Alston & Bird Consumer Finance Blog

Consumer Loan

CFPB Issues CARES Act Consumer Reporting FAQs

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A&B ABstract

On June 16th, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) issued a Compliance Aid titled “Consumer Reporting FAQs Related to the CARES Act and COVID-19 Pandemic.” This Compliance Aid clarifies the Bureau’s April 1, 2020 Statement that providing furnishers flexibility in handling disputes during the pandemic is not unlimited, putting consumer reporting agencies and furnishers on notice that the Bureau is enforcing the Fair Credit Reporting Act (“FCRA”), as amended by the CARES Act, and its implementing Regulation V.  The Compliance Aid also addresses questions on reporting CARES Act accommodations.

CFPB Focusing on Credit Reporting Accuracy and Dispute Handling

In its April 1, 2020 statement, the Bureau indicated that while furnishers are expected to comply with the CARES Act, the Bureau “does not intend to cite in examinations or take enforcement actions against those who furnish information to [CRAs] that accurately reflects the payment relief measures they are employing” and will not take enforcement or supervisory actions against furnishers and CRAs for failing to timely investigate consumer disputes. On June 16th the Bureau clarified that it is enforcing FCRA and that while it previously provided some flexibility the April 1st Statement “did not state that the Bureau would give furnishers or CRAs an unlimited time beyond the statutory deadlines to investigate disputes before the Bureau would take supervisory or enforcement action.”  The Bureau warns that it will take public enforcement action against companies or individuals that fail to comply with FCRA, but will consider the unique circumstances that entities face as a result of the COVID-19 pandemic and entities’ good faith efforts to timely investigate disputes.

CARES Act Amendment to FCRA

Section 4021 of the CARES Act amends FCRA by adding a new section providing a special instruction for reporting consumer credit information to credit reporting agencies during the COVID-19 pandemic.  Specifically, if a creditor or other furnisher offers an “accommodation” to a consumer affected by the COVID-19 pandemic in connection with a credit obligation or account, and the consumer satisfies the conditions of such accommodation, the furnisher must:

  • report the credit obligation or account as “current;” or
  • if the credit obligation or account was delinquent before the accommodation maintain the delinquent status during the effective period of the accommodation, or, if the consumer brings the account current during such period, then to report the account as current.

Stated differently by the CFPB, “during the accommodation, the furnisher cannot advance the delinquent status.” The CFPB provides the following example:

If the credit obligation or account was current before the accommodation, during the accommodation the furnisher must continue to report the credit obligation or account as current.

If the credit obligation or account was delinquent before the accommodation, during the accommodation the furnisher cannot advance the delinquent status. For example, if at the time of the accommodation the furnisher was reporting the consumer as 30 days past due, during the accommodation the furnisher may not report the account as 60 days past due. If during the accommodation the consumer brings the credit obligation or account current, the furnisher must report the credit obligation or account as current. This could occur, for example, if the accommodation itself brings the credit obligation or account current (such as a loan modification that resolves amounts past due so the borrower is no longer considered delinquent) or if the consumer makes past due payments that bring the credit obligation or account current.

An “accommodation,” as defined in this section, includes relief granted to impacted consumers such as an agreement to defer a payment, make a partial payment, grant forbearance, modify a loan or contract, or any other assistance or relief granted to a consumer affected by COVID-19. The reporting requirements do not apply to charged-off accounts.  This section applies from January 31, 2020 through the later of 120 days after: (i) enactment of this section, or (ii) termination of the national emergency declaration.

Questions on Reporting Accommodations under FCRA

There has been much confusion in how the CARES Act requirements translate into Metro 2 reporting requirements.  The CFPB offers the following guidance:

