[Federal Register Volume 88, Number 150 (Monday, August 7, 2023)]
[Notices]
[Pages 52131-52142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16764]


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CONSUMER FINANCIAL PROTECTION BUREAU


Supervisory Highlights, Issue 30, Summer 2023

AGENCY: Consumer Financial Protection Bureau.

ACTION: Supervisory Highlights.

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SUMMARY: The Consumer Financial Protection Bureau (CFPB or Bureau) is 
issuing its thirtieth edition of Supervisory Highlights.

DATES: The Bureau released this edition of the Supervisory Highlights 
on its website on July 26, 2023. The findings included in this report 
cover examinations in the areas of auto origination, auto servicing, 
consumer reporting, debt collection, deposits, fair lending, 
information technology, mortgage origination, mortgage servicing, 
payday and small dollar lending, and remittances that were completed 
from July 1, 2022, to March 31, 2023.

FOR FURTHER INFORMATION CONTACT: Jaclyn Sellers, Senior Counsel, at 
(202) 435-7449. If you require this document in an alternative 
electronic format, please contact [email protected].

SUPPLEMENTARY INFORMATION:

1. Introduction

    Since its inception, the Consumer Financial Protection Bureau's 
(CFPB's) Supervision program has assessed supervised institutions' 
compliance with Federal consumer financial law and taken supervisory 
action against institutions that have violated it.\1\ This includes 
institutions engaged in unfair, deceptive, or abusive acts or practices 
(UDAAPs) prohibited by the Consumer Financial Protection Act of 2010 
(CFPA).\2\ In April 2023, the CFPB issued a policy statement on abusive 
acts or practices to summarize the existing precedent, provide an 
analytical framework for identifying abusive conduct, and to offer some 
guiding principles.\3\
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    \1\ If a supervisory matter is referred to the Office of 
Enforcement, Enforcement may cite additional violations based on 
these facts or uncover additional information that could impact the 
conclusion as to what violations may exist.
    \2\ 12 U.S.C. 5531, 5536.
    \3\ CFPB Policy Statement on Abusive Acts or Practices, 
available at https://www.consumerfinance.gov/compliance/supervisory-guidance/policy-statement-on-abusiveness/.
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    This edition of Supervisory Highlights notes recent supervisory 
findings of abusive acts or practices supervised institutions engaged 
in across multiple product lines. Examiners also continue to find that 
supervised institutions are engaging in prohibited unfair and deceptive 
acts or practices. The CFPB will continue to supervise for, and enforce 
against, practices that may violate Federal consumer financial law, 
harm consumers, and impede competition.
    Most supervised institutions rely on technology solutions to run 
their businesses and offer or provide consumer financial products or 
services. Supervision assesses information technology utilized by 
supervised entities, and information technology controls, that may 
impact compliance with Federal consumer financial law or risk to 
consumers. Examiners have identified several violations of Federal 
consumer financial law that were caused in whole or in part by 
insufficient information technology controls. This edition includes for 
the first time, findings from the CFPB's Supervision information 
technology program.
    A key aspect of the CFPB supervision program is benefitting 
supervised institutions by identifying compliance issues before they 
become significant. The supervision process is confidential in nature. 
This confidentiality promotes candid communication between supervised 
institutions and CFPB supervisory personnel concerning compliance and 
related matters.
    The findings included in this report cover examinations in the 
areas of auto origination, auto servicing, consumer reporting, debt 
collection, deposits, fair lending, information technology, mortgage 
origination, mortgage servicing, payday and small dollar lending, and 
remittances that were completed from July 1, 2022, to March 31, 2023. 
To maintain the anonymity of the supervised institutions discussed in 
Supervisory Highlights, references to institutions generally are in the 
plural and related findings may pertain to one or more institutions.

2. Supervisory Observations

2.1 Auto Origination

    The CFPB assessed the auto finance origination operations of 
several

[[Page 52132]]

supervised institutions for compliance with applicable Federal consumer 
financial laws and to assess whether institutions have engaged in 
UDAAPs prohibited by the CFPA.\4\
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    \4\ 12 U.S.C. 5531, 5536.
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2.1.1 Deceptive Marketing of Auto Loans
    Examiners found that supervised institutions engaged in the 
deceptive marketing of auto loans when they used advertisements that 
pictured cars that were significantly larger, more expensive, and newer 
than the advertised loan offers were good for. An act or practice is 
deceptive when: (1) the representation, omission, act, or practice 
misleads or is likely to mislead the consumer; (2) the consumer's 
interpretation of the representation, omission, act, or practice is 
reasonable under the circumstances; and (3) the misleading 
representation, omission, act, or practice is material.\5\
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    \5\ Consumer Financial Protection Bureau v. Gordon, 819 F.3d 
1179, 1192 (9th Cir. 2016).
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    Examiners found that the representations made in these 
advertisements were likely to mislead consumers, as the ``net 
impression'' to consumers was that the advertisements applied to a 
subset of cars to which they did not actually apply. Examiners further 
concluded that it was reasonable for consumers to believe that the 
advertised terms applied to a class of vehicles similar to the cars 
pictured in the ads. These representations were material as information 
about the central characteristics of a product or service--such as 
costs, benefits, and/or restrictions on the use or availability--are 
presumed to be material. Here, the promotional offers advertised were 
significantly more restricted than a consumer may have realized. In 
response to these findings, the institutions have stopped using the 
deceptive advertisements and have enhanced monitoring of marketing 
materials and advertisements across all product lines.

2.2 Auto Servicing

    Examiners identified three unfair or abusive acts or practices at 
auto servicers related to charging interest on inflated loan balances, 
cancelling automatic payments without sufficient notice, and collection 
practices after repossession.
2.2.1 Collecting Interest on Fraudulent Loan Charges
    When supervised institutions purchase retail installment contracts 
from auto dealers, dealers generally provide a document listing the 
options included on the vehicle. Some dealers fraudulently included in 
the document options that are not actually present on the vehicle, for 
example by listing undercoating that the vehicle does not actually 
have. This artificially inflates the value of the collateral, which may 
make it easier for the dealer to find funding for the contract from 
indirect lenders.
    Examiners found that servicers engaged in unfair and abusive acts 
or practices by collecting and retaining interest borrowers paid on 
automobile loans that included options that were not in fact included 
in the collateral, leading to improperly inflated loan amounts. 
Examiners found that after initial loan processing, servicers attempted 
to contact consumers to verify that options listed by the dealer are in 
fact on the vehicle; consumers rarely identified discrepancies. In the 
event consumers identified discrepancies, servicers reduced the amounts 
that they paid dealers by the amount of the missing options. But 
servicers did not reduce the amount that consumers owed on the loan 
agreements and continued to charge interest tied to financing of the 
nonexistent options. Similarly, after repossession servicers compared 
the options actually present on the vehicle to the information 
originally provided by the dealer and, where the options were not 
actually included, obtained refunds from dealers that were applied to 
the deficiency balances. But the servicers did not refund consumers for 
the interest charged on the illusory options.
    The CFPA defines an unfair act or practice as an act or practice 
that: (1) that causes or is likely to cause substantial injury to 
consumers; (2) which is not reasonably avoidable by consumers; and (3) 
is not outweighed by countervailing benefits to consumers or to 
competition.\6\ Examiners found that servicers engaged in unfair acts 
or practices when they collected interest on the nonexistent options. 
Examiners found that consumers suffered substantial injury when they 
paid excess interest resulting from improperly inflated loan amounts. 
Consumers could not reasonably avoid the injury because they had no 
reason to anticipate that dealers would fraudulently include 
nonexistent options and that the consumers would be charged interest 
based on the inflated loan amount. And even if consumers attempted to 
validate the options included, most consumers are not able to tell--
merely by sight--the options included on a car, many of which may be 
hidden under the hood or otherwise not readily visible. And the injury 
is not outweighed by countervailing benefits to consumers or 
competition.
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    \6\ 12 U.S.C. 5531, 5536.
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    Examiners also found that the servicers engaged in abusive acts or 
practices. An act or practice is abusive if it: (1) materially 
interferes with the ability of a consumer to understand a term or 
condition of a consumer financial product or service; or (2) takes 
unreasonable advantage of: a lack of understanding on the part of the 
consumer of the material risks, costs, or conditions of the product or 
service; the inability of the consumer to protect the interest of the 
consumer in selecting or using a consumer financial product or service; 
or the reasonable reliance by the consumer on a covered person to act 
in the best interest of the consumer.\7\
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    \7\ 12 U.S.C. 5531(d)(2)(B).
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    Here examiners concluded that the servicers' practices were abusive 
because they took unreasonable advantage of consumers' inability to 
protect their interests in the selection or use of the product by 
charging interest on loan balances that were improperly inflated 
because of the illusory options, which benefited the servicer to the 
detriment of consumers. Servicers were aware that some percentage of 
their loans had inflated balances and nevertheless collected excess 
interest on these amounts while seeking and obtaining refunds on the 
missing options. At the time of loan funding, consumers were unable to 
protect their own interests; it was impractical for them to challenge 
the practice because they did not know that certain options were 
missing.\8\ After repossession, servicers continued to take advantage 
of consumers' inability to protect their interests where they protected 
themselves by obtaining refunds from dealers for the value of options 
the collateral vehicles did not actually have but did not refund the 
excess interest amounts consumers had paid based on these inflated loan 
balances.
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    \8\ CFPB Policy Statement on Abusive Acts or Practices, at 14, 
available at https://www.consumerfinance.gov/compliance/supervisory-guidance/policy-statement-on-abusiveness/ (explaining that 
``inability'' includes situations where it is ``impractical'' for 
consumers to protect their interests).
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    In response to these findings, Supervision directed the servicers 
to cease the practice.
2.2.2 Canceling Automatic Payments Without Sufficient Notice
    Examiners found that servicers engaged in unfair acts or practices 
by suspending recurring automated

