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CFPB to hold May 5 field hearing on arbitration

Posted in Arbitration

The CFPB has announced that it will hold a field hearing in Albuquerque, New Mexico about arbitration on May 5, 2016.  We expect the field hearing to coincide with the release of the CFPB’s proposed rule on the use of arbitration agreements in certain consumer financial services contracts.

In October 2015, the CFPB convened its Small Business Regulatory Enforcement Fairness Act (SBREFA) panel to review the proposals it was considering.  The outline of the CFPB’s proposals given to the SBREFA panel indicated that the CFPB was contemplating a ban on the use of class action waivers, and recent comments by Director Cordray have signaled no change in the CFPB’s position.  As a result, we fully expect the CFPB’s proposed rule to prohibit the use of class action waivers in consumer arbitration agreements.  The CFPB’s report on the input it received from the SBREFA panel will be made public when the proposed rule is released.

In March 2015, the CFPB published its 728-page empirical study of consumer financial services arbitration as mandated by Section 1028 of the Dodd-Frank Act.  As we have commented, rather than demonstrating that arbitration agreements are detrimental to consumers, the study confirmed that arbitration is a faster, less expensive, and far more effective way for consumers to resolve disputes with companies than class action litigation.

The May 5 field hearing will be the third field hearing that the CFPB has held about arbitration.  The first hearing was held on March 10, 2015 in Newark, New Jersey, and the second was held on October 7, 2015 in Denver, Colorado.  I testified at both field hearings as an industry representative.

Assuming the CFPB issues its proposed rule on May 5, it is likely that any final rule would not take effect before summer 2017.  In the meantime, companies who do not presently use arbitration agreements in their financial services contracts should strongly consider adding them, since agreements entered into before a rule becomes effective are grandfathered under existing law which is favorable to class action waivers.

We will be scheduling a webinar on the proposal to be held soon after it is released.  Information about the webinar will be available on our blog.

 

Ninth Circuit rejects Director Cordray’s recess appointment as defense to CFPB enforcement action; dissenting judge disagrees

Posted in CFPB Enforcement

Since it was filed in a California federal court in July 2012, we have been following CFPB v. Chance Edward Gordon, a case in which the CFPB alleged that an attorney duped consumers by falsely promising loan modifications in exchange for advance fees and, in reality, did little or nothing to help consumers.  The CFPB charged the defendant with violations of the Consumer Financial Protection Act and Regulation O, the Mortgage Assistance Relief Services Rule.

As part of his affirmative defenses to the CFPB’s complaint, the defendant included a challenge to President Obama’s recess appointment of Director Cordray.   In his summary judgment motion, the defendant asserted that, based on the reasoning of the D.C. Circuit’s decision in NLRB v. Noel Canning, Mr. Cordray was not validly appointed as CFPB Director.  He argued that in the absence of a validly-appointed Director, the CFPB had no authority over non-banks and the CFPB’s action against him was therefore rendered invalid.  The U.S. Supreme Court subsequently affirmed the D.C. Circuit’s ruling that the NLRB appointments at issue in Canning were invalid but did so on different grounds.

Alternatively, the defendant argued that he was not a “covered person” within the meaning of the Dodd-Frank Act because he did not provide a “consumer financial product or service” but instead provided “custom legal products.”  The defendant also asserted that he did not provide “mortgage assistance relief services” within the meaning of Regulation O because the loan modification services he offered were provided for no compensation.  According to the defendant, fees were only charged for pre-litigation, custom legal products.

The district court did not address the merits of the defendant’s argument that the CFPB lacked authority to bring the action because of Director Cordray’s unconstitutional appointment, concluding that the argument had been waived.  It found that the defendant had violated the CFPA and Regulation O and ordered approximately $11.4 million in disgorgement and restitution.

In its opinion affirming the district court’s finding of liability, the Ninth Circuit considered whether the district court had Article III jurisdiction to hear the CFPB’s enforcement action (an issue which the defendant had not raised but was raised in an amicus brief).  According to the Ninth Circuit, any defects in Director Cordray’s appointment did not deprive the court of Article III jurisdiction because the CFPB retained its enforcement authority, and therefore its standing to sue, despite such defects.

