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  • Servicemember and bank settle SCRA issue, dismiss Supreme Court request

    Courts

    On January 5, the Supreme Court dismissed a servicemember’s petition for a writ of certiorari after receiving a Stipulation of Dismissal from both parties who agreed to settle the dispute. As previously covered by InfoBytes, the servicemember filed the petition after the U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s decision that the servicemember was not entitled to the protections against non-judicial foreclosures under the Servicemembers Civil Relief Act (SCRA). The lower court concluded that because the servicemember “incurred his mortgage obligation during his service in the Navy, the obligation was not subject to SCRA protection” even through the servicemember, after a discharge period, later re-enlisted with the Army.

    Courts U.S. Supreme Court SCRA Foreclosure Settlement Fourth Circuit Appellate

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  • Supreme Court to review whether SEC’s ALJ appointment process is constitutional

    Courts

    On January 12, the U.S. Supreme Court announced it had granted a writ of certiorari in Lucia v. SEC—a case which challenges the SEC’s practice of appointing administrative law judges (ALJs) and moves the Court to consider whether the ALJ appointment practice violates the Appointments Clause (Clause) of the Constitution. In Lucia, the petitioner—against whom an ALJ had issued sanctions, imposed a lifetime securities ban, and fined $300,000—appealed the decision to the D.C. Circuit Court of Appeals, and argued that ALJs are officers of the United States and therefore subject to provisions of the Clause, including the requirement that officers be appointed by the president, the head of a department, or a court of law. However, the D.C. Circuit upheld the ALJs sanctions and ruled that ALJs are not “inferior officers” subject to the Clause. In his petition for certiorari, the petitioner claimed that because he was subjected to a “trial before an unconstitutionally constituted tribunal,” the ALJ’s decision should be dismissed or a new hearing granted.

    Notably, last November, the Solicitor General of the United States submitted a brief on behalf of the SEC to the Supreme Court, arguing that the SEC views in-house judges as officers of the U.S. government—not mere employees—who are subject to the Clause. Additionally, on November 30, the SEC ratified the appointment of its ALJs to resolve “any concerns that administrative proceedings presided over by its ALJs violate the Appointments Clause.”

    A decision by the Court may resolve a split between the D.C. Circuit, which has ruled that ALJs are not “inferior officers” of the U.S. government, and the Tenth and Fifth Circuits, which disagreed and ruled separately that ALJs are officers.

    See also previous Lucia coverage in an InfoBytes blog post and a Special Alert concerning the effect a decision in Lucia may have on the ongoing litigation in PHH v. CFPB.

    Courts SEC ALJ U.S. Supreme Court PHH v. CFPB

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  • Ninth Circuit: payday lenders not vicariously liable under TCPA for text messages

    Privacy, Cyber Risk & Data Security

    On January 10, the U.S. Court of Appeals for the Ninth Circuit affirmed that three payday lenders and two marketing companies (together, the defendants) did not indirectly violate the Telephone Consumer Protection Act (TCPA) by accepting marketing help from a separate lead generator company that used a program to send text-messaged advertisements. In upholding the district court’s decision, the three judge panel concluded that “it is undisputed” that the defendants did not enter into a contract with the lead generator company, and further, that the lead generator company did not act as their agent or purported agent. The plaintiff-appellant that received the text-messaged advertisement—which directed consumers who clicked on the link within the message to a loan application website controlled by one of the defendants—filed a putative class action complaint, certified by the district court, against the defendants to allege that they were vicariously liable for sending the text messages in violation of the TCPA. Specifically, the plaintiff-appellant claimed the defendants ratified the lead generator company’s actions when they accepted leads even though they knew the leads were being generated through text messages. The district court granted summary judgments for all the defendants, and ruled they were not vicariously liable for the lead generator company’s actions, and that additionally, the plaintiff-appellant failed to present evidence that defendants had actual knowledge that the texts were being sent in violation of the TCPA. The appellate panel also noted that because one of the defendants—a contracted lead provider—had “no ‘knowledge of facts that would have led a reasonable person to investigate further,’ . . . [the defendant] cannot be deemed to have ratified [the] actions and therefore is not vicariously liable.”