[[Page 52133]]

clearing house (ACH) payments prior to consumers' final payment without 
sufficiently notifying consumers that the final payment must be made 
manually. Consumers could enroll in automatic payments by completing a 
written electronic funds transfer authorization. The authorizations 
contained a small print disclosure that servicers would not 
automatically withdraw the final payment; servicers did not provide any 
additional communication to consumers before the final payment was 
required. Many consumers enrolled in these automatic payments for a 
period of years and relied on the automatic payments. But servicers 
cancelled the final withdrawal and did not debit the final payment, 
resulting in missed payments and late fee assessment by servicers. 
Consumers suffered substantial injury when servicers failed to provide 
adequate notice that they would not debit the final payment, including 
the late fees servicers charged consumers when consumers missed these 
payments. Consumers could not reasonably avoid this injury because they 
believed their payments would be processed automatically and the only 
disclosure that the payment would be cancelled was written in fine 
print in the initial enrollment paperwork. And the injury is not 
outweighed by countervailing benefits to consumers or competition.
    In response to these findings, servicers remediated consumers and 
revised their policies and procedures.
2.2.3 Requiring Consumers To Pay Other Debts To Redeem Vehicles
    Some vehicle financing contracts contain clauses allowing servicers 
to use the vehicle to secure other unrelated unsecured debts consumers 
owe to the company, such as credit card debt; this is referred to as 
cross-collateralization. Examiners found that after servicers 
repossessed vehicles, they accelerated the amount due on the vehicle 
finance contract and also accelerated any other amounts the consumer 
owed to the entity. When consumers called to recover the vehicles, the 
servicers required consumers to pay the full amount on all accelerated 
debts, which included both debt for the vehicle and other debts.
    Examiners found that servicers engaged in unfair and abusive acts 
or practices by engaging in the blanket practice of cross-
collateralizing loans and requiring consumers to pay other debts to 
redeem their repossessed vehicles.
    Accelerating and demanding repayment on other debts before 
returning repossessed vehicles was unfair. It caused substantial injury 
to consumers because consumers were required to pay accelerated and 
cross-collateralized amounts across multiple loans or lose their 
vehicles. Consumers could not reasonably avoid the harm caused by this 
practice. While servicers occasionally allowed consumers to pay lesser 
amounts, they did so only if consumers objected or argued about the 
debt and consumers were not meaningfully made aware that arguing about 
the cross-collateralization could result in a lesser payment amount. 
And even if the consumer objected, representatives still used the 
cross-collateral provisions as a coercive collection tactic. A blanket 
practice of cross-collateralizing and demanding repayment does not 
benefit consumers and the harm outweighs any countervailing benefits to 
consumers or competition.
    This practice was abusive because it also took unreasonable 
advantage of a lack of understanding of consumers of the material 
risks, costs, or conditions of their loan agreements. When consumers 
sought to reinstate their loans after repossession, servicers utilized 
contractual remedies to accelerate all debts owed to them which 
resulted in a significant monetary advantage to servicers while 
imposing a corresponding degree of economic harm on the consumer. These 
practices also inflicted significant emotional and psychological 
distress. The advantage gained by the servicers was unreasonable in the 
ordinary case of vehicle repossession. And consumers lacked an 
understanding of the material risks, costs, or conditions of the 
specific contractual remedies allowing for cross-collateralization at 
issue in the relevant loans.\9\
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    \9\ See CFPB Policy Statement on Abusive Acts or Practices, at 
12, available at https://www.consumerfinance.gov/compliance/supervisory-guidance/policy-statement-on-abusiveness/ (explaining 
that ``risks'' includes the consequence of default).
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    In response to these findings, servicers remediated consumers and 
revised policies and procedures.

2.3 Consumer Reporting

    Companies that regularly assemble or evaluate information about 
consumers for the purpose of providing consumer reports to third 
parties are ``consumer reporting companies'' (CRCs).\10\ These 
companies, along with the entities--such as banks, loan servicers, and 
others--that furnish information to the CRCs for inclusion in consumer 
reports, play a vital role in the availability of credit and have a 
significant role to play in the fair and accurate reporting of credit 
information. They are subject to several requirements under the Fair 
Credit Reporting Act (FCRA) \11\ and its implementing regulation, 
Regulation V,\12\ including the requirement to reasonably investigate 
disputes and to furnish data subject to the relevant accuracy 
requirements. In recent reviews, examiners found deficiencies in CRCs' 
compliance with FCRA permissible purpose-related policy and procedure 
requirements and furnisher compliance with FCRA and Regulation V 
dispute investigation requirements.
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    \10\ The term ``consumer reporting company'' means the same as 
``consumer reporting agency,'' as defined in the Fair Credit 
Reporting Act, 15 U.S.C. 1681a(f), including nationwide consumer 
reporting agencies as defined in 15 U.S.C. 1681a(p) and nationwide 
specialty consumer reporting agencies as defined in 15 U.S.C. 
1681a(x).
    \11\ 15 U.S.C. 1681 et seq.
    \12\ 12 CFR part 1022.
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2.3.1 CRC Duty To Maintain Reasonable Policies and Procedures Designed 
To Limit Furnishing Consumer Reports to Persons With Permissible 
Purpose(s)
    The FCRA requires that CRCs must maintain reasonable procedures 
designed to limit the furnishing of consumer reports to persons with at 
least one of the permissible purposes enumerated under section 604(a) 
of the FCRA.\13\ In recent reviews of CRCs, examiners found that CRCs' 
procedures relating to ensuring end users of consumer reports have a 
requisite permissible purpose failed to comply with this obligation 
because the CRCs' procedures posed an unreasonable risk of improperly 
disclosing consumer reports to persons without a permissible purpose. 
For example, examiners identified multiple deficiencies in the CRCs' 
procedures, such as failing to maintain an adequate process for re-
assessing end users' permissible purpose(s) where indicia of improper 
consumer report use by an end user is present. This created heightened 
risk of improper consumer report disclosures. In some instances, 
examiners found that such deficiencies resulted in CRCs furnishing 
consumer reports to end users despite having reasonable grounds to 
believe the end users did not have a requisite permissible purpose.
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    \13\ 15 U.S.C. 1681e(a).
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    In response to these findings, CRCs are revising policies and 
procedures for, and their oversight of, onboarding end users and 
periodically re-assessing end users' permissible purpose(s). CRCs also 
are revising processes relating to the monitoring of end users, 
including the identification of end users exhibiting

[[Page 52134]]

