The Consumer Financial Services industry is changing quickly. This weekly podcast focuses on the consumer finance issues that matter most, from new product development and emerging technologies to regulatory compliance and enforcement and the ramifications of private litigation. Our legal team—recognized as one of the industry's finest—will help you make sense of breaking developments, avoid risk, and make the most of opportunity.


Episode 48 - The CFPB’s Leadership in a Biden Administration: What Do We Expect?

After looking at the differing approaches of the former and current CFPB Directors to using the CFPB’s authorities, we look ahead to how the CFPB’s leadership is expected to change in a Biden Administration. Topics discussed include how the choice of a new Director will be made (including the impact of the Georgia Senate runoff elections), who can serve as Acting Director pending a new Director’s confirmation, and what approach a new Director will take to using the CFPB’s authorities and how it will differ most from the current Director’s approach.

Episode 47 - California’s New Consumer Financial Protection Law (CFPL): A Look at the California Department of Financial Protection and Innovation’s (DFPI’s) Implementation Plans

We are joined by Bret Ladine, the DFPI’s General Counsel. We discuss the DFPI’s plans for adding new staff, promoting innovation through the new Financial Technology Innovation Office, providing guidance on CFPL exemptions, and handling complaints. Other topics include the DFPI’s approach to its new authority regarding UDAAPs (which covers small business financing), registration of covered persons, and civil penalties.

Episode 46 - The CFPB’s Plan to Reorganize its Supervision, Enforcement, and Fair Lending (SEFL) Division: What it Means for Industry

We take a close look at the role of the new Office of SEFL Policy & Strategy to be created by the plan and how the plan would change the CFPB’s current enforcement decision-making process. We also look at how the plan aligns with the approach of federal banking regulators, share our reactions to criticism of the plan by Democratic lawmakers and thoughts on the new Office’s expected leadership, and discuss the Presidential election’s potential impact.

Episode 45 - A Look at the CFPB’s Section 1033 Rulemaking to Provide Consumer Access to Financial Information

Our discussion looks at the CFPB’s rulemaking activities before issuing its Advance Notice of Proposed Rulemaking (ANPR), the ANPR’s focus points, and differences from the California Consumer Privacy Act. Other topics include the role of data aggregators and how banks are responding to them, technical and other issues arising from third party access to consumer data, and the application of the FCRA and other federal consumer financial protection laws to data aggregators.

Episode 44 - What a Blue Wave in the November 2020 Elections Could Mean for the Consumer Financial Services Industry

We are joined by special guest Isaac Boltansky, Director of Policy Research at Compass Point Research & Trading, for a discussion of the potential implications for the consumer financial services industry should Joe Biden win the Presidency and Democrats win control of the Senate while retaining control of the House. Also participating in our podcast is Tim Jenkins, who leads Ballard Spahr’s Government Relations practice in the firm’s Washington, D.C. office and has more than 25 years of experience lobbying for financial institutions before Congress and federal agencies. Topics include how a blue wave could impact the regulatory agendas of federal and state agencies and the legislative agenda of the next Congress and what risks those agendas could create for the industry.

Episode 43 - A Close Look at the OCC’s “True Lender” Proposal

After reviewing the legal foundation for federal preemption of state law limits on interest, we discuss the OCC’s proposed approach for determining when a bank is the “true lender” in programs with non-bank agents, our arguments in support of the proposal made in our comment letter to the OCC, key arguments made in support of or against the proposal by other commenters, the OCC’s likely next steps, and the 2020 election’s potential impact.

Episode 42 - A Discussion of Recent Developments Involving Credit Reporting With Special Guest Eric Ellman, Senior Vice President for Public Policy and Legal Affairs, Consumer Data Industry Association

Topics discussed include: CFPB plans to conduct a new study on credit reporting accuracy; FTC efforts to address unlawful practices by credit repair companies and abuse of identity theft reports; FTC focus on FCRA Red Flags Rule enforcement and how companies can avoid FTC scrutiny; considerations for companies in approaching CARES Act compliance through suppression or reporting accounts in accommodation; and assessment of rationales for creating a public credit bureau.