In January 2013, following the oral argument in the D.C. Circuit in Canning but before the D.C. Circuit issued its decision, Director Cordray was renominated by President Obama.  In July 2013, he was confirmed by the Senate as CFPB Director.  Director Cordray thereafter issued a notice ratifying the actions he took as Director while he was serving as a recess appointee.  The Ninth Circuit ruled that Director Cordray’s invalid recess appointment did not render the enforcement action against the defendant invalid because Director Cordray’s subsequent valid appointment coupled with his ratification notice cured any initial constitutional deficiencies.

In calculating the monetary judgment, the district court had included in its judgment money earned by the defendant for a time period that began “prior to the enactment or effectiveness of Regulation O and the relevant portions of the CFPA.”  Although the Ninth Circuit agreed with the district court’s liability finding, it vacated the judgment and remanded “for the district court to consider whether it is appropriate to include in its judgment” money earned by the defendant based on a retroactive application of Regulation O and the CFPA.

In a dissenting opinion, Judge Ikuta disagreed with the majority’s conclusion that Director Cordray’s invalid appointment did not deprive the court of Article III jurisdiction.  According to Judge Ikuta, because his appointment was invalid, Director Cordray did not have authority to enforce public rights in federal court on behalf of the Executive Branch.  In Judge Ikuta’s view, without an officer properly appointed by the President, the CFPB lacked any executive authority that would allow it to enforce public rights.

She concluded that, as a result, neither the CFPB nor Director Cordray had Article III standing to sue when the CFPB filed its enforcement action against the defendant and the action should have been dismissed by the district court for lack of jurisdiction.  Judge Ikuta rejected the argument that Director Cordray’s subsequent ratification of his actions while a recess appointee could retroactively cure the district court’s lack of jurisdiction.  As support, Judge Ikuta cited to federal court cases that have also rejected the argument that a later act can cure a lack of standing at the time a lawsuit is filed.

Judge Ikuta observed that her conclusion that the district court lacked jurisdiction to hear the CFPB’s enforcement action “undoubtedly applies to numerous other enforcement actions taken by the Bureau for the 18 months of its existence before [Director Cordray was confirmed by the Senate.]”  She also commented that the court had a duty to dismiss the case for lack of Article III jurisdiction “practical effects notwithstanding.”

The CFPB continues to face a constitutional challenge to its structure in two pending cases.  One case was recently argued before the D.C. Circuit and the other case is before the D.C. federal district court.  In both cases, the parties raising the constitutional challenge argue that the Dodd-Frank Act’s placement of sweeping legislative, executive, and judicial power in the hands of a single Director who is not accountable to the President or Congress makes the CFPB’s structure unconstitutional.  In particular, they point to the President’s ability to remove the CFPB Director only “for cause” and the funding of the CFPB through the Federal Reserve rather than the congressional appropriations process.  (The case before the D.C. federal district court also includes a challenge to the CFPB’s constitutionality based on Director Cordray’s recess appointment.)

 

Ballard attorneys to receive 2016 Distinguished Legal Writing Award for auto finance disparate impact article

Posted in Auto Finance, Fair Credit

I am proud to report that Ballard attorneys Peter N. Cubita and Christopher J. Willis have been selected to receive a 2016 Distinguished Legal Writing Award from The Burton Awards, which recognize outstanding legal writing.  They are being honored for their article entitled “Auto Finance and Disparate Impact: Substantive Lessons Learned from Class Certification Decisions,” which was published in the May 1, 2015, edition of the Consumer Financial Services Law Report.  This article argues that seminal class certification decisions rendered in employment and mortgage discrimination cases undercut the disparate impact theory of liability used to allege “discretionary pricing” rate spread claims against assignees, whether brought as private class actions or as governmental enforcement actions.

Run in association with the Library of Congress and co-sponsored by the American Bar Association, The Burton Awards is a non-profit, academic effort devoted to recognizing and rewarding excellence in the legal profession.  Law firm nominations for its Distinguished Legal Writing Awards are submitted annually for articles published during the prior year.  The nominated articles are reviewed by an Academic Board that includes law school professors and a former Chair of the White House Plain Language Committee.  Only 35 articles are selected each year from nominations submitted by many of the nation’s 1,000 largest law firms.

The 17th annual Burton Awards ceremony will be held at The Library of Congress in Washington, D.C., on May 23, 2016. U.S. Supreme Court Justice Stephen Breyer will be the featured speaker, and Justice Ruth Bader Ginsburg will memorialize Justice Antonin Scalia during the program.