indicia of impermissible consumer report use.
2.3.2 Furnisher Duty To Review Policies and Procedures and Update Them 
as Necessary To Ensure Their Continued Effectiveness
    Examiners found that furnishers are violating the Regulation V duty 
to periodically review their policies and procedures concerning the 
accuracy and integrity of furnished information and update them as 
necessary to ensure their continued effectiveness.\14\ Specifically, in 
recent reviews of auto furnishers, examiners found that furnishers 
failed to review and update policies and procedures after implementing 
substantial changes to their dispute handling processes. For example, 
furnishers changed software systems for use in the investigation of 
disputes but maintained policies and procedures that referenced only 
systems no longer in use, inhibiting the continued effectiveness of 
those policies and procedures. In response to these findings, 
furnishers are updating their policies and procedures to reflect 
current systems and training staff to use them in handling disputes.
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    \14\ 12 CFR 1022.42(c).
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2.3.3 Furnisher Duty To Conduct Reasonable Investigations of Direct 
Disputes
    Examiners are continuing to find that furnishers are violating the 
Regulation V duty to conduct a reasonable investigation of direct 
disputes.\15\ In recent reviews of mortgage furnishers, examiners found 
the furnishers failed to conduct any investigations of direct disputes 
that were received at an address provided by the furnishers to CRCs and 
set forth on consumer reports. Rather than investigate direct disputes 
sent to these qualifying addresses under Regulation V, the furnishers 
responded to the disputes by instructing the consumers to re-send their 
direct disputes to certain other addresses of the furnishers and only 
investigated the disputes to the extent the consumers re-sent them per 
these instructions. In response to these findings, furnishers are 
updating their policies and procedures to ensure that they conduct 
reasonable investigations of direct disputes that are sent to addresses 
provided by the furnishers to CRCs and set forth on consumer reports.
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    \15\ 12 CFR 1022.43(e).
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2.3.4 Furnisher Duty To Notify Consumers That a Dispute Is Frivolous or 
Irrelevant
    Examiners are continuing to find that furnishers are violating the 
Regulation V duty to provide consumers with notices regarding frivolous 
or irrelevant disputes.\16\ In recent reviews of third-party debt 
collector furnishers, examiners found that furnishers failed to send 
any notice to consumers whose direct disputes they determined were 
frivolous or irrelevant. For example, when furnishers determined that 
disputes sent by consumers were duplicative of prior disputes, the 
furnishers did not investigate the disputes nor send notices to 
consumers setting forth the reasons for their determination and the 
information the consumers needed to submit for the furnishers to 
investigate the disputed information. In response to these findings, 
furnishers are establishing policies and procedures to identify and 
respond to frivolous or irrelevant disputes, including sending a letter 
to the consumer notifying the consumer of the determination that a 
dispute is frivolous or irrelevant and identifying the additional 
information needed to investigate the consumer's dispute.
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    \16\ 12 CFR 1022.43(f)(2).
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2.3.5 Furnisher Duty To Inform Consumers of Information Needed To 
Investigate Frivolous or Irrelevant Disputes
    Examiners are continuing to find that furnishers are violating 
their Regulation V duty, after making a determination that a direct 
dispute is frivolous or irrelevant, to include in their notices to 
consumers the reasons for that determination and to identify any 
information required to investigate the disputed information.\17\ In 
recent reviews of mortgage furnishers, examiners found that furnishers 
sent frivolous or irrelevant notices to consumers that failed to 
accurately convey what information the consumers needed to submit for 
the furnishers to investigate the disputed information. For example, 
furnishers sent consumers a frivolous notification stating that 
consumers must provide their entire unredacted credit report for the 
furnishers to investigate the dispute, even though an entire unredacted 
credit report was not required for the investigation and an excerpt of 
the relevant portion of the credit report would have sufficed. In 
response to these findings, furnishers are updating the content of 
their frivolous or irrelevant notices to eliminate the language 
requesting an entire unredacted credit report as a prerequisite for 
investigation.
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    \17\ 12 CFR 1022.43(f)(3).
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2.3.6 Furnishers' Failure To Provide Adequate Address-Disclosures for 
Notices
    Section 623(a)(1)(A) of the FCRA requires that a furnisher must not 
furnish to any CRC any information relating to a consumer if the 
furnisher knows or has reasonable cause to believe that the information 
is inaccurate.\18\ A furnisher is not subject to section 623(a)(1)(A) 
if the furnisher clearly and conspicuously specifies to consumers an 
address at which consumers may notify the furnisher that information it 
furnished is inaccurate.\19\ The FCRA does not require a furnisher to 
specify such an address. If a furnisher clearly and conspicuously 
specifies such an address, it is not subject to section 623(a)(1)(A) 
but must comply with section 623(a)(1)(B) of the FCRA, which provides 
that a furnisher shall not furnish information relating to a consumer 
to a CRC if it has been notified by the consumer, at the address 
specified for such notices, that certain information is inaccurate and 
such information is, in fact, inaccurate.\20\ A furnisher that 
specifies an address may also be subject to section 623(a)(2) of the 
FCRA if it determines that information it has furnished is not complete 
or accurate and fails to notify the CRC and provide corrections.\21\
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    \18\ 15 U.S.C. 1681s-2(a)(1)(A).
    \19\ 15 U.S.C. 1681s-2(a)(1)(C).
    \20\ Id. (cross-referencing 15 U.S.C. 1681s-2(a)(1)(B)).
    \21\ 15 U.S.C. 1681s-2(a)(2).
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    Examiners are continuing to find that furnishers are not clearly 
and conspicuously specifying to consumers an address for notices at 
which a consumer may notify the furnisher that information is 
inaccurate. In reviews of third-party debt collection furnishers, 
examiners found that the only notice or dispute address furnishers 
provided to consumers was an address included on debt validation 
notices for the purpose of disputing the validity of a debt. Examiners 
found that the debt validation notices did not specify to consumers an 
address for, or otherwise specify that the debt validity dispute 
address may also be used for, notices relating to inaccurately 
furnished consumer report information. As a result, examiners found 
that the furnishers have not met the requirement in section 
623(a)(1)(C) of the FCRA to not be subject to section 623(a)(1)(A) and 
therefore are subject to the stricter

[[Page 52135]]

prohibition under section 623(a)(1)(A) of the FCRA against furnishing 
information the furnishers know or have reasonable cause to believe is 
inaccurate.

2.4 Debt Collection

    The CFPB has supervisory authority to examine certain institutions 
that engage in consumer debt collection activities, including very 
large depository institutions, nonbanks that are larger participants in 
the consumer debt collection market, and nonbanks that are service 
providers to certain covered persons. Recent examinations of larger 
participant debt collectors identified violations of the Fair Debt 
Collection Practices Act (FDCPA) as well as the CFPA.
2.4.1 Unlawful Attempts To Collect Medical Debt
    Examiners found that debt collectors continued collection attempts 
for work-related medical debt after receiving sufficient information to 
render the debt uncollectible under State worker's compensation law 
absent written evidence to the contrary, which the collector did not 
obtain from its client. The collectors made multiple calls over several 
years, during which they implied that the consumer owed the debt and 
asserted that the ambulance ride that gave rise to the debt originated 
from the consumer's home, despite evidence in their files that it 
originated from the consumer's workplace. Examiners found that, through 
these practices, the debt collectors violated the FDCPA by collecting 
an amount not permitted by law or agreement,\22\ by falsely 
representing the character, amount, or legal status of a debt,\23\ by 
engaging in conduct which had the natural consequence of harassing, 
oppressing, or abusing the consumer,\24\ and by using false, deceptive, 
or misleading representations in connection with the collection of a 
debt.\25\
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    \22\ 15 U.S.C. 1692f(1).
    \23\ 15 U.S.C. 1692e(2)(A).
    \24\ 15 U.S.C. 1692d.
    \25\ 15 U.S.C. 1692e.
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    In response to these findings, Supervision directed the debt 
collectors to establish and maintain adequate collection policies, 
procedures, and training to include specific limitations on 
circumstances under which the collectors may contact consumers in 
connection with pending workers' compensation claims; enhancing call 
monitoring to include a review of accounts with a pending workers' 
compensation claim; and ensuring accounts are monitored for pending 
workers' compensation claims and collection attempts on such accounts 
are ceased.
2.4.2 Deceptive Representations About Interest Payments
    Examiners found that debt collectors advised consumers that if they 
paid the balance in full by a date certain, any interest assessed on 
the debt would be reversed. The debt collectors then failed to credit 
the consumers' accounts with the accrued additional interest, resulting 
in the consumers paying more than the agreed upon amount. Examiners 
found this practice to be deceptive in violation of the CFPA.\26\ In 
response to these findings, Supervision directed the debt collectors to 
remediate all consumers who had overpaid.
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    \26\ 12 U.S.C. 5536(a)(1)(B).
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2.5 Deposits

    The CFPB continues to examine financial institutions to assess 
whether they have engaged in UDAAPs prohibited by the CFPA.\27\ The 
CFPB also continues its examinations of supervised institutions for 
compliance with Regulation E,\28\ which implements the Electronic Fund 
Transfer Act (EFTA).\29\ The CFPB also examines for compliance with 
other relevant statutes and regulations, including Regulation DD,\30\ 
which implements the Truth in Savings Act.\31\
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    \27\ 12 U.S.C. 5531, 5536.
    \28\ 12 CFR 1005 et seq.
    \29\ 15 U.S.C. 1693 et seq.
    \30\ 12 CFR 1030 et seq.
    \31\ 12 U.S.C. 4301 et seq.
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2.5.1 Unfair Line of Credit Usage and Fees
    The CFPA prohibits any ``covered person'' from ``engag[ing] in any 
unfair, deceptive, or abusive act or practice.'' \32\
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    \32\ 12 U.S.C. 5536.
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    Examiners found unfair acts or practices due to institutions' 
assessment of both nonsufficient funds (NSF) and line of credit 
transfer fees on the same transaction. The institutions offered a line 
of credit program that consumers could opt-in to. If a consumer's 
checking account did not have sufficient funds to pay for a 
transaction, the institutions would transfer funds from the line of 
credit to cover the transaction and assess a line of credit transfer 
fee, as well as interest on the amount of credit extended. In some 
instances, the line of credit might not have sufficient funds to cover 
the transaction, in which case the institutions would deny the 
transaction and assess an NSF fee on the denied transaction. As the 
transaction was declined, no funds from the line of credit would be 
transferred to pay the transaction. But, if there were insufficient 
funds in the consumer's checking account to pay the NSF fee and that 
NSF fee overdrew the consumer's account, the institutions would 
automatically transfer funds from the line of credit to the consumer's 
checking account and assess a line of credit transfer fee.
    Supervision found the institutions' practice of assessing both the 
NSF and the line of credit transfer fee on the same transaction is an 
unfair act or practice. These acts or practices caused or were likely 
to cause substantial injury in the form of two fees being assessed on 
the same denied transaction. Consumers who enrolled in the line of 
credit program were charged two fees instead of the single fee charged 
to those who were not enrolled, even though in both cases the 
transaction was returned unpaid. A consumer could not reasonably avoid 
this substantial injury as the consumer had no notice of the potential 
for double fees or ability to avoid the double fees in this automated 
process and would not reasonably expect that enrolling in a program 
meant to prevent overdraft and decrease fees related to denied 
transactions would instead increase them. These acts or practices did 
not provide benefits to consumers or competition.
    The supervised institutions believed they had safeguards in place 
to not assess NSF fees and line of credit fees on the same transaction. 
Specifically, they programmed their systems to not assess both of these 
fees on the same day. The way the institutions' systems posted NSF 
fees, however, meant that the NSF and line of credit fees were incurred 
on different days, even though they were part of the same transaction. 
Thus, the safeguard was inadequate. In response to these findings, the 
institutions committed to system changes and remediated $113,358 to 
4,147 consumers. The system change implemented by the supervised 
institutions was to avoid the issue altogether by entirely eliminating 
NSF fees for unpaid transactions.

