2014 National Update: Service Contracts Ancillary Products Timothy J. Meenan General Counsel to Service Contract Industry Council Motor Vehicle Ancillary Products Association Meenan PA Managing Shareholder P. O. Box 11247 Tallahassee, FL 32302 850.425.4000 Tim@MeenanLawFirm.com
2014 National Update SERVICE CONTRACT INDUSTRY COUNCIL MOTOR VEHICLE ANCILLARY PRODUCTS ASSOCIATION
2014 National Update SERVICE CONTRACT INDUSTRY COUNCIL Founded in 1988
SERVICE CONTRACT INDUSTRY COUNCIL Alaska House Bill 206 Motor Vehicle Service Contract Regulation Model Act language Excludes appearance care service contracts. Exemption from Insurance Code.
SERVICE CONTRACT INDUSTRY COUNCIL California Assembly Bill 1130 Home Protection Contracts (Passed Legislature) Amends existing home protection contract law Removes filing requirements for certain foreign home protection applicants : Financial statement certified by regulatory official Examination reports certified by regulatory official Replaces requirement of quarterly reports with annual reports.
SERVICE CONTRACT INDUSTRY COUNCIL Colorado House Bill 1199 Service Contract Regulation Consumer Goods Framework for Service Contracts on Consumer Goods Based on SCIC Model Act Defines Consumer Product Adds powersports vehicle to definition of motor vehicle in service contract statute Effective January 1, 2015.
SERVICE CONTRACT INDUSTRY COUNCIL Florida House Bill 291 Service Contract Law Amendment Electronic Delivery, Auto, Home, Consumer Goods Financial Requirements for Consumer Goods More CLIP options Insurer can be affiliated Eliminates unused CLIP exemption mechanism Effective July 1, 2014.
Florida House Bill 783 Financing Non-Discrimination Prohibits affiliated finance company from refusing acceptance or charging extra fee for acceptance of vehicle contracts (RISC, loan, etc.) solely because it includes a third party s automotive related product (Service contract, GAP waiver, etc.). Defines Terms Effective July 1, 2014. SERVICE CONTRACT INDUSTRY COUNCIL
Mississippi House Bill 581 Dealer Franchise Prohibitions Requires dealers selling third-party service contracts to disclose, orally and in writing, that the offered product is not provided or supported by a manufacturer or distributor. Also contains standard anti-coercion language. Criminal Penalty. Effective July 1, 2014. SERVICE CONTRACT INDUSTRY COUNCIL
SERVICE CONTRACT INDUSTRY COUNCIL New York Assembly Bill 7844 Manufacturer/ Distributor Anti-Coercion Allows manufactures to require that dealers selling third-party service contracts disclose in a separate statement acknowledged by the consumer that the offered product is not offered, endorsed, or sponsored by the manufacturer or distributor. Also contains standard anti-coercion language. Effective June 16, 2014
SERVICE CONTRACT INDUSTRY COUNCIL Oklahoma Senate Bill 387 Manufacturer/Distributor Anti-Coercion Prohibits: Using forms that don t conspicuously contain provider identify Requiring dealer to sell manufacturer endorsed products Motor Vehicle Commission can fine violators and deny, suspend, or revoke licenses. Effective November 1, 2014
SERVICE CONTRACT INDUSTRY COUNCIL Kentucky House Bill 133 Recreational Vehicle Dealer Franchise Creates a dealer franchise structure for recreational vehicles Adds recreational vehicles to RISC statute
SERVICE CONTRACT INDUSTRY COUNCIL Louisiana Senate Bill 135 Financial Reporting Requirements Home Service Contract Providers to provide solvency annual statement. Home service Contract Providers report due March 1, 2016 # HSC on residential Gross Consideration # and $ of claims paid # of claims denied due to no pre-approval Effective August 1, 2014
SERVICE CONTRACT INDUSTRY COUNCIL Louisiana House Bill 647 Auto Reporting Requirements Mechanical Breakdown Insurers must report corporate/structural changes to commissioner within 60 days. Fine up to $1000 90 day grace period for reinstatement if because of annual report or annual fee.
