Alston & Bird Consumer Finance Blog

Dodd-Frank Act

Did the CFPB follow PRA requirements in issuing its Big Tech orders?

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On October 21, the CFPB issued a series of orders to “collect information on the business practices of large technology companies operating payments systems in the United States.”

The CFPB sent the orders to six companies: Amazon, Apple, Facebook, Google, PayPal, and Square. In a statement accompanying the press release announcing the orders, Director Chopra described the CFPB’s action as an “inquiry into big tech payment platforms” and stated that he had ordered “six technology platforms offering payment services” to turn over information about their products, plans and practices. Responses from the companies to the CFPB orders are due by December 15.

The CFPB issued the orders pursuant to Section 1022(c)(4) of the Consumer Financial Protection Act (CFPA), its so-called market monitoring authority. See 12 U.S.C. 5512(c). This authority permits the CFPB to collect information regarding the activities of “covered persons” (a defined term) for the purpose of monitoring markets for risks to consumers in the offering or provision of “consumer financial products or services” (another defined term). This jurisdictional limitation is important – the CFPB cannot issue these orders to any company in the country; the orders may only be sent to companies that are engaged in offering or providing financial services (or that are service providers to those companies). Hence the CFPB’s necessary and intentional focus on large technology companies operating payments systems in the United States, rather than all technology companies.

Importantly, CFPB information collections under Section 1022(c)(4) of the CFPA are not exempt from the Paperwork Reduction Act (PRA) of 1995. See 44 U.S.C. 3501 et seq. PRA requires that agencies obtain Office of Management and Budget (OMB) approval before requesting most types of information from the public. See 5 C.F.R. 1320.5(a). As part of the general PRA review process, agencies must seek two rounds of public comment regarding a proposed information collection for a combined minimum of 90 days.

In reviewing an agency’s information collection request, OMB’s Office of Information and Regulatory Affairs (OIRA) will determine among other things whether the request is necessary for the proper performance of the agency’s functions, is not duplicative of information otherwise accessible to the agency, and has practical utility. See 5 C.F.R. 1320.5(d). If OIRA approves the agency’s information collection request, OMB will issue the agency a unique control number. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. See 5 C.F.R. 1320.5(b).

The PRA and OMB’s implementing regulation each define “collection of information” to mean obtaining answers to identical questions posed to “ten or more persons” within a twelve-month period. See 44 U.S.C. 3502(3) and 5 C.F.R  1320.3(c). This means that PRA requirements generally do not apply to information collected from nine or fewer institutions. However, OMB regulations further specify that “[a]ny collection of information addressed to all or a substantial majority of an industry is presumed to involve ten or more persons.” See 5 CFR 1320.3(c)(4)(ii). OMB guidance provides:

“All such collections require OMB review and approval. Agencies may have evidence showing that this presumption is incorrect in a specific situation. In such a case, the agency may proceed with the collection without seeking OMB approval. Upon OMB request, however, the agency needs to provide that evidence to OMB and needs to abide by OMB’s determination as to whether the collection of information requires OMB approval.” See OIRA, “The PRA of 1995: Implementing Guidance for OMB Review of Agency Information Collection,” Draft, Ch. II.C.3 (August 16, 1999).

The CFPB did not seek public comment on its proposed information collection before issuing its October 21st orders, and does not appear to have obtained OMB approval of its proposed information collection prior to issuing its October 21 orders. The reason it did not do so appears to be because it issued orders to only six companies, which are fewer than the ten institutions necessary for mandatory application of the PRA. However, the question remains whether the six institutions (which the CFPB described as “Tech Giants” in its press release) collectively represent a “substantial majority” of the industry identified by the CFPB (i.e., “large technology companies operating payments systems in the United States”).

