Prescreened Advertisements

QUESTION

I am the CEO of our company, and we were recently referred to your firm for assistance with our review of advertisements. We’re currently talking to your people about making sure we have reliable advertising review procedures. And we’ve already purchased your advertising manual. We hope to engage Lenders Compliance Group to work with us on our advertising procedures.

We do a lot of direct mail pre-approvals. I am writing to you because I am concerned about two recent consent orders from the CFPB that involve direct mail. Both of these cases involve direct mail advertising issues, caused by prescreening, relating to VA loans in particular.  

I want to do whatever is necessary to comply with proper prescreening procedures.

What are some basic procedures we need to be following on our prescreened advertisements?

ANSWER

Thank you for your question. It is a timely inquiry. The two companies are Sovereign Lending Group, Inc. (“Sovereign”) and Prime Choice Funding, Inc. (“Prime Choice”). The CFPB issued consent orders to both of them on July 24^th. These actions stem from the Bureau’s sweep of investigations of multiple mortgage companies that use deceptive mailers to advertise VA-guaranteed mortgages. Some state banking departments have been actively pursuing similar examinations and enforcement.

In the case of Sovereign, the consent order requires the company to pay $460,000 in civil monetary penalties and imposes requirements to prevent future violations. In the case of Prime Choice, the consent order requires the company to pay $645,000 in civil monetary penalties and imposes requirements to prevent future violations. In both cases, the principal means of advertising is through direct-mail campaigns targeted primarily at the United States military service members and veterans.

The Bureau alleged that Sovereign sent consumers hundreds of thousands of mailers for VA-guaranteed mortgages that contained false, misleading, and inaccurate statements or that lacked required disclosures, in violation of the Consumer Financial Protection Act’s (CFPA) prohibition against deceptive acts and practices, the Mortgage Acts and Practices – Advertising Rule (“MAP Rule”), and Regulation Z. Sovereign allegedly sent consumers numerous advertisements for VA-guaranteed mortgages that, among other things, misrepresented the credit terms of the advertised mortgage, misleadingly described an adjustable-rate mortgage as having a “fixed” rate, falsely stated that the consumer had been prequalified for the advertised mortgage, created the false impression that Sovereign was affiliated with the government, used the name of the consumer’s current lender in a misleading way, and failed to include multiple disclosures required by Regulation Z.

With respect to Prime Choice, the Bureau alleged that the company sent consumers millions of mailers for VA-guaranteed mortgages that contained false, misleading, and inaccurate statements or that lacked required disclosures, in violation of the CFPA’s prohibition against deceptive acts and practices, the MAP Rule, and Regulation Z. Prime Choice allegedly sent consumers numerous advertisements for VA-guaranteed mortgages, causing violations similar to those made by Sovereign.

There are several acceptable reasons for obtaining and using consumer reports, one of which is the intent to use them in connection with a prescreened “firm offer of credit or insurance.” This use is often referred to as “prescreening.” This type of marketing requires considerable regulatory compliance knowledge and support. Most financial institutions do not have the adequate level of expertise needed to review such marketing techniques to know how to prevent deceptive acts and practices, ensure compliance with the MAP Rule, and comply with Regulation Z.

Retaining a firm like Lenders Compliance Group for such support should be part of your prescreening review process. Just one, single error in prescreened marketing can cost considerable financial and regulatory risk. Please contact me HERE if you want to talk about your compliance concerns.

Your institution engages in prescreening activities if it either: 

• Obtains specific customer authorization for any prescreening; or
• Extends a firm offer of credit or insurance to each consumer identified by the prescreening.

The firm offer must be honored if the consumer is determined, based on information in a consumer report, to meet the specific criteria used to select the consumer for the offer.

There are several factors that you will need to state in your policy and implement in your procedures (and those procedures should be tested periodically). Four factors come to mind: disclosure, the record of criteria, opt-outs, and limited information. I will provide a brief overview of each factor.

Disclosure

With each prescreened solicitation, your institution should provide a clear and conspicuous statement that:

• Information contained in the consumer’s consumer report was used in connection with the transaction.
• The consumer received the offer of credit because the consumer satisfied the criteria for creditworthiness or insurability under which the consumer was selected for the offer.
• If applicable, your institution may choose not to extend credit if, after the consumer responds to the offer, the consumer does not meet the criteria used to select the consumer for the offer or any applicable criteria bearing on creditworthiness or insurability or does not furnish any required collateral.
• The consumer has a right to prohibit information contained in the consumer’s file with any consumer reporting agency from being used in connection with any credit or insurance transaction not initiated by the consumer. The consumer may exercise the right by notifying a notification system set up for that purpose.
• Includes the address and a toll-free number for the notification system.
• Is presented in a format, type size and manner that is simple and easy to understand, in accordance with FTC regulations (not yet adopted as of the date of publication of this book).

Record of Criteria

Your institution should keep on file the criteria used to select consumers for any prescreened offer.

