Professor Amy J. Schmitz joined forces with other consumer law experts Prof. Pamela Foohey of Indiana University Maurer School of Law and Prof. Angela Littwin of University of Texas School of Law to serve as the primary drafters of a response to the Consumer Financial Protection Bureau (CFPB)’s request for information regarding the CFPB’s reporting practices of consumer complaint information. The response explains how publicly releasing information about consumer complaints is essential to the CFPB’s primary purpose of ensuring that “markets for financial products and services are fair, transparent, and competitive.” The response primarily focuses on the benefits of the CFPB’s public consumer complaint database. The response also details the benefits of adding more data to the database, of continuing to publish reports based on complaint data, of publishing more tailored reports based on the complaint data, and of evaluating the design of the online interfaces through which consumers lodge complaints and access the database. These improvements will further enhance the operation of a fair, transparent, and efficient marketplace. The response has been submitted to the CFPB, but is also available to the public at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3190797.”
CFPB is Fighting the Good Fight
The Consumer Financial Protection Bureau (CFPB) today announced that its recent work resulted in $14 million in relief to more than 104,000 harmed consumers from January through June 2017. The Press release read in part:
“Today’s report, the 16th edition of Supervisory Highlights, covers CFPB supervision activities from January through June 2017, and shares observations in the areas of auto loan servicing, credit card account management, debt collection, deposits, mortgage origination, mortgage servicing, remittances, service providers, short-term small-dollar lending, and fair lending. Among the findings:
- Banks deceived consumers about checking account fees and overdraft coverage: One or more institutions deceived consumers by inaccurately describing when checking account service fees would be waived. One institution told consumers it would waive the fee if the customer met certain qualifications, including making 10 or more payments from the checking account during a statement cycle. In fact, only debit card purchases and debit card payments qualified toward the fee waiver. One or more institutions also misrepresented opt-in deposit overdraft services as extending to consumer payments by check, electronic funds transfers through the Automated Clearing House payment network, or recurring payments, when those transactions were not actually covered.
- Credit card companies deceived consumers about the cost and availability of pay-by-phone options: The Bureau’s examiners found that customer service representatives of at least one credit card company disclosed only costly pay-by-phone fees while omitting mention of much cheaper payment options. Failing to disclose less costly options can result in consumers being charged for services they don’t need.
- Auto lenders wrongly repossessed borrowers’ vehicles: Many auto loan servicers give borrowers options to avoid repossession of their vehicle if a loan is delinquent or in default. But the CFPB’s examiners found that one or more companies were repossessing vehicles after the repossession was supposed to be cancelled. Some lenders wrongfully listed the account as delinquent. In other instances, customer service representatives did not cancel the repossession order when feasible after borrowers made sufficient payments. Also, some repossession agents did not check the documentation beforehand to see if the repossession had been cancelled.
- Debt collectors improperly communicated about debt: Generally, debt collectors must get consent of the person owing the debt before discussing it with other parties. The Bureau’s examiners found that one or more third-party collectors did not confirm they had contacted the right person before starting collections, or wrongly attempted to collect from consumers who were not responsible for the debt. Also, one or more payday lenders, in collecting a debt, repeatedly called third parties, including personal and work references listed on the borrowers’ loan application. In some instances, even after being told to stop, these collectors called borrowers at work or asked third parties to relay messages to them. Such calls can lead to negative job consequences for the borrower, and risk improperly disclosing the default or delinquency to third parties.
- Mortgage companies failed to follow Know Before You Owe mortgage disclosure rules: CFPB examiners found that one or more companies overcharged closing fees to consumers and one or more companies wrongly charged application fees before consumers had agreed to the mortgage transaction. Examiners did find that in general, both banks and nonbanks were able to effectively implement and comply with the Know Before You Owe mortgage disclosure rule changes.
- Mortgage servicers failed to follow the Bureau’s servicing rules: Servicers are responsible for reviewing borrowers’ initial loss mitigation applications to determine what documents are missing. They must then tell borrowers what documents are missing, so that consumers can get a full evaluation of options they have available. One or more mortgage servicers offered a forbearance option to consumers to help them prevent foreclosure, but did not let the borrower know of their right to complete an application to be considered for other options. In addition, they did not exercise reasonable diligence in collecting information needed to complete the borrower’s application. Additionally, one or more servicers, through a vendor, also provided borrowers mortgage statements that failed to specifically list fees charged.
Today’s report shares information that companies can use to comply with federal consumer financial law. When CFPB examiners find problems, they alert the company and outline necessary remedies. These steps may include paying refunds or restitution, or taking actions to stop illegal practices and assure future compliance such as implementing new policies, or improving training or monitoring. When appropriate, the CFPB opens investigations for potential enforcement actions.”
For more information, see: today’s edition of Supervisory Highlights is available at: http://files.consumerfinance.gov/f/documents/201709_cfpb_Supervisory-Highlights_Issue-16.pdf
The CFPB is finally issuing its arbitration rule! I have not yet fully read the rule, but the substance seems to say the same as the proposed rule. It doesn’t make arbitration clauses unenforceable, just the use of arbitration clauses to preclude class actions. Essentially, the press release read in part:
“Today’s rule prohibits banks and other consumer financial companies from including mandatory arbitration clauses that block group lawsuits in any new contracts after the compliance date. The rule does not bar arbitration clauses outright. For these new contracts, however, these clauses have to say explicitly that they cannot be used to stop consumers from banding together to pursue relief as a group. The rule includes the specific language that financial companies must use. By restoring the ability of consumers to file or join group lawsuits, the rule gives companies more incentive to comply with the law. And the deterrent effect of such cases can more broadly influence the business practices of other companies as well.