While it is not clear from OMB regulations or guidance what proportion of an industry would constitute a “substantial majority” for PRA purposes, it is not inconceivable that the combined size and market share of Amazon, Apple, Facebook, Google, PayPal and Square might constitute a substantial majority of the “big tech payment platforms” industry. If this is the case, OMB rules create a presumption that the CFPB’s October 21st orders are subject to the PRA. Under normal circumstances, when considering a proposed information collection, CFPB staff are expected to consult with the agency’s OIRA desk officer as appropriate and the CFPB’s PRA officer will also offer CFPB leadership an independent opinion regarding the applicability of the PRA. Additionally, the CFPB may have prepared evidence for submission to OMB to rebut the presumption that its proposed information collection is subject to the PRA. However, nothing in the CFPB’s press release, sample order, Director’s statement or November 1 request for comment address the applicability of the PRA to the information sought from the six companies.

Take-Away: If the PRA applies to the CFPB’s October 21st orders, there are two significant consequences. First, without an OMB-approved control number attached to the orders, the recipients are under no legal obligation to respond to the CFPB. Second, contrary to the statutory purposes of the PRA articulated by Congress, the public will have been deprived of the meaningful opportunity to provide comment regarding the proposed orders in advance of their issuance. Such comments would foreseeably focus on important considerations raised by the proposal, including for instance the utility of the information being sought and the logical nexus between demands for internal memoranda relating to potential future business plans and the CFPB’s limited authority to monitor for present risks to consumers in the current offering or provision of consumer financial products and services. Such commentary, if sought and received by the CFPB, could only help it craft its orders in a way that achieves its goals while remaining faithful to the statutory purposes of the PRA. In as much as the CFPB’s novel use of its Section 1022(c)(4) authority creates a precedent for the future, additional transparency from the CFPB regarding the application of the PRA to its October 21st orders may be warranted, and would undoubtedly be welcome before December 15.

New CFPB Chief Rohit Chopra Confirmed by Senate and Takes Immediate Action Against Big Tech Firms

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A&B Abstract:

On September 30, 2021, the Senate confirmed Rohit Chopra to serve as director of the Consumer Financial Protection Bureau (CFPB) in a 50-48 vote along party lines. He had been serving as a member of the Federal Trade Commission (FTC) where he had been a vocal critic of big tech companies and advocated for increased restitution for consumers. He previously served as the CFPB’s private education loan ombudsman under former CFPB Director Richard Cordray. Prior to that, he had worked closely with Sen. Elizabeth Warren on the CFPB’s establishment. Consistent with his past practices, Chopra’s CFPB has now ordered six Big Tech companies to turn over information regarding their payment platforms.

Expectations for Chopra’s CFPB

President-elect Biden announced Chopra as his choice to lead the CFPB before Inauguration Day, and the Biden Administration subsequently referred his nomination to the Senate in February. Chopra succeeds Kathy Kraninger, who became Director in December 2018 after having served as a senior official at the Office of Management and Budget. She led the CFPB for two years before the incoming Biden Administration demanded her resignation on January 20. It is expected that Chopra will aggressively lead the CFPB and unleash an industry crack down. The October 21, 2021 order issued to Big Tech regarding payment products appears to be the first step in that plan. Additionally, credit reporting companies, small-dollar lenders, debt collectors, fintech companies, the student loan industry, and mortgage servicers are among the financial institutions expected to face scrutiny from Chopra’s CFPB. Prior to the Big Tech inquiry, the CFPB, under interim leadership, had already taken initial steps to implement pandemic-era regulations and to advance the Biden administration’s priorities. It is also expected that the enforcement practices under former-Director Cordray will be revived under a Chopra-led CFPB.

After his confirmation, Chopra stated an intent to focus on safeguarding household financial stability, echoing prior statements regarding his commitment to ensuring those under foreclosure or eviction protections during the pandemic are able to regain housing security. He has also declared an intent to closely scrutinize the ways that banks use online advertising, as well as take a hard look at data-collection practices at banks. In his remarks related to the market-monitoring order issued to Big Tech, Chopra was critical of the way companies may collect data and his concern that it may be used to “profit from behavioral targeting, particularly around advertising and e-commerce.”

Just one week later, Chopra delivered remarks in his first congressional hearing as Consumer Financial Protection Bureau director. In his prepared statements before both the House Committee on Financial Services and the Senate Committee on Banking, Housing, and Urban Affairs, he cited mortgage and rent payments, small business continuity, auto debt, and upcoming CARES Act forbearance expirations as problems he plans to address. He also stated an intent to closely monitor the mortgage market and scrutinize foreclosure activity. And, echoing his action from a week earlier, Chopra reiterated an intent to closely look at Big Tech and emerging payment processing trends. Chopra also noted a lack of competition in the mortgage refinance market and stated an intent to promote competition within the market.