As becomes readily apparent to those who have the pleasure of working with them, Peter and Chris have a talent for explaining complex subjects in a clear, concise and illuminating manner.  It does not surprise me that their article was selected as one of the 35 best articles published by law firm writers last year.

In their article, Peter and Chris discuss the substantive implications that class certification appellate decisions may have for disparate impact retail pricing claims alleged against assignees of motor vehicle retail installment sale contracts.  Peter previously received a 2007 Burton Award for Legal Achievement for his Business Lawyer article entitled, “The ECOA Discrimination Proscription and Disparate Impact – Interpreting the Meaning of the Words that Actually Are There.”  In that ground-breaking article, Peter discussed the threshold issue of whether disparate impact claims should be cognizable under the Equal Credit Opportunity Act.  Peter’s Business Lawyer article was cited in a November 2015 report, prepared by the Republican Staff of the House Financial Services Committee, entitled “Unsafe at Any Bureaucracy:  CFPB Junk Science and Indirect Auto Lending.”

 

CFPB’s Office of Minority and Women Inclusion issues annual report

Posted in Diversity and Inclusion

The CFPB’s Office of Minority and Women Inclusion (OMWI) has issued its third annual report to Congress covering the OMWI’s activities in 2015.  The Dodd-Frank Act required the CFPB and various other federal agencies, including the Fed, OCC, FDIC, NCUA, and SEC, to establish an OMWI, and also required each OMWI to submit an annual report to Congress.

From industry’s perspective, the most noteworthy task Dodd-Frank assigned to each OMWI was the development of standards to assess the diversity policies and practices relating to employment and third party contracting of the institutions regulated by the OMWI’s agency.  As the report indicates, in June 2015, the CFPB and the agencies listed above jointly issued a final policy statement establishing such standards (Final Standards).  The Final Standards became effective on June 10, 2015.

The Final Standards envision that an entity will conduct an annual “self-assessment” of its diversity policies and practices in four areas: (1) organizational commitment to diversity and inclusion, (2) workforce and employment practices, (3) procurement and business practices, and (4) practices to promote the transparency of organizational diversity and inclusion.  The Final Standards provide for “assessment factors” for each of these areas, encouraging entities to allocate time and resources to monitor and evaluate their performance under their diversity policies and practices on an ongoing basis. In its report, the OMWI states that it “has begun work on plans related to the new standards including creating processes and procedures for entities to voluntarily assess and report on their internal diversity and inclusion.”

Another task of an OMWI is to develop standards for creating diversity in an agency’s own workforce and increasing participation of minority-owned and women-owned businesses in the agency’s programs and contracts.  According to the report, as of year-end 2015, the CFPB had 1,507 employees, representing an increase of 283 employees from year-end 2014.  Of the 1,507 employees, 48% were female and 52% were male.  (The percentage of women represents a 2% increase from 2014’s percentage.)  In addition, of those employees, 68% self-identified as White, 20% as Black/African-American, 9% as Asian American, and 3% as another racial group or belonging to two or more racial groups.  The report notes that as of the end of 2015,  minorities and women held, respectively, about 26% and 41% of the CFPB’s executive leadership positions.

With regard to procurement, the report indicates that in FY 2015, the CFPB entered into 1,450 “contract actions,” totaling approximately $244.0 million.  Of the total contract dollars awarded in FY 2015, the report states that 5% went to women-owned businesses and 9% went to minority-owned businesses (consisting of businesses owned by Hispanic Americans, African-Americans, Asian/Pacific Islander Americans and American Indians/Alaskan Natives and “Others”).

As noted above, the Final Standards cover not only a regulated entity’s diversity policies and practices relating to employment but also cover its procurement and business practices.  Thus, banks and other regulated entities may want to take note of the section of the report describing the CFPB’s efforts to increase vendor diversity.

Ballard Spahr’s Diversity Team advises clients on the design and implementation of diversity and inclusion programs and counsels CFPB-supervised entities on developing and implementing diversity programs.

