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  • Federal District Court Holds New York's EIPA Does Not Permit Private Right of Action for Judgment Debtors to Sue Their Banks

    Consumer Finance

    On March 2, the U.S. District Court for the Southern District of New York dismissed a putative class action brought by judgment debtors seeking money damages from their bank for allegedly violating New York’s Exempt Income Protection Act (EIPA), holding that the statute does not support a private right of action. Cruz v. TD Bank, N.A., No. 10-8026, 2012 WL 694267 (S.D.N.Y. Mar. 2, 2012). The EIPA provides a special exemption from satisfaction of money judgments for certain amounts and types of a debtor’s income, including income derived from social security, public assistance, and disability benefits. In Cruz, the judgment debtor plaintiffs alleged that their bank failed to provide them and other members of the putative class with the notices and exemptions forms as required by the EIPA, and asserted that the bank unlawfully restrained their accounts and charged them various fees in violation of the statute. After examining the plain text, legislative history, and purpose of the EIPA, the court held that judgment debtors had neither an express nor implied right to sue their bank for money damages under the statute. Instead of creating a right of action for suing a bank, the court concluded that the EIPA merely permitted judgment debtors and creditors to bring claims against each other. In addition to dismissing the EIPA claim, the court dismissed the plaintiffs’ common law fraud, fiduciary duty, unjust enrichment, negligence, and conversion claims.

  • Washington Enacts Multiple Amendments to Consumer and Mortgage Lending Laws

    Consumer Finance

    On March 8, Washington enacted HB 2255, which alters state regulation of consumer loan companies, including mortgage originators, check cashers and sellers, and payday lenders. Under the Consumer Loan Act, which covers nonbank consumer lenders including nonbank mortgage originators, consumer lenders are prohibited from making a loan from an unlicensed location. The Director of the Department of Financial Institutions can, among other things, order refunds to customers, informally settle complaints and enforcement actions, and issue subpoenas. Entities offering retail installment sales using open loop prepaid cards are no longer exempt from the Consumer Loan Act. Under the Check Cashers and Sellers Act, which covers entities that cash or sell checks, drafts, money orders, or other commercial paper, as well payday lenders, the definition of “licensee” is amended to include out-of-state entities, as well as those that should have a small loan endorsement. The Director can informally settle complaints and enforcement actions regarding covered entities. The bill includes new prohibited practices for check cashers and sellers, including (i) selling open loop prepaid access in a retail installment loan, (ii) advertising a statement that is false or deceptive, (iii) failing to pay annual assessments on time, and (iv) failing to pay other monies due to the Director. The law allows for the transition of check cashers and sellers, escrow agents, and money transmitters to the National Mortgage License System and Registry. HB 2255 also eliminates the requirement that mortgage originators provide a state disclosure form, so long as the originator offers disclosures in compliance with federal Regulation X. All of the above changes take effect June 7, 2012.

    Payday Lending Mortgage Origination

  • Federal Circuit Courts Issue More Rulings Enforcing Arbitration Agreements

    Consumer Finance

    On March 7, the U.S. Court of Appeals for the Ninth Circuit held that a national bank could compel arbitration of a dispute involving student loans. Kilgore v. KeyBank, Nat’l Ass’n, No. 09-16703, 2012 WL 718344 (9th Cir. Mar. 7, 2012). A group of students filed a class action in state court alleging that KeyBank violated state law in its offering of loans to students of a helicopter pilot school, which subsequently misappropriated the student loan funds. KeyBank removed the action to federal court and moved to compel arbitration. The district court denied the motion and KeyBank appealed. While the case was on appeal, the Supreme Court in AT&T Mobility v. Concepcion131 S. Ct. 1740 (2011), set a new standard for assessing the enforceability of arbitration clauses. That new standard required the Ninth Circuit to hold in KeyBank that the Federal Arbitration Act preempts California’s rule prohibiting arbitration of claims for broad, public injunctive relief. The court also held that the arbitration clause was not procedurally unconscionable because it clearly provided a sixty-day opt-out provision and a “conspicuous and comprehensive explanation of the arbitration agreement.” The court did not address the issue of whether the arbitration agreement was substantively unconscionable. The U.S. Court of Appeals for the Eleventh Circuit recently issued two separate, but substantively similar, opinions regarding arbitration agreements, both in cases consolidated in the multidistrict overdraft fee litigation pending in the U.S. District Court for the Southern District of Florida. Hough v. Regions Financial Corp., No. 11-14317, 2012 WL 686311 (11th Cir. Mar. 5, 2012); Buffington v. SunTrust Banks, Inc., No. 11-14316, 2012 WL 660974 (11th Cir. Mar. 1, 2012). In both cases, based on Concepcion, the court previously vacated district court rulings that the banks’ arbitration clauses were substantively unconscionable under Georgia law because they contained a class action waiver. On remand, the banks renewed their motions to compel arbitration. The district court denied the motions again, this time on the ground that the arbitration clauses were substantively unconscionable under Georgia law because a provision granting the banks’ the unilateral right to recover their expenses for arbitration allocated disproportionately to the plaintiffs the risks of error and loss inherent in dispute resolution. The Eleventh Circuit held that, under Georgia law, an agreement is not unconscionable because it lacks mutuality of remedy. It also rejected the district court’s holding that the clauses were procedurally unconscionable because the contract did not meet the Georgia standard that for an agreement to be procedurally unconscionable it must be so one-sided that “’no sane man not acting under a delusion would make [it] and … no honest man would’ participate in the transaction.” The Eleventh Circuit vacated the district court’s orders and remanded both cases with specific instructions to compel arbitration.