Although appointed to a five year term, the CFPB director serves at the pleasure of the president after a landmark decision last year from the Supreme Court.

Takeaway

Industry participants, including credit reporting companies, small-dollar lenders, debt collectors, fintech companies, the student loan industry, and mortgage lenders and servicers can anticipate additional scrutiny in the coming months and years from the CFPB. As Chopra gets settled into his new role, we will be keenly watching where he turns his attention to next.

Third Party Payment Processors as ‘Covered Persons’: A Return to CFPB Regulation by Enforcement?

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A&B ABstract: The CFPB has recently asserted extraordinary authority to make any payment processor monitor the activities of any merchant for which it processes payments, even if that merchant does not provide consumer financial products or services. Does its argument hold up?

The CFPB’s Complaint Against BrightSpeed

On March 3, 2021, the Bureau of Consumer Financial Protection (Bureau or CFPB) announced that it had filed a complaint in federal court against BrightSpeed Solutions Inc. and its founder and former CEO (collectively, BrightSpeed). The Bureau’s complaint alleges that before ceasing operations in 2019, BrightSpeed was a privately owned third-party payment processor that processed remotely created check payments for its merchant-clients. According to the Bureau, these merchant-clients purported to provide antivirus software and technical-support services to consumers, but actually scammed consumers into purchasing unnecessary and expensive computer software.

The Bureau alleges that despite numerous indicators of fraudulent activity by their tech-support merchant-clients, BrightSpeed continued to do business with and earn processing fees from them. These actions, the Bureau alleges, were “unfair” practices in violation of the Consumer Financial Protection Act of 2010 (the CFPA, also known as Title X of the Dodd-Frank Act) and deceptive telemarketing practices in violation of the Telemarketing Sales Rule.

Unfairness

Importantly, under Sections 1031 and 1036 of the CFPA the Bureau can only bring unfairness claims against (1) a “covered person”; (2) a “service provider”; or (3) a person who knowingly or recklessly provides substantial assistance to a covered person or service provider. Section 1002 of the CFPA defines a “covered person” as a person that offers or provides a “consumer financial product or service,” which is in turn defined to include “providing payments or other financial data processing products or services to a consumer by any technological means,” provided that such products or services are “offered or provided for use by consumers primarily for personal, family, or household purposes.”

Section 1002 of the CFPA also defines a “service provider” as “any person that provides a material service to a covered person in connection with the offering or provision by such covered person of a consumer financial product or service.” In plain English, this means that a payment processor is only subject to CFPB “unfairness” authority if it provides payment processing services to a person that offers consumer financial products and services (and is therefore a service provider) or itself provides payment services to a consumer (and is therefore a covered person).

BrightSpeed’s merchant-clients were providing antivirus software and technical-support services, which are not consumer financial products and services. Accordingly, BrightSpeed does not appear to be (and the Bureau did not allege in its complaint that it is) a service provider. However, the Bureau claims that BrightSpeed is a covered person even though it provided its payment processing services only to its merchant-clients, not to consumers.

Current Status of the BrightSpeed Case

 BrightSpeed, citing ongoing settlement discussions with the Bureau since at least November 2020, sought and was granted multiple extensions of time to file its answer to the Bureau’s complaint. Acting with uncharacteristic leniency, given the length of time involved, the Bureau did not oppose BrightSpeed’s motions. On June 30, the parties reported they had reached an “agreement in principle” to resolve the Bureau’s claims, including injunctive relief, consumer redress, and the payment of a civil penalty, but that BrightSpeed was trying to obtain accelerated repayment of a loan in order to facilitate settlement.

