Legal Alert

Mortgage Banking Update - March 25, 2021

March 25, 2021
In This Issue:

A Close Look at the CFPB’s Statement on Providing Financial Products and Services to Limited English Proficiency Consumers

We are joined by Ena Koukourinis, Senior Counsel in the Bureau’s Office of Fair Lending and Equal Opportunity, and Frank Vespa-Papaleo, the Office’s Deputy Director. We discuss the statement’s background and goals, the fair lending and UDAAP concerns the statement seeks to address, key aspects of the guidance it provides, and Bureau resources available to industry concerning LEP consumers.

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

Click here to listen to the podcast and here to read our blog post about the statement.

- Barbara S. Mishkin

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CFPB Rescinds 2020 Policy Statement on Abusive Acts or Practices

The CFPB announced March 11 that it is rescinding its January 2020 policy statement, “Statement of Policy Regarding Prohibition on Abusive Acts or Practices.” The rescission is effective on the date the CFPB’s notice of the rescission is published in the Federal Register.

The rescission was foreshadowed by Acting Director Uejio in his statement to Bureau staff which he shared in a blog post early last month. In the statement, Mr. Uejio stated that he planned to reverse policies of the Trump Administration “that weakened enforcement and supervision,” including by “rescind[ing] public statements conveying a relaxed approach to enforcement of the laws in our care.”

The policy statement contained the following three principles for how the Bureau would use its supervisory and enforcement authority to address abusive acts or practices:

  • The Bureau would focus on citing conduct as abusive in supervision and challenging conduct as abusive in enforcement if the Bureau concluded that the harms to consumers from the conduct outweighed its benefits to consumers (including its effects on access to credit).
  • The Bureau would generally avoid challenging conduct as abusive where the alleged violation relied on all or nearly all the same facts as an unfairness or deception violation. Where an abusiveness violation was alleged, the Bureau intended to plead its claim in a manner designed to clearly demonstrate the nexus between the cited facts and the Bureau’s legal analysis of the claim. In the supervisory context, the Bureau intended to provide more clarity as to the specific factual basis for finding an abusiveness violation.
  • The Bureau generally would not seek monetary remedies for abusive acts or practices if the covered person made a good-faith effort to comply with the law based on a reasonable—albeit mistaken—interpretation of the abusiveness standard.

In its notice of the rescission, the CFPB offers the following explanation for its action:

  • Based on its review of, and experience in applying the policy statement, the Bureau concluded that the principles in the statement “do not actually deliver clarity to regulated entities” and, in fact, “afford the Bureau considerable discretion in its application and uncertainty to market participants.” Not asserting abusiveness claims solely because they overlap with unfair or deceptive conduct or based on other principles in the statement “has the effect of slowing the Bureau’s ability to clarify its statutory abusiveness authority by articulating abusiveness claims as well as through the ensuing issuance of judicial and administrative decisions.”
  • By only citing conduct as abusive in supervision and challenging conduct as abusive in enforcement if the Bureau concluded that the harms to consumers from the conduct outweighed its benefits to consumers, the Bureau would be applying the abusiveness standard “differently from the normal considerations that guide the Bureau’s general use of its enforcement and supervisory discretion.”
  • Declining to apply the full scope of the statutory standard pursuant to the statement “has a negative effect on the Bureau’s ability to achieve its statutory objective of protecting consumers from abusive practices.” In particular, the policy of not seeking civil money penalties and disgorgement for abusive acts or practices “is contrary to the Bureau’s current priority of achieving general deterrence through penalties and other monetary remedies and of compensating victims for harm caused by violations of the Federal consumer financial laws through the Bureau’s Civil Penalty Fund.” Similarly, not citing or alleging conduct as abusive when that conduct is also unfair or deceptive “is contrary to the Bureau’s current priority of maximizing the Bureau’s ability to assert alternative legal causes of action in a judicial or administrative hearing.” The Bureau will continue, however, to consider the factors that it typically considers in using its prosecutorial discretion (e.g. good faith, company size).
  • The policy standard was not required and “stated an intent to refrain from applying the abusiveness standard even when permitted by law.” If Congress intended to limit the Bureau’s authority to fully apply the abusiveness standard, it could have prescribed a narrower prohibition but did not. The Dodd-Frank language “provides sufficient notice for due process purposes.”