2.6 Fair Lending

    The CFPB's fair lending supervision program assesses compliance 
with the Equal Credit Opportunity Act (ECOA) \33\ and its implementing 
regulation, Regulation B,\34\ as well as the Home Mortgage Disclosure 
Act (HMDA) \35\ and its implementing regulation, Regulation

[[Page 52136]]

C,\36\ at institutions subject to the CFPB's supervisory authority. 
ECOA prohibits a creditor from discriminating against any applicant, 
with respect to any aspect of a credit transaction, on the basis of 
race, sex, color, religion, national origin, sex (including sexual 
orientation and gender identity), marital status, or age (provided the 
applicant has the capacity to contract), because all or part of the 
applicant's income derives from any public assistance program, or 
because the applicant has in good faith exercised any right under the 
Consumer Credit Protection Act.\37\
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    \33\ 15 U.S.C. 1691-1691f.
    \34\ 12 CFR pt. 1002.
    \35\ 12 U.S.C. 2801-2810.
    \36\ 12 CFR pt. 1003.
    \37\ 15 U.S.C. 1691(a).
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    During recent examinations, Examiners found lenders violated ECOA 
and Regulation B.
2.6.1 Pricing Discrimination
    In the Fall 2021 issue of Supervisory Highlights, the CFPB 
discussed findings that mortgage lenders violated ECOA and Regulation B 
by discriminating against African American and female borrowers in the 
granting of pricing exceptions based upon competitive offers from other 
institutions.\38\ Since then, Supervision conducted additional 
examinations assessing mortgage lenders' compliance with ECOA and 
Regulation B with respect to the granting of pricing exceptions based 
on competitive offers from other institutions. The CFPB again found 
that mortgage lenders violated ECOA and Regulation B by discriminating 
in the incidence of granting pricing exceptions across a range of ECOA-
protected characteristics, including race, national origin, sex, or 
age.
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    \38\ Supervisory Highlights, Issue 25, Fall 2021, sec. 2.4.1.
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    Examiners observed that certain lenders maintained policies and 
procedures that permitted the granting of pricing exceptions to 
consumers, including pricing exceptions for competitive offers. 
Generally, a pricing exception is when a lender makes exceptions to its 
established credit standards. For example, a lender may lower a rate to 
match a competitor's offer and retain the consumer. Examiners 
identified lenders with statistically significant disparities for the 
incidence of pricing exceptions at differential rates on a prohibited 
basis compared to similarly situated borrowers. Weaknesses in the 
lenders' policies and procedures with respect to pricing exceptions for 
competitive offers, the failure of mortgage loan officers to follow 
those policies and procedures, the lenders' lack of oversight and 
control over their mortgage loan officers' discretion in connection 
with and use of such exceptions, or managements' failure to take 
appropriate corrective action risks contributed to the observed 
disparities in the incidence of granting pricing exceptions. Examiners 
did not identify evidence of legitimate, non-discriminatory reasons 
that explained the disparities observed in the statistical analysis.
    In several instances, examiners identified policies and procedures 
that were not designed to effectively mitigate ECOA and Regulation B 
violations or manage associated risks of harm to consumers. Some 
policies permitted mortgage loan officers to request a pricing 
exception by submitting a request into the loan origination system 
without requiring that the request be substantiated by documentation. 
While those requests were subject to managerial review, there were no 
guidelines for the bases for approval or denial of the exception 
request or the amount of the exception. Other policies had limited 
documentation requirements--and sometimes no documentation requirements 
for pricing exceptions below a certain threshold. This meant that the 
lenders could not effectively monitor whether the pricing exception 
request was initiated by the consumer and/or supported by a competitive 
offer to the consumer. Other policies granted some loan officers 
pricing exception authority up to certain thresholds without the need 
for competitive offer documentation or management approval. As a 
result, the lenders did not flag those discretionary discounts as 
pricing exceptions and did not monitor them. Some policies had more 
robust documentation and approval requirements. But those institutions 
did not effectively monitor interactions between loan officers and 
consumers to ensure that the policies were followed and that the loan 
officer was not coaching certain consumers and not others regarding the 
competitive match process. In other instances, examiners determined 
that loan officers were not properly documenting the initiation source 
of the concession request nor were they retaining and documenting 
competitors' pricing information in borrowers' files as required by the 
lender policy.
    Examiners also identified weaknesses in training programs. Some 
lenders did not have training that explicitly addressed fair lending 
risks associated with pricing exceptions, including the risks of 
providing different levels of assistance to customers, on prohibited 
bases, in connection with a customer's request for a price exception. 
Other training programs did not cover pricing exceptions risk for 
employees who have discretionary pricing authority.
    Finally, examiners concluded that management and board oversight at 
lenders was not sufficient to identify and address risk of harm to 
consumers from the lender's pricing exceptions practices. Similarly, 
examiners observed that some lenders failed to take corrective action 
based on their statistical observations of disparities in pricing 
exceptions. Some lenders failed to document whether additional 
investigation into observed disparities was warranted, review the 
causes of such disparities, or consider actions that might reduce such 
disparities.
    In response to these findings, the CFPB directed lenders to, among 
other things: enhance or implement pricing exception policies and 
procedures to mitigate fair lending risks, including enhancing 
documentation standards and requiring clear exception criteria; enhance 
or implement policies requiring the retention of documentation for all 
pricing exceptions, including document regarding whether the pricing 
exception request was initiated by the consumer; develop and implement 
a monitoring and audit program to effectively identify and mitigate 
potential disparities and/or fair lending risks associated with the 
pricing exception approval process; or to identify and remediate harmed 
consumers.
2.6.2 Discriminatory Lending Restrictions
    The CFPB recently reviewed lending restrictions in underwriting 
policies and procedures at several lenders to evaluate fair lending 
risks and to assess compliance with ECOA and Regulation B. The reviews 
focused on lending restrictions relating to how those lenders handled 
the treatment of applicants' criminal records and whether the lenders 
properly treated income derived from public assistance.
    Regarding prior contact with the criminal justice system, both 
national data and the history of discrimination in the justice system 
suggest that restrictions on lending based on criminal history are, in 
many circumstances, likely to have a disparate impact based on race and 
national origin.\39\ Thus, the use of criminal history in credit 
decisioning may create a heightened risk of violating ECOA and 
Regulation B. The CFPB's review

[[Page 52137]]

identified risky policies and procedures at several institutions for 
several areas of credit, including mortgage origination, auto lending, 
and credit cards, but most notably within small business lending. A 
common thread in the CFPB review was that the discovery of criminal 
records prompted enhanced or second-level underwriting review. However, 
policies and procedures at several institutions did not provide detail 
regarding how that review should be conducted, creating fair lending 
risk around how the reviewing official exercises discretion. There were 
variations amongst the policies and procedures as to how the lender 
identified criminal records and which violations or charges triggered 
further review or denial. For example, some lenders generally denied 
credit when it identified applicants with felony convictions for 
financial crimes but did not deny credit for arrests or non-felony 
convictions. Other lenders treated criminal indictments, fraud cases, 
sexual offenses, and industry bans as significant risks. But without 
clear guidelines and well-defined standards designed to meet legitimate 
business needs, lenders risked violating ECOA and Regulation B by 
applying these underwriting restrictions in a manner that could 
discriminate on a prohibited basis.
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    \39\ CFPB, Justice-Involved Individuals and the Consumer 
Financial Marketplace (Jan. 2022), available at https://files.consumerfinance.gov/f/documents/cfpb_jic_report_2022-01.pdf.
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    With respect to the proper treatment of public assistance income in 
underwriting, ECOA and Regulation B prohibit discrimination against 
applicants, with respect to any aspect of a credit transaction, because 
all or part of the applicant's income derives from any public 
assistance program.\40\ Examiners identified lenders whose policies and 
procedures excluded income derived from certain public assistance 
programs or imposed stricter standards on income derived from public 
assistance programs. Lenders maintained a written policy that expressly 
prohibited underwriters from considering Home Assistance Payments 
provided by the Section 8 Housing Choice Voucher Homeownership 
Program.\41\ Lenders participated in mortgage lending programs that 
provided consumers with a benefit in the form of a mortgage credit 
certificate but did not treat those benefits as income under their 
underwriting standards. Some lenders maintained a policy with a six-
year continuity-of-income requirement for applicants relying primarily 
on public assistance income that was stricter than the three-year 
requirements applicable to other applicants' income.
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    \40\ 15 U.S.C. 1691(a)(3); 12 CFR 1002.4(a).
    \41\ In 2015, the CFPB issued a compliance bulletin reminding 
creditors of their obligations under ECOA and Regulation B to 
provide non-discriminatory access to credit for mortgage applicants 
using income from the Section 8 Housing Choice Voucher Homeownership 
Program. CFPB Bulletin 2015-01, Section 8 Housing Choice Voucher 
Homeownership Program, available at https://files.consumerfinance.gov/f/201505_cfpb_bulletin-section-8-housing-choice-voucher-homeownership-program.pdf.
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    In response to these findings, the CFPB directed lenders to review, 
identify, and provide relief to any applicant negatively affected by 
these policies. Lenders were also directed to revise and implement 
policies and procedures and enhance related systems to ensure public 
assistance income is evaluated under standards applicable to other 
sources of income.