    Arbitration U.S. Supreme Court

  • CFPB Director Addresses State Attorneys General, Spotlight on Payday Lenders, Debt Collectors, and Servicing Rules

    Consumer Finance

    The National Association of Attorneys General (NAAG) met this week in Washington, DC. Among the topics covered at the annual meeting was the ongoing and future coordination between federal and state law enforcement with regard to financial services. CFPB Director Cordray, a former state attorney general, noted that NAAG and the CFPB already have several working groups organized to address payday loans, foreclosure scams, auto loans, and debt collection. These efforts will be supported through a formal Memorandum of Understanding that is expected to be finalized soon. In his remarks and in follow up questioning, Director Cordray specifically addressed enforcement and supervision with regard to payday lenders and debt collectors. It was reported that Director Cordray indicated that the CFPB and the FTC are “zoning in” on issues related to payday lenders associated with Native American tribes. Regarding debt collectors, the Director stated that aggressive enforcement by the FTC and states is not enough, and that the CPFB would like federal and state regulators and enforcement agencies to develop a national strategic plan that leverages the CFPB’s supervision and enforcement capabilities. Finally, on planned rulemaking by the CFPB, the Director noted ongoing efforts to develop rules governing mortgage servicing, including force-placed insurance products and hybrid ARMs.

    CFPB Payday Lending FDCPA Mortgage Servicing State Attorney General

  • FTC Expands Enforcement Action Against Tribe-Affiliated Payday Lenders

    Consumer Finance

    On March 7, the FTC announced the expansion of an existing enforcement action against several payday lending firms and their owner alleging that they sought to force borrowers throughout the country to travel to South Dakota to appear before a tribal court that did not have jurisdiction over their cases. The defendants are facing a number of claims relating to alleged attempts to garnish employees’ wages without appropriate court orders. The amended complaint adds allegations that the loan contracts issued by the defendants illegally state that the contracts are subject solely to the jurisdiction of the Cheyenne River Sioux Tribe. The defendants have brought suit in the tribal court against non-tribal members to obtain garnishment orders. The FTC contends that the tribal court does not have jurisdiction over claims against people who do not belong to the Cheyenne River Sioux Tribe and who do not reside on the reservation or elsewhere in South Dakota.

    FTC Payday Lending

  • CFPB Acknowledges Student Loan Complaint System

    Consumer Finance

    On March 5, the CFPB’s student loan ombudsman, Rohit Chopra, acknowledged in a blog post that the CPFB had launched its student loan complaint system. The CFPB outlined its expectations regarding financial institution response and resolution times. It expects institutions to respond to complaints with fifteen days, and resolve complaints within sixty days. Concurrent with the opening of the complaint system, the CFPB sent a letter to university officials advising them of this new resource available for their students and alumni.

    CFPB Student Lending

  • Federal Reserve Issues Guidance Regarding Supervisory Rating Upgrades

    Consumer Finance

    On March 2, the Federal Reserve Board released guidance describing the factors that it will employ to evaluate whether to upgrade a community banking organization’s supervisory ratings. The guidance explains that examiners should use balanced judgment to assess demonstrated improvement and where improvement is likely to continue. The guidance also lists specific considerations, including, among others, the extent to which (i) the level of capital and capital planning process are appropriate relative to risk characteristics, (ii) core earnings have improved, and this trend is demonstrably sustainable, and (iii) asset quality is improving, as evidenced by a material decline of adversely classified and nonperforming assets, and this trend is expected to continue.

    Federal Reserve

  • Federal Reserve Extends Comment Period on Proposed Rules for Oversight of Largest Banks and Systemically Important Nonbanks

    Consumer Finance

    On March 2, the Federal Reserve Board extended from March 31, 2012 to April 30, 2012 the comment period on its proposed rules related to supervision and regulation of (i) all U.S. bank holding companies with assets of $50 billion or more, and (ii) nonbank financial firms designated as systemically important by the Financial Stability Oversight Council.

    Nonbank Supervision Federal Reserve

  • Nevada Delays Effective Date for New Motor Vehicle Credit Sale Forms

    Consumer Finance

    On March 1, the Nevada Financial Institutions Division issued an order delaying implementation of its amended motor vehicle credit sales application and contract forms. Creditors now will have until July 1, 2012 to begin using the new forms.

    Auto Finance

  • CFPB Expands Complaint-Taking Program to Include Deposit Products

    Consumer Finance

    On March 1, the CFPB announced that it is has begun taking complaints regarding bank deposit products. As it has done previously with mortgages and credit cards, the CFPB is asking consumers to submit complaints through its website and other means regarding (i) account opening, closing, and management; (ii) deposits and withdrawals; (iii) debit or ATM cards; (iv) making or receiving payments or transmitting funds; and (v) problems related to low account funds. Banks will be notified when they are the subject of a complaint and the CFPB expects banks to respond to complaints within fifteen days. Consumers can dispute a bank’s resolution of a complaint, but the CFPB aims to have each complaint resolved within sixty days. Although not formally announced, the CFPB has, on its website, also created space for consumers to submit complaints regarding student loans and consumer loans, such as auto loans.

    CFPB

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