We thought the policy statement was a helpful step in the right direction by giving industry some idea of how the Bureau might apply abusiveness, and clarifying the appropriate weighing of cost and benefit from a particular practice. At the same time, we believed it would have little practical impact on the Bureau’s supervisory and enforcement behavior because the Bureau did not frequently rely on abusiveness as the sole reason for enforcement or supervisory actions, and nothing in the policy statement changed how the Bureau intended to evaluate allegedly unfair or deceptive conduct. Moreover, even for conduct labeled abusive, the policy statement prescribed essentially subjective, judgmental decisions to be made by the Bureau that did little to restrict the Bureau or provide guidance to industry.

Although the Bureau adopted the policy statement in lieu of engaging in rulemaking, it indicated that the policy statement did not foreclose the possibility of a future rulemaking to further define the abusiveness standard. In a statement commenting on the Bureau’s rescission of the policy statement, the Consumer Bankers Association expressed disappointment that the Bureau “did not define its interpretation of ‘abusive’ so financial institutions know the rules of the road in advance of any supervision or enforcement action.”

Just as we viewed the policy statement as largely symbolic, we view the rescission in the same way. The Bureau’s leadership is signaling the industry and the public that it wants to make a sharp break with the Trump-era CFPB, and that consumer protection, rather than industry considerations, will guide its enforcement and supervision efforts. In our view, hearing that message is the primary takeaway from the rescission of the policy statement.

- Christopher J. Willis

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Ninth Circuit Holds Debt Collector’s Statute of Limitations Mistake can Qualify for FDCPA Bona Fide Error Defense

In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit held that a debt collector’s mistake about the time-barred status of a debt under state law can qualify as a bona fide error within the meaning of the Fair Debt Collection Practices Act.

In Kaiser v. Cascade Capital, LLC, after an Oregon state court dismissed a collection lawsuit filed against the plaintiff by the defendants because it was barred by the state’s four-year statute of limitations (SOL) for sale of goods contract claims, the plaintiff filed a putative FDCPA class action against the defendants in an Oregon federal district court. The plaintiff alleged that the defendants violated the FDCPA by threatening to sue to collect the time-barred debt in a collection letter and by actually filing a collection lawsuit. The district court dismissed for failure to state a claim, finding that the defendants did not violate the FDCPA because they could not have known the debt was time-barred since it was unclear which Oregon SOL applied when they attempted to collect the debt.

In reversing the district court’s dismissal of the lawsuit, the Ninth Circuit panel, after reviewing Oregon law, “predict[ed] that the Oregon Supreme Court would hold that the four-year statute of limitations would apply to a suit to collect on [the plaintiff’s] debt.” It then held that attempts to collect on time-barred debt violate the FDCPA because lawsuits to collect time-barred debt are both unfair and misleading and threats to sue on time-barred debt are, at a minimum, always misleading. The Ninth Circuit noted that its holding was consistent with the CFPB’s final debt collection rule which adopted a strict liability standard for time-barred debt collection lawsuits.

While holding that whether the defendants were unsure of the debt’s legal status under state law did not affect whether they had violated the FDCPA, the Ninth Circuit also held that mistakes about the time-barred status of a debt can be bona fide errors under the FDCPA. Accordingly, it reversed the district court’s dismissal and indicated that on remand, the defendants could attempt to invoke the bona fide error defense.