2.7 Information Technology

    The CFPB's Supervision program evaluates information technology 
controls at supervised institutions that may impact compliance with 
Federal consumer financial law or implicate risk to consumers. The CFPB 
assesses the effectiveness of information technology controls in 
detecting and preventing data breaches and cyberattacks. For example, 
inadequate security for sensitive consumer information, weak password 
management controls, untimely software updates or failing to implement 
multi-factor authentication or a reasonable equivalent could cause or 
contribute to violations of law including the prohibition against 
engaging in UDAAPs.\42\
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    \42\ These deficiencies may also violate other Federal laws 
governing data security for financial institutions such as the 
Safeguards Rules issued under the Gramm-Leach-Bliley Act.
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    Examiners found that institutions engaged in unfair acts or 
practices prohibited by the CFPA by failing to implement adequate 
information technology controls.
2.7.1 Failing To Implement Adequate Information Technology Security 
Controls
    Examiners found that institutions engaged in unfair acts or 
practices by failing to implement adequate information technology 
security controls that could have prevented or mitigated cyberattacks. 
More specifically, the institutions' password management policies for 
certain online accounts were weak, the entities failed to establish 
adequate controls in connection with log-in attempts, and the same 
entities also did not adequately implement multi-factor authentication 
or a reasonable equivalent for consumer accounts.
    The entities' lack of adequate information technology security 
controls caused substantial harm to consumers when bad actors accessed 
almost 8,000 consumer bank accounts and made fraudulent withdrawals in 
the sum of at least $800,000. Consumers were also injured because they 
had to devote significant time and resources to dealing with the 
impacts of the incident. For example, consumers had to contact the 
institutions to file disputes to determine why funds were missing from 
their accounts and then wait to be reimbursed by the institutions. 
Consumers may have had to spend additional time enrolling in credit 
monitoring services, identity theft protection services or changing 
their log-in credentials.
    The impacted consumers could not reasonably avoid the injury caused 
by the institutions' inadequate information technology security 
controls. Consumers do not have control over certain aspects of an 
institutions' security features, such as how many log-in attempts an 
institution allows before locking an account or the number of 
transactions it labels suspicious, requiring additional verification. 
Similarly, only the institutions can implement measures to mitigate or 
prevent cyberattacks such as employing controls or tools to block 
automated malicious software (botnet) activity or ensuring sufficient 
authentication protocols are in place such as multi-factor 
authentication or an alternative of equivalent strength. Consumers do 
not have control over these security measures and were unable to 
reasonably avoid the injury caused by the cyberattacks. The injury to 
consumers outweighs any countervailing benefits, such as avoiding the 
cost of implementing information technology controls necessary to 
prevent these types of attacks.
    In response to these findings, the institutions are implementing 
multi-factor authentication, or a reasonable equivalent, enhancing 
password management practices and implementing adequate controls for 
failed log-in attempts to prevent/mitigate unauthorized access to 
consumer accounts. Additionally, the institutions are providing 
remediation to impacted consumers.

2.8 Mortgage Origination

    The CFPB assessed mortgage origination operations of several 
supervised institutions for compliance with applicable Federal consumer 
financial laws including Regulation Z.

[[Page 52138]]

2.8.1 Loan Originator Compensation: Differentiations Based on Product 
Type
    Regulation Z generally prohibits compensating mortgage loan 
originators in an amount that is based on the terms of a 
transaction.\43\ It defines a term of a transaction as ``any right or 
obligation of the parties to a credit transaction.'' \44\ And it 
provides that a determination of whether compensation is ``based on'' a 
term of a transaction is made based on objective facts and 
circumstances indicating that compensation would have been different if 
a transaction term had been different.\45\ Accordingly, in the preamble 
to the CFPB's 2013 Loan Originator Final Rule, the CFPB clarified that 
it is ``not permissible to differentiate compensation based on credit 
product type, since products are simply a bundle of particular terms.'' 
\46\
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    \43\ 12 CFR 1026.36(d)(1)(i).
    \44\ 12 CFR 1026.36(d)(1)(ii).
    \45\ 12 CFR 1026.36(d)(1)(i), comment 36(d)(1)-1.i.
    \46\ 2013 Loan Originator Compensation Rule, 78 FR 11279, 11326-
27, n.82 (Feb. 15, 2013).
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    As part of their business model, institutions brokered-out certain 
mortgage products not offered in-house. For example, the institutions 
used outside lenders for reverse mortgage originations, but had their 
own in-house cash-out refinance mortgage product. Examiners determined 
that the institutions used a compensation plan that allowed a loan 
originator who originated both brokered-out and in-house loans to 
receive a different level of compensation for the brokered-out loans 
versus in-house loans. By compensating differently for loan product 
types that were not offered in-house, the entities violated Regulation 
Z by basing compensation on the terms of a transaction. In response to 
these findings, the entities have since revised their loan originator 
compensation plans to comply with Regulation Z.
2.8.2 Loan Disclosures: Failure To Reflect the Terms of the Legal 
Obligation on Disclosures
    Regulation Z requires that disclosures ``shall reflect the terms of 
the legal obligation between the parties.'' \47\ In most cases, 
disclosures should reflect the terms to which both the consumer and 
creditor are legally bound at the outset of a transaction.\48\
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    \47\ 12 CFR 1026.17(c)(1).
    \48\ 12 CFR 1026.17(c)(1), comment 17(c)(1)-1.
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    Examiners found that the standard adjustable-rate promissory note 
used by an institution stated that the result of the margin plus the 
current index should be rounded up or down to the nearest one-eighth of 
one percentage point. However, examiners discovered that the 
institutions' loan origination system was not programmed to round. 
Thus, the fully indexed rate that the entity calculated and provided on 
their disclosures was calculated contrary to the promissory note for 
the loan. Consequently, the supervised institutions failed to reflect 
the terms of the legal obligation on disclosures in violation of 
Regulation Z.\49\ In response to these findings, the supervised 
institutions reconfigured their loan origination system to round 
according to the promissory note.
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    \49\ 12 CFR 1026.38(o)(1)(i) and 12 CFR 1026.38(o)(2)(i).
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2.9 Mortgage Servicing