  • When furnishers are reporting an account to the CRAs, furnishers are expected to understand all the CRA’s data fields, to ensure that the information reported accurately reflects a consumer’s status as current or delinquent. Specifically, the Bureau provides “information a furnisher provides about an account’s payment status, scheduled monthly payment, and the amount past due may all need to be updated to accurately reflect that a consumer’s account is current consistent with the CARES Act.”
  • With respect to the use of special comment codes, the CFPB provides that “Furnishing a special comment code indicating that a consumer with an account is impacted by a disaster or that the consumer’s account is in forbearance does not provide consumer reporting agencies with this CARES Act-required information.  Left unaddressed is whether servicers are permitted to report special comment codes and other fields as required by CDIA/Metro2.
  • With respect to reporting the status of an account after an accommodation ends, the Bureau provides two instructions.  First, the Bureau states “[a]ssuming payments were not required or the consumer met any payment requirements of the accommodation, a furnisher cannot report a consumer that was reported as current pursuant to the CARES Act as delinquent based on the time period covered by the accommodation after the accommodation end.” Second, “a furnisher also cannot advance the delinquency of a consumer that was maintained pursuant to the CARES Act based on the time period covered by the accommodation after the accommodation ends.”

Questions remain on how to address a consumer’s delinquency after an accommodation ends if the delinquency hasn’t been resolved through loss mitigation or otherwise.  Also unaddressed is whether furnishers are permitted to report (i) a “special comment code” for natural disaster or forbearance or (ii) the “terms frequency” field (each of which can indicate an account is in forbearance or deferment, even while the “account status code” field is marked “current”), without violating the CARES Act requirement to report borrowers in forbearance as “current.”

Takeaway

CFPB has put furnishers on notice that the Bureau will begin to enforce the CARES Act credit reporting requirements.  Companies should pay attention to credit reporting complaint trends in the coming months.  Companies should also document good faith efforts to comply and respond to disputes as soon as possible.  Last, with the CFPB’s revised Responsible Business Conduct Policy, companies may consider getting in front of any issues while the environment is still favorable. Once forbearance ends and foreclosures resume, and given where we are in the election cycle, the situation could turn political this Fall and the enforcement posture could change.

Colorado Court Rejects “Valid When Made” Doctrine

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A&B Abstract:

As we have previously reported, effective August 3 the Office of the Comptroller of the Currency’s (“OCC”) has issued a final rule affirming the “valid-when-made” doctrine while dismissing the Second Circuit decision in Madden v. Midland Finding, LLC.

On June 9, 2020, however, a Colorado state court handed down an unexpectedly negative ruling in the long-standing litigation between Marlette Funding LLC (“Marlette”) and the Colorado Uniform Consumer Credit Code Administrator (“Administrator”) involving an on-line consumer bank partnership program.  While the OCC affirmed the valid-when-made doctrine in its final rule, the Colorado court rejected the doctrine when applied to non-bank assignees of loans.

Marlette Decision

In Martha Fulford, Administrator Uniform Consumer Credit Code v. Marlette, Wilmington Trust, NA, solely as trustee for certain trusts, Wilmington Savings Fund Society, and intervenor Cross River Bank, a Colorado state court expressly declined to adhere to the valid-when-made doctrine.  The court held that “the non-bank purchasers are prohibited under C.R.S. § 5-2- 201 from charging interest rates in the designated loans in excess  of Colorado’s interest caps and, further, that [Cross River Bank (“CRB”), a state chartered bank] cannot export its interest rate to a nonbank such as Defendant Marlette, and finally, that the [Colorado] statute is not preempted.”

Background

The Marlette ruling is the latest development in the long-running litigation brought by the Administrator against two online consumer bank partnership lending platforms – one run by Avant of Colorado (“Avant”) with its bank partner, WebBank, and the other by Marlette with its bank partner, CRB.

The thrust of the Administrator’s allegation is that both of these online lending platforms violated the Colorado Uniform Consumer Credit Code because WebBank and CRB are not the “true lenders” who are actively engaged in the lending programs and receive the benefits or assume the risks of a typical loan originator.  The Administrator asserts that Avant and Marlette are performing the critical development, marketing and underwriting associated with these programs, and that the bank partners’ respective roles are nominal. If the banks are not found to be the “true lender”, then the non-bank parties are required to have state consumer lending (and related) licenses, and the loans may be subject to the state usury laws applicable to the non-bank party (rather than the bank)—possibly render the loans unenforceable.

Non-Bank Assignees

Oddly, the Marlette decision does not directly address the “true lender” issues raised by the Administrator,  that Avant and Marlette are the “true lenders” in their bank partnership programs.  For the purposes of the motion, however, the Administrator argues that even if CRB is a true lender, it may not export the rate of its home state (New Jersey) to a non-bank loan assignee, Marlette.

