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Thursday, July 18, 2019

UDAAP Enforcement Actions: A Brief List

QUESTION
I know that you track all the regulations and acts that affect financial institutions involved in the mortgage industry. I am a little concerned that the CFPB is not enforcing violations of federal regulations since the new Administration came to power. Specifically, I am concerned that the current Administration is not enforcing UDAAP. I would like to know your sense of how much the CFPB is going after such enforcement. What kinds of violations are they going after?

ANSWER
Thank you for your question. Your concern goes to the core of the CFPB’s raison d’ĂȘtre. Since the enactment of the Dodd-Frank Act – and especially since the toning down of CFPB enforcement under the Trump Administration – commentators have speculated about how aggressively the CFPB would continue to pursue its broad regulatory authority. I think an impartial observer would say that enforcement has slowed down, but it has certainly not stopped.

The CFPB has broad authority to regulate unfair, deceptive, or abusive acts and practices (UDAAP). Federal statutes had previously given similar authority to federal agencies, including the Federal Trade Commission under Section 5 of the FTC Act and under Section 511 of the Credit CARD Act of 2009 (regulation of mortgage lending), and the Federal Reserve Board under the FTC Act and the Truth-in-Lending Act. Most of the States have adopted their versions of UDAAP statutes.

In our tracking of regulatory enforcement actions by the CFPB, there has been a slew of enforcements over the years. If we go back four years to July 2015, there have been many enforcement actions involving UDAAP violations. Under the current Administration, such enforcement has continued.

What should be of particular interest is the kinds of violations that the CFPB has pursued since January 2017, the month that the Administration came to power. Therefore, I would like you to consider the following brief list I have compiled of UDAAP allegations and alleged violations since January 2017. Though the list is not meant to be comprehensive, I have endeavored to narrow the focus to only mortgage lenders and servicers. I have given myself some flexibility in identifying regulations that involve UDAAP applicability.

The list will let you learn from the mistakes of others. The companies run the range of small regional financial institutions all way up to the biggest banks in the world. The companies’ names don’t matter. Their size and complexity do not pertain. Don’t let yourself get caught in the regulatory net. What matters are the alleged violations!
  • Giving the runaround to borrowers trying to save their homes [RESPA and Reg. X 1024.41; D-F 1031, 1036]
  • Collecting illegal fees from struggling borrowers [Telemarketing Sales Rule; D-F 1031]
  • Illegal kickback scheme [RESPA 8(a) and Reg. X]
  • Accepting illegal kickbacks [RESPA 8(a) and Reg. X]
  • Consistently failing to report accurate HMDA data [HMDA]
  • Falsely representing that attorneys were involved in collecting debts [D-F 1031, 1036; FDCPA]
  • Mortgage servicing failures [D-F 1031, 1036; FDCPA; RESPA; TILA; HPA]
  • Deceiving consumers by collecting debt not legally owed [TILA; D-F 1031, 1036, 1064(a)–(b)]
  • Failing to provide mortgage borrowers with protections against foreclosure [RESPA, Reg. X]
  • Misleading credit repair customers and charging illegal fees [Telemarketing Sales Rule; D-F 1031, 1036]
  • Steering consumers to lenders who offered illegal or unlicensed loans void in the consumers’ states [D-F 1031, 1036]
  • Lying in loan offerings to consumers awaiting payments from settlements [D-F 1054]
  • Steering consumers to an affiliated title insurer without disclosing the affiliation [RESPA § 8]
  • Lying about affiliation with the federal government to lure consumers into paying illegal advance fees [Telemarketing Sales Rule; D-F 1031]

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