BrightSpeed filed its answer on July 12, denying most of the Bureau’s allegations and argued in defense that: (1) the Bureau’s claims exceeded its statutory authority and (2) are barred by the statute of limitations; (3) the Bureau is aware that BrightSpeed is not subject to the Telemarketing Sales Rule but brought its action in bad faith in an effort to coerce monetary relief out of Defendants against the backdrop of the expense of a federal lawsuit; and (4) the Bureau was aware of BrightSpeed’s conduct since the inception of its business but waited until the business had closed and was in financial distress to bring its action in an effort to gain strategic leverage against the company’s position. On July 13, the court ordered the parties to submit a joint status report on the status of settlement negotiations by August 27.

Prior Cases

Because the BrightSpeed case has yet to advance past the pleading stage, the Bureau has not articulated why it believes BrightSpeed is a covered person. However, two prior cases that advanced to the motions stage shed some light on the arguments the Bureau would likely make in response to BrightSpeed’s defense that it is not a covered person for purposes of the CFPA.

Intercept

For instance, in 2016 the CFPB filed a complaint against Intercept Corporation and two of its executives (collectively, Intercept) for allegedly enabling unauthorized and other illegal withdrawals from consumer accounts by their clients. Intercept filed a motion to dismiss the Bureau’s complaint, arguing among other things that:

  • it is not a covered person, service provider, or related person;
  • the Bureau’s claims were time-barred under the CFPA’s three-year statute of limitations;
  • the Bureau failed to allege the necessary unfairness elements; and
  • the Bureau lacked authority to bring its enforcement action because it was unconstitutionally structured.

Intercept and the Third Party Payment Processors Association (as amicus) both filed briefs arguing that the language of the CFPA plainly excludes business-to-business companies such as Intercept from its reach and that a payment processor must offer its payment processing services directly to consumers to be considered a “covered person,” and those services must be used “primarily for personal, family, or household purposes.”

In response to Intercept’s motion, the CFPB argued that nothing in the statutory text even implies that a covered person must contract directly with the consumer, and when payment processors transmit credit and debit requests that were authorized by consumers, those processors provide the payment processing both “to” and “for use by” consumers regardless of whether they do so directly or via third-party arrangements. The CFPB then cited instances in which the Congress used the word “directly” in the Dodd-Frank Act to support a negative inference that the legislation did intend to capture as covered persons other companies that engage in financial data processing activities—even if those companies do not contract directly with consumers.

The district court dismissed the CFPB’s complaint in March 2017 for failure to state a claim on which relief can be granted but the court’s opinion did not examine whether Intercept was a covered person, noting only that under the applicable standard of review of Intercept’s motion to dismiss, the court considered and accepted the facts alleged in the CFPB’s complaint – including the allegation that Intercept was a covered person – as true.

Universal Debt Solutions

In 2015, the CFPB also filed a complaint against a number of individuals, their debt collection companies, and several payment processors (collectively Universal Debt Solutions), alleging unlawful conduct related to a phantom debt collection operation. The Bureau alleged that the debt collectors, acting through a network of corporate entities, used threats and harassment to collect phantom debt from consumers. The Bureau alleged that the payment processors should be held liable because, among other things, they should have recognized that chargebacks connected with the alleged phantom debt scheme were suspicious and likely connected to fraud. The Bureau alleged that the payment processors were covered persons and service providers that provided substantial assistance to the debt collectors in violation of the CFPA’s UDAAP prohibitions.

The payment processors filed motions to dismiss the CFPB’s complaint, arguing among other things that they were not covered persons because they did not offer their services to consumers but to merchants. In its response to the motions, the CFPB argued that while the payment processors may not interact directly with consumers, they “play a key role in the consumer payment processing network,” and while they may not have directly contacted the debt collectors’ victims, “their work enabled consumers to pay the [d]ebt [c]ollectors with bank and credit cards and they thus fit squarely within the statutory definition of a ‘covered person.’”

The court denied the payment processors’ motions to dismiss, finding that “even if the [p]ayment [p]rocessors are not covered persons, they could still be subject to liability for unfair acts or practices if they are service providers” and that they were service providers to the debt collectors. However, in August 2017, the court sanctioned the CFPB by striking the counts in the complaint against the payment processors and dismissing them from the lawsuit, citing the CFPB’s repeated willful violations of the court’s discovery orders, including its instructions to identify the factual bases for its claims, its refusal to present a knowledgeable 30(b)(6) witness in depositions, and its continued use of privilege objections in response to questions that the court expressly identified as permissible.