Examples of criteria would include: 

• All criteria bearing on credit worthiness or insurability, as applicable, that are the basis for determining whether to extend credit or insurance pursuant to the offer.
• Any requirement for the furnishing of collateral as a condition of the extension of credit or insurance, until the expiration of the three-year period beginning on the date on which the offer is made to the consumer.

Opt-outs

Any prescreening must not include customers who have opted out of prescreening.

Limited information

In connection with any prescreening, your institution should receive from the consumer reporting agency only: 

• The name and address of each consumer.
• An identifier not unique to the consumer and used solely for the purpose of verifying the identity of the consumer.
• Other information pertaining to a consumer that does not identify the relationship or experience of the consumer with respect to a particular creditor or other entity.

Jonathan Foxx, Ph.D., MBA
Chairman & Managing Director
Lenders Compliance Group

Record Retention for Prescreened Credit Solicitations

QUESTION

Last year we had a prescreened credit campaign. Earlier this year, we had a banking examination and were scored down because we did not have all the record retention requirements for prescreened credit solicitations. In the case of the prescreened credit, what are the record retention requirements?

ANSWER

For specific information about prescreened solicitations, please consult the Fair Credit Reporting Act.

Under the Equal Credit Opportunity Act, for a period of twenty-five months after the date on which an offer of credit is made to potential customers in connection with a prescreened credit solicitation, the creditor must retain:

1. The text of any prescreened solicitation;
2. The list of criteria the creditor used to select potential recipients of the solicitation; and
3. Any formal or informal correspondence related to complaints about the solicitation. [12 CFR § 202.12(b)(7); 12 CFR Supplement I to Part 202 – Official Staff Interpretations § 202.12(b)(7)-1] 

Regarding the requirement to retain information on any prescreened solicitation, a creditor complies with the record retention requirement if it retains a copy of each solicitation mailing that contains different terms, such as the amount of credit offered, annual percentage rate or annual fee. [12 CFR Supplement I to Part 202 – Official Staff Interpretations § 202.12(b)(7)-1]

In order to satisfy the requirement to retain the criteria used to select potential recipients, a creditor must retain the criteria used to determine the potential recipients of the particular solicitation, and the criteria to determine who actually will be offered credit. [12 CFR Supplement I to Part 202 – Official Staff Interpretations § 202.12(b)(7)-2]

With respect to the requirement to retain correspondence, a creditor may retain correspondence relating to complaints of consumers about prescreened solicitations in any manner that is reasonably accessible and is understandable to examiners. There is no requirement to establish a separate database or set of files for such correspondence, or to match consumer complaints with specific solicitation programs. [12 CFR Supplement I to Part 202 – Official Staff Interpretations § 202.12(b)(7)-3]

Jonathan Foxx

President & Managing Director 

Lenders Compliance Group

Prescreening and Firm Offers of Credit

QUESTION
I have heard that there are additional requirements imposed on a lender when it utilizes pre-screened credit data for marketing or advertising. Is this true?

ANSWER 

Yes.

Prescreening is a process by which a consumer reporting agency (viz., a credit bureau) compiles a list of consumers meeting specific credit-granting criteria provided by an institution. The list is provided to the institution for use in soliciting specific consumers for credit products.

The use of prescreened data is beneficial to an institution because it allows the institution to qualify consumers for an offer and ensure that only qualified consumers receive the offer.  By way of example, a financial institution could get a list of consumers (a) with a credit score over 700; (b) not down 30 in the last 12 months; and (c) in a specific zip code. A list of consumers fulfilling these three criteria could not be assembled from publicly available information. While these criteria can serve as a powerful marketing tool, if an institution uses prescreened data it must make a “firm offer of credit” to all consumers whose names appear on the prescreened list. Furthermore, if the consumer accepts the offer of credit, the institution cannot, with limited exceptions, withdraw or deny the credit, even when based on new information concerning the consumer.

The guidelines set forth in the Fair Credit Reporting Act (“FCRA”) which is now enforced by the CFPB speak to the requirements to be followed when an institution utilizes prescreened data. The FCRA permits the use of prescreened data for marketing purposes if the institution makes a “firm offer of credit” to each consumer whose name appears on the prescreened list. Specifically, Section 604(3)(A) of the FCRA permits an institution to obtain prescreened data if it intends to use the information in connection with a credit transaction involving the extension of credit to the consumer. Therefore, an institution cannot use prescreened data to send promotional materials.

The requirement to offer a consumer whose name appears on the prescreened list a “firm offer of credit” should not be taken lightly.  If your institution utilizes prescreened data, you must understand all of the requirements of a “firm offer of credit”.  

These requirements include, but are not limited to, offering a short form and long form opt-out notice on the offer, setting forth all collateral requirements on the offer and establishing and documenting all credit requirements before the offer is made to the consumer.

In addition, these requirements are imposed upon an institution that is using credit data, whether obtained directly from the credit bureau or through a third party lead provider. 

Michael Barone
Director/Legal & Regulatory Compliance
Lenders Compliance Group