    Privacy/Cyber Risk & Data Security Courts Ninth Circuit Appellate TCPA Payday Lending

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  • CFPB succession update: Judge denies English’s motion

    Federal Issues

    On January 10, Judge Timothy Kelley denied CFPB Deputy Director Leandra English’s request for a preliminary injunction to prevent OMB Director Mick Mulvaney from serving as the acting director of the CFPB. In his opinion, Judge Kelley emphasized that English failed to show a likelihood of success on the merits because, among other reasons, “[t]he best reading of the two statutes [at issue] is that Dodd-Frank requires that the Deputy Director ‘shall’ serve as acting Director, but that under the [Federal Vacancies Reform Act] the President ‘may’ override that default rule.” Additionally, in finding that English failed to demonstrate irreparable harm, Judge Kelley stated that “[t]he CFPB is not and will not be shuttered; it continues to operate with Mulvaney functioning as acting director” with “the backing of the CFPB’s General Counsel and senior management.” He concluded his opinion by stating:

    There is little question that there is a public interest in clarity here, but it is hard to see how granting English an injunction would bring about more of it….  The President has designated Mulvaney the CFPB’s acting Director, the CFPB has recognized him as the acting Director, and it is operating with him as the acting Director.  Granting English an injunction would not bring about more clarity; it would only serve to muddy the waters.

    The decision follows a hearing on December 22, 2017, where Judge Kelley heard arguments from both parties, as previously covered by InfoBytes. While English’s requests have now been denied twice, as expected, she has filed an appeal to the U.S. Court of Appeals for the D.C. Circuit, which is also currently considering the challenge to the CFPB’s constitutionality by PHH Corporation.

    In addition to the English litigation, Mulvaney and President Trump face similar arguments in a complaint brought by a credit union in the U.S. District Court for the Southern District of New York, as previously covered by InfoBytes here. On December 22, 2017, the defendants responded to the complaint with a motion to dismiss, arguing that the credit union does not have standing to sue, will not succeed on the merits, and will not suffer irreparable harm from the appointment. In its reply, the credit union added an additional argument that the CFPB’s decision to slow HMDA enforcement will remove the compliance incentive and HMDA data “will cease being reliable” to show compliance with the Community Reinvestment Act (“CRA”). The credit union asserts that banks deposit at their institution to meet CRA objectives but may cease to do so without an incentive to comply with HMDA. A hearing is scheduled for January 12. 

    As previously covered by InfoBytes, the CFPB issued a statement that supervisory examinations of 2018 HMDA data will be “diagnostic” to help “identify compliance weaknesses, and will credit good-faith compliance efforts” and that it does not intend to impose penalties with respect to errors reported in the 2018 data.

    Federal Issues CFPB Succession Courts HMDA Congressional Review Act

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  • Illinois Appellate Court rules generic card agreement cannot compel arbitration

    Courts

    On January 4, the Illinois Appellate Court (Fifth District) handed down an opinion affirming a circuit court’s decision to deny a debt collection company’s motion to dismiss and compel arbitration. In 2015, the company filed complaints against defendants-counterplaintiffs for failing to make payments on their accounts and entering into default. In class action counterclaims, the defendants-counterplaintiffs challenged the debt collection company’s alleged practice of suing to collect debt purchased from others without “sufficient proof of ownership of the debt,” and sought damages for purported violations of the Fair Debt Collection Practices Act, among others. The debt collection company argued that because the class action counterclaims fell within the scope of a binding card agreement—which included an arbitration clause and a class action waiver provision—the class claims should be barred and dismissed. The circuit court considered whether the agreements entered into between the company and the defendants-counterplaintiffs were subject to arbitration, and determined that the company failed to demonstrate that the card agreement containing the arbitration clause was received by, agreed to, or otherwise applied to the consumers within the agreements governing the accounts in question. The appellate court affirmed and concluded that, upon review, the company’s appeal failed to “demonstrate when or how the generic [c]ard [a]greement containing the arbitration provision pertained to [defendants-counterplaintiffs] or that it was communicated . . . prior to subsequent credit card use.”

    Courts Arbitration Debt Collection State Issues FDCPA

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  • U.S. government, national bank parties enter $5 million False Claims Act settlement

    Courts

    On January 5, the U.S. Government reached a $5 million settlement with a national bank and its affiliates (together, the bank parties) to resolve a lawsuit concerning allegations that the bank parties violated the False Claims Act (FCA) by engaging in improper foreclosure-related practices. The settlement is not an admission of liability by the bank parties. Specifically, as previously covered in InfoBytes, the lawsuit primarily alleged that the bank parties knowingly used rubber-stamped surrogate signed endorsements and false mortgage assignments to support false claims for mortgage insurance from the Federal Housing Administration. The lawsuit also asserted a reverse FCA claim alleging that the bank parties made false statements when entering into the 2012 National Mortgage Settlement. The U.S. Government, the bank parties, and the relator who initially brought the suit stipulated to the dismissal with prejudice concerning 39 “Implied Certification and False Statement Claims,” along with all claims brought or that could have been brought by the relator, but without prejudice as to any other claims that could be brought by the U.S. Government. Under the terms of the settlement agreement, the bank parties are required to pay $3.4 million to the U.S. Government—$891,000 of which will be paid to the relator who originally brought the suit. In addition, the bank parties will pay the relator an additional $1.6 million in attorneys’ fees and litigation costs and expenses.