SERVICE CONTRACT INDUSTRY COUNCIL Michigan House Bill 4467 Service Contracts Service Contract is not insurance. Auto, Home, Consumer Goods. Defines: Consumer Product Service Contract Effective April 10, 2014
Mississippi House Bill 742 Recreational Vehicle Franchise Law Creates RV Franchise Law. Defines warrantor to include person not controlled by a manufacturer who sells service contracts, mechanical or other insurance, or extended warranties for consideration. Provides requirements for warrantors. Claim timelines Reimbursement terms Also requires sellers of third-party service contracts to disclose, orally and in writing, that the offered product is not provided or supported by a manufacturer or distributor. Effective October 1, 2014 SERVICE CONTRACT INDUSTRY COUNCIL
SERVICE CONTRACT INDUSTRY COUNCIL New Jersey Senate Bill 854 Service Contracts Establishes Service Contract Framework Covers Auto, Home and Consumer Goods Contains core disclosure and financial responsibility requirements No registration or annual fee Division of Consumer Affairs (not Banking & Insurance) Effective July 16, 2014
SERVICE CONTRACT INDUSTRY COUNCIL North Carolina House Bill 1050 Sales Tax on Service Contracts Auto, Home and Consumer Goods Omnibus Bill Tax Bill Provides clarity regarding the collection of sales and use tax on service contracts Service contracts are taxable Retailer is responsible for collection and remittance of the tax Retailer is responsible for tax redounds if service contract is canceled
SERVICE CONTRACT INDUSTRY COUNCIL Portable Electronics Insurance Legislation Explicitly Excluding Extended Warranties from Definition Connecticut House Bill 5023 Effective October 1, 2014 Massachusetts House Bill 3541 Effective April 23, 2014
2014 National Update MOTOR VEHICLE ANCILLARY PRODUCTS ASSOCIATION
MOTOR VEHICLE ANCILLARY PRODUCTS ASSOCIATION Oklahoma Senate Bill 1923 Amends Service Warranty Act Adds Ancillary Products Included: Tire & Wheel Paintless Dent Repair Windshield Repair or Replacement Key Fob Excluded: Dry Appearance Care Fuel or Oil Additives Effective November 1, 2014
MOTOR VEHICLE ANCILLARY PRODUCTS ASSOCIATION Indiana House Bill 1206 Motor Vehicle Service Contracts Replaces Bulletin 78 for Motor Vehicles. No license requirement; but must file CLIP. Does not include Home or Consumer Goods Authorizes ancillary products Framework includes: Financial requirements Disclosure requirements Insurance commissioner authority Bulletin 210 Effective July 1, 2014.
Virginia House Bill 69 Motor Vehicle Ancillary Products Amends definition of extended service contract to include: Tire & Wheel Paintless dent repair Windshield Repair Key Fob Protection Chemical Additives Other services as approved by Board of Agriculture and Consumer Services And Exclude: Fuel or oil additives Dry appearance care Clarifies that Extended Service Contracts are not insurance. Effective July 1, 2014 MOTOR VEHICLE ANCILLARY PRODUCTS ASSOCIATION
MOTOR VEHICLE ANCILLARY PRODUCTS ASSOCIATION Washington Senate Bill 5977 Ancillary Products and Financial Requirements Amends definition of Service Contract to include: Tire & Wheel Paintless dent repair Windshield repair or replacement Key Fob protection Any other service approved by director And exclude: Dry appearance care Fuel or oil additives. Service Contract Applicant Financial Docs Effective June 11, 2014
MOTOR VEHICLE ANCILLARY PRODUCTS ASSOCIATION Puerto Rico Insurance Commissioner Action Etch products deemed insurance Normative Letter Cease and Desist Reported Settlements
SCIC MVAPA Consumer Financial Protection Bureau Update
Consumer Financial Protection Bureau Update How will the CFPB s activities affect: Service Contracts? Ancillary Products? Key Fob Paintless Dent Repair Windshield Appearance Care (Wet and Dry) Vehicle Protection Products/Etch Guaranteed Asset Protection?