    Examiners identified UDAAP and regulatory violations at mortgage 
servicers, including violations during the loss mitigation and 
servicing transfer processes, as well as payment posting violations.
2.9.1 Loss Mitigation Timing Violations
    If a servicer receives a complete application more than 37 days 
before a scheduled foreclosure sale, then Regulation X \50\ requires 
servicers to evaluate the complete loss mitigation applications within 
30 days of receipt and provide written notices to borrowers stating 
which loss mitigation options, if any, are available. Examiners found 
that some servicers violated Regulation X when they failed to evaluate 
complete applications within 30 days of receipt.\51\ Relatedly, some 
servicers evaluated the application within 30 days but failed to 
provide the required notice to borrowers within 30 days as 
required.\52\ In response to these findings, servicers improved 
policies and implemented additional training.
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    \50\ 12 CFR 1024.41(c)(1).
    \51\ 12 CFR 1024.41(c)(1)(i).
    \52\ 12 CFR 1024.41(c)(1)(ii).
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    Additionally, examiners found that servicers engaged in an unfair 
act or practice when they delayed processing borrower requests to 
enroll in loss mitigation options, including COVID-19 pandemic-related 
forbearance extensions, based on incomplete applications.\53\ These 
delays varied in length, including delays up to six months. Borrowers 
were substantially injured because they suffered one or more of the 
following harms: prolonged delinquency, late fees, default notices, and 
lost time and resources addressing servicer delays. Borrowers also 
experienced negative credit reporting because of the servicers' delays, 
resulting in a risk of damage to their credit that may have 
materialized into financial injury. Borrowers could not reasonably 
avoid injury because servicers controlled the processing of 
applications, and borrowers reasonably expected servicers to enroll 
them in the options they applied for. And the injury to consumers was 
not outweighed by benefits to consumers or competition.
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    \53\ Generally, servicers must not evade the requirement to 
evaluate a complete loss mitigation application by offering a loss 
mitigation option based on evaluation of an incomplete application. 
12 CFR 1024.41(c)(2)(i). But servicers may offer certain types of 
loss mitigation options based on incomplete applications, such as 
short-term loss mitigation options or certain loss mitigation 
options made available to borrowers experiencing a COVID-19-related 
hardship as specified by Regulation X. 12 CFR 1024.41(c)(2)(iii), 
(v), & (vi). When consumers apply for these options, the Regulation 
X requirement that servicers must evaluate applications within 30 
days frequently does not apply because the consumer has not 
submitted a complete application. 12 CFR 1024.41(c)(1). In some 
instances, consumers applying for these options do submit a complete 
application and the Regulation X 30-day evaluation requirement does 
apply.
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    In response to these findings, servicers ceased the practice and 
developed improved policies and procedures.
2.9.2 Mispresenting Loss Mitigation Application Response Times
    Examiners found that servicers engaged in deceptive acts or 
practices when they informed consumers, orally and in written notices, 
that they would evaluate their complete loss mitigation applications 
within 30 days, but then moved toward foreclosure without completing 
the evaluations. Because the servicers received the complete loss 
mitigation applications 37 days or less before foreclosure, Regulation 
X did not require the servicers to evaluate the application within 30 
days.\54\ But the servicers informed consumers in written and oral 
communications that they would evaluate borrowers' complete loss 
mitigation applications within 30 days, and these representations 
created the overall net impression that foreclosure would not occur 
until the servicers rendered decisions on the applications. The 
borrowers reasonably interpreted these representations to mean that 
they would receive decisions on the applications, and potentially a 
period of time to take other actions if the applications were denied, 
prior to foreclosure. Finally, the servicers' representations were 
material, as they prompted the borrowers to wait for notification 
concerning a possible loan modification and discouraged the borrowers 
from taking additional steps to prepare for foreclosure.
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    \54\ 12 CFR 1024.41(c)(3)(ii)(B).
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    In response to these findings, servicers ceased the practice and

[[Page 52139]]

developed improved policies and procedures.
2.9.3 Assigning Continuity of Contact Personnel
    Under Regulation X, servicers are required to establish continuity 
of contact with delinquent consumers by maintaining policies and 
procedures to assign personnel to delinquent borrowers by, at the 
latest, the 45th day of delinquency.\55\ These personnel should be made 
available to answer delinquent borrowers' questions via telephone, and 
the servicer shall maintain policies and procedures that are reasonably 
designed to ensure these personnel can perform certain functions.\56\ 
These include providing accurate information about loss mitigation and 
timely retrieving written information provided by the borrower to the 
servicer in connection with a loss mitigation application.\57\
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    \55\ 12 CFR 1024.40(a).
    \56\ 12 CFR 1024.40(a)(2); 12 CFR 1024.40(b).
    \57\ 12 CFR 1024.40(b)(1) and (2).
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    Examiners found that servicers violated Regulation X by failing to 
maintain adequate continuity of contact procedures.\58\ Servicers did 
not maintain policies and procedures that were reasonably designed to 
ensure that personnel were made available to borrowers via telephone 
and provided timely live responses if borrowers were unable to reach 
continuity of contact personnel; the servicers routinely failed to 
return phone calls from borrowers.\59\ And when consumers did speak 
with personnel, the personnel failed to provide accurate information 
about loss mitigation options that were available.\60\ Additionally, 
servicers' systems did not allow the assigned personnel to retrieve, in 
a timely manner, written information that the consumer had already 
provided in connection with their loss mitigation applications, causing 
assigned personnel to ask for information already in the servicers' 
possession.\61\
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    \58\ 12 CFR 1024.40(a) and (b).
    \59\ 12 CFR 1024.40(a)(2) and (3).
    \60\ 12 CFR 1024.40(b)(1).
    \61\ 12 CFR 1024.40(b)(2)(ii).
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    In response to these findings, servicers updated their servicing 
platforms, developed new monitoring reports, implemented additional 
trainings, and revised policies and procedures.
2.9.4 Spanish Language Acknowledgement Notices Missing Information
    Regulation X requires servicers, in most circumstances, to provide 
borrowers with a written acknowledgment notice within 5 days of receipt 
of a loss mitigation application.\62\ This notice must contain a 
statement that the borrower should consider contacting servicers of any 
other mortgage secured by the same property to discuss loss mitigation 
options.\63\ Examiners found that servicers violated Regulation X by 
failing to include this required language on Spanish language 
application acknowledgment notices. In contrast, servicers included 
this language on English language acknowledgment notices sent to 
English speaking consumers. In response to these findings, servicers 
updated their letter templates.
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    \62\ 12 CFR 1024.41(b)(2)(i)(B).
    \63\ 12 CFR 1024.41(b)(2)(i)(B).
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2.9.5 Failure To Provide Critical Loss Mitigation Information
    Examiners found that servicers violated Regulation X and Regulation 
Z by failing to provide specific required information in several 
circumstances:
     Specific reasons for denial when they sent notices that 
included vague denial reasons, such as informing consumers that they 
did not meet the eligibility requirements for the program; \64\
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    \64\ If a servicer denies a borrower's complete loss mitigation 
application for any loan modification option available to the 
borrower, then its evaluation notice required by 12 CFR 
1024.41(c)(1)(ii) must include the specific reason or reasons for 
the denial. 12 CFR 1024.41(d).
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     Correct payment and duration information for forbearance; 
\65\ and
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    \65\ When a servicer offers a short-term loss mitigation option, 
such as a forbearance plan, it must promptly provide a written 
notice that includes the specific payment terms and duration of the 
program. 12 CFR 1024.41(c)(2)(iii).
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     Information in periodic statements about loss mitigation 
programs, such as forbearance, to which consumers had agreed.\66\
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    \66\ Regulation Z requires servicers to include delinquency 
information on the periodic statement, or in a separate letter, if a 
consumer is more than 45 days delinquent. 12 CFR 1026.41(d)(8). This 
includes a requirement to provide a notice of any loss mitigation 
program to which the consumer has agreed. 12 CFR 1026.41(d)(8)(iv).
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    In response to these findings, servicers updated their letter 
templates and enhanced monitoring.
2.9.6 Failure To Credit Payment Sent to Prior Servicer After Transfer
    After a transfer of servicing, Regulation X requires that, during 
the 60-day period beginning on the effective date of transfer, 
servicers not treat payments sent to the transferor servicer as late if 
the transferor servicer receives them on or before the due date.\67\ 
Examiners found that servicers treated payments received by the 
transferor servicer during the 60-day period, but not transmitted by 
the transferor to the transferee until after the 60-day period, as 
late. This violated Regulation X because the transferor had received 
the payment within the 60-day period beginning on the effective date of 
the transfer. In response to these findings servicers remediated 
consumers and updated policies, procedures, training, and internal 
controls.
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    \67\ 12 CFR 1024.33(c)(1).
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2.9.7 Failure To Maintain Policies and Procedures Reasonably Designed 
To Identify Missing Information After a Transfer
    Regulation X \68\ requires servicers to maintain policies and 
procedures that are reasonably designed to achieve the objectives in 12 
CFR 1024.38(b). Commentary to Regulation X clarifies that 
``procedures'' refers to the actual practices followed by the 
servicer.\69\ Under Regulation X,\70\ transferee servicers are required 
to maintain policies and procedures to identify necessary documents and 
information that may not have been included in a servicing transfer and 
obtain such information from the transferor servicer.
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    \68\ 12 CFR 1024.38(a).
    \69\ 12 CFR 1024.38(a)--comment 2.
    \70\ 12 CFR 1024.38(b)(4)(ii).
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    Examiners found that some servicers violated Regulation X when they 
failed to maintain policies and procedures reasonably designed to 
achieve the objective of facilitating transfer of information during 
servicing transfers. For example, servicers' policies and procedures 
were not reasonably designed because they failed to obtain copies of 
the security instruments, or any documents reestablishing the security 
instrument, to establish the lien securing the mortgage loans after 
servicing transfers. In response to these findings, servicers updated 
their policies and procedures and implemented new training.