 

 

CFPB Staff Presents Second TRID Rule Webinar for 2016

Posted in CFPB General, CFPB Rulemaking, Mortgages, TILA / RESPA

The CFPB staff presented an informational webinar on Tuesday, April 12, 2016, to address several issues with the TILA/RESPA Integrated Disclosure (TRID) rule.  The webinar, titled Know Before You Owe Mortgage Disclosure Rule: Post-Effective Date Questions & Guidance, focused on responding to specific industry raised questions.  Specific topics of discussion included:

  • Determining what fees must be disclosed;
  • APR changes that require a new 3-day waiting period;
  • Lender and seller credits as they relate to the APR and finance charge;
  • The calculation of the Total Interest Percentage (TIP);
  • Disclosure of the owner’s title insurance policy premium when disclosures produce a negative premium amount;
  • Flood insurance premium disclosures;
  • Disclosure of escrow account balances credited from an existing loan;
  • Separate borrower and seller Closing Disclosures;
  • Disclosure of whether a loan is assumable;
  • How to address upfront fees collected from the consumer for items that cost less than the collected amount; and
  • Disclosure of a principal curtailment.

As we have previously written for the last TRID rule webinar, the fact that the entire presentation appeared to be scripted word-for-word was interesting considering the fact that the CFPB has refused industry requests to issue informal guidance in writing.

FTC to host June 9 forum on marketplace lending

Posted in FTC, Marketplace Lending

The interest of federal regulators in marketplace lending continues to grow.  In March 2016, the CFPB announced that it is taking complaints about marketplace lenders.  In July 2015, the Treasury Department issued a request for information regarding online marketplace lending and, in February 2016, the FDIC published an article highlighting the risks for banks that partner with marketplace lenders.

Now, the FTC has joined in by announcing that on June 9, 2016, it will host a half-day forum in Washington, D.C. “exploring the growing world of marketplace lending and its implications for consumers.”  The forum will be the first in a series of FTC events looking at consumer protection across different areas of emerging financial technology.

According to the FTC’s announcement, the forum will bring together marketplace lending industry participants, consumer groups, researchers, and government representatives.  It will examine the various models used by marketplace lenders, potential benefits to consumers, and possible consumer protection concerns.  It will also look at how existing consumer protection laws might apply to companies participating in the marketplace lending space.

 

CFPB hires Assistant Director for Office of Small Business Lending Markets; announces other senior leadership additions

Posted in CFPB People

Earlier this week, the CFPB announced the addition of several new members to its senior leadership team.

The announcement included the news that the CFPB has filled the position of Assistant Director for the Office of Small Business Lending Markets.  The CFPB’s job posting indicated that the Assistant Director would head the CFPB’s team involved in developing rules to implement the small business lending data requirements of Dodd-Frank Section 1071.  Section 1071 amended the Equal Credit Opportunity Act to require financial institutions to collect and maintain certain data in connection with credit applications made by women- or minority-owned businesses and small businesses.  Such data includes the race, sex, and ethnicity of the principal owners of the business.  Presumably, the hiring of the Assistant Director means that the CFPB will now move forward on rulemaking.

The leadership additions announced by the CFPB were the following:

  • Grady Hedgespeth will serve as the Assistant Director for the Office of Small Business Lending Markets.  Before joining the CFPB, Mr. Hedgespeth served as the Director of the Office of Economic Opportunity for the U.S. Small Business Administration.  He originally joined the Small Business Administration in 2007 as the Director of the Office of Financial Assistance where he oversaw the agency’s business lending programs.  Before working in government, Mr. Hedgespeth led two different national small business community development financial institution lenders and created several businesses focused on underserved markets at some of the nation’s largest banks.
  • Seth Frotman will serve as the CFPB’s Student Loan Ombudsman and Assistant Director for the Office for Students and Young Consumers.  Mr. Frotman had been serving in the same positions on an acting basis.  He originally joined the CFPB as part of the Treasury Implementation Team in early 2011 as senior advisor to Holly Petraeus, the Assistant Director for the Office of Servicemember Affairs.
  • Elizabeth Ellis will serve as the Deputy Associate Director for the External Affairs Division.  Ms. Ellis previously served as the CFPB’s Deputy Assistant Director for the Office of Financial Institutions and Business.  Before that, she served as the Senior Advisor to the CFPB’s Chief of Staff.
  • Katherine Gillespie will serve as the Deputy Associate Director for the Consumer Education and Engagement Division. Ms. Gillespie previously served in the same position on an acting basis. Before that, Ms. Gillespie served as Senior Counsel to the CFPB’s Bureau’s Deputy Director and the Associate Director of the Supervision, Enforcement, and Fair Lending Division.  Ms. Gillespie originally joined the CFPB in 2011 as a senior counsel in the Office of Fair Lending and Equal Opportunity.
  • Chris Johnson will serve as the Assistant Director for the Office of Consumer Response.  Mr. Johnson previously served in the same position on an acting basis.  He joined the Office of Consumer Response in January 2011 as a member of the Treasury Implementation Team.  Within the Office of Consumer Response, Mr. Johnson has worked as the Deputy Assistant Director, a section chief, and a quality assurance manager.
  • John Schroeder will serve as the Midwest Regional Director for the Office of Supervision Examinations.  Mr. Schroeder previously served in the same position on an acting basis.  He joined the CFPB in March 2013 and before becoming an acting regional director, he worked as the Assistant Regional Director and as a field manager in the Midwest region.