In holding that mistakes about a debt’s time-barred status can qualify for the FDCPA’s bona fide error defense, the Ninth Circuit distinguished the U.S. Supreme Court’s 2010 decision in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA. The Supreme Court held in Jerman that mistakes about the FDCPA’s meaning could not be bona fide errors, relying on the “ignorance of the law is not an excuse” maxim. The Ninth Circuit contrasted the debt collector’s mistake in Jerman, which involved the FDCPA’s requirements for disputing a debt, from the defendants’ uncertainty about the debt’s time-barred status. Citing to Supreme Court and other case law, it observed that the “ignorance of the law” maxim normally applied when a defendant intended to engage in certain conduct but was unaware of the law proscribing such conduct; it did not normally apply when the defendant’s mistake about “a collateral matter” caused the defendant to misunderstand the full significance of its conduct.

According to the Ninth Circuit, the plaintiff’s claims that the defendants violated the FDCPA prohibitions that bar misrepresenting the legal status of a debt and using unfair collection practices “necessarily implicate a legal element entirely collateral to the FDCPA; the time-barred status of the debt under state law.” In its view, such collateral legal mistakes should be treated as mistakes of fact and “the bona fide error defense is the most natural way to address good-faith mistakes regarding state statutes of limitations.” (In the discussion accompanying its final debt collection rule, the CFPB indicates that a collector who threatens to bring or brings a legal action to collect a time-barred debt may, depending on the reasons for the collector’s error, be able to rely on the bona fide error defense to avoid civil liability.)

- Stefanie Jackman

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CFPB Issues Interpretive Rule Clarifying That Sex Discrimination Under ECOA and Regulation B Includes Sexual Orientation and Gender Identity Discrimination

Under the leadership of Acting CFPB Director Dave Uejio, the Bureau issued an interpretive rule on March 9, 2021 clarifying that the prohibition against sex discrimination under the Equal Credit Opportunity Act (“ECOA”) and Regulation B includes sexual orientation and gender identity discrimination. This prohibition includes discrimination based on actual or perceived non-conformity with traditional sex- or gender-based stereotypes, and discrimination based on an applicant’s social or other associations. The CFPB’s interpretive rule clarifies that lenders cannot discriminate on the basis of sexual orientation or gender identity and that individuals with those characteristics must be afforded equal opportunities to access credit. The interpretive letter will be published in the Federal Register on March 16, 2021 and will become effective immediately.

We have long understood this to be the case. In 2016, in response to an inquiry from Services & Advocacy for GLBT Elders (“SAGE”), an LGBTQ+ advocacy group, then-CFPB Director Richard Cordray responded that ECOA supports legal arguments that the prohibition against sex discrimination also affords broad protection from discrimination based on an applicant’s sexual orientation and gender identity. This letter marked a major victory for SAGE and other LGBTQ+ advocates, who claimed that their community faced discrimination from lenders for many years. Nonetheless, the CFPB may have felt compelled to codify the letter as an interpretive rule in light of recent developments – specifically, a key U.S. Supreme Court case and an ECOA/Regulation B request for information by the Bureau, which are discussed below.

Impetus for the CFPB’s interpretive rule likely primarily arose from the U.S. Supreme Court’s 2020 landmark decision in Bostock v. Clayton County, Georgia (140 S. Ct. 1737), which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 encompasses sexual orientation and gender identity discrimination. In Bostock, the Supreme Court dismissed the employers’ concerns that its decision “will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination” with the statement that “none of those other laws are before us.” Nevertheless, Bostock clearly provides support for the position that the ECOA prohibition against discrimination on the basis of “sex” includes discrimination based on sexual orientation. Indeed, the Bureau’s interpretive rule cites extensively to the Bostock decision. In addition, the CFPB issued a Request for Information (“RFI”) in July 2020 soliciting public comment to identify opportunities to prevent credit discrimination, promote access to credit, and encourage responsible innovation under ECOA and Regulation B. One of the questions posed in the RFI was whether the Bureau should provide additional clarity or guidance interpreting ECOA in the wake of the Bostock decision.

