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CFPB examines pandemic effect on access to new credit
On August 26, the CFPB released findings regarding trends in credit cards, mortgages, and auto loans for consumers through the Covid-19 pandemic. The post—the fifth and final in a series documenting trends in consumer credit outcomes during the Covid-19 pandemic—examines how access to new credit and the amount of extended credit for new account holders have been impacted by the pandemic. An August 2020 Bureau report (covered by InfoBytes here and updated here) found that while credit limit increases seemed to have been halted for many consumers, there was not a pronounced reduction in available credit card credit since the start of the pandemic (the 2020 report did not discuss access to new credit trends). According to the Bureau’s most recent report, access to new credit declined for credit cards but increased for mortgages and auto loans during the Covid-19 pandemic. Among other things, the Bureau noted that early in the pandemic, the success rate of credit card inquiries declined from around 45 percent in January 2020 to just over 30 percent in May 2020—a “drop well beyond what could be expected from seasonal variation.” Additionally, the volume of credit card inquiries also dropped substantially and did not recover until March 2021, with credit card inquiry success rates also similarly declining “across credit score groups as well as across age groups and subgroups of consumers classified by their census tract or county characteristics.”
Although the report noted that there was “a small and transitory dip” for auto loans in March and April 2020, by February 2021, success rates for auto loan and mortgage inquiries were well above pre-pandemic levels. According to the Bureau, “[t]his result for auto loan and mortgages inquiries contrasts somewhat with responses to the Federal Reserve’s survey of bank loan officers, which indicate that large banks tightened lending standards on auto and mortgage loans during 2020, only loosening standards in 2021.”
DOJ charges payment processing executives involved in $150 million scheme
On August 26, the DOJ unsealed an indictment in the District of Massachusetts against four individuals, charging them with “conspiring to deceive banks and credit card companies into processing more than $150 million in credit and debit card payments on behalf of merchants involved in prohibited and high-risk businesses, including online gambling, debt collection, debt reduction, prescription drugs, and payday lending.” According to the announcement, executives of a Los Angeles-based payment processing company secured payment processing for these high-risk businesses through fraudulent misrepresentations about merchant clients. As a payment processor, the company “enabl[ed] merchant clients to accept debit and credit card payments over global electronic payment networks run by major card brands” and “served as an intermediary between its merchant clients and financial institution members of the card brand networks.” Two of the individuals were charged with conspiring to commit wire fraud, and two others were charged with conspiring to commit wire fraud and bank fraud. Among other things, the DOJ asserts that the individuals and their co-conspirators allegedly made fraudulent misrepresentations to financial institutions, card brands, and others about the type of transactions that were being processed along with the true identities of the merchant clients, created shell companies and fake websites to make it appear that they were selling low-risk goods, and “miscategorized the true nature of the transactions” by using industry-standard codes.
CFPB examines pandemic effect on card limits
On August 11, the CFPB released findings regarding trends in credit card limits for consumers throughout the Covid-19 pandemic. The post—the fourth in a series documenting trends in consumer credit outcomes during the Covid-19 pandemic (the first covered by InfoBytes here)—examines whether “credit has tightened on existing credit card accounts” and if “financial institutions cut limits or closed accounts” during the pandemic. As previously covered by InfoBytes, last August, the Bureau issued a report examining trends through June 2020 in delinquency rates, payment assistance, credit access, and account balance measures, which showed that generally there was an overall decrease in delinquency rates since the start of the pandemic for auto loans, first-lien mortgages, student loans, and credit cards. According to the Bureau’s recent findings, starting in March 2020, credit limits for prime and near prime borrowers broke with their previous upward trend, largely flattened out, then began to grow more quickly for these groups in February 2021. Researchers also found that for subprime and deep subprime borrowers, there was nearly no change in credit limits, though the trend ticks upward toward the end of 2020. Additionally, the spike in accounts being closed early in the pandemic seems to have been short-lived because “[a]fter the spike in closures in May 2020, the total number of account closures declined through July and then returned to pre-COVID-19 levels through at least May of 2021.”
