Tag Archives: Consumer Financial Protection Bureau

Measuring Progress at the CFPB

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The Bipartisan Policy Center issued a white paper, The Consumer Financial Protection Bureau: Measuring the Progress of a New Agency:

This paper measures the agency’s actions against its mandate.  It analyzes the start-up and operational challenges the Bureau has faced and the critical choices it has made. Throughout this process, the Task Force met with leading consumer advocates, federal and state bank regulators and their staffs, and regulated industry participants in the bank and nonbank space. (5)

I was particularly intrigued by the external metrics that the Bipartisan Policy Center recommends for the CFPB:

  • Are there quality, safe products available in both the bank and nonbank space?
  •  Is the CFPB identifying and responding promptly to problems in both the bank and nonbank space?
  • Does the Bureau engage consumers in a meaningful way? For example, specific metrics should track its regulatory and outreach efforts to growing minority populations.
  • Is the CFPB collaborating effectively with other regulators in both the bank and nonbank space, to ensure a high level of consumer protection?
  • Is there a healthy amount of quality product innovation in the financial services marketplace the Bureau regulates? (10)

These are all reasonable metrics, but most importantly, the white paper “recommends that the CFPB measure success as it relates to consumer behavior by finding demonstrable evidence of improved consumer decision-making with regard to consumer products.” (10) I think that this is perhaps the most important of the metrics and one that the CFPB has made the least progress in measuring. It will be interesting to see how the CFPB makes progress in this regard.

The rest of their findings are organized as follows:

  • Guidance vs. Rule-Making
  • Supervisory and Examination Process
  • Data Requests and Collection
  • Consumer Complaint Portal
  • Civil Penalty Fund
  • CFPB Consultation with Other Agencies
  • CFPB’s Authority to Cover Lending Activities of Auto-Dealers
  • CFPB Funding and Accountability
  • Performance Metrics
  • [External Metrics]
  • Internal Metrics

Qualified Mortgage Fair Lending Concerns Quashed

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Federal regulators (the FRB, CFPB, FDIC, NCUA and OCC) announced that “a creditor’s decision to offer only Qualified Mortgages would, absent other factors, elevate a supervised institution’s fair lending risk.” This announcement was intended to address lenders’ concerns that they could be stuck between a rock (QM regulations) and a hard place (fair lending requirements pursuant to the Equal Credit Opportunity Act and the Fair Housing Act). For instance, a lender might want to limit its risk of lawsuits relating to the mortgages it issues that could arise under a variety of state and federal consumer protection statutes by only issuing QMs only to find itself the defendant in a Fair Housing Act lawsuit that alleges that its lending practices had a disproportionate adverse impact on a protected class.

The five agencies issued an Interagency Statement on Fair Lending Compliance and the Ability-to-Repay and Qualified Mortgage Standards Rule that gives some context for this guidance:

the Agencies recognize that some creditors’ existing business models are such that all of the loans they originate will already satisfy the requirements for Qualified Mortgages. For instance, a creditor that has decided to restrict its mortgage lending only to loans that are purchasable on the secondary market might find that — in the current market — its loans are Qualified Mortgages under the transition provision that gives Qualified Mortgage status to most loans that are eligible for purchase, guarantee, or insurance by Fannie Mae, Freddie Mac, or certain federal agency programs.

With respect to any fair lending risk, the situation here is not substantially different from what creditors have historically faced in developing product offerings or responding to regulatory or market changes. The decisions creditors will make about their product offerings in response to the Ability-to-Repay Rule are similar to the decisions that creditors have made in the past with regard to other significant regulatory changes affecting particular types of loans. Some creditors, for example, decided not to offer “higher-priced mortgage loans” after July 2008, following the adoption of various rules regulating these loans or previously decided not to offer loans subject to the Home Ownership and Equity Protection Act after regulations to implement that statute were first adopted in 1995. We are unaware of any ECOA or Regulation B challenges to those decisions. Creditors should continue to evaluate fair lending risk as they would for other types of product selections, including by carefully monitoring their policies and practices and implementing effective compliance management systems. As with any other compliance matter, individual cases will be evaluated on their own merits. (2-3)

 Lenders and their representatives have raised this issue as a significant obstacle to a vibrant residential mortgage market. This interagency statement should put this concern to rest.

