Insights Past Issues

In 2015, the Second Circuit Court of Appeals issued an opinion finding that, under the doctrine of federal preemption, a non-bank assignee of a bank loan could not charge and collect the rates and fees that the bank could charge and was therefore subject to state law usury limits.

The Office of the Comptroller of the Currency recently issued its final rule codifying as a regulation that the interest charged on loans that is permissible before the loan is transferred remains in effect after the loan is transferred.

The parties to the closely watched litigation by the Attorney General of Colorado as Administrator of the Colorado Uniform Consumer Credit Code against two marketplace lending platforms have agreed to settle the litigation.

On July 22, Online Lending Policy Institute hosted a conversation covering the new FDIC rule issued on June 25 which adopts the common law doctrine of “valid when made” as well as other topics related to fintech.

The Office of the Comptroller of the Currency and the Federal Deposit Insurance Corporation have been quite active in issuing or proposing new regulations and initiatives focused on financial technology and innovation in financial services.

On June 11, the Online Lending Policy Institute hosted a conversation covering the expansive advance notice of proposed rulemaking in the fintech space.

On May 29, the Office of the Comptroller of the Currency issued its final rule codifying as a regulation that the interest charged on loans that is permissible before the loan is transferred remains in effect after the loan is transferred.

H.R. 748 better known as the CARES Act or more informally as the $2 trillion stimulus bill signed by President Trump on March 27, 2020, contains one important provision for all consumer lenders and another two provisions related to federally-backed mortgage loans.

The California Consumer Privacy Act of 2018 went into effect on January 1, 2020 and imposes extensive disclosure and record-keeping requirements on businesses that handle personal information.

The state of Colorado initiated two lawsuits against online lending platforms. The suits alleged that the platforms had violated the state’s Uniform Consumer Credit Code by charging interest and some fees in excess of those allowed under Colorado law and that the consumer loan agreements utilized a non-Colorado governing law provision, also in violation of the law.

On September 30, the Governor of California signed into law Senate Bill No. 1235, which amends the California Financing Law (previously known as the Finance Lenders Law) to impose new disclosure requirements on licensed commercial lenders and brokers including for online lending programs doing business in California.

A recent decision from the U.S. Court of Appeals for the Third Circuit has created a circuit split in how the federal circuit courts have interpreted the statute of limitations as it applies to the Fair Debt Collection Practices Act.

Compliance with the Telephone Consumer Protection Act has never been simple, and a number of conflicting and confusing rulings over the last several years have made it that much more difficult. The TCPA contains a confusing array of regulations depending on what kind of phone is being called, who is calling and what purpose the call serves, and whether the person being called has given permission.

More than a year after the Consumer Finance Protection Bureau submitted a proposed rule to limit consumer financial services contract arbitration clauses, the CFPB sounded the death knell on July 10, 2017, when it released its long-awaited final rule.

In a unanimous decision on June 12, the United States Supreme Court held that a purchaser of defaulted debt who pursues repayment is not a “debt collector” under the Fair Debt Collection Practices Act.

The Supreme Court continues to redefine the scope of the Fair Debt Collection Practices Act, with one highly anticipated ruling issued this week and another expected before the Court adjourns for the summer in late June.

The May 2015 decision of the U.S. Court of Appeals for the Second Circuit in Madden v. Midland Funding, LLC sent shockwaves through the marketplace lending industry, and nearly two years later the questions generated by this case remain largely unanswered. These questions have been further complicated by the long-awaited remand decision from the U.S. District Court for the Southern District of New York.

This article discusses a financial institution’s obligation to manage risks of its HELOC Home Equity Line of Credit portfolio, focusing on the applicable regulatory requirements and restrictions on the ability to freeze or reduce HELOCs during the draw period.

2016 was a record year for filings under the Telephone Consumer Protection Act of 1991. In 2016, litigants filed 4,860 TCPA lawsuits, an increase of nearly 32% from 2015. But what does 2017 hold? What can companies who call customers to service or collect debts expect?

On February 27, the U.S. District Court for the Southern District of New York issued its long-awaited remand decision in Madden v. Midland Funding, LLC. 

The U.S. Court of Appeals for the D.C. Circuit made headlines following its decision in the PHH Corporation et al. v. Consumer Financial Protection Bureau case. The Court found that the CFPB’s single-director, removable-only-for-cause structure was unconstitutional. However, the Court has now vacated that order in its entirety and set the case to be heard again en banc.

In this edition: 

• Mortgage Servicing Foreclosure Practices
• OCC Semiannual Risk Perspective 

In one of his first Presidential acts, President Trump has named Commissioner Ajit Pai as Chairman of the Federal Communications Commission. Chairman Pai has become well-known for his dissenting opinions during his time with the FCC, including his dissent to the most recent Telephone Consumer Protection Act Omnibus Ruling and Order issued in July 2015.