Authority of the CFPB Supervisory Authority Nondepository Covered Persons o Service providers Large Banks, Savings Associations, and Credit Unions o Service providers Other Banks, Savings Associations, and Credit Unions o Service Providers Enforcement Authority Any person the CFPB believes to be in possession, custody, or control of any material or information relevant to a violation is subject to a civil investigative demand. Prohibition on unfair, deceptive, or abusive acts or practices (UDAAP) by covered persons, service providers or any person providing assistance to a covered person or service provider in connection with a transaction involving a consumer financial product or service. Rule Making Authority
Consumer Financial Protection Bureau Update Unfair Deceptive or Abusive Act or Practice (UDAAP) Bureau may take action to prevent a covered person from engaging in an unfair, deceptive or abusive act or practice in connection with any transaction with a consumer for a consumer financial product or service It shall be unlawful for any person to knowingly or recklessly provide substantial assistance to a covered person or service provider in violation of the prohibition on UDAAP, or any rule or order issued thereunder, and notwithstanding any provision of this title, the provider of such substantial assistance shall be deemed to be in violation of that section to the same extent as the person to whom such assistance is provided.
Consumer Financial Protection Bureau Update Covered Person any person that engages in offering a consumer financial product or service. Consumer Financial Product or Service any of the following products or services offered or provided for use by consumers primarily for personal, family, or household purposes, or provided in connection with: Such other financial product or service defined by the CFPB by rule if the CFPB finds that the product or service is: o o Entered into as a subterfuge or with a purpose to evade Federal law; or Permissible for a bank to offer or provide under any provision of a Federal law or rule and has, or likely will have, a material impact on consumers.
Consumer Financial Protection Bureau Update Service Provider any person that provides a material service to a covered person in connection with the offering or provision of a consumer financial product or service. Participating in designing, operating, or maintaining the consumer financial product or service; or Processing transactions relating to the consumer financial product or service.
Consumer Financial Protection Bureau Update CFPB BULLETIN 2012-03 SERVICE PROVIDERS Service Provider any entity that provides a material service to a covered person in offering a consumer financial product or service. Banks & Non-banks must supervise service providers. CFPB can examine service providers including compliance with UDAAP. Banks must verify service provider compliance with consumer financial laws. Consumer financial laws include but are not limited to: Consumer Leasing Act Electronic Fund Transfer Act Equal Credit Opportunity Act Fair Credit Billing Act Fair Credit Reporting Act Home Mortgage Disclosure Act Real Estate Settlement Procedures Act Truth in Lending Act UDAAP
Consumer Financial Protection Bureau Update CFPB CONSENT ORDERS Allegations of unfair, deceptive or abusive marketing practices in telemarketing, inperson solicitation, written brochures alleging inadequate disclosure of material terms and conditions. Capital One Bank, July 2012 Discover Bank, September 2012 American Express, October 2012 GE Care Credit, December 2013
Consumer Financial Protection Bureau Update CFPB CONSENT ORDERS DISPARATE IMPACT Ally Financial/Ally Bank December 2013 Alleged discrimination against 235,000 minority borrowers. Violations of the Equal Credit Opportunity Act. Ally set base financing interest rate, dealers could mark up rate. African American borrowers on average paid 29 basis points ($300) more, Hispanics 20 basis points, Pacific Islanders 22 basis points ($200). $80 Million in damages, $18 Million in penalties establish a compliance plan. Must evaluate disparity, and new instances must trigger restriction or elimination of dealer discretion.