2.10 Payday and Small-Dollar Lending

    During examinations of payday and small-dollar lenders, Supervision 
identified unfair, deceptive, and abusive acts or practices and 
violations of Regulation Z. Supervision also identified risks 
associated with the Military Lending Act.
2.10.1 Unreasonable Limitations on Collection Communications
    Examiners found that lenders engaged in abusive and deceptive acts 
or practices in connection with short-term, small-dollar loans, by 
including language in loan agreements purporting

[[Page 52140]]

to prohibit consumers from revoking their consent for the lender to 
call, text, or email the consumers. The agreements stated, for example, 
that consumers, ``cannot revoke this consent to call, text, or email 
about your existing loan'' and that ``[n]one of our employees are 
authorized to receive a verbal revocation of this authorization.'' 
Lenders that engage in unreasonable collections communications may 
violate the CFPA's prohibition against UDAAP. By implying that 
consumers could not take action to limit unreasonable collections 
communications, this practice was abusive because it took unreasonable 
advantage of the consumers' inabilities to protect their interests in 
selecting or using a consumer financial product or service by limiting 
such collections communications. The practice was also deceptive 
because it misled or was likely to mislead consumers acting reasonably 
as to a material fact, i.e., whether or not they could protect 
themselves by limiting unreasonable communications by phone, text, or 
email, and whether the lenders had an obligation to honor such 
requests. The practice was further abusive and deceptive under the 
above analyses because, contrary to the language of the loan 
agreements, the lenders' procedures did in fact require the lenders' 
representatives to allow consumers to revoke consent to communications.
    In response to these findings, Supervision directed the lenders to 
revise the contract language to cease misleading consumers about their 
ability to limit collections calls, texts, and emails to reasonable 
channels, locations, and times, and to cease taking unreasonable 
advantage of consumers' inabilities to protect themselves against 
unreasonable or unlawful collection communications.
2.10.2 False Collection Threats
    Examiners found that supervised institutions made false collection 
threats related to litigation, garnishment, and late fees, each of 
which constituted deceptive acts or practices in violation of the CFPA. 
The lenders sent letters to delinquent payday loan borrowers in certain 
states, stating that the supervised institutions ``may pursue any legal 
remedies available to us'' unless the consumer contacted the 
institution to discuss the delinquency. The representations misled or 
were likely to mislead borrowers into reasonably believing that the 
supervised institutions might take legal action against the consumer to 
collect the debt if the consumer did not make timely payment. It would 
be reasonable for consumers to interpret a threat to pursue ``any legal 
remedies available to us'' to include the legal remedy of a lawsuit or 
other similar civil action. The supervised institutions, however, never 
pursued such legal action to collect on payday loans in these states. 
The representations were material because threats of possible legal 
action could have an impact on a consumer's decision regarding whether 
and when to make payment. In response to these findings, Supervision 
directed the institutions to stop engaging in the deceptive conduct.
    Examiners also found that lenders engaged in deceptive acts or 
practice by making false threats related to garnishment in collections 
communications. Lenders used the term ``garnishment'' in communications 
with consumers when referring to voluntary wage deduction process. 
These representations misled or were likely to mislead reasonable 
consumers by giving the false impression they would be subject to an 
involuntary legal garnishment process if they did not make payment. In 
fact, consumers could revoke voluntary wage deduction consent at will 
under the terms of the loan agreement and prevent deductions from 
occurring. Consumers acting reasonably would believe that the lenders 
express references to the possibility of garnishment accurately 
reflected what might happen absent the consumers making payment. The 
representations were material because they may have affected a 
consumer's decision regarding whether and when to make payment and 
whether to revoke their consent to the voluntary wage deduction 
process. In response to these findings, the entities were required to 
stop engaging in the deceptive conduct.
    In addition, examiners found that periodic statements provided to 
borrowers falsely stated, ``if we do not receive your minimum payment 
by the date listed above, you may have to pay a $25 late fee.'' Such 
representations misled or were likely to mislead borrowers into 
reasonably believing that they could be charged late fees, when in fact 
lenders did not assess late fees in connection with the product. The 
representations were material because they were likely to affect 
consumers' decisions about whether and when to make payments. In 
response to these findings, Supervision directed the lenders to stop 
engaging in the deceptive conduct.
2.10.3 Unauthorized Wage Deductions
    Examiners found that lenders engaged in unfair acts or practices 
with respect to consumers who signed voluntary wage deduction 
agreements by sending demand notices to consumers' employers that 
incorrectly conveyed that the employer was required to remit to the 
lenders from the consumer's wages the full amount of the consumer's 
loan balance. In fact, the consumer had agreed to permit the lenders 
only to seek a wage deduction in the amount of the individual scheduled 
payment due. The lenders then collected wages from the consumers' 
employers in amounts exceeding the single payment authorized by the 
consumer. This wage collection practice caused substantial injury to 
consumers who incurred monetary injury by having amounts deducted from 
their wages in excess of what they had authorized. The consumers could 
not have reasonably avoided the injury, which was caused by the lenders 
seeking and obtaining wage deductions in excess of those authorized by 
the consumers. The benefits to the lenders of collecting unauthorized 
amounts do not outweigh the injuries to the consumers in the form of 
lost wages. In response to these findings, Supervision directed lenders 
to stop engaging in the practice and provide remediation to impacted 
borrowers.
2.10.4 Misrepresentations Regarding the Impact of Payment of Debt in 
Collections
    Examiners found that lenders engaged in deceptive acts or practices 
when they misrepresented to borrowers the impact that payment or 
nonpayment of debts in collection may have on the sale of the debt to a 
debt buyer and the subsequent impact on the borrower's credit reports. 
The lenders made representations about debt sale, credit reporting 
practices, and corresponding effects on consumer creditworthiness that 
misled or were likely to mislead the consumer. Their agents asserted or 
implied that making a payment would prevent referral to a third-party 
debt buyer and a negative credit impact. However, these agents had no 
basis to predict the consumer's credit situation or a potential debt 
buyer's furnishing practices, the lender's contracts with debt buyer 
prohibited furnishing to a CRC, and the debt was not in fact sold. It 
was reasonable for a consumer experiencing repayment difficulty to 
interpret the representations to mean that not making a payment would 
cause a third party to subsequently report adverse credit information 
and worsen their creditworthiness. The representations were material 
because they were likely to affect the consumer's choices or conduct 
regarding the loan. In response to these findings, Supervision directed

[[Page 52141]]

the entities to stop engaging in the deceptive conduct.
2.10.5 Risk of Harm to Consumers Protected by the Military Lending Act
    Examiners found that installment lenders created a risk of harm to 
borrowers protected by the Military Lending Act by, before engaging in 
loan transactions, and contrary to their policies, failing to confirm 
that several thousand borrowers were not covered borrowers under the 
Military Lending Act as implemented by Department of Defense 
regulations.\71\ These risks included potentially, originating loans to 
covered borrowers at rates and terms impermissible under the Military 
Lending Act; not providing covered borrowers with required disclosures; 
including in loan agreements prohibited mandatory arbitration clauses; 
and failing to limit certain types of repeat or extended borrowing. In 
response to these findings, Supervision directed lenders to change 
their practices to prevent these risks.
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    \71\ 10 U.S.C. 987 and 32 CFR 232.1 et seq.
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2.10.6 Failure To Retain Evidence of Compliance With Disclosure 
Requirements Under Regulation Z
    Examiners found that lenders failed to retain for two years 
evidence that they delivered clear and conspicuous closed-end loan 
disclosures in writing before consummation of the transaction, in a 
form that consumers may keep, in violation of the record-retention 
provision of Regulation Z,\72\ and creating a risk of a violation of 
the general disclosure requirements of Regulation Z.\73\ Copies of 
disclosures in loan files did not include evidence of when or how 
lenders delivered disclosures to borrowers. And lenders were unable to 
produce evidence that, for electronically signed contracts, disclosures 
were delivered to consumers in a form they may keep before loan 
consummation. Lenders' compliance procedures did not require delivery 
of loan disclosures to consumers in a form they may keep before 
consummation. In response to these findings, Supervision directed 
lenders to update compliance management systems to ensure clear and 
conspicuous disclosures are provided in writing in a form the consumer 
may keep before consummation and evidence of compliance is retained, 
consistent with Regulation Z, for all disclosure channels, including 
electronic or keypad.
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    \72\ 12 CFR 1026.25.
    \73\ 12 CFR 1026.17(a)(1) and (b).
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2.11 Remittances

    The CFPB evaluated both depository and non-depository institutions 
for compliance with the Electronic Funds Transfer Act (EFTA) and its 
implementing Regulation E, including subpart B (Remittance Rule).\74\
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    \74\ 15 U.S.C. 1693 et seq.; 12 CFR 1005.30 et seq.
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2.11.1 Failure To Develop Policies and Procedures To Ensure Compliance 
With the Remittance Rule's Error Resolution Requirements
    The Remittance Rule states that a remittance transfer provider 
shall develop and maintain written policies and procedures that are 
designed to ensure compliance with the error resolution requirements 
applicable to remittance transfers. Some institutions did not develop 
written policies and procedures designed to ensure compliance. This 
issue was noted in prior editions of Supervisory Highlights and 
continues to be an issue with institutions.\75\
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    \75\ CFPB, Supervisory Highlights, Issue 26, Spring 2022, 
available at https://www.consumerfinance.gov/data-research/research-reports/supervisory-highlights-issue-26-spring-2022/.
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    For example, some institutions used their anti-money laundering 
compliance policy in lieu of a specific policy tailored to the 
Remittance Rule requirements. The anti-money laundering policy and 
procedure included some basics, like identifying some covered 
Remittance Rule errors and the basic timeframes remittance providers 
had to investigate and resolve error notices. But they were not 
substitutes for Remittance Rule policies. They did not provide detailed 
guidance to employees on how to distinguish notices of error, the 
handling of which are subject to specific Remittance Rule requirements, 
from other complaints. They did not make clear employees should provide 
notifications that are required by the Remittance Rule to consumers 
when the institutions determined an error, no error, or a different 
error occurred. The policies also did not alert employees as to the 
remedies available to consumers under the Remittance Rule and 
articulated remedies different than those required by the Remittance 
Rule. Other institutions provided policies that indicated the 
institutions knew of the Remittance Rule and its requirements and had 
manuals to cover Remittance Rule compliance. However, these 
institutions did not develop procedures that would put these policies 
into effect. Specifically, the manuals did not provide adequate 
guidance to employees to resolve error notices in a consistent and 
compliant manner. Recitation of Remittance Rule requirements without 
greater detail on how to effectuate compliance does not ensure 
compliance as the Remittance Rule requires.
    In response to these findings, institutions updated their policies 
and procedures during or after the conclusion of the examinations.