CFPB: Credit applications rebound to pre-pandemic levels
On July 27, the CFPB published a special issue brief finding that consumer applications for auto loans, new mortgages, and revolving credit cards had, for the most part, returned to pre-pandemic levels by May 2021. The brief compares the number of applications made in these categories before the pandemic to the number being made now and provides a state-by-state analysis of the change in applications. Highlights of the brief include: (i) sub-prime borrower credit applications increased in conjunction with federal stimulus payments; (ii) auto loan inquiries dropped 52 percent by the end of March 2020 but returned to their usual pre-pandemic trend by January 2021; however, the Bureau reports wide geographic variability in the demand for auto loans while changes in credit card applications were generally uniform; (iii) new mortgage credit inquiries experienced a smaller drop in March 2020 compared to other credit types but later saw a surge, with inquiries exceeding the usual, seasonally adjusted volume by 10 to 30 percent—a reflection of unusually high activity seen throughout the pandemic; (iv) revolving credit card inquiries declined by over 40 percent and took the longest to rebound, not returning to normal levels until March 2021; and (v) consumers with deep subprime credit scores represented the largest decline in auto loan inquiries compared to prior years, followed by inquiries from consumers with subprime credit scores, with both categories of consumers also showing declines in new mortgage and revolving credit card inquiries. “While consumer credit applications have generally recovered to pre-pandemic levels in the aggregate, we see important differences across consumers,” acting CFPB Director David Uejio stated. “Both borrowers with superprime and subprime credit scores are still not applying for credit as much as they were pre-pandemic. We will continue to keep a close watch on the marketplace as the economic recovery continues, to help ensure all consumers have access to financial products and services that are fair, transparent, and competitive.”
District Court says retailer not an intended third-party beneficiary of a credit card arbitration provision
On July 8, the U.S. District Court for the Central District of California denied a retailer’s motion to compel arbitration in a consumer data sharing putative class action, ruling that the retailer was not an intended third-party beneficiary of an arbitration provision in a credit card agreement. The proposed class had filed an amended complaint accusing several national retailers of illegally sharing consumer transaction data in violation of the FCRA, the California Consumer Privacy Act, and California’s unfair competition law, among others. The motion at issue, filed by one of the retailers, addresses a named plaintiff’s opposition to compel arbitration. The retailer argued that as an “intended” third-party beneficiary of the contract, it had the right to enforce an arbitration clause contained in a credit card agreement purportedly signed by the plaintiff when she opened a retailer credit card account issued by an online bank.
The court disagreed, finding that the contract’s arbitration provisions specifically referred to the bank, and that the contract did not clearly “express an intention to confer a separate and distinct benefit on [the retailer].” Moreover, the court noted the contract at issue instructed the plaintiff to send any arbitration demand notices to the bank, adding that “[i]t seems unlikely that the parties would expect a demand for arbitration solely against the [retailer]—that does not involve [the bank]—to be sent to [the bank].”
Colorado limits credit and debit card surcharges
On July 7, the Colorado governor signed SB 91, which, among other things, repeals a prior ban on surcharges for credit or debit card transactions. The bill limits the maximum surcharge amount per transaction to 2 percent of the payment amount or the actual fee. Merchants are required to display a specified notice regarding the surcharge on their premises or, for online purchases, before a customer’s completion of the transaction. The act becomes effective July 1, 2022.
CFPB examines reported assistance trends on consumers’ credit records
On July 13, the CFPB released findings regarding trends in reported assistance on consumers’ credit records. The post—the second in a series documenting trends in consumer credit outcomes during the Covid-19 pandemic (the first covered by InfoBytes here)—examines consumer month-to-month transitions into and out of assistance from January 2020 to April 2021. As previously covered by InfoBytes, last August, the Bureau issued a report examining trends through June 2020 in delinquency rates, payment assistance, credit access, and account balance measures, which showed that generally there was an overall decrease in delinquency rates since the start of the pandemic for auto loans, first-lien mortgages, student loans, and credit cards. According to the Bureau’s recent findings, as of March 2021, auto loans and credit card accounts with assistance were slightly above pre-pandemic levels, and the share of mortgages and student loans on assistance continued to be significantly higher than pre-pandemic levels. Researchers also found that some communities have been disproportionately affected by the health and economic shocks of the pandemic: “majority Black census tracts, majority Hispanic census tracts, older borrowers and borrowers in counties hit hardest by COVID cases and layoffs were most likely to receive assistance in the early months of the pandemic.” Additionally, consumers in majority Hispanic census tracts were “more likely to exit assistance, but consumers in majority Black census tracts were somewhat less likely to exit assistance than their counterparts in majority white census tracts.”
District Court grants motions to compel and dismiss in FDCPA, TCPA class action
On June 16, the U.S. District Court for the Southern District of California granted a Delaware-based debt collector’s (defendant) motions to dismiss with prejudice and compel arbitration in an FDCPA, TCPA class-action case, while denying as moot the defendant’s motion to strike or stay. The plaintiff’s unpaid credit card debt was sold to the defendant, who sought to collect the debt by calling the plaintiff’s cell phone two dozen times in a span of two weeks using an automated telephone dialing system. The plaintiff filed a lawsuit originally alleging TCPA violations. He later amended the complaint to include FDCPA violations after he claimed he never received notice as required by the FDCPA. Under the FDCPA, debt collectors are required to provide a consumer with written notice containing various required information within five days after the initial communication in connection with the collection of any debt, “unless the. . .information is contained in the initial communication or the consumer has paid the debt.” The defendant initially moved to dismiss, but after the plaintiff opposed, filed an instant motion to compel arbitration based on an arbitration provision contained in a set of terms and conditions in the plaintiff’s credit card agreement with the original creditor. The plaintiff countered, among other things, that the debt collector cannot enforce the arbitration provision because the plaintiff never signed it, and further argued that the card agreement is unconscionable.
