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CFPB settles with auto servicer over deceptive practices
On October 13, the CFPB announced a settlement with the Texas-based auto-financing subsidiary of a Japanese automobile manufacturer to resolve allegations that the servicer violated the Consumer Financial Protection Act by engaging in illegal repossession and collection practices. The CFPB alleged that the servicer engaged in unfair and deceptive practices by (i) wrongfully repossessing vehicles even though customers made payments to decrease their delinquency to less than 60 days past due or kept a promise to pay; (ii) limiting the ability of borrowers who pay over the phone to select payment options with significantly lower fees; (iii) making false statements in loan extension agreements, which “created the net impression that consumers could not file for bankruptcy”; and (iv) knowing its repossession agents were charging customers upfront storage fees before returning personal property left inside repossessed cars.
Under the terms of the consent order, the servicer must pay a $4 million civil money penalty, as well as up to $1 million in consumer redress. The servicer must also credit any outstanding fees stemming from the repossession and pay consumers redress for each day it wrongfully held their vehicles. The servicer is also ordered to, among other things, (i) cease using language that creates the impression that customers may not file for bankruptcy; (ii) conduct a quarterly review to identify and remediate any future wrongful repossessions; (iii) adopt policies and procedures to correct its repossession practices; (iv) prohibit its repossession agents from charging fees to get personal property returned; and (v) clearly disclose phone payment fees to consumers.
G7 urges financial services sector to mitigate ransomware attacks
On October 13, the member nations of the G7 issued a joint statement stressing their commitment to working with the financial services sector to address and mitigate ransomware attacks. The statement highlights the recent increase in ransomware attacks over the last few years and notes that the scale, sophistication, and frequency has intensified as attackers “demand payments primarily in virtual assets to facilitate money laundering.” These ransom payments, the G7 warns, “can incentivize further malicious cyber activity; benefit malign actors and fund illicit activities; and present a risk of money laundering, terrorist financing, and proliferation financing, and other illicit financial activity.” The G7 reminds financial institutions that paying ransom is subject to anti-money laundering/combating the financing of terrorism (AML/CFT) laws and regulations, and warns non-financial services companies that providing certain services, such as money transfers, may subject them to the same obligations. The G7 further urges entities to follow international obligations for reporting ransom payments as suspicious activity and to take measures to prevent sanctions evasions. Moreover, the G7 recommends that entities implement standards set by the Financial Action Task Force to reduce criminals’ access to and use of financial services and digital assets, and emphasizes the importance of implementing effective programs to “hold and exchange information about the originators and beneficiaries of virtual asset transfers.” The G7 plans to share information related to ransomware threats, explore opportunities for coordinated targeted financial sanctions, and encourage a global implementation of AML/CFT obligations on virtual assets and virtual asset service providers.
Debt collector settles with CFPB for $15 million
On October 15, the CFPB announced a proposed settlement with the largest U.S. debt collector and debt buyer and its subsidiaries (collectively, “defendants”), resolving allegations that the defendants violated the terms of a 2015 consent order related to their debt collection practices. As previously covered by InfoBytes, the Bureau filed an action against the defendants in September alleging that they collected more than $300 million from consumers by violating the terms of the 2015 consent order—and again violating the FDCPA and CFPA—by, among other things, (i) filing lawsuits without possessing certain original account-level documentation (OALD) or first providing the required disclosures; (ii) failing to provide debtors with OALD within 30 days of the debtor’s request; (iii) filing lawsuits to collect on time-barred debt; and (iv) failing to disclose that debtors may incur international-transaction fees when making payments to foreign countries, which “effectively den[ied] consumers the opportunity to make informed choices of their preferred payment methods.”
The stipulated final judgment, if entered by the court, would require the defendants to pay nearly $80,000 in consumer redress and a $15 million civil money penalty. Moreover, among other things, the defendants are subject to a five-year extension of certain conduct provisions of the 2015 consent order and must disclose to consumers the potential for international-transaction fees and that the fees can be avoided by using alternative payment methods.
Brazilian investment company agrees to pay over $284 million to settle FCPA violations
On October 14, the DOJ announced it had entered into a plea agreement with a Brazil-based investment company that owns companies primarily involved in the meat and agricultural business, in which the company agreed to pay a criminal penalty of over $256 million related to violations of the FCPA’s anti-bribery provisions. According to the DOJ, between 2005 and 2017, to execute the bribery scheme in Brazil, the company “conspired with others to violate the FCPA by paying bribes to Brazilian government officials in order to ensure that Brazilian state-owned and state-controlled banks would enter into debt and equity financing transactions with [the company and company]-owned entities, as well as to obtain approval for a merger from a Brazilian state-owned and state-controlled pension fund.” Specifically, between 2005 and 2014, the company paid or promised more than $148 million in bribes to high-level Brazilian government officials, in exchange for receiving hundreds of millions of dollars in financing from a Brazilian state-owned and state-controlled bank. In another instance, the company paid more than $4.6 million in bribes to a high-ranking executive of a Brazilian state-controlled pension fund in exchange for the fund’s approval of a significant merger that benefited the company. The company also paid approximately $25 million in bribes to a high-level Brazilian government official in order to obtain hundreds of millions of dollars of financing from a different Brazilian state-owned and state-controlled bank. Company executives also “used New York-based bank accounts to facilitate the bribery scheme and to make corrupt payments, purchased and transferred a Manhattan apartment as a bribe, and met in the United States to discuss and further aspects of the illegal scheme.”