In the press release accompanying its interpretive rule, the CFPB stated that the rule was being issued “consistent with the…Bostock decision and supported by many of the public comments received in response to the ECOA RFI.” The Bureau also stated that it intends to review and update its examination guidance and other materials to reflect its interpretive rule, and “where appropriate,” take enforcement actions under ECOA to hold financial institutions accountable for their actions that violate the interpretive rule. The CFPB also expressed its interest in working with Congress on the federal Equality Act, which, if enacted, would codify protections for consumers against sexual orientation and gender identity discrimination in all financial products and services.

We also note that the CFPB’s action in issuing the interpretive rule is consistent with positions being taken across the federal government to prohibit discrimination on the basis of sexual orientation and gender identity. For example, we have previously reported on President Biden’s Executive Order 13988 on “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” and the memo issued by HUD’s Acting Assistant Director for Fair Housing and Equal Opportunity on February 11, 2021 about enforcing the Fair Housing Act to prohibit discrimination based on sexual orientation and gender identity. Also, over 20 state laws and the District of Columbia already prohibit discrimination in credit transactions on the basis of sexual orientation or sexual identity.

Given this CFPB interpretive rule development and the pending Equality Act in Congress, CFPB-regulated banks, financial institutions and financial services companies would be well-advised to immediately review their policies, procedures, training materials, legal disclosures and other consumer-facing materials to ensure that any references to ECOA’s prohibition on sex discrimination incorporate sexual orientation and gender identity discrimination. And in light of CFPB Director-nominee Rohit Chopra’s expected interest in use of disparate impact analysis under ECOA, companies should also revisit their credit decisioning and pricing models to ensure that no variables are included that relate to sexual orientation or gender identity – or any close proxies for those characteristics.

The CFPB’s interpretive rule signals that discrimination on the basis of gender identity and sexual orientation will be a focus of the Bureau’s fair lending supervision and enforcement efforts going forward and raises the potential stakes for bank and non-bank creditors. It is likely that legal and policy changes regarding LGBTQ+ rights will continue to evolve at both the federal and state levels, so companies should remain abreast of developments and consult legal counsel concerning any gray areas of fair lending compliance.

- Lori J. Sommerfield & Christopher J. Willis

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Fannie Mae and Freddie Mac Extend Origination Flexibilities Due to COVID-19

In coordination with the Federal Housing Finance Agency on March 11, 2021, Fannie Mae in updates to Lender Letter 2021-03 and Lender Letter 2021-04 and Freddie Mac in Bulletin 2021-10 extended certain loan origination flexibilities due to COVID-19 from March 31, 2021 to April 30, 2021.

The flexibilities relate to alternative appraisals on purchase and rate and term refinance loans, alternative methods for documenting income and verifying employment before closing, and the expanded use of powers of attorney to assist with loan closings.

However, both Fannie Mae and Freddie Mac advise that this is the final extension of the employment verification and powers of attorney flexibilities.

- The Mortgage Banking Group

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Senate Confirmation of Chopra to Await Filling of FTC Vacancy

Despite wide-spread expectations that the full Senate will confirm Rohit Chopra as CFPB Director before the end of this month, we now understand that the Biden Administration is likely to seek a delay in Mr. Chopra’s confirmation until it fills the FTC vacancy created by the resignation of former Chairman Joseph Simons.

Mr. Simons’ resignation was effective January 29, 2021. Mr. Chopra and Rebecca Slaughter are the two current Democratic FTC Commissioners, with Ms. Slaughter now serving as Acting FTC Chair. If Mr. Chopra is confirmed by the Senate, he would need to resign from the FTC before he could be sworn in as CFPB Director. If President Biden does not fill Mr. Simons’ seat before Mr. Chopra resigns from the FTC, the remaining two Republican FTC Commissioners would hold a 2-1 majority since Ms. Slaughter would then be the only Democratic FTC Commissioner. To avoid this result, President Biden would need to replace Mr. Simons with a new Democratic FTC Commissioner before Mr. Chopra resigns from the FTC. (Mr. Chopra’s resignation will create another vacancy for President Biden to fill and give Democrats a 3-2 majority.)