Private Capital and the Mortgage Markets

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The American Securitization Forum recently wrote to the Federal Housing Finance Agency to argue for at least a small reduction in the size of the loans that Fannie and Freddie can guaranty. While this makes sense to me, it is pretty controversial.  The ASF argues that “incremental reductions are appropriate for the following reasons:”

(i) as a means to begin scaling back the outsized role the GSEs currently play in the U.S. housing finance system and encourage the return of private capital;

(ii) FHFA has the legal authority in its role as conservator to act according to its dual mandate; and

(iii) the timing of any Congressional action on wide-ranging housing finance reform remains uncertain. (1)

Various groups like the Realtors and some members of Congress argue that any restriction of credit is unwarranted while the housing recovery is so tentative. The ASF notes, however, that the federal government is insuring roughly 90% of new residential mortgages. Virtually no one supports such a level of government support for the mortgage market, so the only question is one of timing. Do we start cutting back now or do we wait for better market conditions?

Others argue that there is not enough private capital to replace the government guaranteed capital in the market. But scaling back the Fannie/Freddie loan limit is a great way to work private capital back into the market gradually. The long term health of the American mortgage market is best assured by having private capital assume as much of the credit risk as it can responsibly handle. This private capital should also be subject to consumer protection regulation to ensure that it is not put to predatory uses. The Consumer Financial Protection Bureau has rules in place to provide that consumer protection. The FHFA should complement that regulatory action with its own. It should reduce the Fannie and Freddie loan limits starting in 2014.

Making Sense of Finance Charges

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The Consumer Financial Protection Bureau has a very helpful Finance Charge Chart (page 13) in its Truth In Lending Act examination procedure manual.  The manual is “intended for use by CFPB examiners in examining the mortgage companies and other financial institutions subject to the new regulations.”

Figuring out the finance charge for the purposes of calculating the Annual Percentage Rate (APR) can be very difficult. The manual states that the finance charge

initially includes any charge that is, or will be, connected with a specific loan. Charges imposed by third parties are finance charges if the creditor requires use of the third party. Charges imposed on the consumer by a settlement agent are finance charges only if the creditor requires the particular services for which the settlement agent is charging the borrower and the charge is not otherwise excluded from the finance charge. (14)

The chart makes clear which charges are always included, which are included unless certain conditions are met, which are typically not included and which are never included.

The guide also has a useful history of TILA and overview of Regulation Z (which implements TILA).  It also includes (on page 9) a flowchart that explains what kind of credit is covered by Regulation Z.

 

$2.7 Million Punitive Damages for Wrongful Foreclosure Action

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Many argue (see here, for instance) that wrongful foreclosures aren’t such a big deal. A recent case, Dollens v. Wells Fargo Bank, N.A., No. CV 2011-05295 (N.M. 2d Jud. Dist. Aug. 27, 2013)  highlights just how bad it can be for the homeowner who has to defend against one.

Dollens, the borrower, died in a workplace accident but had purchased a mortgage accidental death insurance policy through Wells Fargo, the lender (although the policy was actually underwritten by Minnesota Life Insurance Company). Notwithstanding the existence of the policy, Wells Fargo kept trying to foreclose, even five months after the insurance proceeds paid off the mortgage.  Some lowlights:

  • “Apparently, ignoring its ability to to make a death benefit claim is typical of how Wells Fargo deals with such situations. . . . This is a systemic failure on the part of Wells Fargo.” (4)
  • “There is no doubt that Wells Fargo’s conduct was intended to take advantage of a lack  of knowledge, ability, experience or capacity of decedent’s family members, and tended to or did deceive.” (5)
  • “Wells Fargo charged the Estate for lawn care of the property” even though the “property did not have a lawn.” (6)

The court found that the”evidence of Wells Fargo’s misconduct is staggering.” (6) The court also found that “Wells Fargo used its computer-driven systems as an excuse for its ‘mistakes.’ However, the evidence established that this misconduct was systematic and not the result of an isolated error.. . . The evidence in this case established that the type of conduct exhibited by Wells Fargo in this case has happened repeatedly across the country.” (7) As a result of these findings, the Court awarded over $2.7 million in punitive damages.