Episode 41 - CFPB Exam Findings in Summer 2020 Supervisory Highlights Related to Credit Reporting (Fair Credit Reporting Act) and Deposit Accounts (Regulations E and DD)

We review the following findings and discuss their compliance implications: FCRA violations based on obtaining credit reports without a permissible purpose, incorrectly reporting the date of first delinquency, failing to conduct reasonable dispute investigations; Reg. E violations based on waivers of consumers’ dispute rights, use of incorrect date to determine timeliness of error notices, providing inadequate notices of error investigation results; and Reg. DD violations based on failing to provide advertised bonuses.

Episode 40 - A Close Look at the CFPB’s Exam Findings Related to Short-Term Small-Dollar Lending in Summer 2020 Supervisory Highlights

We review the CFPB’s findings that lenders engaged in deceptive practices and violated Regulation Z advertising requirements based on the following conduct and discuss the findings’ compliance implications: false representations about consumers’ ability to apply for loans online and the absence of credit checks; false threats in collection letters about lien placement, asset seizure, and charging late fees; and advertising “free loans” without including the additional information required when using a “triggering term” or where the loan was free only if prepaid.

Episode 39 - A Close Look at the CFPB’s Mortgage-Related Exam Findings in Summer 2020 Supervisory Highlights

Mortgage origination and servicing continue to be a CFPB supervisory focus. We review the CFPB’s findings involving the following areas and discuss the findings’ compliance implications: redlining based on nonbank lenders’ advertising practices, improper consideration of applicants’ public assistance income in determining eligibility for mortgage modifications, and violations of servicing requirements relating to providing periodic statements to certain consumers in bankruptcy, force-placed insurance, escrow accounts, and servicing transfers.

Episode 38 - Federal Banking Regulators and FinCEN Issue New Statements on Bank Secrecy Act/Anti-Money Laundering Enforcement: A Look at Highlight

Topics discussed include how the banking regulators and FinCEN will approach the decision whether to take enforcement action against a financial institution (including what BSA/AML program failures typically would (or would not) result in cease and desist orders), how the regulators’ statement differs from 2007 guidance, how the enforcement statements relate to recent updates to the BSA/AML examination manual, suggested practices for reducing compliance risk for institutions and individuals, and the Presidential election’s potential impact on BSA/AML enforcement.

Episode 37 - The CFPB’s Past and Current Leadership: A Report Card

We are joined by Prentiss Cox, a University of Minnesota Law School Professor who formerly worked in the MN AG’s office and served on the CFPB’s Consumer Advisory Board. After discussing whether the CFPB’s structure should change in the wake of SCOTUS’s Seila Law decision, we look at the different approaches of the CFPB’s past and current leadership to the use of its authorities, the merits and drawbacks of such approaches, and the skill sets of possible candidates to serve as the next Director in a Biden Administration.

Episode 36 - A Look at COVID-19’s Impact on Credit Reporting, Credit Scoring, and Underwriting

We are joined by Kelly Cochran, formerly with the CFPB and now Deputy Director of FinRegLab, a non-profit focused on the use of data and technology in financial services. We examine credit reporting, credit scoring, and underwriting issues arising from the pandemic and CARES Act requirements, including the use of comment codes by furnishers and the treatment of forbearance-related information by creditors, and that are likely to arise in the transition from short-term forbearances to long-term arrangements. We also consider the potential benefits and risks of proposals to block the reporting or use of negative credit information.

Episode 35 - A Special Edition to Mark Episode 100 of Consumer Finance Monitor Podcast: How the Consumer Financial Protection Bureau Has Changed under the Trump Administration and Could Change under a Biden Administration

After reviewing how the CFPB has changed since 2017 (and dispel some misconceptions), we share our expectations if Joe Biden becomes President. Topics discussed include the CFPB’s approach to enforcement and supervision (including possible new larger participant rules), the fate of the payday loan rule and ongoing rulemakings, possible candidates to serve as new Director, the CFPB’s position on new technologies, and lawmakers’ views on changing the CFPB’s leadership structure.

Episode 34 - Consumer Arbitration in the Crosshairs (Again): Individual Public Injunctive Relief Claims, Other Threats, and Possible Responses

After a recap of industry’s successful history in defeating challenges to the use of arbitration agreements to limit class action exposure, we discuss the threat of public injunctive relief claims to the use of arbitration resulting from recent CA and 9th Cir. decisions, efforts to distinguish such claims from claims for other relief, drafting strategies to address the decisions, the decisions’ potential impact outside CA, and mass arbitrations and response strategies.