The announcement noted that the company did not voluntarily disclose the violations but still received partial credit and a 10 percent reduction off the U.S. Sentencing Guidelines fine range for its remediation and cooperation with the DOJ’s investigation. Under the terms of the plea agreement, the company will pay the U.S. approximately $128.2 million of the $256 million criminal penalty. The remaining portion will be offset by $128.2 million in penalties the company will pay pursuant to a resolution with the Brazilian authorities. The company also agreed to continue to cooperate with the DOJ in any ongoing or future criminal investigations, and will enhance its compliance program, and report on the implementation of its enhanced compliance program for a three-year period.
The SEC simultaneously announced a resolution in a related matter with the company, along with a majority-owned subsidiary and two Brazilian nationals who own the company and the subsidiary. According to the SEC, the Brazilian nationals engaged in a bribery scheme to facilitate the subsidiary’s acquisition of a U.S. food corporation. The SEC charged the two companies and individuals with violations of the books and records and internal accounting provisions of the FCPA. Under the terms of the cease and desist order, the subsidiary must pay approximately $27 million in disgorgement and the two Brazilian nationals are required to each pay civil penalties of $550,000. All parties also agreed to self-report on the status of certain remedial measures for a three-year period.
OFAC sanctions Nicaraguan bank and government officials
On October 9, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions pursuant to Executive Order 13851 against a Nicaraguan financial institution, as well as two government officials for supporting the Ortega regime, which “continue[s] to undermine Nicaragua’s democracy.” According to OFAC, the financial institution served as a tool for Ortega to “siphon money from [] $2.4 billion in oil trusts and credit portfolios…in order to remain in power and pay a network of patronage.” As a result, all property and interests in property of the sanctioned individuals and entities, and any entities owned 50 percent or more by such persons subject to U.S. jurisdiction, are blocked and must be reported to OFAC. U.S. persons are also generally prohibited from entering into transactions with the sanctioned persons.
OFAC sanctions 18 major Iranian banks
On October 8, the U.S. Treasury Department announced that the Secretary of the Treasury, in consultation with the Secretary of State, sanctioned 18 major Iranian banks, consistent with E.O. 13902, which identified Iran’s financial sector “as an additional avenue that funds the Iranian government’s malign activities.” E.O. 13902 provides Treasury with the authority to sanction any Iranian financial institution. The sanctioned banks include 16 banks operating in Iran’s financial sector and one bank that is owned or controlled by a sanctioned Iranian bank. In addition, OFAC sanctioned an Iranian military-affiliated bank under Treasury’s counter-proliferation authority pursuant to E.O. 13382. “Today’s action to identify the financial sector and sanction eighteen major Iranian banks reflects our commitment to stop illicit access to U.S. dollars,” Treasury Secretary Steven T. Mnuchin stated. OFAC noted that the sanctions under E.O. 13902 do not affect existing authorizations and exceptions for humanitarian trade (covered by a Buckley Special Alert), “which remain in full force and effect for these seventeen banks.”
As a result, all property and interests in property of the designated entities that are in the U.S. or in the possession or control of U.S. persons must be blocked and reported to OFAC. U.S. persons are also generally prohibited from engaging in transactions with the designated entities. OFAC is providing a 45-day period for non-U.S. persons to wind down non-humanitarian transactions that may become subject to sanctions as a result of the designations. OFAC further warned that “financial institutions and other persons that engage in certain transactions or activities with the sanctioned entities after a 45-day wind-down period may expose themselves to secondary sanctions or be subject to an enforcement action.”
Concurrent with the action, OFAC issued General License L, which outlines transactions and activities involving the sanctioned entities “that are authorized, exempt, or otherwise not prohibited under the Iranian Transactions and Sanctions Regulations.” Additional guidance is also provided in recently issued FAQs.
CSBS and others release ransomware mitigation tool
On October 13, the Conference of State Bank Supervisors (CSBS), joined by the Bankers Electronic Crimes Task Force and the U.S. Secret Service, released a self-assessment tool to help supervised financial institutions mitigate the risk of ransomware attacks. The tool will also help financial institutions assess how well they are managing risks and identify gaps for increasing security. CSBS developed the tool in conjunction with the U.S. Secret Service and the Bankers Electronic Crimes Task Force as incidents of ransomware have been on the rise and continue to spread.