    Courts Foreclosure Mortgage Servicing Mortgages Settlement False Claims Act / FIRREA FHA

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  • Ninth Circuit Rules Banning Credit Card Surcharges Violates First Amendment

    Courts

    On January 3, the U.S. Court of Appeals for the Ninth Circuit issued an opinion affirming a district court decision that a California law banning credit card surcharges violated the First Amendment because it was an unconstitutional restriction of speech and unconstitutionally vague. California Civil Code Section 1748.1(a) prohibits retailers from imposing surcharges on customers who pay with credit cards, but allows businesses to offer discounts for cash or debit card payments. In 2014, plaintiffs challenged the constitutionality of the law, and the district court granted summary judgment in favor of the plaintiffs and permanently enjoined its enforcement, holding that the statute violated the First Amendment because it amounted to “a content-based restriction on commercial speech rather than an economic regulation.” The California Attorney General's Office appealed.

    The Ninth Circuit affirmed the district court decision, finding that California Civil Code Section 1748.1(a) could not withstand intermediate scrutiny because (i) the plaintiffs’ speech was not misleading, (ii) Section 1748.1(a) failed to promote California’s interest in protecting consumers from deception, and (iii) Section 1748.1(a) was more extensive than necessary to achieve California’s stated interest for the regulation. Though the panel affirmed the district court’s ruling, it also modified the district court’s injunction to apply only to the plaintiffs, and only with respect to the specific pricing practice they seek to employ.

    See previous InfoBytes coverage here on court decisions regarding credit card surcharges

    Courts Ninth Circuit Credit Cards

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  • Ninth Circuit Denies Arbitration, Lacks Jurisdiction to Review Anti-SLAPP Motion

    Courts

    On December 27, the U.S. Court of Appeals for the Ninth Circuit issued an opinion affirming the district court’s decision to deny the defendants’ request to compel arbitration against plaintiffs who elected to participate in the defendants’ administration of California’s “Bad Check Diversion Program” (BCD Program). The order is the result of two consolidated appeals from separate district court orders related to a putative class action lawsuit claiming that the defendants violated the federal Fair Debt Collection Practices Act (FDCPA) and California Unfair Competition Law in their administration of the BCD Program. The BCD Program, administered by private entities in agreement with a local district attorney, provides consumers accused of writing bad checks the opportunity for deferred prosecution. Under the BCD Program, the defendants sent notices on official district attorney letterhead offering the plaintiffs the chance to avoid criminal prosecution under California’s bad check statute if they participated in the BCD Program and paid specified fees. The notices also included an arbitration clause. In the class action lawsuit, plaintiffs alleged that defendants violated the law by misleading plaintiffs into thinking law enforcement sent the letters and by allegedly including false threats in the letters that implied that failure to pay would result in arrest or imprisonment.

    In response to the lawsuit, defendants filed a motion under California’s Anti-SLAPP law, which protects defendants from strategic lawsuits against public participation (SLAPP), to strike the plaintiffs’ state law claims as well as a motion to compel arbitration pursuant to the arbitration clause in the notices. With respect to the defendant’s motion to compel arbitration, the panel opined that the BCD Program is not subject to Federal Arbitration Act (FAA) provisions because it is “an agreement between a criminal suspect and the local authorities about how to resolve a potential state-law criminal violation” rather than a “private or commercial contract.” In response to the defendants’ Anti-SLAPP motion, the appellate panel concluded that it “lacked jurisdiction to review the district court’s denial of defendants’ Anti-SLAPP motion because, under the terms of the state statute, such a denial in a case deemed [by the lower court] to be filed in the public interest is not immediately appealable.”

    The panel remanded to the district court for further proceedings.

    Courts Ninth Circuit Arbitration FDCPA

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  • District Court Allows Government to Intervene in False Claims Act Litigation

    Courts

    On January 3, the District Court for the Southern District of Florida granted the U.S. Government’s motion to intervene in a False Claims Act (FCA) lawsuit against a national bank. The lawsuit, filed by a foreclosure attorney and relator, alleges that the national bank submitted false claims in violation of the FCA in two ways. First, the lawsuit alleges that the national bank knowingly used rubber-stamped surrogate signed endorsements and false mortgage assignments to support false claims for mortgage insurance from FHA. Second, the lawsuit asserts a reverse FCA claim alleging that the national bank made false statements when entering into the 2012 National Mortgage Settlement. On December 21, the U.S. Government requested to intervene to assist in “effectuating and formalizing” a proposed settlement between the relator and the national bank that would resolve the matter.

