Preparing for a Visit from the CFPB David

Preparing for a Visit from the CFPB David

Preparing for a Visit from the CFPB David Bailey, Kentucky Higher Education Assistance Authority John Culhane, Ballard Spahr Dino Tsibouris, Tsibouris & Associates CFPB Issues Affecting Loan Servicing Dino Tsibouris (614) 360-3133 [email protected]

Service Providers CFPB Supervision and Examination Manual (October 31, 2012) Education Loan Examination Procedures (December 17, 2012) Rule to Supervise Nonbanks (June 26, 2013) Proposed Rule: Student Loan Servicing Larger Participants (March 28, 2013) 2013 Knowledge Symposium 3

Service Providers CFPB Bulletin 2012-03 Expects supervised banks and nonbanks to oversee service providers in a manner that ensures compliance with Federal consumer financial law Supervised nonbanks include any non-bank making private educational loans 2013 Knowledge Symposium 4

Service Providers CFPB Bulletin 2012-03 Supervised service providers provide services to: Supervised banks and nonbanks Substantial number of small insured depository institutions or small insured credit unions 2013 Knowledge Symposium 5 CFPB Proposed Rule

Nonbank Student Loan Servicers Apply to those with more than 1M accounts Would gather reports and conduct examinations Focus on federal consumer protection laws Harmonize legal compliance between bank and nonbank servicers 2013 Knowledge Federal and Symposium private loan servicing 6

CFPB Proposed Rule Nonbank Student Loan Servicers Response to complaints from Ombudsmans report Confusion Dead ends Runarounds 2013 Knowledge Symposium 7

Service Providers Any person providing a material service to a covered person Use of service providers is appropriate Overcome resource constraints Develop and market new products and services Obtain expertise 2013 Knowledge Symposium 8 CFPB Supervision and

Examination Manual Risk assessment template compliance tool Risk of loss or injury from violation of Federal consumer financial law Measures risk of business or entity and quality of controls 2013 Knowledge Symposium 9 CFPB Supervision and Examination Manual

Product risk for UDAAP, discrimination, or other regulatory issues: Bundling products to hide costs Pay fees/lose benefits for termination Charges for customer service or information Inappropriate credit decision discretion Loans not 2013 underwritten based upon Knowledge 10 Symposium to make loan

ability of customer CFPB Supervision and Examination Manual Product risk for UDAAP, discrimination, or other regulatory issues Profits depend on fees Terms subject to change Pricing structure makes total cost hard to understand Bundling products to hide costs 2013 Knowledge Symposium

11 CFPB Supervision and Examination Manual Consumers to whom marketed: Students Consumers with limited education Elderly Low-income consumers Limited financial experience Low credit scores Special concern if in multiple categories 2013 Knowledge Symposium

12 Service Providers Conduct thorough due diligence Verify service provider understands and is capable of complying with Federal consumer financial law 2013 Knowledge Symposium 13

Service Providers Review compliance policies, procedures, internal controls Review compliance training materials, oversight of employees Describe compliance duties of service provider in contract and penalties for violations 2013 Knowledge Symposium 14 Service Providers

Establish lender internal controls to monitor service provider Take prompt action to address problems Terminate agreement where appropriate 2013 Knowledge Symposium 15 Plan Ahead Read the CFPB Supervision and

Examination Manual Use it as a self-test Address the topics you see, explain why a fee, product, or service is acceptable by identifying a sound and reasonable basis Consider changing if needed 2013 Knowledge Prepare to explain Symposium why steps are 16 Preparing for CFPB Reviews, Some Lessons from CFPB Exams,

and Some Lessons from CFPB Consent Orders and Cases John L. Culhane, Jr. Partner Ballard Spahr LLP Phone: 215.864.8535 Email: [email protected] Preparing for CFPB Reviews 2013 Knowledge Symposium 18

Vigorous CFPB Activity Numerous CFPB examinations of lenders and service providers Civil Investigative Demands (CIDs) served on debt collectors collecting student loans (federal and private) CFPB field hearing on student loan debt (the root of all evil?) Continuing public statements by CFPB regarding student loans (Ombudsmans Report) Continued pressure from various consumer groups and oddly, certain trade associations 2013 Knowledge Symposium

19 Overview of Exams As of July 1, CFPB had over 300 examiners, nearly 100 of whom are commissioned, out conducting exams Exams still follow a more or less standard procedure and the pace seems unchanged Exams begin with the scoping session, then the first day letter, then the onsite exam As of November 1, enforcement lawyers will not be present (will anything really change?) 2013 Knowledge Symposium

20 Overview of CIDs As of July 1, CFPB had almost 600 employees in Supervision, Fair Lending and Enforcement CFPB has been using the lawyers on the enforcement staff to conduct quasi-exams Rather than being targeted to specific practices, CID seeks to assess compliance with specified federal consumer financial law(s) (e.g. FDCPA) Initial requests for interrogatories and document production with numerous followup requests 2013 Knowledge

Symposium 21 Need for Formality CFPB expects a great deal of formality Robust compliance management system is essential Written policies and procedures are likewise crucial Regular monitoring and auditing for compliance is also necessary Preference for system controls versus reliance on individuals 2013 Knowledge