Illinois adopts regulations for student loan servicers
On October 9, the Illinois Department of Financial and Professional Regulation adopted regulations implementing provisions of the Student Loan Servicing Right Act related to licensing fees, operations, and supervision. Among other things, the provisions (i) establish license, examination, and hearing fees, as well as assessment costs; (ii) require servicers to file notice within 10 business days of any application changes; (iii) require servicers to maintain websites and toll-free telephone services for borrowers and cosigners to access information on existing loans; (iv) require servicers to provide borrowers with information on alternative repayment and loan forgiveness options; (v) outline requirements related to the maintenance of account information, payment processing, cosigner payments, and books and records; (vi) provide record retention requirements; and (vii) address the preparation of independent audit reports and examination ratings. The regulations are effective immediately.
7th Circuit: No FDCPA liability when collection letter leaves future ambiguity
On October 8, the U.S. Court of Appeals for the Seventh Circuit affirmed dismissal of an FDCPA action, concluding that itemized breakdowns in collection letters that include zero balances for interest and other charges would not confuse or mislead the reasonable “unsophisticated consumer” to believe that future interest or other charges would be incurred if the debt is not settled. A creditor charged-off a consumer’s credit card debt and informed the consumer that it would no longer charge interest or fees on the account. The debt was reassigned to a collection agency. Consistent with the original creditor’s communication with the consumer, the collection agency sent a collection letter to the consumer that included an itemized breakdown reflecting a zero balance for “interest” and “other charges.” The “balance due at charge-off” and “current balance” were both listed as $425.86. The letter offered to resolve the debt and stated that no interest would be added to the account balance through the course of collection efforts. The consumer filed a putative class action alleging that the collection letter implied that the original creditor would begin to add interest and fees to the charged-off debt if the collection agency stopped its collection efforts in the future and, therefore, the debt collector violated the FDCPA by using false, deceptive and misleading representations to collect a debt, and failed to disclose the amount of the debt in a clear and unambiguous fashion. The district court dismissed the action, concluding that the collection letter accurately disclosed the amount of the debt.
On appeal, the 7th Circuit agreed with the district court. Specifically, according to the opinion, the appellate court concluded that the breakdown of charges in the letter “cannot be construed as forward looking,” rejecting the consumer’s argument that including zero balances implies that future interest or charges could be incurred if he did not accept the collector’s offer. Moreover, the appellate court noted that when a collection letter “only makes explicit representations about the present that are true, a plaintiff may not establish liability on the basis that it leaves ambiguity about the future.” The statement in the letter that no interest would accrue while the collector pursued the debt is not misleading because it “makes no suggestion regarding the possibility that interest will or will not be assessed in the future if [the debt collector] ends its collection efforts.”
District court: Credit reporting restrictions preempted by FCRA
On October 8, the U.S. District Court for the District of Maine granted a trade association’s motion for declaratory judgment against the Maine attorney general and the superintendent of Maine’s Bureau of Consumer Credit Protection (collectively, “defendants”) after it sued the state for enacting amendments to the Maine Fair Credit Reporting Act. The trade association—whose members include the three nationwide consumer credit reporting agencies (CRAs)—filed the lawsuit concerning the 2019 amendments, which, among other things, place restrictions on how medical debts can be reported by the CRAs and govern how CRAs must investigate debt that is allegedly a “product of ‘economic abuse.’” The trade association argued that the amendments, which attempt to regulate the contents of an individual’s consumer report, are preempted by the federal Fair Credit Reporting Act (FCRA). The parties’ main contention was over how broadly the language under FCRA Section 1681t(b)(1)(E) concerning “subject matter regulated under . . . [15 U.S. C. § 1681c] relating to information contained in consumer reports” should be understood. Plaintiffs argued that the language should be read to encompass all claims relating to information contained in consumer reports. The defendants, on the other hand, claimed that § 1681c should be read “as an itemized list of narrowly delineated subject matters, some of which relate to information contained in consumer reports, and only find preemption where a state imposes a requirement or prohibition that spills into one of those limited domains,” which in this case, the defendants countered, the amendments do not.
The court disagreed, concluding that, as a matter of law, the amendments are preempted by § 1681t(b)(1)(E). According to the court, Congress’ language and amendments to the FCRA’s structure “reflect an affirmative choice by Congress to set ‘uniform federal standards’ regarding the information contained in consumer credit reports,” and that “[b]y seeking to exclude additional types of information” from consumer reports, the amendments “intrude upon a subject matter that Congress has recently sought to expressly preempt from state regulation.”