    Courts False Claims Act / FIRREA Mortgage Servicing Mortgages Foreclosure National Mortgage Servicing Settlement

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  • Arguments Heard in English Litigation; CFPB Announces Relaxed Compliance Requirements for HMDA; Other Proposed Rulemakings

    Federal Issues

    On December 22, Judge Timothy Kelley heard arguments from both parties related to Leandra English’s litigation against President Trump and Mick Mulvaney. Judge Kelley did not rule on the matter at the close of the hearing. As previously covered by InfoBytes, English filed an amended complaint for declaratory and injunctive relief and a motion for preliminary injunction on December 6.

    In response to English’s new arguments, the defendants filed an opposition motion on December 18.  Among other things, the response counters an argument—raised by English for the first time in her amended complaint—that the Federal Vacancies Reform Act (FVRA) cannot be used to appoint an acting CFPB Director because the Director is also a member of the FDIC. Defendants responded that the FVRA provision excluding appointments to independent multi-member boards or commissions only applies to direct appointments and not to positions that serve as “ex officio” members, as the CFPB Director does on the FDIC. The defendants go on to explain that English’s interpretation would prevent the use of FVRA to fill multiple Cabinet and other high-ranking Executive Branch positions that serve as ex officio members of independent agencies. The defendants also alleged that English failed to satisfy the requirements of the federal quo warranto statute – the exclusive means, according to the defendants, for directly challenging Mulvaney’s authority to perform as Acting Director of the CFPB. English replied to the defendant’s opposition motion on December 21.   

    Throughout the week, the CFPB took action regarding current and future rulemakings:

    HMDA. On December 21, the CFPB issued a statement regarding compliance with the Home Mortgage Disclosure Act (HMDA) final rule and amendments to the HMDA final rule. Although the Bureau did not delay the January 1, 2018 effective date as some had hoped, it acknowledged the difficulties of coming into compliance with the new requirements, stating that the Bureau “does not intend to require data resubmission unless data errors are material or assess penalties with respect to errors for data collected in 2018 and reported in 2019.” According to the CFPB, compliance with the HMDA requirements pose “significant system and operational challenges” and therefore, institutions should focus the 2018 data collection on identifying areas for improvement in their HMDA compliance management systems for future years. The Bureau further advised that it expects that supervisory examinations of 2018 HMDA data will be “diagnostic” to help “identify compliance weaknesses, and will credit good-faith compliance efforts.” However, institutions will still use the CFPB’s new HMDA Platform for data collected in 2017.  The FDIC and the OCC issued similar announcements, Financial Institution Letter FIL-63-2017 and OCC Bulletin 2017-62 respectively, and other regulators are expected to do the same. 

    The Bureau’s stated intent to focus on “good-faith compliance efforts” and “material” errors in the early days of the new HMDA requirements is similar to the approach taken for implementation of the Ability-to-Repay/Qualified Mortgage Rule and the TILA-RESPA Integrated Disclosure Rule.  While this flexible approach is generally beneficial for lenders and consumers, it does produce some uncertainty over what will be considered “good faith” or “material.”

    The Bureau also announced its intent to engage in additional HMDA rulemaking that may (i) re-examine the criteria determining whether institutions are required to report data; (ii) adjust the requirements related to reporting certain types of transactions; and (iii) re-evaluate the required reporting of additional information beyond the data points required in HMDA, as amended by the Dodd-Frank Act.

    Prepaid Accounts. On December 21, the CFPB also issued a statement on the final rule covering prepaid accounts and the proposed amendments to that rule. In the statement, the CFPB announced that it intends to adopt final amendments “soon after the new year” and that it expects to further extend the April 1, 2018 effective date to allow more time for implementation. The Bureau did not give details on the nature of the amendments or the length of the expected extension.

    Debt Collection. On December 14, OMB released a Notice of Action, which reflected that the CFPB withdrew its plan to conduct a survey related to debt collection disclosures of 8,000 individuals. According to OMB’s notice, the CFPB withdrew the plan because “Bureau leadership would like to reconsider the information collection in connection with its review of the ongoing related rulemaking.”

    Federal Issues CFPB Succession Courts CFPB Debt Collection Prepaid Rule HMDA

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