Symposium 22 Need for Adequate Staffing CFPB expects to see a robust compliance management system with a CCO or equivalent CFPB likewise expects to see adequate staffing at all significant contact points Inadequate staffing is viewed as an unfair, deceptive or abusive practice Notion is that inadequate staffing is

intended to discourage or otherwise hinder complaints 2013 Knowledge Symposium 23 Anticipate Privilege Issues Privilege issues will come up in examinations (although not with CIDs) Industry-supported legislation approved December 20, 2012 (P.L. 112-215) Added CFPB to list of agencies that may receive information and share it with other federal regulators without loss of

privilege Still leaves a number of open questions as to CFPB authority and best practices 2013 Knowledge Symposium 24 Some Lessons from CFPB Exams 2013 Knowledge Symposium 25

Marketing Issues CFPB reviews both consumer marketing and, in the case of service providers, commercial marketing to prospective clients Recurring issues with TILA trigger terms, particularly with online advertisements and now with text messages Employee compensation issues still linger particularly with marketing practices related to for-profit schools 2013 Knowledge Symposium

26 Application Processing Issues Failure to comply with the provision, content, and timing requirements for adverse action notices is a recurring theme Substantive compliance then is taken as an indication that the compliance management system is deficient since it apparently lacks controls to detect and 2013 Knowledge prevent problems

Symposium 27 Private Education Loan Disclosure Issues Examination for technical compliance with timing and substantive requirements for the three private education loan disclosures Regular scrutiny of practices that are part of the private education loan disclosure regimen that can help prevent over-borrowing

2013 Knowledge reduction in (school certification, Symposium 28 Credit Reporting Issues CFPB always looks very carefully at credit reporting issues (report as gateway to credit) Emphasis on steps taken to ensure accuracy and integrity of reporting Emphasis on responses to disputes (e-Oscar and direct disputes) and on adequacy of investigations (records and other material) Emerging emphasis on the permissible

purpose for obtaining the report (account reviews) 2013 Knowledge Symposium 29 Payment Processing Issues CFPB seems to believe that the industry goes out of its way to disadvantage borrowers Concerns continue to linger about prompt crediting (why?)

Heightened emphasis on application of partial prepayments to loan principal Equally strong emphasis on allowing borrower to allocate payments or prepayments between multiple loans 2013 Knowledge Symposium 30 Loss Mitigation Issues Continued emphasis on providing adverse action notices when denying applications for assistance or benefits of any kind Heightened scrutiny for unfair, deceptive or

abusive practices in connection with descriptions of options and with fulfillment of options Developing notion that the lack of comprehensive loss mitigation procedures is somehow itself an unfair, deceptive or abusive practice (?) 2013 Knowledge Symposium 31 Some Lessons from CFPB Consent Orders and Cases

2013 Knowledge Symposium 32 Referrals Focus on illegal referral fees paid by bank and non-bank lenders (no CFPB student loan order yet) In the Matter of Paul Taylor, Paul Taylor Homes Limited, and Paul Taylor Corp., File No. 2013-CFPB0001 2013 Knowledge Symposium

33 Kickbacks Focus on illegal kickbacks paid by companies in exchange for business (no CFPB student loan order yet) Consumer Financial Protection Bureau v. Genworth Mortgage Insurance Corporation, Case No. 1:13-cv-21183-JLK (S.D. Fla. Consent Order dated April 5, 2013) (similar cases against three other insurance companies) Consumer Financial Protection Bureau v. Borders & Borders, PLC, Case No. 3:13-mc99999 (W.D. Ky. Filed Oct. 24, 2013) 2013 Knowledge

Symposium 34 Fee Revenue Focus on illegal or non-traditional sources of fee revenue (no CFPB student loan order yet) Consumer Financial Protection Agency v. Mission Settlement Agency, et al., Case No. 1:13-cv-3064 (E.D.N.Y. filed May 7, 2013) Consumer Financial Protection Bureau v. Morgan Drexen, Inc., Case No. SACV13-01267 JST (JEMx) (C.D. Cal. Filed Aug. 20, 2013) Consumer Financial Protection Bureau v. Meracord LLC and Linda Remsberg, Case No.

3:13-cv-05871 (W.D. Wash. Filed Oct. 3, 2013) 2013 Knowledge Symposium 35 Ancillary Products Focus has been on ancillary products (fraud prevention, credit report monitoring, and credit insurance) as a waste of money and thus ripe for unfair, deceptive or abusive practices CFPB has taken a very close look at the marketing of these products and has not only entered into several consent orders

with major credit card issuers, it has suggested it will do the same in the student loan industry 2013 Knowledge Symposium 36 Treatment of Servicemembers Focus on deceptive marketing and lending practices (no CFPB student loan order yet) State AGs Settlement with QuinStreet,

Inc. resulting from CFPB website review In the Matter of U.S. Bank National Association, File No. 2013-CFPB-003 In the Matter of Dealers Financial Services, LLC, File No. 2013-CFPB-0004 2013 Knowledge Symposium 37 Vendor Oversight Many consent orders (and some cases) involve at least an element of failed vendor oversight, particularly the ancillary product actions Issues included failure to monitor marketing of

benefits and failure to monitor delivery of benefits Consent orders required companies to strengthen management of third party providers (internal audit program with expanded auditing when potential violations are noted) 2013 Knowledge Symposium 38 Questions? 2013 Knowledge

Symposium 39

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