We note that the CFPB has still not filled the position of Deputy Director, which has been open since Steven Antonakes resigned in July 2015.  Following Mr. Antonakes’ departure, Meredith Fuchs served as Acting Deputy Director.  In January 2016, the CFPB announced that David Silberman would replace Ms. Fuchs as the CFPB’s Acting Deputy Director.

 

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Constitutionality of CFPB structure at issue in D.C. Circuit oral argument

Posted in CFPB Enforcement, CFPB General

The constitutionality of the CFPB’s structure was front and center at this past Tuesday’s oral argument in PHH Corporation et al. v. CFPB before the U.S. Court of Appeals for the D.C. Circuit.  The case involves PHH’s appeal from Director Cordray’s June 2015 decision  affirming an administrative law judge’s recommended decision that concluded PHH had violated the referral fee prohibition in Section 8 of the Real Estate Settlement Procedures Act (RESPA).  PHH’s appeal of the ALJ’s decision to Director Cordray represented the first appeal of a CFPB administrative enforcement proceeding.

In its appeal to the D.C. Circuit, in addition to arguing that Director Cordray’s RESPA interpretations are contrary to law, PHH argues that the CFPB’s RESPA enforcement action against it is void because the CFPB’s structure violates the U.S. Constitution’s separation of powers principles.  More specifically, PHH argues that the Dodd-Frank Act’s placement of sweeping legislative, executive, and judicial power in the hands of a single director who is not accountable to the President or Congress makes the CFPB’s structure unconstitutional.  In particular, PHH points to the President’s ability to remove the CFPB Director only “for cause” and the funding of the CFPB through the Federal Reserve rather than the congressional appropriations process.

Last week, the three members of the D.C. Circuit panel before whom the case would be argued signaled their interest in PHH’s constitutional argument by issuing an order directing the parties to be prepared to address two questions at oral argument.  One question asked what independent agencies “now or historically have been headed by a single person” removable only for cause and the other asked what the appropriate remedy would be if such a structure is unconstitutional.  In particular, the panel asked if the appropriate remedy would be to sever Dodd-Frank’s for-cause provision.  The order was widely viewed as an ominous sign for the CFPB, with many observers noting that all three panel members were appointed by Republican Presidents.

Only two panel members, Judge Brett M. Kavanaugh and Judge A. Raymond Randolph, attended the oral argument.  Although Judge Karen L. Henderson was not present, the court announced that she would consider the case based on the audio recording of the oral argument.

At the oral argument, PHH’s counsel described the CFPB as a “super-executive agency” whose authority is only checked by the courts.  In response to a question from the panel asking whether the CFPB would be constitutional if the President could remove the Director other than for cause, PHH’s counsel responded that the absence of Congressional control over the CFPB’s funding, as well as other concerns such as the Director’s ability to hire and fire CFPB employees and set salaries, would continue to make the CFPB unconstitutional.  When asked what the remedy should be if the CFPB’s structure is unconstitutional, PHH’s counsel indicated that it was “exceedingly important” for the court to address the substantive RESPA issues raised by the case because of their significance to the entire mortgage industry.

He went on to tell the panel that if he “was in your shoes,” he might be “tempted” to write an opinion stating that Congress cannot create an agency that ignores all separation of powers rules.  He also indicated that it would not be appropriate for the court to sever Dodd-Frank’s for-cause provision and send the case back to Director Cordray for reconsideration.  Instead, according to PHH’s counsel, Director Cordray could not continue as Director and someone else “will have to be appointed to an agency that Congress should come back and create in a constitutional way.”