Instead, the court in Marlette focused on whether a non-bank assignee, such as Marlette, stands in the shoes of the assignor state chartered bank who has the right to charge interest on loans in the state where it is located.  Section 5-2-201 of the Colorado Revised Statutes establishes a maximum rate of 12% per annum for consumer loans that are not “supervised loans” and 21% per annum for “supervised loans”.

Court’s Analysis

The court held that while Section 27 of the Federal Deposit Insurance Act (“Section 27”) [12 U.S.C. § 1831(d)(a)]] permits a state-chartered bank such as CRB to export the interest rate of its home state (or a state where it is “located”), thereby allowing CRB to preempt the 12% interest rate limit for Colorado consumer loans, “Section 27 applies to state banks only and does not extend the privilege of interest exportation to non-banks such as Marlette and other defendant trust banks” (namely, the securitization vehicles that currently hold the loans).

The court, analogizing to the Madden court’s analysis of Section 85 of the National Banking Act, reasoned that Section 27 should not be interpreted as creating an end-run around  state usury laws for non-bank entities.  Therefore, the preemption afforded by Section 27 should not be extended to loans originated by state-chartered banks and assigned to non-bank assignees.

In dismissing the valid-when-made doctrine, the Colorado court not only cited Madden as precedent, but indicated that it is not bound by rulemakings by the OCC and the Federal Deposit Insurance Corporation regarding valid-when-made.

Departure from Precedent

Notably, the Marlette decision is a narrower ruling than Madden in that it ignores Krispin v. May Department Stores (218 F. 3d 999 (8th Cir. 2000), in which the Eighth Circuit indicated that if the bank originator retains an interest in the loans being sold, such keeping credit card accounts, but selling the receivables, the non-bank assignee is able to avail itself of the rate charged by the bank.   Further, the court in Marlette makes no exception for state-chartered banks that retain an interest in the loans.  It is also troubling that the court does not appear to confer bank status to the loans held by statutory trusts with national bank trustees.

Takeaways:

Marketplace lending programs have thrived in large part due to the participating bank lender’s ability to export a favorable interest rate—and fees—of its home state or a state where it is located to borrowers in other states, and the sale or transfer of these loans to various secondary market players, including non-bank assignees and securitization trusts.

Absent a reversal  of the precedent by an appeals court, the Marlette decision strikes a dagger in the heart of these marketplace lending programs in Colorado unless the loans conform to the state usury limit,  are retained by the bank originator, or are sold only to other banks, which apparently do not include securitization trusts. In following the Second Circuit in Midlands, and not adhering to the OCC’s recent rule on valid-when-made, the Colorado court severely restricts the salability of loans made under these market lending  arrangements.

Alston & Bird Financial Services Regulatory Speaker Webinar Series

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On June 15, from 1 to 2 p.m., Alston & Bird will host the inaugural event in its Financial Services Regulatory Speaker Webinar Series.  The event will feature a discussion with Dr. Mark A. Calabria, Director of the Federal Housing Finance Agency and Kathy Kraninger, Director of the Consumer Financial Protection Bureau, discussing federal regulatory responses to the COVID-19 pandemic and how they affect consumer lending and mortgage servicing. Login information will be provided to participants before the program.

To register, click here.

Questions? Contact Megan Belliveau at megan.belliveau@alston.com or 202.239.3134.

Federal Administrative Agencies Issue COVID-19 Guidance

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A&B ABstract:  On March 26, the Consumer Financial Protection Bureau (“CFPB”) issued three separate policy statements in response to the COVID-19 pandemic.  These announcements recognize the operational and resource challenges companies are facing as a result of the pandemic, and provide some regulatory flexibility.  Separately, the CFPB and four prudential banking regulators issued a statement encouraging the responsible financing of small-dollar loans to individuals and businesses.  These statements follow a joint statement issued by the CFPB with the Federal Reserve Board (“FRB”), Federal Deposit Insurance Corporation (“FDIC”), and Office of the Comptroller of the Currency (“OCC”) (collectively, the “Agencies”) giving CRA credit for activities in response to COVID-19.