Implications for Merchants and Third Party Payment Processors

Because the Intercept and Universal Debt Solutions cases were resolved on other grounds, trial courts have not reviewed on the merits the Bureau’s contention that third party service providers are covered persons for purposes of the CFPA. And, of course, the ultimate disposition of the BrightSpeed case remains unknown. However, the implications of the Bureau’s assertion of authority in these cases is significant.

If the Bureau succeeds in asserting jurisdiction over payment processors that provide services only to merchants and not consumers (and especially over those merchants that do not even offer consumer financial products and services), it can make any payment processor monitor the activities of any company or person for which it processes payments. This would constitute a choke-point-style deputization of payment processors to regulate merchant activity, which would appear at odds with the express exclusion from the Bureau’s rulemaking, supervisory, enforcement or other authorities granted to merchants and retailers in Section 1027(a) of the Dodd-Frank Act. This would also appear to intrude upon the jurisdiction and enforcement priorities of the Federal Trade Commission (FTC), which in recent years has engaged in a concerted effort to combat merchant fraud enabled by payment processors. And this also echoes the Bureau’s prior efforts – which Congress soundly rejected – to coerce indirect auto lenders into regulating compensation paid to automobile dealers, another category of merchant similarly excluded from Bureau jurisdiction.

Conclusion

Companies  and individuals engaged in fraud should be held accountable. However, Congress has carefully established the limits of the Bureau’s jurisdiction and has left states and other federal agencies like the FTC with ample authority to combat fraud that falls outside of that authority. The efficient functioning of financial markets, including the payments system, depends on the CFPB honoring the rule of law.

Agencies would normally be expected to clearly announce their legal position in advance of taking enforcement action, such as by issuing an interpretive rule to explain how providing payment processing services “to a merchant” rather than “to a consumer” renders a third party payment provider a “covered person” for purposes of the CFPA. Such a rule could at least be challenged under the Administrative Procedures Act as contrary to law. However, the Bureau appears poised to establish a potentially far-reaching new precedent by entering into a consent order with a company that has already gone out of business. If the proposed BrightSpeed settlement is approved by the district court judge, such an outcome could be characterized as a muscular return of the Bureau’s dormant “regulation by enforcement” doctrine.

Takeaway

All third-party payment providers may soon have to monitor the payment activities of all of their merchant-clients for compliance with CFPB UDAAP prohibitions, whether or not those merchant-clients offer consumer financial products and services. This development would be an extraordinary expansion of the CFPB’s authority and potentially reach merchant activity previously thought to fall outside of its jurisdiction.

The Hunstein Case: Upending Servicing and Debt Collection?

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A&B Abstract:

The U.S. Court of Appeals for the Eleventh Circuit, covering Alabama, Florida, and Georgia, recently decided in Hunstein v. Preferred Collection and Management, Inc., that a debt collector’s communication with its third-party vendor violated section 1692c(b) of the Fair Debt Collection Practices Act (“FDCPA”), which prohibits a debt collector for communicating, in connection with the collection of any debt, with an unauthorized third party.

The FDCPA and Regulation F

 In 1977, Congress enacted the FDCPA to eliminate abusive debt collection practices by debt collectors.  Section 1692c(b) of the FDCPA generally provides that, except with respect to seeking location information:

without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

The FDCPA defines “communication” to mean “the conveying of information regarding a debt directly or indirectly to any person through any medium.”

For decades the FDCPA was enforced by the Federal Trade Commission (“FTC”).  However, prior to the Dodd-Frank Act, no federal regulator had rulemaking authority under the FDCPA.  The Dodd-Frank Act empowered the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) with rulemaking authority with respect to the collection of debts by debt collectors, as defined by the FDCPA.  Prior to finalizing Regulation F, the CFPB conducted market outreach to better understand how debt collectors attempt to collect on accounts.  In July 2016, the CFPB published a study of third-party debt collection operations (“Operations Study”) that recognized debt collection firms’ reliance on vendors (such as print mail services, predictive dialers, voice analytics, payment processes and data servers).  In fact, the CFPB noted that most respondents use an outside vendor for sending written communications.