Episode 33 - The CFPB’s Payday/Auto Title/High-Rate Installment Loan Rule: A Look at the Uncertain Road Ahead

After we recap the 2017 final rule and its implications for industry, we discuss the CFPB’s actions to eliminate its ability-to-repay provisions but keep its payment provisions, possible use of the Congressional Review Act to restore the entire 2017 rule, status of the Texas litigation challenging the 2017 rule, potential impact of the 2020 presidential election, and our thoughts on preparing for the advent of the payment provisions.

Episode 32 - A First Look at the Plans of the Office of the Comptroller of the Currency for a National Payments Charter

Acting Comptroller Brooks recently revealed the OCC’s plans to create a national payments charter for payment processing companies.  After discussing the new charter’s intended purpose and benefits, we look at the OCC’s planned two-phase roll-out, how a payments charter would differ from the OCC’s fintech charter, other charter options for non-bank payment processors, and possible legal challenges.

Episode 31 - New York City’s Department of Consumer Affairs Adopts New Language Proficiency Requirements for Debt Collections: What You Need to Know

Recent amendments to NYC’s debt collection rules impose new requirements relating to consumers’ language proficiency. Following an overview, we take a close look at the specific requirements and their applicability to first- and third-party collections, discuss the DCA’s authority, availability of federal preemption, and compliance challenges, and offer thoughts on best compliance practices.

Episode 30 - The OCC and FDIC “Madden fix” Final Rules and Related Recent Developments

After reviewing the legal foundation for federal preemption of state law limits on interest, we discuss the final OCC/FDIC “Madden fix” rules, the “true lender” issue, potential Congressional or litigation challenges to OCC/FDIC “Madden fix” and “true lender” rules, and recent developments in litigation involving Madden or “true lender” challenges to bank/nonbank partnerships and securitizations.

Episode 29 - Update on Recent Non-COVID-19-Related Consumer Financial Services Legal Developments

The topics we discuss are: implications of the SCOTUS Seila Law decision on CFPB rules, past consent orders, ongoing enforcement, and the Texas lawsuit challenging the CFPB payday loan rule; DOJ/FTC auto dealer fair lending actions, status of disparate impact, and Google targeted advertising changes; the CFPB’s new advisory opinion program; timing of CFPB debt collection final rule; and OCC/FDIC final rules to undo Madden and plans to address “true lender.”

Episode 28 - A Discussion of the U.S. Supreme Court's Seila Law decision and its Implications

We are joined by Deepak Gupta, a renowned consumer advocate who has argued multiple cases before the Supreme Court. After reviewing the history of the controversy over the CFPB’s constitutionality, our discussion focuses on the decision’s potential impact on past, ongoing, and future CFPB rulemaking and enforcement activities, including what steps the CFPB may take to preserve or reverse its pre-Seila Law actions, and the decision’s potential significance for other agencies.

Episode 27 - A Primer on the Foreign Corrupt Practices Act for Consumer Financial Services Providers

The recent announcement by a consumer lender in an SEC filing that it had earmarked $21.7 million to resolve an SEC probe into its FCPA compliance could signal new interest by regulators in enforcing the FCPA against consumer financial services providers with operations outside of the U.S. In this podcast, we review what practices are prohibited by the FCPA, which regulators enforce the FCPA, how the FCPA can be enforced and penalties for non-compliance, and tips for avoiding FCPA liability.

Episode 26 - Revoking Consent Under the Telephone Consumer Protection Act: A Discussion of Recent Case Law Developments

The issue of whether a consumer can unilaterally revoke consent to receive automated remains a significant concern for industry. We look at how the FCC and courts have approached the issue and discuss recent significant decisions from federal appeals courts holding that the TCPA does not allow a consumer to unilaterally revoke consent when it is given as part of a bargained-for exchange.

