b'For more information, please visit www.lenderlawwatch.com or www.enforcementwatch.comIn other words, while non-judicial foreclosures aresmall lenders, and issuing much anticipated FDCPA ACTIONS BY STATUTE generally not subject to the FDCPA (other than sectionrulemaking. FinTech and data privacy also continue 1692f(6)), abusive practices that go beyond traditionalto be hot topics. The OCCs FinTech charter remains 70 foreclosure activities may receive different treatmentunder fire, as it was struck down in October by the 65 from the courts.U.S. District Court for the Southern District of New 60 Supreme Court Resolves Circuit Split on FDCPAYork. CFPB Prepaid Card rules that may impact certain Discovery Rule. In December, the Supreme CourtFinTech providers have also come under scrutiny, and 50 2017 issued its decision in Rotkiske v. Klemm, et al., resolvinghave been challenged in a recent lawsuit by PayPal. Total Actions by Statute Annuallythe issue of whether the FDCPA encompasses theIn the privacy world, 2019 saw the passage of several 2018 discovery rule, which tolls the statute of limitationslandmark privacy laws that are designed to give 40 37 2019 until a plaintiff discovers he or she has been harmed.consumers more control over their personal information 35 The Supreme Court answered the question with aand restrict the permissible use of consumer data, 30 29 28 noabsent the application of an equitable doctrine,including the European Unions General Protection 26 27 the statute of limitations begins to run when theRegulation (GDPR) and the California Consumer Privacy alleged FDCPA violation occurs, not when the violationAct (CCPA). The landmark laws are expected to have 20 15 17 is discovered. This decision has the potential tobroad-reaching effects across most industries, including 14 11 12 significantly limit FDCPA actions, which are alreadyconsumer finance.10 9 7 9 9 8 8 8 9 subject to a brief one-year statute of limitations period.HUD Announces Series of Changes in Effort to Coax 3 3 4 3 5 6 5 5 4 4 3 3 Lenders Back to FHA Lending. In 2019, HUD proposed 0 1 1 2 2 1 0 2 1 2 0 Supreme Court Set to Rule on Whether the CFPBrevisions to FHAs annual lender certifications, loan-State CFPA FTCA FDCPA RESPA FHA FCA TSR FCRA TILA FIRREA SCRA ECOA EFTA and FHFA Are Unconstitutionally Structured. Inlevel certifications, and its Defect Taxonomy in an StatuteOctober, the Court granted certiorari in CFPB v. Seila or concerted effort to entice larger, institutional lenders Regulation Law, (No. 19-7), to decide the question of whether thewho fled the FHA program as a result of aggressive CFPB directors for-cause-only removal provision isDOJ and HUD Office of Inspector General (HUD-OIG) constitutional and, if the CFPB is found unconstitutionalenforcement that began back in 2012. According to the the CFPA by failing to settle consumers debts as$65 million, approximately $4 million of which will beon this basis, whether the proper remedy is toFHA, the certification revisions are designed to better promised, charging consumers fees after consumerssuspended subject to the debt collector paying a $1invalidate the CFPB or whether the for-cause removalalign the certification statements with HUDs statutes negotiated their own settlements with creditors, andmillion civil penalty and $10,000 in consumer redress. provision can be severed from the Dodd-Frank Act.and regulations while continuing to hold lenders misleading consumers about the companys fees andAppellate HighlightsAs noted above, the CFPB has agreed that the singleaccountable for compliance with FHAs eligibility and ability to negotiate debts with all creditors. Notably,On the appellate side, in 2019 the Supreme Courtdirector structure is unconstitutional, but has urged theapproval requirements and to incorporate a materiality the action was also indicative of the CFPBs and otherissued several notable opinions affecting the FDCPA,Court to resolve the issue by ruling that the presidentelement. The revised taxonomy is meant to provide enforcement agencies increasing use of the TSR.and in 2020, we expect the Supreme Court willhas the authority to remove the director at will, rathermore clarity and transparency into FHAs loan-level The CFPB alleged that the company violated the TSRfinally resolve the question of whether the CFPB isthan declare the CFPB as a whole unconstitutional. Inquality assurance processes by specifying potential by charging consumers advance fees and failing tounconstitutionally structured. light of the CFPBs position, House Democrats directedremedies based on the severity of a purported defect inform them of their rights to funds deposited withthe filing of an amicus brief on behalf of the Houseand incorporating HUD policy references. It remains to the company. Freedom agreed to pay $20 million inSupreme Court Holds That Judicial Foreclosuresof Representatives defending the constitutionalitybe seen whether FHAs efforts to calm lender anxieties restitution to affected consumers and a $5 million civilAre Not Subject to the FDCPA. In March the Supremeof the for-cause removal provision. In a relatedwill be successful, but based on industry comments, we money penalty to resolve all claims.Court held in Obduskey v. Wells Fargo that non-judicialconstitutionality question, the Supreme Court will alsodo not expect significant renewed participation to occur The CFPB and NY AG Achieve $65 Million Debtforeclosures are not subject to the FDCPA, resolvingdecide in Collins v. Mnuchin, (No. 19-422), whetherin 2020. Collection Settlement. In July, the CFPB and thean ongoing circuit split. The Supreme Court heldthe Federal Housing Finance Agencys (FHFA) similar New York Attorney General (NY AG) announced twothat businesses that solely enforced their securitystructure also violates the separation of powers.HUD Proposes a Higher Standard for Fair Housing settlements with three Buffalo-based affiliated debtinterests through non-judicial foreclosure are not debtOther Notable HighlightsAct Disparate Impact Actions. HUD proposed a new collection companies and their owners to resolve CFPAcollectors, as defined by the FDCPA. The holding,Additional developments from 2019 included severaldisparate impact rule that will likely cause a decline in and FDCPA claims. The agencies alleged that thehowever, made clear that non-judicial foreclosureefforts by HUD to increase lender certainty relatingactions brought under the Fair Housing Act in 2020 defendants inflated the amount owed on purchasedentities do not have free reign to act as they please: to FHA mortgage lending and enforcement ofand for years to come. Drafted in response to the debt, then used illegal tactics to collect the debt.[t]his is not to suggest that pursuing nonjudicialthe Fair Housing Act. The CFPB also took severalSupreme Courts 2015 ruling in Inclusive Communities, Under the terms of the proposed settlements, theforeclosure is a license to engage in abusive debtnotable actions, in further delaying implementationthe proposed rule would require plaintiffs to show that debt collectors agreed to pay a total of approximatelycollection practices.enforcing a security interest doesof the Payday Rule, relaxing HMDA standards fora challenged practice caused, or predictably will cause, not grant an actor blanket immunity from the Act. 8 9'