Debt Buying Companies to Explore Impact of CFPB’s Recent Consent Orders

Three consent decrees issued over the past few months present clear challenges for the debt buying industry, creditors and companies that provide services to them.

The first, between the Consumer Financial Protection Bureau and JP Morgan Chase Bank, contained an agreement altering the bank’s debt collection activities. The bank also agreed that any debt sold by it would contain a restriction prohibiting resale by the subsequent purchaser.

More specifically, and among other things, the Chase Bank Consent Order (copy available here) requires Chase to do the following:

  • Stop selling loans and other debts that:  (1) were discharged in Chapter 7 bankruptcy;  (2) are subject to a pending ID theft claim by the consumer; (3) are owed by a deceased consumer; (4) were settled; (5) for which Chase does not have significant and specific types of documentation;  (6) subject to a pending dispute or litigation with the consumer; (7) are subject to a performing loan modification;  (8) for which the consumer is a Servicemember;  (9) are more than three years in default; and/or (10) for which Chase determined the consumer was a minor when the loan was extended
  • Provide extensive information and information to the consumer, before selling any loans or other debts
  • Following any sale, make specific documentation regarding the loans or other debts available – without charge – to the consumer
  • Include specific terms in its purchase and sale agreements prohibiting collection, unless Chase provided specific documentation regarding the loan or other debt
  • Include specific terms in its purchase and sale agreements:  (1) prohibiting resale of the loan or other debt;  and (2) prohibiting the buyer from attesting to Chase’s records, except as to proofs of claim in bankruptcy
  • Make specific documentation regarding the loans or other debts available to all purchasers for at least three years following the sale
  • Provide specific content in Chase’s affidavits regarding loans and other debts, and engage in extensive training of its affiants
  • Provide specific content in Chase’s collection lawsuit complaints, correction of any incorrect statements in those lawsuits, and extensive documentation when obtaining judgments

Then in September, two more consent decrees were inked with debt buying companies Encore Capital (copy available here) and PRA Group (copy available here). Like the Chase consent decree, these consent decrees contained agreements to change certain of the companies’ debt collection practices. Similar to the Chase consent decree, they also contained an agreement by the companies not to resell purchased debt.

More specifically, the Encore Capital and PRA Group consent orders require that the companies:

  • Stop collecting any loan or other debt, under various circumstances including when the consumer disputes the debt orally or in writing, unless the company can provide extensive and specific substantiation of the debt and the amount owed
  • Stop reselling loans and other debts, except to the entity that sold the debt to the companies, and in other specific circumstances
  • Provide specific content and documentation in connection with their affidavits
  • Inform consumers, all of its attorneys and other collectors, and other third parties of the fact that the loan or other debt is disputed

When read together, the three consent decrees going forward have implications for debt buying companies and those who engage in any activity to collect a debt, regardless of whether they are an originator or debt buying company. The agreements likely contain expectations the CFPB has for mortgage, motor vehicle, student loan and other originators and servicers of consumer debt. 

On Nov. 12 at DBA International’s California Regional Symposium, representatives from PRA Group, Encore Capital and DBA International will share their thoughts on the CFPB supervisory and enforcement processes and provide insight into what others should be looking at right now.

Topics will include:

  • Purchase terms and conditions
  • Data accuracy in both purchases and post-purchase operations
  • Document requirements, pre-litigation
  • Addressing oral disputes
  • Practices for telephone communications and, in particular, calls to cellular phones
  • Civil lawsuits for debt collection
  • Handling outside collectors and debt collection law firms
  • Affidavits used in collection lawsuits
  • Collecting debt potentially subject to an expired limitations period

In addition, representatives from the California Bankers Association and the California Collectors Association will discuss recent developments in California state law impacting originators, purchasers and debt collectors. While the bill to increase the maximum homestead exemption did not pass, the wage garnishment (SB 501) and default judgment (SB 641) bills passed by the legislature were signed into law.

We’ll also examine new laws in Maine and Illinois impacting debt purchasing and those who provide debt collection services. Finally, we will turn our attention to pending legislation, some of it very significant, and the trends we’ve seen in state legislation over the past few months.

This is a rare opportunity to discuss what is likely a supervision and enforcement framework we expect to see repeated throughout the consumer financial services industry. So please join me in Burbank, Calif. on Nov. 12, from 10 a.m. to 4:30 p.m. Register here.

 

 

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Donald Maurice provides counsel to the financial services industry, successfully litigating matters in the state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. Don is peer-rated AV by Martindale-Hubbell, the worldwide guide to lawyers. In addition to being a frequent speaker and author on consumer financial services law, he serves as outside counsel to RMA International, on the governing Board of Regents of the American College of Consumer Financial Services Lawyers and on the Governing Committee of the Conference on Consumer Finance Law. From 2014 to 2017, he chaired the ABA's Bankruptcy and Debt Collection Subcommittee.