Our new rule also requires companies to submit their claims, awards, and other information about the arbitration of individual disputes to the Bureau. This will help us better monitor arbitrations to make sure the process is fair for individual consumers. The companies are required to scrub these materials of personal information, and starting in July 2019, we will also post them on our website. This will promote transparency and give consumers, providers, and other regulators more insight into how arbitration works. “
We do not know where this will lead but it is a new step in arbitration law. Also, I again caution that the full rule is at: http://files.consumerfinance.gov/f/documents/201707_cfpb_Arbitration-Agreements-Rule.pdf.
CFPB warnings regarding college-sponsored accounts
Notably, some of the nation’s largest colleges and universities continue to maintain deals with large banks that allow for the marketing of products that may not be in the best financial interests of their students and that contain costly features. Key findings from the Bureau’s report and analysis of college marketing deals for prepaid and debit accounts include:
- Dozens of bank deals with colleges fail to limit costly fees: The Bureau found that dozens of deals with banks for school-sponsored accounts, including deals at some of the nation’s largest colleges and universities, do not place limits on account fees, such as overdraft fees, out-of-network ATM fees, or other common charges. These costly fees remain a concern at dozens of campuses, even as safer and more affordable alternatives are widely available at many other schools across the county.
- Some students may pay hundreds of dollars per year in overdraft fees: College students may pay hundreds per year in overdraft fees when using student banking products. This is particularly concerning given that a growing body of evidence suggests that small financial shocks—such as a few hundred dollars— can cause significant financial hardship for students and even deter college completion. Further, the Bureau’s analysis found that fees associated with school-sponsored accounts can collectively cost a college student body hundreds of thousands of dollars per year.
- Deals provide financial benefits for banks and schools but offer few, if any, financial benefits for students: The Bureau found marketing agreements between colleges and banks often contain extensive details about how the school and the bank can profit. Contracts frequently include details on revenue sharing and other payments made in exchange for exclusive marketing access to colleges’ student population. At the same time, many of these agreements do not require banks to offer safe and affordable accounts—and may drive students to high-cost products.
- Some schools fail to disclose key details of marketing deals with banks: Most colleges were required by the Department of Education to publicly disclose marketing contracts by Sept. 1, 2016. However, the CFPB found that some agreements publicly announced by banks or colleges were not included in the Department of Education’s public database of agreements, suggesting that some schools did not submit their agreements to the Department before the agency’s disclosure website launched.
This is a good time to remind readers that the CFPB published a Safe Student Account Toolkit to help colleges evaluate whether to co-sponsor a prepaid or checking account with a financial institution. The Safe Student Account Toolkit is available at: http://files.consumerfinance.gov/f/201512_cfpb_safe-student-account-toolkit.pdf
Understanding Pre-paid cards
Many people don’t realize that pre-paid cards and credit cards are not the same thing, although a pre-paid card may have a card network logo (like Visa, MasterCard, Discover, etc.) on it, this card is different from a credit card. When you use a prepaid debit card to make a purchase you are spending money that has already been paid to put on the card. Credit cards and per-paid cards have different advantages and disadvantages for the consumer and it’s important to understand them for more information on credit cards see my previous post .
Typically there are two types of pre-paid cards. “Open-loop” cards are prepaid cards which have a network logo on them (Visa, MasterCard, American Express, or Discover) and can be used at any location that accepts that network. “Closed-loop” cards don’t have a network logo and typically can only be used at one store or group of stores, like a Starbucks gift card. Pre-paid cards that you can only use for a specific purpose, such as a transit card, is also a closed-loop card.
Prepaid cards can be reloadable, meaning you can add more money to them, or non-reloadable, meaning you can’t add money to them. A consumer will put a set amount of money on the card say $50. That card then can be used to purchase up to $50 worth of goods or services from business who accept that pre-paid card. The pre-paid card would then be unable to purchase more goods or services until more money is put back onto the card. However, many pre-paid cards will have additional fees or restrictions associated with its use and it’s important for consumers to understand how these fees and restrictions work.
The most common fees associated with pre-paid cards are monthly maintenance fees and transaction fees. A monthly maintenance fee is exactly what it sounds like a fee charged each month to maintain the card and account. With transaction fees, a fee is deducted from the balance on the card each time you use your card or for using the card more than a certain amount each month. If a consumer uses their card frequently, these transaction fees can add up very quickly. You may pay more for a card with transaction fees than with a card with a monthly fee, so you consumers should think about how they will use their card before deciding what type of card to get. In addition, some prepaid cards will waive the monthly fee if the consumer makes at least a certain number of purchases, loads a minimum amount of money each month, or links the pre-paid account to a direct deposit.
Buying a Prepaid Debit Card? Read that arbitration clause!
Prepaid debit card use has increased drastically over the last decade. In 2016, Forbes projects that 29.2 million cards will be active, indicating an average growth rate of 19.7%. While some prepaid debit cards have no activation fees, monthly fees, or card replacement fee, other cards are less advantageous for consumers. Fees can often be up to $20 for activation, $4 for monthly maintenance, $5 to reload funds, $1 just to make a purchase, and the list goes on.
Often these cards contain mandatory arbitration provisions that take away a cardholder’s right to join a class action suit against this issuer or engage in a class-arbitration. As a result, it can be very expensive, costly, and time-consuming to assert your rights if you have a dispute with a prepaid debit card issuer. Most consumers do not read their cardholder agreements before buying a prepaid debit card, but savvy consumers do. Open the package and read the agreement or go online and look up the cardholder agreement for the card that you are thinking about buying.
While arbitration agreements may not seem like an important part of your purchase, they are. If you do have a dispute, your rights can drastically be affected by the “fine print”. Many consumers only care about arbitration provisions before it is too late.