On November 30, 2020, amended Regulation F,  implementing the FDCPA, was published in the Federal Register with an effective date of November 30, 2021 (which has subsequently been delayed to January 29, 2022).  Regulation F does not specifically address the use of third-party vendors, such as print mail services, although the Operations Study was cited in the preamble to Regulation F.

With regard to civil liability, section 1692k of the FDCPA states that “[n]o provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Bureau, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.”

The Hunstein Case

Despite the CFPB’s implicit recognition of debt collectors’ use of print and other vendors,  a recent court decision suggests that use of certain vendors could violate the FDCPA’s prohibition on third-party communications.  In Hunstein, the U.S. Court of Appeals for the Eleventh Circuit reversed the district court’s judgment, holding that (1) a violation of section 1692c(b) of the FDCPA confers Article III standing; and (2) a debt collector’s transmittal of a consumer’s personal information to its dunning vendor constituted a communication “in connection with the collection of any debt” within the meaning of section 1692c(b).

The facts in this case are not unusual, and reflect the typical interactions between a debt collector and their third-party vendors. Specifically, the debt collector, Preferred Collection and Management Services Inc. (“Preferred”), electronically transmitted information concerning Hunstein’s debt (his name and his status as a debtor, the entity to which he owed the debt, the outstanding balance, the fact that his debt resulted from his son’s medical treatment, and his son’s name) to its third-party vendor. In turn, the vendor used that information to create, print, and mail a dunning letter to Hunstein.  As a result, Hunstein sued alleging that by sending his personal information to the third-party vendor, Preferred had violated section 1692c(b). The district court dismissed Hunstein’s action for failure to state a claim, holding that Hunstein had not sufficiently alleged that Preferred’s transmittal to its third-party vendor violated section 1692c(b), because it was not a communication “in connection with the collection of any debt.”  Hunstein appealed to the Eleventh Circuit. On appeal, the Eleventh Circuit addressed both the issues of Article III standing and whether Preferred’s communication was “in connection with the collection of any debt.”

The court first considered the threshold issue of whether a violation of section 1692c(b) confers Article III standing. Specifically, the court focused on whether Hunstein had suffered an injury in fact, which requires an invasion of a legally protected interest that is both concrete and particularized and actual or imminent, not conjectural or hypothetical. The court indicated that the “standing question here implicates the concreteness sub-element.”  The court explained that a plaintiff can satisfy the concreteness requirement in one of three ways. A plaintiff can meet this requirement by (1) alleging a tangible harm (e.g., physical injury, financial loss, and emotional distress), (2) alleging a risk of real harm, or (3) identifying a statutory violation that gives rise to an “intangible-but-nonetheless-concrete injury.”  The court ultimately concluded that Hunstein had met the concreteness requirement “[b]ecause (1) § 1692c(b) bears a close relationship to a harm that American courts have long recognized as cognizable and (2) Congress’s judgment indicates that violations of §1692c(b) constitute a concrete injury.”

After concluding that Hunstein had standing to sue, the court considered whether Preferred’s transmittal to its third-party vendor was a “communication in connection with the collection of any debt.” At the outset, the court noted that the parties were in agreement that Preferred was a “debt collector,” that Hunstein was a “consumer,” and that the debt at issue was a “consumer debt,” as contemplated under the FDCPA. Moreover, the parties agreed that Preferred’s transmittal of Hunstein’s information to the third-party vendor constituted a “communication” within the meaning of the FDCPA. Thus, the only question remaining before the court was whether Preferred’s communication was “in connection with the collection of any debt.” The court began its analysis by reviewing the plain meaning of the phrase “in connection with” and the word “connection,” and determined that “in connection with” and “connection” are generally defined to mean “with reference to or concerning” and “relationship or association,” respectively.  Based on these definitions, and the facts at issue, the court found it “inescapable that Preferred’s communication to [its third-party vendor] as least ‘concerned,’ was ‘with reference to,’ and bore a ‘relationship or association’ to its collection of Hunstein’s debt.”  Accordingly, the court held that Hunstein had alleged a communication “in connection with the collection of any debt” as that phrase is commonly understood.

