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CFPB Report Analyzes Private Student Loan Borrowers' Complaints
On October 16, the CFPB announced the findings of its annual student loan ombudsman report. Analyzing over 5,000 private student loan complaints that the CFPB received from October 1, 2013 through September 30, 2014, the report highlights the struggle private loan borrowers face in repaying their loans, noting that many are driven into default because practical repayment options are not available to them. The report outlines three main reasons why many private student loan borrowers default: (i) they are unaware of the loan modifications available to them; (ii) they do not have the same affordable options that federal student loan borrowers are entitled to by law; and (iii) the temporary forbearance options that some lenders offer often result in “burdensome enrollment fees and processing delays.” In connection with the report, the CFPB released a sample letter that consumers can edit and send to servicers to request lower monthly payments and information on available repayment plans, as well as a sample financial worksheet to assist borrowers to determine maximum funds available to pay their student loans.
Deputy Treasury Secretary Remarks On Student Loans Include Focus On Delinquent Borrower
On September 29, Deputy Treasury Secretary Sarah Bloom Raskin delivered remarks on student loans and their macroeconomic consequences at the National Association for Business Economics. With over $1 trillion in outstanding student loan debt, the U.S. has the highest level of student loan debt when compared to any country in the world. Deputy Treasury Secretary Raskin indicated that student loans surpassed credit cards and auto loans as the largest source of unsecured consumer debt. Recognizing that student loan debt is not inherently bad, Deputy Treasury Secretary Raskin emphasized that its impact on the economy cannot be understood without considering both the economic and societal benefits of a more educated workforce. Deputy Treasury Secretary Raskin expressed concern that student loan debt has become a “serious burden for far too many borrowers,” noting that student loan delinquency and default could undermine the country’s economic growth by “crowding out other kinds of investment.” She commented on the number of complaints and testimonials reported by distressed borrowers and advocated for “accuracy and fairness in the loan servicing industry, and transparency and disclosure for borrowers in the loan process.”
CFPB Sues For-Profit College For Alleged Predatory Lending
On September 16, the CFPB filed a civil action against a for-profit college for allegedly engaging in an “illegal predatory lending scheme.” Specifically, the CFPB alleges that the school engaged in unfair and deceptive practices by: (i) inducing enrollment through false and misleading representations about job placement and career opportunities; (ii) inflating tuition to require students to obtain private loans in addition to Title IV aid; (iii) persuading students to incur significant debt through private loans that had substantially high interest rates (as compared to federal loans) and required repayment while students attended school; (iv) misleading students to believe that the school did not have an interest in the private loans offered; and (v) knowing its students were likely to default on the private loans made. In addition, the CFPB alleges that the school violated the FDCPA by taking aggressive and unfair action, including pulling students out of class, blocking computer access, preventing class registration, and withholding participation in graduation, to collect payments on the private loans as soon as they became past due. The CFPB is seeking to permanently enjoin the school from engaging in the alleged activity, restitution and damages to consumers, disgorgement, rescission of all private loans originated since July 21, 2011, civil money penalties, and costs and other monetary relief.
The CFPB’s lawsuit was filed after a similar action was filed against the school by the Massachusetts Attorney General (AG) alleging that the school engaged in unfair or deceptive acts or practices by: (i) aggressively enrolling students by misrepresenting, among other things, employment and career opportunities, the nature and quality of the education provided, credit transferability, the utility of its career services, and its financial aid; (ii) recruiting students that would not benefit from the programs and/or were legally unable to obtain employment in the field studied; (iii) offering private loans that were guaranteed and/or funded by the school and steering students to such loans; and (iv) engaging in harassing debt collection practices. The Massachusetts AG is seeking to permanently enjoin the school from engaging in the alleged conduct, restitution to students, civil penalties, and attorneys’ fees and other monetary relief.