Agencies:

On March 26, the Agencies issued a Joint Statement specifically encouraging financial institutions to offer responsible small-dollar loans to both consumers and small businesses in response to COVID-19. The Agencies recognized the important role that responsibly offered small-dollar loans can play in helping customers meet their needs for credit due to temporary cash-flow imbalances, unexpected expenses, or income short-falls during periods of economic stress or disaster recoveries.

The Agencies indicated that loans can be offered through a variety of loan structures, including open-end lines of credit, closed-end installment loans, or structured single payment loans, provided they are offered in a manner that is consistent with safe and sound practices, provides fair treatment of consumers, and complies with applicable statutes and regulations, including consumer protection laws.

CFPB:

On March 26, CFPB issued three separate policy statements intending to provide needed flexibility to enable financial companies to work with customers in need as they respond to the COVID-19 pandemic. The CFPB also postponed two data collections associated with its 1071 (small business data collection) and Property Assessed Clean Energy (PACE) rulemakings.

First Policy Statement

The first Policy Statement suspended until further notice the requirement to report quarterly HMDA data. Financial institutions normally required to make such quarterly reports are those that reported for the preceding calendar year at least 60,000 covered loans and applications (excluding purchased loans). Institutions may voluntarily continue making quarterly HMDA data submissions, and should continue to collect and record HMDA data in anticipation of making annual data submissions.

Second Policy Statement

The second Policy Statement suspended until further notice the submission of the following information relating to credit card and prepaid accounts:

  • annual submission of certain information concerning agreements between credit card issuers and institutions of higher education;
  • quarterly submission of consumer credit card agreements;
  • collection of certain credit card price and availability information from a sample of credit card issuers; and
  • submission of prepaid account agreements and related information.

Institutions may voluntarily continue to make such submissions, and should maintain records sufficient to allow them to make such delayed submissions pursuant to future CFPB guidance.

Third Policy Statement

The third Policy Statement sought to encourage financial institutions undertaking prudent efforts in good faith to work constructively with borrowers and other customers to meet their financial needs. To that end, the CFPB committed to: (1) take into account current and resource challenges affecting financial institutions when scheduling supervisory and enforcement activity; and (2) consider the circumstances that financial institutions face as a result of COVID-19 when conducting exams or other supervisory activities and in determining whether to take enforcement action.

Takeaway:

The Agencies’ measured guidance is welcomed by the industry.  In particular, the CFPB’s commitment to work with affected financial institutions in scheduling examinations and other supervisory activities provides needed flexibility, allowing institutions to best address the immediate and resource-intensive needs of its customers during these challenging times.  Companies should be mindful to document their efforts as inevitable issues will arise when all the dust settles.

 

NYDFS Extends Transition Period for Part 419 Compliance by Additional 90 Days

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On March 13, 2020, the New York Department of Financial Services (“NYDFS”) adopted, on an emergency basis, amendments (the “Emergency Adoption”) to the final mortgage servicer business conduct rules found in Part 419 of the Superintendent’s Regulations (the “Final Rules”), to extend the transition period for compliance with the Final Rules by an additional 90 days.  Prior to the Emergency Adoption, the transition period was set to expire on March 17, 2020.

As we previously reported, the NYDFS adopted the Final Rules on December 18, 2019.  The Final Rules made numerous revisions to the prior version of Part 419 that had been adopted, and readopted, on an emergency basis.  To facilitate the mortgage industry’s transition to the new rules, the Final Rules added Section 419.14 to provide a 90-day transition period for mortgage servicers to comply with the Final Rules.  However, the NYDFS indicated that “the transition period stated in Part 419.14 ha[d] proven to be insufficient.”

In issuing the Emergency Adoption, the NYDFS acknowledged the “volume and complexity of the changes required by the [Final Rules], especially computer programming required to address the new reporting, notice and disclosure requirements for the home equity line of credit {‘HELOC’) product, [which] is creating the biggest issue for servicers” as the HELOC product had previously been exempt from Part 419.  The NYDFS also cited, as additional reasons supporting the Emergency Adoption, the additional time needed by regulated institutions for purposes of revising procedures, training compliance staff, and providing information to consumers, as well as the business continuity and pandemic planning around the Coronavirus, which is diverting the limited resources of smaller financial institutions.

Mortgage servicers now have an additional 90-days to transition to the new requirements under the Final Rules.