The court disagreed, ruling that the defendant did not waive its right to arbitrate the plaintiff’s claims, pointing out that the arbitration provision between the plaintiff and the defendant is part of the card agreement, which the plaintiff accepted once he began using the credit card. According to the court, the arbitration provision “states that it covers ‘any claim, dispute or controversy between you and us arising out of or related to your [a]ccount, a previous related [a]ccount, or our relationship,’ including but not limited to those ‘based on. . .statutory or regulatory provisions, or any other sources of law.’” According to the court, the plaintiff’s dispute with the defendant relates to violations of the TCPA and FDCPA and exists between the plaintiff and the original creditor’s assignee (the defendant). Thus, because the claims relate to a creditor-debtor relationship arising out of the card agreement, the court determined that the arbitration provision “constitutes a valid agreement to arbitrate” and was unpersuaded by the plaintiff’s arguments that the arbitration provision is unconscionable. With respect to the plaintiff’s TCPA claims, the court found that it “disregards as unreasonable and implausible Plaintiff’s allegation that any calls he received related to amounts unpaid arising out of his [credit card] were unlawful in light of the [c]ard [a]greement,” which expressly authorizes the original creditor or its assignees to call the plaintiff once the plaintiff accepted the card agreement. The court found that as the plaintiff did not plead sufficient facts to show that the calls were inconsistent with the FDCPA, the defendant had every right to call him.
CFPB reports low delinquency rates despite Covid-19
On June 16, the CFPB released findings on delinquency trends for auto loans, student loans, mortgages, and credit cards. The post—the first in a series that will document consumer credit trend outcomes during the Covid-19 pandemic—examines how trends have evolved since June 2020. As previously covered by InfoBytes, last August, the Bureau issued a report examining trends through June 2020 in delinquency rates, payment assistance, credit access, and account balance measures, which showed that generally there was an overall decrease in delinquency rates since the start of the pandemic among auto loans, first-lien mortgages, student loans, and credit cards. According to the Bureau’s recent findings, as of March 2021, new delinquencies remain below pre-pandemic levels, despite a slight rise since July 2020 in auto loan and credit card delinquencies. These levels, the Bureau noted, may be attributed to federal, state, and local policy interventions that provide payment assistance and income support to consumers. Researchers also found that overall trends in new delinquencies were consistent across credit score groups, although “trends were more pronounced for consumers with lower credit scores.” Additionally, the Bureau reported that while stimulus payments and increasing vaccination rates may boost economic activity and keep delinquency rates down, accounts that would have been delinquent in the absence of payment assistance may begin to be reported as delinquent as assistance programs begin to end. Later this year, the Bureau will release a post in this series discussing payment assistance trends since June 2020.
2nd Circuit overturns ruling in favor of defendant in FDCPA case
On June 4, the U.S. Court of Appeals for the Second Circuit overturned a district court’s decision, holding that a debt collector’s offer to settle an outstanding debt did not require informing the consumer that the balance could increase as a result of interest and fees. The plaintiff allegedly incurred credit card debt, which was then placed with the defendant for collection. The defendant sent the plaintiff a collection letter offering to settle the account for less than what was owed. The plaintiff sued, alleging that the letter violated Section 1692e of the FDCPA because it did not specify that interest was accruing on the balance. The district court, relying on the 2nd Circuit’s 2016 decision in Avila v. Riexinger & Associates, held that the defendant violated the FDCPA because the letter did not indicate that the balance would increase as a result of interest and fees.
On appeal, the 2nd Circuit clarified that its Avila decision discussed two exceptions, or “safe harbors,” to the requirement for debt collectors to disclose the possibility of interest and fees accruing, which are if the collection notice: (i) “ accurately informs the consumer that the amount of the debt stated in the letter will increase over time”; or (ii) “clearly states that the holder of the debt will accept payment in the amount set forth in full satisfaction of the debt if payment is made by a specified date.” The 2nd Circuit pointed out that the “payment of an amount that the collector indicates will fully satisfy a debt excludes the possibility of further debt to pay.” The appellate court further held that “a settlement offer need not enumerate the consequences of failing to meet its deadline or rejecting it outright so long as it clearly and accurately informs a debtor that payment of a specified sum by a specified date will satisfy the debt.” Therefore, the appellate court concluded that the collection notice to the consumer did not violate FDCPA section 1692e “because it extended a settlement offer that, if accepted through payment of the specified amount(s) by the specified date(s), would have cleared [the plaintiff’s] account.”