- Alan S. Kaplinsky

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Third Circuit Rejects Debtor’s Claim That Collection Letter Stating She Could Call Law Firm “to Eliminate Further Collection Action” Violated FDCPA

The U.S. Court of Appeals for the Third Circuit has rejected a debtor’s claims that a collection letter she received from a law firm violated the Fair Debt Collection Practices Act because the letter stated “[i]f you wish to eliminate further collection action, please contact us at [this toll-free number].” As a result, it affirmed the district court’s grant of summary judgment in favor of the law firm.

In Moyer v. Patenaude & Felix, A.P.C., the plaintiff brought a putative class action in which she claimed that the letter was a deceptive means of collection in violation of the FDCPA. According to the plaintiff, the sentence inviting her to call a toll-free number would deceive a debtor into believing that a phone call was “a legally effective” way to stop collection activity when, in fact, the FDCPA requires a debt collector to cease all collection efforts only if the consumer provides written notice that she disputes the debt. The Third Circuit ruled that this argument failed because the law firm never claimed that a phone call was a legally effective way to stop collection efforts; it invited her to call to “eliminate” collection action “but never asserted, explicitly or implicitly, that the phone call would, by law, force [the law firm] to cease its collection efforts.” In the court’s view, the plaintiff “reads into the invitation an implication it does not create.”

The plaintiff also claimed that the law firm violated the FDCPA’s validation notice requirement because, by appearing in the collection letter before the validation notice, the invitation to call caused confusion regarding how to pursue her rights under 15 U.S.C. Section 1692g as described in the validation notice. The validation notice contained the statutorily-required statement regarding the collector’s obligation to obtain verification of a debt or a copy of a judgment if the consumer notifies the collector in writing within a 30-day period. According to the plaintiff, by appearing directly before the statement that the debtor can write to exercise her Section 1692g rights, a debtor would be left uncertain about whether she should call or write to exercise such rights. In the Third Circuit’s view, the plaintiff “sees confusion where none exists.” The validation notice instructed a debtor to write to exercise her Section 1692g rights “without any suggestion that a phone call would suffice” and did not suggest that a debtor could exercise any Section 1692g rights over the phone. The court also found that the order of the paragraphs in the collection letter did not create confusion about the information they conveyed.

- Christopher J. Willis & Stefanie Jackman

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Third Circuit Holds ECOA Does Not Preempt NJ’s Doctrine of Necessaries and Affirms Dismissal of FDCPA claims

The U.S. Court of Appeals for the Third Circuit has held that the Equal Credit Opportunity Act does not preempt New Jersey’s common-law doctrine of necessaries whereby a spouse is jointly liable for necessary expenses incurred by the other spouse. As a result, the plaintiff could not rely on preemption as the basis for her claim that the defendant law firm violated the Fair Debt Collection Practices Act by attempting to collect a debt from her that she did not owe for her deceased husband’s medical expenses.

In Klotz v. Celentano Stadtmauer and Walentowicz LLP, the plaintiff’s deceased husband incurred a debt to a hospital for medical expenses that he did not pay before he died. The husband left no estate and the hospital retained the defendant law firm to collect the debt from the plaintiff. The plaintiff sued the law firm for violating the FDCPA by sending her letters to collect a debt she did not owe. The law firm successfully moved to dismiss the lawsuit, arguing that the plaintiff owed the debt under New Jersey’s common-law doctrine of necessaries because her husband incurred the debt for medical treatment.

On appeal, the plaintiff argued that the law firm’s collection letters violated the FDCPA because the ECOA preempts the doctrine of necessaries. Specifically, she argued that the doctrine of necessaries conflicts with the ECOA prohibition of discrimination against an applicant on the basis of marital status and the implementing Regulation B provision that prohibits a creditor from requiring the signature of an applicant’s spouse if the applicant is independently creditworthy. According to the plaintiff, because the doctrine of necessaries effectively treats her as a spousal co-signer on the debt in violation of the spousal-signature prohibition, the prohibition preempts the doctrine.