Considering the flurry of activity in the fintech arena, is there a place for banks and, if so, what role can banks play? Given that marketplace lending is the most developed form of fintech today, it can be analyzed to see how banks do play important roles and employ different strategies dealing with this emerging market segment.

On Friday, Comptroller of the Currency Thomas Curry announced that the Office of the Comptroller of the Currency will issue limited-purpose bank charters to qualified fintech companies.

In this edition:

• Deposit Insurance Determination Rule
• FFIEC Revises Its Consumer Compliance Rating System
• Servicemembers

The U.S. Court of Appeals for the D.C. Circuit heard oral argument yesterday in a consolidated case arguing that the Federal Communication Commission has overstepped its bounds in its most recent interpretation of the Telephone Consumer Protection Act.

On October 11, the U.S. Court of Appeals for the D.C. Circuit issued an important decision involving the Consumer Financial Protection Bureau. Not only did the Court find that the agency’s structure was unconstitutional, it also ruled that the CFPB violated due process, and is subject to the statutes of limitations embodied in the laws it seeks to enforce. 

A recent decision of the Maryland Court of Appeals could require marketplace lenders and others who arrange for federal or state banks to fund consumer loans to consumers residing in Maryland to obtain licenses as “credit services businesses” and could prohibit them from arranging those loans at interest rates exceeding the applicable Maryland usury caps.

In this edition:

• NACHA Operating Rules — New Unauthorized Entry Fee
• Customer Due Diligence — Beneficial Ownership Rule
• Limited English Language Proficiency Customers

On May 10, 2016 the U.S. Department of the Treasury published a white paper entitled “Opportunities and Challenges in Online Marketplace Lending.” The White Paper follows the “Request for Information” which the Department published in July 2015 to solicit public input on various topics concerning marketplace lending.

Pratt's Privacy & Cybersecurity Law Report republished a special edition of Chapman's To the Point! newsletter. 

In this edition:

• Recent Action by the OCC of Special Concern for Directors, Senior Managers, and Compliance Officers
• FDIC Provides Additional Guidance on Corporate Governance

On Friday, March 18, 2016, the United States Supreme Court issued a call for the views of the Solicitor General of the United States before it decides whether to hear an appeal from a Second Circuit Court of Appeals decision rendered last May in the case of Madden v. Midland Funding, LLC.

On March 7, the CFPB announced that it is accepting consumer complaints about online marketplace lenders, giving consumers “a greater voice in these markets and a place to turn to when they encounter problems.” The CFPB also issued a bulletin to provide consumers with information on marketplace lending.

Law360 republished a Chapman Client Alert.

A recent decision of the U.S. District Court for the Eastern District of Pennsylvania has highlighted once again the regulatory risks that the so-called “true lender” doctrine can create for internet-based lenders who partner with banks to establish exemptions from applicable state consumer protection laws.

The Banking Law Journal republished a Chapman Client Alert.

A recent decision of the Maryland Court of Special Appeals could impact marketplace and other lenders who arrange for federal or state banks to fund consumer loans in Maryland at rates in excess of the applicable Maryland usury caps. 

In this edition:

• CFPB Guidance on Private Mortgage Insurance Cancellation
• FDIC Announces Settlement with Credit Card Issuer Related to the Sale of Add-On Products 
• Servicemember Updates
• Eleventh Circuit Rules on Applicability of FDCPA to Bank

The Banking Law Journal republished a Chapman Client Alert.

In the case of Madden v. Midland Funding, LLC, the Second Circuit narrowly interpreted the scope of federal preemption of state usury laws under the National Bank Act as such laws apply to certain non‑bank loan assignees.

In this edition:

• Telephone Consumer Protection Act Declaratory Ruling
• CFPB First Monthly Complaint Report
• Treasury Department Inquires about Marketplace Lending

In this edition:

• Servicemembers Update
• CFPB Consumer Complaint Narratives
• Private Student Loans and Cosigners

In this edition:

• U.S. Supreme Court Will Not Hear CashCall Case – Uncertainty for Marketplace Lenders?
• FinCEN Current Priorities
• Guidance on Youth Savings Programs
• Overdraft Update – CFPB Enforcement Action

In this issue: 

• CFPB Arbitration Study: First Step to Restricting their Use?
• 7th Circuit Requires Servicers to Credit Payments on the Day Authorized
• Target Data Breach Settlement

The Consumer Financial Protection Bureau has issued its 800+ page proposed rule (with commentary) on prepaid cards.

The Consumer Financial Protection Bureau has issued a proposed rule that would bring prepaid products under the Electronic Fund Transfer Act and make the protections currently afforded to credit cardholders under Regulation Z applicable when credit features are obtained in connection with a prepaid account.

In this issue:

• Department of Housing and Urban Development 2013 Disparate Impact Rule is Vacated
• FFIEC Cybersecurity Guidance
• 2014 Federal Interagency Fair Lending Hot Topics Webinar

In this issue:

• Qualified Mortgage Points and Fees Cure
• Posting Privacy Notices Online
• National Survey of Unbanked and Underbanked Households