The CFPB was represented at the argument by Lawrence DeMille-Wagman, Senior CFPB Litigation Counsel.  One of the judges observed to Mr. DeMille-Wagman that there were few precedents for an agency headed by a single individual removable only for cause as contrasted with a multi-member commission whose members are removable only for cause.  Mr. DeMille-Wagman argued that Congress can choose how an agency’s leadership is structured and disputed PHH’s contention that the President’s removal power can only be limited for agencies run by a multi-member commission.  When asked if the appropriate remedy would be to sever Dodd-Frank’s for-cause provision if there is a separation of powers violation, Mr. DeMille-Wagman, unlike PHH’s counsel, agreed that severance would be appropriate so that the case could be reconsidered by Director Cordray, who would then be removable by the President without cause.

Because the Judges seemed to be hostile to the CFPB’s defense of its constitutionality, it appears likely that the court will invalidate Director Cordray’s order on at least that basis.  The greatest uncertainty at this point relates to what remedy the court will fashion.  The panel’s decision is unlikely to be the final word, however, since the CFPB can be expected to seek a rehearing en banc by the D.C. Circuit (on which the majority of active judges are Democratic appointees) and/or seek review from the U. S. Supreme Court.

 

CFPB representatives confirmed for 21st Annual PLI Consumer Financial Services Institute Chicago session

Posted in CFPB General

The CFPB representatives who will be participating in the Chicago session of the 21st Annual Consumer Financial Services Institute, sponsored by the Practicing Law Institute, have now been confirmed.  The Chicago session will take place  on May 12-13, 2016.  (The New York City session was held on April 4-5, 2016 (with live webcasts and groupcasts in Cincinnati, Cleveland, Philadelphia, Pittsburgh, Mechanicsburg, PA).)

As it did in New York, the Institute will feature a 2-hour program at the beginning of the first day titled “The CFPB Speaks: Recent and Upcoming Initiatives.”  I will moderate a panel discussion of four senior CFPB lawyers and two industry lawyers (one of whom will be my partner Chris Willis) who have extensive experience in dealing with the CFPB.

The CFPB panelists in Chicago will be:

  • Jeffrey Langer, Assistant Director for Installment Lending and Collections Markets
  • Peggy L. Twohig, Assistant Director for Supervision Policy
  • Paul Mondor, Managing Counsel, Office of Regulations
  • Jeff Ehrlich, Deputy Assistant Director, Office of Enforcement

The New York City session set an all-time attendance record for the Annual Institute with more than 500 people attending in person or watching online.  Since we are getting close to reaching capacity in Chicago, I encourage you to register soon.  For a complete description of the event and to register, visit PLI’s 21st Annual Consumer Financial Services Institute page.

 

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Trade groups seek clarifications to Military Lending Act regulations

Posted in Military Issues

A number of prominent industry trade groups have written to the Department of Defense (DoD) seeking clarifications to the Military Lending Act (MLA) final rule adopted in July 2015 that dramatically expanded the scope of the MLA’s coverage.  The DoD consulted with the CFPB in developing the final rule, and the CFPB actively supported the DoD’s plans to expand MLA coverage.

MLA coverage was previously limited to only three types of consumer credit extended to active-duty service members and their dependents: closed-end payday loans with a term of 91 days or less in which the amount financed does not exceed $2,000, closed-end vehicle title loans with a term of 181 days or less, and closed-end tax refund anticipation loans.  The final rule extends the MLA’s 36 percent interest cap and other restrictions to a host of additional products, including credit cards, installment loans, private student loans and federal student loans not made under Title IV of the Higher Education Act, and all types of deposit advance, refund anticipation, vehicle title, and payday loans (but residential mortgages and purchase-money personal property loans are excluded).  Although the DoD’s final rule took effect on October 1, 2015, it applies only to consumer credit transactions or accounts that are consummated or established after October 3, 2016 for most products, and after October 3, 2017 for credit cards.

In its letter to the DOD, the American Financial Services Association (AFSA) suggested clarifications to the sections of the regulations dealing with the definition of “credit-related ancillary product” (any charge for which is included in the Military Annual Percentage Rate), the methodology for identifying covered borrowers, mandatory disclosures, limitations regarding waivers and using vehicle titles as security, and the bona fide error defense.  AFSA also joined another letter to the DoD sent by a group of prominent trade associations, including the American Bankers Association, the Consumer Bankers Association, and the Financial Services Roundtable.  The joint letter suggests clarifications and modifications concerning nine topics, some of which are also addressed in AFSA’s separate letter.