and types of errors that appear in its consumer credit reports. d. New York v. Condor Capital April 2014 The New York Department of Financial Services (NYDFS) sued a subprime automobile finance company, Condor Capital Corporation, and its individual owner for alleged UDAAP violations. 9 The NYDFS alleged in its complaint that the installment lender wrongfully retained over-payments on loan accounts and had inadequate information security systems. The NYDFS alleged that the following practices, viewed together, were unfair, deceptive, and/or abusive : Actively concealing the existence of over-payments by shutting down customer access to an online loan account portal once a loan was paid off; and Filing unclaimed property reports that did not identify the over-payments, resulting in allegedly false and misleading unclaimed property reports. With respect to information security, the NYDFS alleged that the installment lender had inadequate physical and electronic data protection systems, loan documents with nonpublic personal information in the company s offices without physical protections, and little or no information technology systems to ensure the security of electronic customer information. These failures with respect to data security were both allegedly unfair and abusive acts or practices. The practices were allegedly unfair because they caused or were likely to cause substantial and irreparable injury to consumers; consumers had no control over the installment lender or any means to avoid the injury; and the installment lender s actions had no countervailing benefits to consumers or competition. The practices were allegedly abusive because they took unreasonable advantage of: 1) the inability of customers to protect their own interest in using the installment lender s services, since customers reasonably relied on false and misleading information about the company s data security measures; and 2) the customers reasonable reliance on the installment lender to act in their best interest. 9 See New York v. Condor Capital Corporation and Stephen Baron, No. 14-CV2863 (SDNY, April 23, 2014). 7

8 Finally, the installment lender allegedly engaged in deceptive practices by stating on its website that it secured customers personal financial information, despite these flaws in its information security system. The NYDFS was also able to reach the individual owner of the company in this case using the Dodd-Frank Act s power to sue anyone who knowingly or recklessly supports a UDAAP violation. V. Mortgage Loan Servicing: SunTrust Mortgage, Inc. June 2014 On June 17, 2014 the CFPB, U.S. Department of Justice, the U.S. Department of Housing and Urban Development, and attorneys general in 49 states filed a proposed court order requiring SunTrust Mortgage, Inc. to provide over $500 million in loss-mitigation relief to underwater borrowers, as well as $40 million to approximately 48,0000 consumers who lost their homes to foreclosure and $10 million to the federal government. 10 The order resulted out of a complaint alleging that SunTrust had allegedly engaged in systemic mortgage servicing misconduct. Federal UDAAP allegations included the following: Failing to promptly and accurately apply payments made by borrowers and charging unauthorized fees for default-related services; Failing to provide accurate information about loan modifications and other lossmitigation services; Failing to properly process borrowers applications, and calculate eligibility for, loan modifications; Providing false or misleading reasons for denying loan modifications; Providing false or misleading information to consumers about the status of foreclosure proceedings; and Robo-signing foreclosure documents, including preparing and filing affidavits whose signer had not actually reviewed any information to verify stated claims. VI. Conclusion The purpose of this article is to provide an overview of the numerous federal UDAAP enforcement actions being issued by the CFPB, state attorneys general, and state consumer financial regulators, and help interested parties understand the substance of these actions. The appendix to this article further summarizes these enforcement actions. More developments can be anticipated as the UDAAP legal standard continues to evolve, suggesting a need for heightened due diligence for all providers of consumer financial services. 10 See United States of America v. SunTrust Mortgage, Inc., Consent Judgment, available at 8

9 A SURVEY OF ALLEGED UNFAIR, DECEPTIVE, AND ABUSIVE ACTS OR PRACTICES BASED ON ENFORCEMENT ACTIONS IN 2012, 2013, AND THE FIRST HALF OF 2014 BY THE CFPB, STATE ATTORNEYS GENERAL, AND STATE CONSUMER FINANCIAL SERVICES REGULATORS DEBT COLLECTION AND DEBT SETTLEMENT Misrepresenting effect of a debt settlement arrangement on a consumer's credit score Failing to provide some or all of the benefits of a service and still collecting a fee Claiming special expertise in loan modifications, promising rate reductions, and stating an ability to prevent foreclosure Charging advance fees for debt collection services in violation of the Telemarketing Sales Rule Misrepresentations of debt relief success rates or timeframes Enrolling consumers with $700 or less in debt in a debt-relief program Enrolling consumers in a debtsettlement plan that they cannot afford Collecting debts on loans that are void or impaired under state law MARKETING Confusing solicitations Misrepresentations in benefit descriptions False or inaccurate statements regarding optionality, cost, & benefits (activations, amounts & duration) Inadequate disclosure of eligibility restrictions or other limitations, and not making eligibility determinations Not making terms and conditions available before purchase Using unsubstantiated statistics High pressure sales tactics & a false sense of urgency Recommending products that are likely to default Enrollment without consent or before key terms are disclosed Disguised telemarketing Inadequate training of third party sales staff Failing to provide written materials that effectively counteract misstatements made by sales staff Soliciting reliance & trust but not acting in the consumer s best interest Violations of Regulations V and Z and the Telemarketing Sales Rule MORTGAGE LOAN SERVICING Failing to timely and accurately apply payments Failing to maintain accurate account statements Charging unauthorized fees for default-related services Providing false or misleading information to borrowers regarding transferred loans Failing to provide information about loss mitigation Dual tracking loss mitigation efforts and foreclosure Improperly denying loan modifications and providing false or misleading reasons ROBO-SIGNING Allowing legal documents to be signed by others, including affidavits in foreclosure proceedings Allowing pleadings to be signed and filed in court without review by an attorney COMPLIANCE MANAGEMENT Failure to implement internal compliance management systems that would prevent, identify, and correct these risky practices, including third party management 9

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