On December 29, 2015, CFPB Director Richard Cordray responded to MBA President and CEO David Stevens’ desperate plea for clarity to address what the MBA claimed is a significant rejection by large aggregators and investors of correspondent lending channel loans for minor or technical TRID errors. In its December 21, 2015 letter to Director Cordray, Mr. Stevens noted that these minor and technical errors include “issues with the alignment or shading of forms, rounding errors, time stamps with the wrong time zone, or check boxes that are improperly completed on the LE.” The MBA feared that without some clarity from the CFPB disruption and liquidity issues would overwhelm the mortgage markets.
The U.S. Supreme Court has ruled that a California state court’s decision striking down a class action waiver in an arbitration agreement was an improper attempt to evade the Supreme Court’s 2011 landmark decision in AT&T Mobility LLC v. Concepcion. See DirecTV, Inc. v. Imburgia, 577 U.S. — (No. 14-462) (Dec. 14, 2015). Concepcion held that the Federal Arbitration Act (“FAA”) preempts state law to the extent it purports to bar the inclusion of class action waivers in arbitration agreements. Imburgia reiterates that holding and concludes that because the California court had interpreted the subject arbitration agreement in a manner “restricted to [the] field” of arbitration, as opposed to contracts generally, the interpretation could not withstand scrutiny under the FAA.
On November 17, 2015, Deputy Treasury Secretary Sarah Bloom Raskin devoted her remarks at the Clearing House Annual Conference to financial sector cybersecurity. She concluded with a list of recommendations for handling cybersecurity at financial institutions. In light of them, prudent in-house counsel, compliance officers, and security personnel may want to review their company’s cybersecurity plan to determine which of the deputy secretary’s recommendations are applicable. This Alert recounts Deputy Secretary Raskin’s “to-do list” and provides step-by-step suggestions regarding cybersecurity response plans in light of it.
To read the full alert, click here.
The Consumer Financial Protection Bureau’s (CFPB) latest enforcement action suggests that the CFPB may seek to use its administrative enforcement authority to pursue claims of unfair or deceptive conduct that would otherwise be time-barred and that pre-date the agency’s formation. The CFPB Director’s ultimate decision on these issues—and any court decisions that may result from any appeal—are likely to have widespread implications for the agency’s enforcement powers.
On November 18, the CFPB filed a Notice of Charges (essentially an administrative complaint) against Integrity Advance, LLC and its CEO and president, James R. Carnes. The Notice of Charges, which was made public last week, alleges that from May 15, 2008 through December 2012, Integrity Advance and Carnes engaged in unfair and deceptive conduct, and that Integrity Advance also committed violations of the Truth in Lending Act (TILA) and the Electronic Funds Transfer Act (EFTA) in the origination of online payday loans.
For a second consecutive year, global law firm K&L Gates LLP has been identified by general counsel as one of the top 10 law firms for client service excellence, according to the “2016 BTI Client Service 30” released today. K&L Gates is one of only six firms to rank in the top 10 for client service in each of the last two years.
To read the firm’s News Advisory, please click here.
After suing two of the nation’s largest for-profit school chains, ITT and Corinthian, the Consumer Financial Protection Bureau (CFPB) is continuing its push to police the for-profit school industry. Bridgepoint Education, Inc. recently disclosed that on August 10, 2015, Bridgepoint and Ashford University received Civil Investigative Demands (CIDs) from the CFPB related to the CFPB’s investigation to determine “whether for-profit post-secondary-education companies” have engaged in unlawful acts or practices related to the advertising, marketing or origination of private student loans. And on October 29, 2015, the CFPB filed a lawsuit to compel the Accrediting Council for Independent Colleges and Schools (ACICS) to comply with a CID that the CFPB had issued to it on August 25, 2015. That CID concerns an investigation into possible legal violations “in connection with accrediting for-profit colleges.” These two actions suggest the CFPB will continue to pursue the for-profit industry, including associated entities such as ACICS that provide accreditation to such schools, apparently without concern over possibly exceeding its jurisdictional limits. This alert reviews the CFPB’s cases against for-profit schools to date and discusses the implications of the CIDs issued to Bridgepoint and ACICS.
The CFPB recently released its fall 2015 Rulemaking Agenda, which suggests that the CFPB may be looking to exert its supervisory authority over certain marketplace lenders. If that is in fact the case, it would represent the agency’s first foray into this rapidly-developing credit marketplace.
The Rulemaking Agenda is released twice a year — in the spring and fall — and is where the CFPB identifies its rulemaking priorities for the short and long term. The fall Agenda contains a list of the various substantive rulemakings already underway at the CFPB — involving arbitration provisions, payday lending, prepaid accounts, overdrafts, debt collection, mortgage servicing, and the statutorily-required rule on women-owned, minority-owned, and small businesses data collection. These have all been publicly discussed by the CFPB before, and so they are no surprise. Read More
The CFPB recently revised its policy on Appeals of Supervisory Matters. Supervisory appeals are an avenue for supervised entities to obtain a second opinion from CFPB headquarters about examiners’ findings. However, the Bureau’s policy excludes the most significant matters — specifically, all aspects of enforcement — from this process.
In 1994, Congress required the federal prudential regulators to establish “an independent intra-agency appellate process” that is “available to review material supervisory determinations,” with “appropriate safeguards … for protecting the appellant from retaliation by agency examiners.”
Although the Bureau is not expressly subject to this congressional mandate, it established a similar appeals process in 2012. The Bureau’s policy allows entities to appeal less-than-satisfactory compliance ratings (a 3, 4, or 5) and adverse findings in a supervisory letter or examination report, but not the supervisory letter or examination report itself.
None of the regulators allow a supervised entity to use the appeals process to contest the decision to pursue an enforcement action. But in the case of the OCC, “[w]hile banks may not appeal a decision by [examiners] to pursue a formal enforcement-related action, banks may appeal conclusions in” an exam report that underlies a potential enforcement action.
California Governor Jerry Brown recently signed two bills into law that will provide Finance Lender licensees with greater flexibility in the ways in which they can obtain loan leads. One bill broadens the category of people who may refer commercial loan customers to licensees, and the other expands the role of a finder for certain unsecured loans. Both bills take effect in January 2016.
Companies in receipt of a civil investigative demand (CID) from the Consumer Financial Protection Bureau (CFPB) are required to take a number of quick and important actions and make decisions that can have significant impact on the course and tenor of what will likely be a months- or years-long investigation. This can be a frustrating and high-pressure process, particularly given the limited practical options available under the CFPB’s rules for a CID recipient to effectively seek relief from what oftentimes can be broad and onerous requests. In particular, because of the CFPB’s policy to publicly identify any person or entity that files a petition to modify or set aside a CID, recipients of a CID generally forgo that route and instead are left to rely upon the reasonableness of the staff attorney and supervisor assigned to the matter. A recent decision in the U.S. District Court for the District of Columbia, however, may provide some measure of relief for CID recipients.