Department of Education Publishes Intent to Establish a Negotiated Rulemaking Committee to Develop Pay as You Earn Expansion Regulations
On September 3, the Department of Education (the “Department”) announced its intent to establish a negotiated rulemaking committee to help develop regulations to allow more student borrowers of Federal Direct Loans to use the Pay as You Earn Repayment Plan (“PAYE Plan”). President Obama expanded the eligibility for the PAYE Plan, which caps payments at 10% of annual income, in a Presidential Memorandum issued on June 9, 2014 in which he charged the Department to establish new regulations to implement this expansion. The Department intends to select participants for the committee from nominees of the organizations and groups that represent the interests significantly affected by the proposed regulations. The Department will hold two public hearings, on October 23 and November 4, to discuss the rulemaking agenda and plans to thereafter establish a committee. The Department expects that the committee will begin negotiations in February 2015 and will meet in the Washington, DC area.
Senator Cautions Education Department On Student Aid Disbursement Products Rulemaking
On August 12, Senate Banking Committee ranking member Mike Crapo (R-ID) sent a letter to Education Secretary Arne Duncan to express concern that an ongoing Education Department rulemaking regarding student loan disbursement products could force financial institutions to exit campus markets. At issue is the scope of the rulemaking, which could potentially regulate traditional banking products unrelated to the Title IV disbursement products. The Senator’s letter is the latest in a series of letters from Capitol Hill raising concerns about the scope of the rulemaking and calling for the Education Department to reevaluate the proposal. In his letter, Senator Crapo questions the Education Department for moving forward with the rulemaking without having consulted with any of the prudential banking regulators. The letter also requests an extension of the timeline for the rulemaking so that the public has sufficient time to provide comments.
CFPB Pressures Banks To Disclose Campus Marketing Agreements
On August 6, the CFPB’s Student Loan Ombudsman, Rohit Chopra, published a blog post addressing the financial arrangements between financial institutions and institutions of higher education that market financial products to students. Last year, the CFPB urged banks to disclose any agreements with colleges and universities to market debit, prepaid, and other products to students and warned that “[t]he CFPB prioritizes its supervisory examinations based on the risks posed to consumers” and “[failing to make] college financial product arrangements transparent to students and their families . . . increase[s] such risks.” In this latest review, the CFPB assessed the Big Ten schools and found that at least 11 have established banking partners to market financial products to students. Of those 11, the CFPB found only four contracts on the bank websites, and it characterized three of those four contracts as “partial”—i.e. in the CFPB’s view, the disclosed agreements “did not contain important information, such as how much they pay schools to gain access to students in order to market and sell them financial products and services.” Concurrent with the blog post, the CFPB sent letters to schools asserting that “their bank partner has not yet committed to transparency when it comes to student financial products.”
Members Of Congress Caution Education Department On Aid Disbursement Rulemaking
Over the past week, members of Congress from both parties have sent several letters to the Department of Education (DOE or ED) regarding its ongoing rulemaking related to the ways higher education institutions request, maintain, disburse, and otherwise manage federal student aid disbursements. As part of that rulemaking, the DOE is considering changes that would, among other things, clarify permissible disbursement practices and agreements between education institutions and entities that assist in disbursing student aid, and increase consumer protections governing the use of prepaid cards and other financial instruments. In general, the letters from Congress express concern that the draft rule is too broad and will limit student access to financial services. For example, in a July 17 letter from Congressman Luetkemeyer (R-MO), Senator Hoeven (R-ND), and 40 other lawmakers, including six Democrats, the members expressed concern that the DOE proposal could cover any account held by a student or a parent of a student if the financial institution had any arrangement, however informal, with a school and regardless of when or why the account was opened. The members support efforts to protect students from abuses made in disbursing student aid, but ask the DOE to tailor the rule such that it could not be construed so broadly as to restrict students’ access to financial services. Earlier this year, another group of lawmakers called on the DOE to “mandate contract transparency, prohibit aggressive marketing, and ban high fees when colleges partner with banks to sponsor debit cards, prepaid cards, or other financial products used to disburse student aid.”
