You have a pretty good idea where the decision is going to go when it starts with this sentence from James Madison in the Federalist Papers: An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced… Read More
On August 11, 2022, the CFPB issued a circular on data security and the question "[c]an entities violate the prohibition on unfair acts or practices in the Consumer Financial Protection Act (CFPA) when they have insufficient data protection or information security?" The short answer is "yes." The CFPB highlights specific security measures to minimize risk. In line with the new… Read More
On July 27, the CFPB issues an extensive FAQ or "Compliance Aid" on how to comply with the new FDCPA regulations. A Compliance Aid is This designation will provide the public with greater clarity regarding the legal status and role of these materials, as discussed below. The Bureau does not intend to use Compliance Aids to make decisions that bind… Read More
In Consumer Fin. Prot. Bureau v. CashCall, Inc., Nos. 18-55407, 18-55479, 2022 U.S. App. LEXIS 13810, at *23-25 (9th Cir. May 23, 2022), the Court of Appeals for the 9th Circuit rejected CashCall's argument that the Native American Tribal Lender, and not CashCall was the true lender for purposes of determining whether state usury law applied. In substance, all of… Read More
Today, the CFPB Announced that the Federal Financial Institutions Examination Council ("FFIEC") issued a new booklet in the FFIEC Information Technology Examination Handbook series, titled “Architecture, Infrastructure, and Operations.” The CFPB noted that the booklet provides expanded guidance to help financial institution examiners assess the risk profile and adequacy of an entity’s information technology architecture, infrastructure, and operations. Implied in… Read More
The CFPB issued an interim final rule that is effective May 3, 2021 to address certain debt collector conduct associated with an eviction moratorium issued by the CDC. The rule provides that debt collectors, as defined in the FDCPA, are required to provide written notice to certain consumers of their protections under the CDC Order’s eviction moratorium. Also, debt collectors… Read More
Although on April 7, 2021, the CFPB proposed to delay the October 2020 and December 2020 Debt Collection Rules by 60 days, on April 16, 2021, the CFPB moved forward with its earlier stated plan to update the small entity compliance guide to include the December 2020 Debt Collection Rule. The update guide is available here. As discussed earlier with… Read More
On April 7, 2021, the federal CFPB issued a Notice of Proposed Rulemaking (NPRM) to delay by 60 days the effective date of two final rules issued under the Fair Debt Collection Practices Act (FDCPA). Both debt collection rules were scheduled to become effective on November 30, 2021 and the CFPB is proposing to extend the effective date of both… Read More
On January 15, 2021, the Consumer Finance Protection Bureau (CFPB) issued a small entity compliance guide summarizing the October 2020 debt collection rule. The small entity compliance guide is available here. Earlier, the October 2020 debt collection rule amended Regulation F to implement most of the Fair Debt Collection Practices Act’s (FDCPA), including, among other things, communications in connection with… Read More
In Paypal, Inc. v. Consumer Fin. Prot. Bureau, No. 19-3700 (RJL), 2020 U.S. Dist. LEXIS 244761 (D.D.C. Dec. 30, 2020), Judge Leon held that the CFPB’s Pre-Paid Card Rule exceeded the CFPB’s authority because Congress neither authorized it to require mandatory short forms nor permitted it to create a substantive restriction on a consumer's access to and use of credit under… Read More
On the heels of the October 2020 Debt Collection Final Rule issued by the Consumer Finance Protection Bureau (CFPB), on December 18, 2020, the CFPB issued an additional final rule implementing the Fair Debt Collection Practices Act. The December 2020 final rule and an executive summary are available here: https://www.consumerfinance.gov/compliance/compliance-resources/other-applicable-requirements/debt-collection/. The December 2020 final rule primarily addresses the (1) requirements… Read More
In Bureau of Consumer Fin. Prot. v. Fair Collections & Outsourcing, No. GJH-19-2817, 2020 U.S. Dist. LEXIS 223797, at *14-21 (D. Md. Nov. 30, 2020), Judge Hazel found constitutional ratification after SCOTUS' decision in Seila Law v. CFPB, 140 S.Ct. 2183 (2020). The Court next turns to a question left unanswered by Seila Law: whether the current CFPB Director properly… Read More
The CFPB has issued its Final Debt Collection rule: https://www.consumerfinance.gov/policy-compliance/guidance/other-applicable-requirements/debt-collection/ The CFPB's Executive Summary is here: https://files.consumerfinance.gov/f/documents/cfpb_october_2020_debt_collection_executive_summary.pdf We are reviewing the new Final Rule, and will be publishing period updates. Stay tuned! Read More
In a recent weblog post, the CFPB warned against creditors undertaking unfair and discriminatory servicing of debts during the COVID-19 crisis. The CFPB explained: We are monitoring the marketplace in real time and coordinating on an ongoing basis with fellow Federal and State regulators who are committed to stopping COVID-19-related malfeasance. We are taking, and will continue to take, swift… Read More
They used to write the Official Staff Commentary, and give "Informal Staff Opinion" letters to industry to assist industry in complying with the FDCPA. Now, the FTC has filed a Comment in response to the CFPB's Notice of Proposed Rulemaking that can be found at https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-federal-trade-commissions-bureau-consumer-protection-matter-proposed-rule-request/final_-_cfpb_debt_coll_draft_comment_9-13_v2_1pm_ver_to_comm.pdf The FTC devotes almost half of their comment to reminding the CFPB that the… Read More
The CFPB just issued it’s Supervisory Highlights, paying particular attention to automobile finance and issues regarding ancillary products. The Bureau continues to examine auto loan servicing activities, primarily to assess whether servicers have engaged in unfair, deceptive, or abusive acts or practices (UDAAPs) prohibited by the Consumer Financial Protection Act of 2010 (CFPA). Recent auto loan servicing examinations identified unfair… Read More
In Consumer Financial Protection Bureau v. Source for Public Data, L.P., 2018 WL 4258966, at *3 (C.A.5 (Tex.), 2018), the Court of Appeals for the Fifth Circuit rejected the CFPB's petition to enforce a CID against an alleged consumer reporting agency, where the only the wrongdoing the CFPB listed was "FCRA violation" and “any other federal consumer financial law.”. Such… Read More
In CFPB v. RD Legal Funding, Inc., 17-CV-890 (U.S.D.C. S.D. N.Y. June 21, 2018), here, Judge Preska disagreed with the DC Circuit’s PHH decision and found the CFPB’s structure unconstitutional. In reaching the question of the constitutionality of Title X of Dodd-Frank, which established the CFPB as an “independent bureau” within the Federal Reserve System, 12 U.S.C. § 5491(a), the… Read More
A copy of Erik Kemp's and Scott Hyman's article "The Consumer Financial Protection Bureau Regulates Pay-by-Phone 'Convenience” Fees'", CFSC Newsletter: ABA Business Law Section, (March 2018) can be found here: https://www.americanbar.org/content/dam/aba/administrative/business_law/newsletters/CL230000/full-issue-201803.authcheckdam.pdf Read More
In CFPB v. Weltman, Weinberg & Reis Co., L.P.A., 2017 WL 6042221, at *1–2 (N.D.Ohio, 2017), Judge Nugent denied the CFPB's motion for a protective order that would have prevented the deposition of (former) Director Cordray from taking place, clearing the way for (former) Director Cordray's deposition. However, since the filing of the protective order, Mr. Cordray has resigned from… Read More