The court next considered, and rejected, Preferred’s three arguments that its communication was not “in connection with the collection of any debt.” First, the court found Preferred’s reliance on prior Eleventh Circuit decisions interpreting the phrase “in connection with the collection of any debt,” as used under section 1692e, to be misplaced. The court explained that in those line of cases, the court had focused on the language of the underlying communications that were at issue. However, the court found that the district court’s conclusion that the phrase “in connection with the collection of any debt” necessarily entails a demand for payment “defies the language and structure of § 1692c(b) for two separate but related reasons—neither of which applies to § 1692e.” First, the court explained that the “demand-for-payment interpretation would render superfluous the exceptions spelled out in §§ 1692c(b) and 1692b.” The court noted that under section 1692c(b), “[c]ommunications with four of the six excepted parties—a consumer reporting agency, the creditor, the attorney of the creditor, and the attorney of the debt collector—would never include a demand for payment,” and that the “same is true of the parties covered by § 1692b and, by textual cross-reference, excluded from § 1692c(b)’s coverage.” Accordingly, the court held that the phrase “in connection with the collection of any debt” in section 1692c(b) must mean something more than a mere demand for payment, so as not to render “Congress’s enumerated exceptions…redundant.”

The court also rejected Preferred’s argument that the court adopt a holistic, multi-factoring balancing test that was adopted by the Sixth Circuit in its unpublished opinion in Goodson v. Bank of Am., N.A., 600 Fed. Appx. 422 (6th Cir. 2015), for two reasons: (1) “Goodson and the cases that have relied on it concern § 1692e—not § 1692c(b),” and (2) sections 1692c(b) and 1692e differ both “linguistically, in that the former includes a series of exceptions that an atextual reading risks rendering meaningless, while the latter does not, and…operationally, in that they ordinarily involve different parties.” Moreover, the court found that “in the context of § 1692c(b), the phrase ‘in connection with the collection of any debt’ has a discernible ordinary meaning that obviates the need for resort to extratextual ‘factors.’”

Finally, the court rejected Preferred’s “industry practice” argument—namely that there is widespread use of mail vendors and a relative dearth of FDCPA suits against them—holding that simply because “this is (or may be) the first case in which a debtor has sued a debt collector for disclosing his personal information to a mail vendor hardly proves that such disclosures are lawful.”

In holding that Preferred’s communication with its third-party vendor constituted a communication “in connection with the collection of any debt,” the court acknowledged that its “interpretation of § 1692c(b) runs the risk of upsetting the status quo in the debt-collection industry…[and that its] reading of § 1692c(b) may well require debt collectors (at least in the short term) to in-source many of the services that they had previously outsourced, potentially at great cost.” Moreover, the court recognized that “those costs may not purchase much in the way of ‘real’ consumer privacy.” Nevertheless, the court noted that its “obligation is to interpret the law as written, whether or not we think the resulting consequences are particularly sensible or desirable.”

Takeaway 

The court’s textual reading of the statute fails to account for the technological changes to the industry since the FDCPA was enacted in 1977.

The CFPB has the authority to take a more pragmatic view, either through its advisory opinion program or formal rulemaking to recognize the important role of vendors while also putting in proper guardrails to protect consumers’ privacy.  Such a view would be consistent with the FTC’s treatment of this issue.  The FTC previously indicated that a debt collector could contact an employee of a telephone or telegraph company in order to contact the consumer, without violating the prohibition on communication to third parties, if the only information given is that necessary to enable the collector to transmit the message to, or make the contact with, the consumer. Presumably, a debt collector would have to transmit much the same information for purposes of communicating with the debtor through a letter vendor.

Congress also has the authority to modernize the FDCPA.  The House of Representatives recently passed a comprehensive debt collection bill (H.R. 2547, the Comprehensive Debt Collection Improvement Act, sponsored by Chairwoman Waters). While this bill currently doesn’t address the issue in Hunstein, that could be remedied in the Senate.