Season 3 | Episode 25 - Consumer Protection: What’s Happening at the FTC (Part II), With Special Guests From the FTC

In Part II of our podcast, we discuss the following with Andrew Smith, Director of the FTC’s Bureau of Consumer Protection, and Malini Mithal, Associate Director of the FTC’s Division of Financial Practices: recent FTC enforcement and regulatory activity in the areas of data security, privacy, lead generation, and payments; highlights of the FTC’s workshop on credit reporting accuracy; status of litigation challenging the FTC’s restitution authority; and coordination with CFPB and state attorneys general.

Season 3 | Episode 24 - Consumer Protection: What’s Happening at the FTC (Part I), With Special Guests From the FTC

In Part I of our two-part podcast, we discuss the following topics with Andrew Smith, Director of the FTC’s Bureau of Consumer Protection, and Malini Mithal, Associate Director of the FTC’s Division of Financial Practices: the FTC’s response to COVID-19, important recent FTC enforcement actions and priorities going forward, Director Smith’s recent blog post on using artificial intelligence and algorithms, and recent FTC activity involving fintech and small business lending.

Season 3 | Episode 23 - An Interview with Colorado Attorney General Phil Weiser

We explore a wide range of topics with AG Weiser including: who are his key staff members and their backgrounds; his office’s actions in response to COVID-19; recent changes to the CO Consumer Protection Act; and his office’s activities concerning student loans, robocalls, payday lending, and data privacy and security and its approach to consumer complaints.

Season 3 | Episode 22 - The CFPB’s Loan Originator Rule’s Compensation Provisions: Assessing Compliance Risk

We look at why compliance with the compensation provisions remains a high risk area for the mortgage industry. Discussion topics include how the Bureau identifies violations, litigation and enforcement liability, secondary market considerations, the Bureau’s increasing enforcement activity, and the areas likely to be revisited by the Bureau in proposed revisions to the compensation provisions.

Season 3 | Episode 21 - CARES Act Economic Impact Payments for Individuals and Paycheck Protection Program Loans for Small Businesses: Are They Subject to Garnishment or Setoff?

We look at the impact of federal and state law including relevant CARES Act provisions, state garnishment directives, and federal preemption, identify issues banks should consider in handling garnishments or exercising setoff rights, and offer suggestions for mitigation measures banks can take as they decide how to address the challenges in this area. 

Season 3 | Episode 20 - Community Reinvestment Act Reform: How Did We Get Here and Where Are We Going?

We are joined by Kenneth Thomas, who is widely-viewed as the nation’s leading CRA expert and has advised federal regulators on CRA reform. After reviewing CRA’s origins and previous reforms, Ken shares his views on the current OCC/FDIC proposed changes, including why reform is a White House priority, differences in perspectives among CRA regulators, the proposal’s deposit-based approach to assessment areas and performance standards for larger banks, using a phased-in approach to reform, and the Presidential election’s impact on reform.

Season 3 | Episode 19 - Strategic and Other Considerations for Credit Card Offerings by Medium and Small Financial Institutions

Increasing regulatory, competitive and economic challenges are causing a new focus on credit cards by medium and smaller-sized financial institutions. We are joined by Robert Curry, Managing Partner and Chief Business Officer of Bassett Capital Group, LLC, an expert on credit card portfolio management, acquisition and divestiture, for a discussion of the types of business structures available to institutions seeking to offer credit cards for the first time and the associated contractual, compliance and implementation issues. We also examine issues that institutions now offering credit cards should consider in deciding how to operationally move forward during an economic downturn and heightened competition.

Season 3 | Episode 18 - Staying Ahead of UDAP and Fair Lending Risk to Consumer Financial Services Providers Arising From the COVID-19 Pandemic

After looking at how the 2008 financial crisis and its aftermath might inform regulators’ response to the pandemic, we discuss how collections, loss mitigation/hardship programs, and originations of existing products and new programs designed to assist pandemic-impacted consumers (including changes to credit risk/fraud models to address the pandemic’s effects) can create UDAP and fair lending risk.

Season 3 | Episode 17 - A Close Look at the CFPB’s Supplemental Proposal Requiring Disclosures by Debt Collectors for Time-Barred Debts

Our discussion examines a range of issues, including how the wording of the model forms could create consumer confusion, challenges in determining whether a debt is time-barred, and questions arising from use of a “know or reason to know” that a debt is time-barred standard to trigger disclosures. We also look at industry’s reaction and how the proposal’s finalization is likely to fit with the CFPB’s issuance of a final larger debt collection rule.