3. Supervisory Program Developments

3.1 Recent CFPB Supervision Program Developments

    Set forth below are recent supervision program developments 
including circulars, bulletins, advisory opinions, policy statements 
and exam procedures that have been issued since the last regular 
edition of Supervisory Highlights.
3.1.1 CFPB Nonbank Supervisory Authorities
    The CFPB has supervisory authority over nonbanks in the mortgage, 
private education, and payday loan markets, regardless of the entities' 
size.\76\ The CFPB also has supervisory authority over larger 
participants of markets for other consumer financial products or 
services defined by rule.\77\ Additionally, the CFPB has supervisory 
authority over nonbank covered persons it has reasonable cause to 
determine, by order, after notice and a reasonable opportunity to 
respond, based on complaints or information from other sources, that 
the person is engaging, or has engaged, in conduct that poses risks to 
consumers with regard to the offering or provision of consumer 
financial products or services.\78\ The CFPB issued a rule implementing 
this provision of the CFPA in 2013. These processes were amended after 
notice and comment in a final procedural rule in November 2022.\79\ 
Since the amended rule was finalized, the CFPB has entered into 
discussions with several entities across markets regarding the CFPB's 
supervision program and its benefits, including identifying potential 
compliance issues before they become significant. And the CFPB has 
issued several Notices of Reasonable Cause

[[Page 52142]]

commencing the risk-based supervision process under the rule. As a 
result of these activities, several entities have voluntarily consented 
to the CFPB's supervisory authority.
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    \76\ 12 U.S.C. 5514(a)(1)(A), (D), and (E).
    \77\ 12 U.S.C. 5514(a)(1)(B). To date the CFPB has issued larger 
participant rules for the consumer reporting, debt collection, 
student loan servicing, international money transfer, and automobile 
financing markets. See 12 CFR part 1090.
    \78\ 12 U.S.C. 5514(a)(1)(C).
    \79\ 12 CFR part 1091; 78 FR 40352 (July 3, 2013); the 
procedural rule is available at https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/cfpb_supervisory-risk-determinations-rule_2022-11.pdf.
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    Additionally, the CFPB is conducting, or has scheduled, supervisory 
examinations of one or more data aggregators, including larger 
participants in the consumer reporting market.
3.1.2 CFPB Issued Circular Regarding Reopening Deposit Accounts That 
Consumers Previously Closed
    On May 10, 2023, the CFPB issued a circular to emphasize that a 
financial institution's unilateral reopening of deposit accounts that 
consumers previously closed can constitute a violation of the CFPA's 
prohibition on unfair acts or practices.\80\
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    \80\ CFPB Circular 2023-02, Reopening deposit accounts that 
consumers previously closed, available at https://www.consumerfinance.gov/compliance/circulars/consumer-financial-protection-circular-2023-02-reopening-deposit-accounts-that-consumers-previously-closed/.
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3.1.3 CFPB Issued an Advisory Opinion Addressing Protection of 
Homeowners From Illegal Collection Tactics on Zombie Mortgages
    On April 26, 2023, the CFPB issued an advisory opinion on debt 
collectors, covered by the FDCPA, threatening to foreclose on homes 
with mortgages past the statute of limitations.\81\ The advisory 
opinion clarifies that a covered debt collector who brings or threatens 
to bring a State court foreclosure action to collect a time-barred 
mortgage debt may violate the FDCPA and its implementing regulation.
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    \81\ CFPB Advisory Opinion, FDCPA; Time-Barred Debt, available 
at https://www.consumerfinance.gov/about-us/newsroom/cfpb-issues-guidance-to-protect-homeowners-from-illegal-collection-tactics-on-zombie-mortgages/.
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3.1.4 CFPB Issued Policy Statement on Abusive Acts or Practices
    On April 3, 2023, the CFPB issued a policy statement to explain how 
the CFPB analyzes the elements of abusiveness through relevant 
examples, with the goal of providing an analytical framework to fellow 
government enforcers and to the market for how to identify violative 
acts or practices.\82\
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    \82\ CFPB Policy Statement on Abusive Acts or Practices, 
available at https://www.consumerfinance.gov/compliance/supervisory-guidance/policy-statement-on-abusiveness/.
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3.1.5 CFPB Issued Bulletin 2023-01: Unfair Billing and Collection 
Practices After Bankruptcy Discharged of Certain Student Loan Debts
    On March 16, 2023, the CFPB issued a bulletin on unfair billing and 
collection practices after bankruptcy discharges of certain student 
loan debt.\83\ The bulletin details examiners' findings that student 
loan servicers who collected on student loans that were discharged by a 
bankruptcy court had engaged in an unfair act or practice in violation 
of the CFPA. The CFPB issued this bulletin to notify regulated entities 
how the CFPB intends to exercise its enforcement and supervisory 
authorities on this issue.
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    \83\ CFPB, Unfair Billing and Collection Practices After 
Bankruptcy Discharges or Certain Student Loan Debts, available at 
https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/cfpb_unfair-billing-collection-bankruptcy-student-loan-debt_2023-01.pdf.
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3.1.6 CFPB Issued an Advisory Opinion To Protect Mortgage Borrowers 
From Pay-to-Play Digital Mortgage Comparison Shopping Platforms
    On February 7, 2023, the CFPB issued an advisory opinion outlining 
how companies that operate digital mortgage comparison-shopping 
platforms violate the Real Estate Settlement Procedures Act when they 
steer shoppers to lenders by using pay-to-play tactics rather than 
providing shoppers with comprehensive and objective information.\84\
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    \84\ CFPB, Digital Mortgage Comparison-Shopping Platforms and 
Related Payments to Operators, available at https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/cfpb_respa-advisory-opinion-on-online-mortgage-comparison-shopping-tools_2023-02.pdf.
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3.1.7 CFPB Issued Circular on Unlawful Negative Option Marketing 
Practices
    On January 19, 2023, the CFPB issued a circular that states that 
persons engaged in negative option marketing practices may violate the 
prohibition on unfair, deceptive, or abusive acts or practices in the 
CFPA.\85\ Negative option marketing practices may violate that 
prohibition where a seller (1) misrepresents or fails to clearly and 
conspicuously disclose the material terms of a negative option program; 
(2) fails to obtain consumers' informed consent; or (3) misleads 
consumers who want to cancel, erects unreasonable barriers to 
cancellation, or fails to honor cancellation requests that comply with 
its promised cancellation procedures.
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    \85\ CFPB Circular 2023-01, Unlawful negative option marketing 
practices, available at https://www.consumerfinance.gov/compliance/circulars/consumer-financial-protection-circular-2023-01-unlawful-negative-option-marketing-practices//.
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3.1.8 CFPB Released Updates to Mortgage Servicing Exam Procedures
    On January 18, 2023, the CFPB released its updated mortgage 
servicing exam procedures.\86\ The examination procedures describe the 
types of information that CFPB examiners gather to evaluate mortgage 
servicers' policies and procedures; assess whether servicers are 
complying with applicable laws; and identify risks to consumers related 
to mortgage servicing. The updated Examination Procedures include CFPB 
guidance released since the last update in June 2016.
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    \86\ CFPB, Mortgage Servicing Examination Procedures, available 
at https://www.consumerfinance.gov/compliance/supervision-examinations/mortgage-servicing-examination-procedures/.
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4. Remedial Actions

    The CFPB's supervisory activities resulted in and supported the 
below enforcement actions.
4.1.1 Citizens Bank
    On May 23, 2023, the CFPB reached a settlement to resolve 
allegations that Citizens Bank violated consumer financial protection 
laws and rules that protect individuals when they dispute credit card 
transactions.\87\ The CFPB alleges that Citizens Bank failed to 
properly manage and respond to customers' credit card disputes and 
fraud claims. The order requires Citizens Bank to pay a $9 million 
civil money penalty.
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    \87\ Bureau of Consumer Financial Protection v. Citizens Bank, 
N.A., Stipulated Final Judgment and Order, available at https://www.consumerfinance.gov/enforcement/actions/citizens-bank/.

Rohit Chopra,
Director, Consumer Financial Protection Bureau.
[FR Doc. 2023-16764 Filed 8-4-23; 8:45 am]
BILLING CODE 4810-AM-P