Education Department OIG Reports On Borrower Complaints Against Collection Agencies
On July 15, the Department of Education’s Office of Inspector General (OIG) published a report on its audit of the Department’s Federal Student Aid (FSA) office, which revealed that the FSA has failed to effectively: (i) monitor borrower complaints against private collection agencies (PCAs) and ensure that corrective action is taken; (ii) ensure PCAs are abiding by federal debt collection laws and the related terms of their contracts; and (iii) consider borrower complaints in its evaluation and compensation of PCAs. The audit covered the period October 1, 2009, through September 30, 2012. The OIG recommended that FSA, among other things, (i) enforce the contract requirement that PCAs submit all complaints to FSA and establish procedures that include ensuring PCAs take corrective action; and (ii) require relevant staff to monitor, review, and evaluate the PCA deliverables and reconcile the management/fiscal reports with recorded complaints. The FSA concurred with the findings and most of the recommendations and stated that it has taken a number of steps over the past two years to strengthen its PCA oversight efforts. The FSA further stated that it has planned additional improvements that will further enhance its ability to effectively oversee PCA’s interactions with defaulted borrowers.
Illinois AG Sues Student Debt Relief Firms
On July 14, Illinois Attorney General (AG) Lisa Madigan announced that her office filed separate civil lawsuits (here and here) in state court against two student debt relief firms and their principals. The lawsuits allege that the defendants violated several state consumer protection statutes relating to their deceptive student debt relief practices and collection of improper fees. The AG claims that the unlicensed companies and their sole principals improperly accepted upfront fees from student borrowers while claiming to have enrolled them in sham loan forgiveness programs or other legitimate loan relief programs that were available to borrowers free of charge. The lawsuits also allege that the defendants engaged in extensive false and misleading advertisements that misrepresented their expertise, affiliation with the U.S. Department of Education, and the debt relief programs available to borrowers.
The AG maintains that these practices violate several state consumer protection statues, including:
- The Illinois Consumer Fraud and Deceptive Business Practices Act, prohibiting unfair and deceptive business practices, including making false representations and failing to disclose material facts to consumers;
- The Credit Services Organizations Act, prohibiting unlicensed parties from acting as “debt settlement providers” or accepting illegal fees; and
- The Debt Settlement Consumer Protection Act, prohibiting parties from accepting upfront payment for debt relief services.
The lawsuits seek injunctive and non-monetary relief in the form of permanent injunctions against each defendant and a rescission of all contracts with Illinois residents. The AG is also pursuing a variety of monetary damages and penalties, including restitution, costs of prosecution and investigation, and civil penalties of $50,000 for each statutory violation with additional penalties for those conducted with the intent to defraud or perpetrated against elderly victims.
Federal Reserve Takes Action Against Bank For Vendor's Allegedly Deceptive Practices
On July 1, the Federal Reserve Board announced a joint enforcement action with the Illinois Department of Financial and Professional Regulation against a state bank that allegedly failed to properly oversee a nonbank third-party provider of financial aid refund disbursement services. The consent order states that from May 2012 to August 2013, the bank opened over 430,000 deposit accounts in connection with the vendor’s debit card product for disbursement of financial aid to students. The agencies claim that during that time, the vendor misled students about the product, including by (i) omitting material information about how students could get their financial aid refund without having to open an account; (ii) omitting material information about the fees, features, and limitations of the product; (iii) omitting material information about the locations of ATMs where students could access their account without cost and the hours of availability of those ATMs; and (iv) prominently displaying the school logo, which may have erroneously implied that the school endorsed the product. The regulators ordered the bank to pay a total of $4.1 million in civil money penalties. In addition, the Federal Reserve is seeking restitution from the vendor, and, pursuant to the order against the bank, may require the bank to pay any amounts the vendor cannot pay in restitution to eligible students up to the lesser of $30 million or the total amount of restitution based on fees the vendor collected from May 2012 through June 2014. The consent order also requires the bank to submit for Federal Reserve approval a compliance risk management program in advance of entering into an agreement with a third party to solicit, market, or service a consumer deposit product on behalf of the bank.