Season 3 | Episode 16 - The COVID-19 Crisis: A Look at the Consumer Financial Regulatory and Litigation Fallout

We are joined by Richard Cordray, former CFPB Director, and John Roddy, prominent plaintiffs’ class action lawyer, for a discussion of regulatory and litigation risks the crisis is expected to create for the consumer financial services industry. Topics include: industry practices that could trigger regulators’ scrutiny; operational areas impacted by working remotely that create compliance risks; fair lending issues arising from loan modifications/forbearances; state authority to change credit terms.

Season 3 | Episode 15 - Dodd-Frank Act Section 1071 Rulemaking: A Close Look at the Settlement in the Lawsuit Against the CFPB

We are joined by Nitin Shah of Democracy Forward, attorney for the plaintiffs in the lawsuit brought to compel the CFPB to issue rules implementing Sec. 1071 which requires financial institutions to collect and report race, ethnicity, and other data in connection with credit applications made by women-or minority-owned and small businesses. We discuss the lawsuit’s basis, the rulemaking deadlines in the settlement and expected rulemaking timeline, and substantive issues the rules are likely to address.

Season 3 | Episode 14 - A Look at Two Recent OCC Bank Secrecy Act/Anti-Money Laundering Consent Orders: Lessons Learned

In our examination of two recent OCC BSA/AML consent orders, one with a bank and another with an individual in-house professional, we review the OCC’s allegations underlying the orders and how the OCC focuses on the core pillars of BSA/AML compliance when choosing to pursue enforcement. We also discuss the takeaways for boards and management of financial institutions when accepting higher-risk customers, including digital currency exchanges, and what is the AML liability risk for individuals – including how such risk can be minimized, and the inherent tension between the interests of institutions and their executives and compliance officers. Finally, we discuss how the use of third-party consultants and advisors regarding AML compliance can be a double-edged sword for financial institutions and individuals facing downstream enforcement actions.

Season 3 | Episode 13 - A Conversation with Former CFPB Director Richard Cordray

We are joined by Richard Cordray whose book about his CFPB tenure, Watchdog, was recently-released. Among other topics, Mr. Cordray shares what he considers to be his key successes and disappointments as Director, describes his relationship with the Trump Administration, responds to criticism of his use of the CFPB’s enforcement authority, offers his prediction for how SCOTUS will rule in Seila Law, and discusses the abusiveness standard and creation of state mini-CFPBs.

Season 3 | Episode 12 - A Look at how the Latest Modifications to the Proposed CA Consumer Privacy Act Regulations Impact the Debt Industry

We discuss the modifications with Lauren Valenzuela, Corporate Counsel for Performant Financial, a provider of technology-based solutions to assist debt recovery. Our topics relevant to the debt industry include the potential impact for debt collectors/other service providers indirectly collecting consumer data; changes for processing household requests; availability of GLBA/other exemptions; issues for users of artificial intelligence; relationship of CCPA opt-outs and FDCPA C&D requests; areas needing more clarification.

Season 3 | Episode 11 - The CFPB’s Winter 2020 Supervisory Highlights: Takeaways for Payday Lenders and Mortgage Servicers

We look at the CFPB’s key findings related to payday lending and mortgage servicing, discuss their implications for the CFPB’s approach to supervision and enforcement, and share practical takeaways for lenders and servicers, including how the CFPB’s findings related to loss mitigation requirements might be used by servicers to inform how they approach disruptions arising from the current coronavirus outbreak.

Season 3 | Episode 10 - A Discussion of the Veterans and Consumers Fair Credit Act with Bill Himpler, CEO of the American Financial Services Association

The Act, which has been introduced in the House (H.R. 5050) and Senate (S. 2833), would impose a 36% national usury limit on most forms of consumer credit. Bill Himpler responds to claims that the rate limit will not reduce credit access for creditworthy consumers and discusses relevant studies, the bill’s status and political prospects, AFSA’s efforts to educate lawmakers and their staff about consumer finance, and other current federal and state issues of concern to industry members.

