Student Loan Collection and the CFPB

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1 Student Loan Collection and the CFPB Consumer Financial Protection Bureau o Generally! Established under Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C et seq.)! Purpose: The Bureau shall seek to implement and, where applicable, enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive. 12 U.S.C. 5511(a).! In addition to its authority over covered banks and financial institutions, the Bureau has authority over certain nonbank covered persons for purposes of assessing compliance with federal consumer financial law, to obtain information about activities and compliance procedure, and to detect and assess risks to consumers and consumer financial products. 12 U.S.C The Bureau s supervisory authority extends to larger participants of a market for other consumer financial products or services. See id.; see also 12 C.F.R o Student loans! Under 12 U.S.C. 5514, the Bureau has always had supervisory authority over nonbank covered persons servicing private education loans.! Under its authority to regulate larger participants, CFPB enacted a rule amending 12 C.F.R to expand regulation to include the servicing of both private and federal student loans. 12 C.F.R became effective March 1, 2014.! The regulation defines student loan servicing to include covered persons that (1) receive loan payments or notification of payments and apply those payments to the borrower s account pursuant to the terms of the loan or contract governing the servicing of the loan; (2) maintain account records and communicate with borrowers on behalf of loan holders during periods when no payments are required; or (3) interact with borrowers, including activities to help prevent default, to facilitate activities described in (1) and (2). 12 C.F.R ! Larger participant includes any nonbank covered person that has an account volume exceeding one million. 12 C.F.R o CFPB Student Loan Findings (CFPB Supervisory Highlights, Fall 2014)

2 ! Findings based on CFPB examinations of covered student loan servicers; examiners identified unfair, deceptive, or abusive acts or practices Partial payment issues: Servicers allocating partial payments among across all of a borrowers loans in a way that would maximize late fees Misrepresentations on billing statements: Servicers inflating minimum balance due on periodic statements Improper late fees: Servicers charging late fees when payment made by borrower during grace period Inaccurate tax information: Servicers requiring additional certifications regarding use of loans for higher education purposes and withholding 1098-E if borrowers did not supply those certifications Misrepresentations regarding bankruptcy: Servicers telling borrowers that student loans are never dischargeable in bankruptcy Improper telephone communications: Servicers autodialing borrowers early in the morning or late at night; examiners determined this to be harassing behavior o Private Student Loans! In a report to various Senate and House committees in 2012, the Director of the CFPB made the following recommendations regarding private student loans: Require school certification of private student loans Consider changes to treatment of private student loans in bankruptcy Clarify definition of private student loan for TILA purposes Provide mechanisms for borrowers to understand clearly their student loan obligations Determine whether more data is needed to enhance consumer decision-making and lender underwriting! Complaints Co-signer releases not being honored Automatic default upon death Bankruptcy issues Federal Student Loans o Federal Family Education Loan Program (eliminated in 2010) o Direct Loans (loans come directly from government to student) o Perkins (originated and serviced by participating school) Statistics and Numbers (Source: Pounding Student Loan Borrowers, National Consumer Law Center, September 2014) o Of outstanding Direct Loans, $1 out of every $5 is past due! Total Direct Loans: $686 Billion

3 ! Delinquent Direct Loans: $89 Billion! Direct Loans in Default: $38 Billion (more than 270 days past due) o Commissions received by debt collection agencies from Dept. of Ed:! 16% on voluntary Direct Loan payments; 17.5% on voluntary Non-Direct Loan payments! 16% on payments received from Administrative Wage Garnishment for Direct; 17.5% for Non-Direct! 13% of loan balance if agency arranges to rehabilitate loan! 2.75% of loan balance if agency arranges a consolidation of loans Higher Education Act Disclosures o Only applies to federal loans (TILA applies to private loans) o Pursuant to 34 C.F.R , the Act requires a number of disclosures, including:! Before or at the time of first disbursement Lender s name Toll-free contact information Principal loan amount Actual interest rate Notice that loan may be transferred Definition of default and consequences of default Statement of rights and responsibilities! At or prior to time of repayment When repayment begins Estimated balance Repayment schedule Options in case of default, including associated fees! During repayment Bill for each installment time period including balance, interest rate, total amount of interest paid by borrower in preceding installment Toll-free contact information Other options for repayment plans o No private right of action Rehabilitation o Borrower can rehabilitate federal loans if borrower makes 9 timely payments in 10 consecutive months (34 C.F.R ) Timely=within 20 days of due date Payments must be reasonable and affordable o What is reasonable and affordable? o Can borrower really afford payment?! Income based vs. balance-based As of 2014, holders must use IBR formula to determine reasonable and affordable payment