Consumer Financial Protection Bureau Update CFPB CONSENT ORDERS UNFAIR, DECEPTIVE OR ABUSIVE ACTS OR PRACTICES Bank of America, April 9, 2014 Credit card add-on products including credit protection product and identity protection products Failed to inform some customers they were purchasing products, or misrepresented terms o 30 day free but must cancel o Enrolling without consent o $25,000 death benefit but only waive up to $25,000 o Benefits are automatic but must file a claim
Consumer Financial Protection Bureau Update CFPB CONSENT ORDERS U.S. Bank and Dealers Financial Services, LLC PENALTIES OF $3.2 (U.S. BANK) AND $3.3 (DFS) MILLION Auto Loan Program Examination Violations of: o Truth in Lending; and o UDAAP DFS Program Functions o Dealer recruitment Dealers required to offer GAP insurance and service contract o Marketing (direct and otherwise) o Loan application review
Consumer Financial Protection Bureau Update CFPB CONSENT ORDERS U.S. Bank and Dealers Financial Services, LLC continued UDAAP Violations o Cost Disclosure Marketing materials indicated it would add just a few dollars to monthly payment when in actuality it broke down to more like $40 a month. o Exclusions Marketing materials do not disclose every individual part that is excluded from coverage. Above resulted in violation despite a disclosure to refer to actual terms and conditions for exclusions.
Consumer Financial Protection Bureau Update CFPB CONSENT ORDERS Synchrony Bank (GE Capital Retail Bank), June 19, 2014 Credit card balance cancellation product The bank engaged in deceptive marketing practices and violated ECOA Deceptive marketing practices included: Failed to inform customers they would be ineligible for benefit; Misrepresented cost; Misrepresented that product was a limited time offer; and Misrepresented that customer service representative on the phone was handling ministerial task as opposed to enrolling the customer in fee based product. ECOA violations included not extending certain offers to customers who indicated Spanish preferred on their accounts.
Consumer Financial Protection Bureau Update CFPB Bulletin 2014-02 Marketing of Credit Card APR Offers Bulletin is intended to help credit card companies avoid UDAAP violations in regards to promotional APR offers. Regulation Z does not require marketing materials to include additional disclosures alerting consumers to the effect of accepting a promotional offer on the loss of the grace period purchases. However, the CFPB is concerned that the marketing materials accompanying some offers may risk being deceptive or abusive in violation of the Dodd-Frank Act, even if Regulation Z is not violated.
Consumer Financial Protection Bureau Update Larger Participant Rule CFPB has authority to supervise nonbank larger participants of markets for other consumer financial products or services as the CFPB defines by rule. In late May the CFPB announced its intent to identify a market for auto lending and define larger participants of that market. Defining larger participants subjects them to CFPB s supervisory authority. Indiana Field Hearing
Consumer Financial Protection Bureau Update INDUSTRY BEST PRACTICES Compliance System with Respect to Consumer Protection Laws Product Development Marketing Development of Marketing Materials Telemarketing to Consumers Direct Mail Marketing Point of Sale Marketing Hiring & Retention of Sales Force Consumer Relation & Retention Product Fulfillment Claims Fulfillment Cancellations Compliant Handling Collection & Reporting of Data
Consumer Financial Protection Bureau Update Ancillary Products Inflection Points A. Are we a consumer financial product or service? B. Are we a covered person under the act? C. Are we service providers? D. Do we provide substantial assistance to a covered person or service provider? E. Are our products or services unfair, deceptive, or abusive? F. Are any of us a larger participant defined by CFPB rule? G. Does the business of insurance exemption apply to us? H. Will creditors be forced by the CFPB to take actions harmful to ancillary product sales? I. Can we do better in our marketing, claims, and other functions?
2014 National Update: Service Contracts Ancillary Products Timothy J. Meenan General Counsel to Service Contract Industry Council Motor Vehicle Ancillary Products Association Meenan PA Managing Shareholder P. O. Box 11247 Tallahassee, FL 32302 850.425.4000 Tim@MeenanLawFirm.com