Season 3 | Episode 9 - Seila Law: Why George Washington University Law School Professor Alan Morrison Argues SCOTUS Should not Rule on the CFPB’s Constitutionality

With oral argument just days away, we interview Prof. Morrison who filed an amicus brief urging SCOTUS not to decide whether Dodd-Frank’s limits on the President’s authority to remove the CFPB Director are constitutional and dismiss the case. We examine his arguments that Seila Law has no standing to challenge the limits’ constitutionality and there is no longer a case or controversy that gives a federal court jurisdiction to hear the challenge.

Season 3 | Episode 8 - Sales of Charged-off Debts: Key Issues and Practical Pointers for Sellers and Buyers to Consider

We look at key issues and provide practical pointers that sellers and buyers should consider, including (1) seller due diligence to prepare for a sale, such as identifying and creating relevant policies and procedures and reviewing documentation for debts to be sold, (2) important contractual issues for buyers and sellers when negotiating sales agreements, such as debt repurchase rights, resales and assignments, buyer responsibility for its providers’ activities, and seller post-sale obligations regarding buyer information requests, and (3) seller monitoring of such requests.

Season 3 | Episode 7 - The Veterans and Consumers Fair Credit Act: A Discussion with the Bill’s Drafter

The Act, which has been introduced in the House and Senate, would impose a 36% national usury limit on most forms of consumer credit. We are joined by the bill’s drafter, Professor Chris Peterson of the University of Utah S.J. Quinney College of Law, for a discussion of the rationale for the cap, its potential impact on credit access, the implementation process if enacted, and the bill’s status and political prospects.

Season 3 | Episode 6 - The CFPB’s New Policy Statement on the Dodd-Frank Abusiveness Standard: Has Anything Changed?

After reviewing how the CFPB has used its abusiveness authority, we look at why such authority has created industry concern, consider implications of the CFPB’s decision to forego rulemaking, discuss the policy statement’s three parts and likely practical impact on the CFPB’s behavior and industry’s assessment of risk, and examine continuing industry concerns about the Bureau’s unfairness and deceptiveness authority.

Season 3 | Episode 5 - The FDIC’s and OCC’s Proposed CRA Reform: What the Agencies Consider Now in CRA Evaluations and How That Would Change

We are joined by Diego Zuluaga, a Cato Institute policy analyst, for a discussion of the proposed changes. After reviewing the current regulatory framework, we examine the proposal’s new qualifying activities criteria and approach to “branchless banking” in determining assessment areas, respond to criticism of its approach to public projects, look at the small bank opt-out and what in the proposal should be revisited, and consider the impact of the Fed’s non-participation.

Season 3 | Episode 4 - Redlining Claims: What is the Current Risk?

In this podcast, after reviewing what redlining is, we look at which regulators have made it a focus, factors they consider when looking for redlining, whether those factors apply to nonbanks and how nonbanks can assess and reduce risk. We also discuss emerging theories of digital redlining.

Season 3 | Episode 3 - Update on the CFPB’s proposed debt collection rule

Our podcast looks at industry and consumer comments and perspectives on key issues, including the proposal’s potential implications for creditors collecting their own debts through UDAAP/UDAP and state collection laws, its approach to electronic communications and “meaningful attorney involvement,” and whether a final rule should address information transfers and file reviews or collecting time-barred debt. We also share our predictions for what a final rule will contain and suggestions for using the proposal to reduce risk in first-party collections.

Season 3 | Episode 2 - The OCC’s and FDIC’s Proposals to undo the Madden decision: What they would and wouldn’t fix

In this podcast, we review Madden, its implications and the OCC’s reaction, and discuss the proposals to undo Madden, including the agencies’ troublesome comments, remaining problems and what the agencies can do to fix them.

Season 3 | Episode 1 - Using Alternative Data in Credit Underwriting

Our podcast looks at types of alternative data (AD) and industry sources, key points of the recent interagency statement on using AD for credit decisions and CFPB actions to encourage such use, FCRA/ECOA/UDAAP concerns and steps to address them, use of social media data, and the relationship between AD and artificial intelligence. We also assess the regulatory concerns impeding industry’s use of AD.


Season 2 Episodes

Season 1 Episodes