Mary McCarthy famously said that “[b]ureaucracy, the rule of no one, has become the modern form of despotism.” We generally think of this in terms of government actors, but it applies just as well to large financial institutions that implement “computer-driven systems” that seemingly cannot be overwritten by a human being who might exercise common sense and common decency.

Given that this type of problem seems to affect all of the major loan servicers, I must reiterate, thank goodness for the CFPB.

 

[HT April Charney]

Fightin’ Words on Consumer Complaints

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Deloitte has issued a report, CFPB’s Consumer Complaint Database: Analysis Reveals Valuable Insights, that provides valuable — but superficial insights — into the CFPB’s massive database of consumer complaints.

Deloitte’s main insights are

  • Troubled mortgages are behind the majority of the complaints – a growing trend
  • Customer misunderstanding may create more complaints than financial institution error
  • Affluent, established neighborhoods were more likely sources of complaints
  • Complaint resolution times have improved (2)

As to the second insight — customer misunderstanding may create more complaints than financial institution error — Deloitte notes that

Financial institutions have a number of options for resolving consumer complaints. They can close a complaint in favor of the consumer by offering monetary or non-monetary relief, or they can close the complaint not in favor of the consumer, perhaps providing only an explanation. The percentage of complaints closed in favor of consumers declined during the analysis period, falling from 30.9 percent in June 2012 to 18.0 percent in April 2013,6 a trend that was reflected in the monthly complaint [resolutions] for all products. (4)

The report continues, “In spite of fewer complaints closed with relief, consumers have been disputing fewer resolutions. In aggregate, the percentage of resolutions that were disputed fell from a peak of 27.9 percent in January 2012 to 18.6 percent in January 2013.” (5) Deloitte finds that “the data suggests that many complaints may be the result of customer misunderstanding or frustration rather than actual mistakes or operational errors by financial institutions.” (5)

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This conclusion seems like a big leap from the data that Deloitte has presented. I can imagine many alternative explanations for the decrease in disputes other than customer misunderstanding. For instance,

  • the consumer does not see a reasonable likelihood of a favorable resolution and abandons the complaint
  • the financial institution can point to a written policy that supports its position even if the consumer complaint had a valid basis, given the actions of the institution’s employees in a particular case
  • in the case of a mortgage complaint, the consumer is moving toward a favorable or unfavorable resolution of the issue with the financial institution on another track (e.g., HAMP, judicial foreclosure)

To be clear, I am not saying that customer misunderstanding plays an insignificant role in customer complaints.  Nor am I saying that the reasons I propose are the real reasons that that complaints do not proceed further. I am only saying that Deloitte has not presented sufficient evidence to support its claim that “customer misunderstanding may create more complaints than financial institution error.” Given that these are fightin’ words in the context of consumer protection, I would think that Deloitte would choose its words more carefully.

 

 

Financial Education: Miles to Go Before We Can Sleep Easily

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The CFPB has posted Financial Empowerment Training for Social Service Programs: A Scan of Community-Based Initiatives. The report opens well, with Gail Hillebrand, the Associate Director for Consumer Education and Engagement, noting that

Consumers need four things to be financially empowered. First, consumers need consistent access and the ability to choose among high-quality financial services. Second, consumers need sufficient information about the costs, the benefits, and the risks, of choices in the marketplace. Third, consumers need a set of financial habits and skills that constitute financial capability to help them to make the financial decisions that benefit themselves and their families. Finally, consumers need to know that they can get a better shot at achieving their own life goals if they affirmatively seek information, make choices, and take steps to control their financial lives. (1)

No argument there.

But the “scan” in this document makes me fear for a strong connection between what consumers need, as outlined above, and what existing programs are doing.  Finding 9 of the report state that “Most training initiatives targeted at case managers recommended some form of assessment of the effectiveness of the initiatives, but few tracked whether case managers were using this information with clients.” (6-7)

This was the only finding that really talked about evaluating the success of financial education/empowerment initiatives. And it indicates that programs don’t really try to measure their implementation, let alone their effectiveness.  I have earlier critiqued (and here) the CFPB’s financial education agenda and this most recent report only strengthens my belief that the CFPB should do more fundamental research on what actually helps consumers make good financial decisions before it begins to fund financial education initiatives.