In affirming the district court’s dismissal of the lawsuit, the Third Circuit held that the ECOA does not preempt the doctrine of necessaries because the debt is “incidental credit”’ exempt from the spousal-signature prohibition. (The Third Circuit indicated that, for purposes of its analysis, it was “[p]utting aside questions such as whether the [law firm] is a ‘creditor’ and [the plaintiff] an ‘applicant’ under the spousal-signature prohibition.”) The Third Circuit observed that the ECOA gave the Federal Reserve Board authority to exempt certain categories of transactions from the ECOA’s scope “after making an express finding that the application of…any provision…would not contribute substantially to effecting the purposes of [the ECOA].” In 2003, the Fed exercised this authority by exempting “incidental credit” from the spousal-signature prohibition. Regulation B defines “incidental credit” as “extensions of consumer credit…(i) [t]hat are not made pursuant to the terms of a credit card account; (ii)[t]hat are not made subject to a finance charge…and (iii)[t]hat are not payable by agreement in more than four installments.” (The Third Circuit noted that the Fed’s rulemaking authority under the ECOA was generally transferred to the CFPB in 2011.)

The Third Circuit found that the plaintiff’s medical debt qualified as “incidental credit” because it satisfied all three definitional criteria. Since the spousal-signature prohibition did not apply, the Third Circuit held that the ECOA and Regulation B did not preempt the doctrine of necessaries as a matter of conflict preemption because the plaintiff could not show either that the doctrine of necessaries makes compliance with the ECOA impossible or stands as an obstacle to the accomplishment of the ECOA’s purposes. According to the Third Circuit, the law firm’s use of the doctrine (1) complied with the ECOA because medical debt is “incidental credit” exempt from the spousal-signature prohibition, and (2) did not frustrate the ECOA’s purposes which are focused on ensuring the availability of credit rather than the allocation of liability between spouses.

- Stefanie Jackman & John L. Culhane, Jr.

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This Week’s Podcast: A Look at the New Wave of Telephone Consumer Protection Act Cases Alleging Do-Not-Call Claims

After examining why TCPA cases alleging autodialer claims have fallen into disfavor with plaintiffs’ attorneys, we discuss the increasing volume of TCPA cases involving do-not-call (DNC) claims. Topics include how the DNC registries operate, coverage of the TCPA DNC prohibitions, elements of a DNC claim, exceptions and defenses, penalties and other available relief, and arguments available to defendants for defeating DNC class actions.

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Practice Group, hosts the conversation, with Joel Tasca, a partner in the firm’s Consumer Financial Services Litigation Group, and Lindsay Demaree, Of Counsel in the Litigation Group.

Click here to listen to the podcast.

- Barbara S. Mishkin

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FTC Provides Annual FDCPA Update to CFPB

The FTC has provided its annual update to the CFPB on the FTC’s FDCPA activities. The latest update covers the FTC’s 2020 activities. In addition to remaining an FTC focus, unlawful debt collection practices have been identified as a CFPB priority by Acting Director Dave Uejio and Director-nominee Rohit Chopra. In the letter, the FTC indicates that it will continue to work closely with the CFPB to coordinate consumer protection activities related to debt collection.

The enforcement activities highlighted by the FTC in its annual letter include the following:

  • The settlement of the FTC’s first enforcement action targeting the practice of “debt parking.” This practice, also referred to as “passive debt collection,” involves the placing of purported debts on consumers’ credit reports without first attempting to communicate with consumers about the debts. In its lawsuit, the FTC alleged that since 2015, Midwest Recovery Systems reported more than $98 million in purported debts to credit reporting agencies. Such debts allegedly included debts for unauthorized or counterfeit payday loans, debts subject to unresolved fraud claims, debts in bankruptcy, debts in the process of being rebilled to consumers’ medical insurance, and debts already paid to the defendants. According to the complaint, the defendants continued to attempt to collect such debts despite various red flags about their validity, including numerous consumer complaints and disputes and an inability to validate numerous debts. The FTC alleged various FDCPA violations by the defendants as well as alleged violations of the FCRA and FCRA Furnisher Rule. The settlement included a $24.3 million judgment, which was partially suspended based on the defendants’ inability to pay. We note that the second part of the CFPB’s final Debt Collection Rule issued in December 2020 prohibits furnishing information to credit reporting agencies without first making contact (or attempting to make contact) with the consumer about the debt.
  • A nationwide initiative (titled “Operation Corrupt Collector”) in partnership with the CFPB, other federal agencies, and state law enforcement authorities addressing “phantom debt collection” and abusive and threatening debt collection practices. Phantom debt collection (also known as fake debt collection) covers a range of practices, including attempts to collect on obligations that consumers never took out or received, as well as efforts to recover loans without authorization from the creditor. The FTC filed three lawsuits as part of this initiative.

Although centered on FDCPA enforcement, the update includes a discussion of a lawsuit filed by the FTC against two companies engaged in small business financing. The FTC’s complaint alleged that the defendants deceived small businesses by misrepresenting the terms of merchant cash advances, and used unfair collection practices, including confessions of judgment that the defendants used unfairly to seize personal and business assets in circumstances not expected by customers and not permitted by the financing contracts. Small business financing, particularly merchant cash advances, has been an FTC focus and, based on comments made by CFPB Director-nominee Chopra, is expected to receive increased scrutiny from the CFPB.

- Christopher J. Willis

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President Biden to Nominate Lina Khan for FTC Commissioner

The White House officially announced Monday that President Biden intends to nominate Lina Khan to serve as an FTC Commissioner.

Ms. Khan is currently an associate professor at Columbia Law School, where she teaches and writes about antitrust law, infrastructure industries law, and the antimonopoly tradition. She previously served as counsel to the House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law where she helped lead the Subcommittee’s investigation into digital markets. She also served as a legal advisor at the FTC to Rohit Chopra, President Biden’s nominee for CFPB Director.

If confirmed by the Senate, Ms. Khan will fill the FTC seat vacated by former FTC Chairman Joseph Simons. We understand that the White House is likely to seek a delay in Mr. Chopra’s confirmation as CFPB Director until Ms. Khan is confirmed to avoid the 2-1 Republican majority that would result if Mr. Chopra were to resign from the FTC before Mr. Simons’ seat is filled.

According to media reports, because Ms. Khan has been a prominent critic of Big Tech, her nomination is seen as a significant victory for progressive Democrats who believe the FTC has not done enough to police major technology platforms on antitrust and privacy issues.

- Christopher J. Willis

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Did You Know?

Reminder: California Annual Residential Mortgage Loan Report Due March 31

The California Housing Financial Discrimination Act (known as the Holden Act) requires certain residential mortgage lenders to file annually a Residential Mortgage Loan Report with the Department of Financial Protection and Innovation (DFPI). The Report must include all mortgage lending activity related to the application of, and loans made to the public for home purchase and/or home improvement purposes.

Licensed lenders who report under the provisions of the federal Home Mortgage Disclosure Act (HMDA) are not required to file this Report. However, such licensees are still required to notify the DFPI that they are not filing the report.

The 2020 Residential Mortgage Loan Report is due by March 31, 2021. The instructions and reporting form are available here.

- Aileen Ng

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Looking Ahead

MBA Event

The QM Delay and What To Do Now

Webinar | March 30, 2021, 3:00 PM ET

Speaker: Richard J. Andreano, Jr.

RESPRO28 Conference

Virtual | April 8, 2021

Credit Reporting Under the CARES Act

Speaker: Kim Phan

CCPA to CPRA - Enhancing Privacy Compliance Systems

Speaker: Kim Phan

Moderator: John D. Socknat

The Twin Challenge of 2021- Compliance and COVID

Speaker: Richard J. Andreano, Jr.


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