The consumer finance industry will be closely watching the Hunstein case as it works through the appeal process, as well as how other courts, Congress, CFPB and other regulators react.

CFPB Issues Warning to Mortgage Servicing Industry

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A&B ABstract: On April 1, 2021, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) issued a Compliance Bulletin and Policy Guidance (the “Bulletin”) on the Bureau’s supervision and enforcement priorities with regard to housing insecurity in light of heightened risks to consumers needing loss mitigation assistance once COVID-19 foreclosure moratoriums and forbearances end.  The Bulletin warns mortgage servicers to begin taking appropriate steps now to prevent “a wave of avoidable foreclosures” once borrowers begin exiting COVID-19 forbearance plans later this Fall, and also highlights the areas on which the CFPB will focus in assessing a mortgage servicer’s compliance with applicable consumer financial laws and regulations.

The Bulletin

The Bulletin warns mortgage servicers of the Bureau’s “commit[ment] to using its authorities, including its authority under Regulation X mortgage servicing requirements and under the Consumer Financial Protection Act” to ensure borrowers impacted by the COVID-19 pandemic “receive the benefits of critical legal protections and that avoidable foreclosures are avoided.”

Specifically, the Bureau highlighted two populations of borrowers as being at heightened risk of referral to foreclosure following the expiration of the foreclosure moratoriums if they do not resolve their delinquency or enter into a loss mitigation option, namely, borrowers in a COVID-19-related forbearance and delinquent borrowers who are not in forbearance programs.

As consumers near the end of their forbearance plans, the CFPB expects “an extraordinarily high volume of loans needing loss mitigation assistance at relatively the same time.” The Bureau specifically expressed its concern that some borrowers may not receive effective communication from their servicers and that some borrowers may be at an increased risk of not having their loss mitigation applications adequately processed. To that end, the Bureau plans to monitor servicer engagement with borrowers “at all stages in the process” and prioritize its oversight of mortgage servicers in deploying its enforcement and supervision resources over the next year.

Servicers are expected to plan for the anticipated increase in loans exiting forbearance programs and related loss mitigation applications, as well as applications from borrowers who are delinquent but not in forbearance. Specifically, the Bureau expects servicers to devote sufficient resources and staff to ensure they are able to clearly communicate with affected borrowers and effectively manage borrower requests for assistance in order to reduce foreclosures. To that end, the Bureau intends to assess servicers’ overall effectiveness in assisting consumers to manage loss mitigation, and other relevant factors, in using its discretion to address potential violations of Federal consumer financial law.

In light of the foregoing, the Bureau plans to focus its attention on how well servicers are:

  • Being proactive. Servicers should contact borrowers in forbearance before the end of the forbearance period, so they have time to apply for help.
  • Working with borrowers. Servicers should work to ensure borrowers have all necessary information and should help borrowers in obtaining documents and other information needed to evaluate the borrowers for assistance.
  • Addressing language access. The CFPB will look carefully at how servicers manage communications with borrowers with limited English proficiency (LEP) and maintain compliance with the Equal Credit Opportunity Act (ECOA) and other laws. It is worth noting that the Bureau issued a notice in January 2021 encouraging financial institutions to better serve LEP borrowers in a language other than English and providing key considerations and guidelines.
  • Evaluating income fairly. Where servicers use income in determining eligibility for loss mitigation options, servicers should evaluate borrowers’ income from public assistance, child-support, alimony or other sources in accordance with the ECOA’s anti-discrimination protections.
  • Handling inquiries promptly. The CFPB will closely examine servicer conduct where hold times are longer than industry averages.
  • Preventing avoidable foreclosures. The CFPB will expect servicers to comply with foreclosure restrictions in Regulation X and other federal and state restrictions in order to ensure that all homeowners have an opportunity to save their homes before foreclosure is initiated.

Takeaway

As more and more borrowers begin to near the end of their COVID-19-related forbearance plans, and as applicable foreclosure moratoriums near their anticipated expiration dates, mortgage servicers should consider evaluating their mortgage servicing operations, including applicable policies, procedures, controls, staffing and other resources, to ensure impacted loans are handled in accordance with applicable Federal and state servicing laws and regulations.