4 Fair Debt Collection and Practices Act o Purpose: It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. 15 U.S.C. 1692(e). o When does it apply?! Debt collector: The term debt collector means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another U.S.C. 1692a(6). Excludes Dept. of Ed employees (15 U.S.C. 1692a(6)(C)) Excludes original creditors (15 U.S.C. 1692a(6)(A)) Debt must be in default, more than 270 days (15 U.S.C.1692(a)(6)(F)(iii)) o Some examples of FDCPA claims:! Abusive language (15 U.S.C. 1692d)! Harassing phone calls (15 U.S.C. 15 U.S.C. 1692d(5))! Contacting parents, coworkers, most other third parties regarding borrower s debt (15 U.S.C. 1692b)! Misrepresenting amount or legal status of debt (15 U.S.C. 1692(3(2)(A))! False, misleading, or deceptive representations (15 U.S.C. 1692e(1)) o Remedies under FDCPA (15 U.S.C. 1692k):! Actual damages (15 U.S.C. 1692k(1))! Statutory damages up to $1k (15 U.S.C. 1692k(2)(A))! Attorneys fees for Plaintiff if proves liability (15 U.S.C. 1692k(3))! Attorneys fees for Defendant if shown that Plaintiff brought action in bad faith (15 U.S.C. 1692k(3)) Other Claims Under Federal Law o Fair Credit Reporting Act o Truth in Lending Act (but only for private loans) Statute of Limitations o No statute of limitations for federal loans (20 U.S.C. 1091a)! Does not apply to deceased student or student s estate (20 U.S.C a(d)) o SOL does apply for private loans; apply applicable state law SOL Disability Discharge as an Alternative to Bankruptcy o Permanent and total disability required (20 U.S.C. 1087)! Must apply to all loan holders for discharge of each loan

5 ! Permanently and totally disabled if unable to engage in any substantial gainful activity by reason of physical or mental impairment and the impairment: Can be expected to result in death; Lasted for continuous period of not less than 60 months or; Can be expected to last for continuous period of not less than 60 months;! Also qualifies if determined by Sec. of Veterans Affairs to be unemployable due to service-related disability (34 C.F.R ) o As of July 2010, Department monitors borrowers for three years after discharge (previous system was conditional discharge). Collecting Federal Student Loans o Administrative wage garnishment (31 U.S.C. 3720D)! No judgment required, although notice must be sent by mail to borrower and borrower can request hearing (31 U.S.C. 3720D)! 15% of disposable pay; up to 25 percent of disposable earnings (31 U.S.C. 3720D)! Can enter payment plan to avoid garnishment (31 U.S.C. 3720D) o Tax refund offsets (31 U.S.C. 3720A)! No judgment required, but loan holder must give borrower written notice (31 U.S.C. 3720A)! After receiving notice, borrower may request review in writing based on limited arguments (debt incorrect, borrower has other repayment agreement, disability, etc.) o Garnishment of federal benefits! Federal offset is lesser of 15% of monthly benefit payment or amount which exceeds $750. (31 C.F.R )! Can request review (34 C.F.R )! Includes some but not all types of federal benefits Private Loans o TILA! Disclosures (15 U.S.C. 1638(e)) (effective Feb. 2010) Must be clear and conspicuous Disclosures at time of application, approval, and final! Remedies (15 U.S.C. 1640) Private right of action Includes right of cancellation o FDCPA o SOL and Contract Defenses Other Issues o Ownership of the Note/chain of assignment

6 o Securitized loans/edgar ( o Affidavits and hearsay objections Resources o National Consumer Law Center ( Leading resource for consumer advocates! Publishes set of legal treatises, including Student Loan Law, now in its 4th edition o Consumer Financial Protection Bureau ( Provides resources to educate borrowers! CFPB Supervisory Highlights, Fall 2014 ( o NSLDS: National Student Loan Data System ( U.S. Department of Education s central database for student aid! Use to make inquiries and locate information on loan/grant amounts, balances, status, and disbursements! Only has information on federal student loans, not private o Student Loan Borrower Assistance Project ( A National Consumer Law Center project! Provides information about student loan rights and responsibilities for borrowers and borrower advocates! Includes self-help packets for borrowers, including cease communication forms and information on total and permanent disability discharge Contact information: Loree Stark Staff Attorney Appalachian Research and Defense Fund of Kentucky lorees@ardfky.org , ext. 3009