Friday, February 23, 2024
HomeLegalCFPB Issues Market-Monitoring Orders in Auto Finance Data Pilot

CFPB Issues Market-Monitoring Orders in Auto Finance Data Pilot

The Consumer Financial Protection Bureau recently issued market-monitoring orders to nine large auto creditors to provide information about their auto “lending” portfolios.
The nine auto creditors were not named by the CFPB but reportedly represent a cross-section of the auto finance market.

The sample order linked in the CFPB’s blog post announcing the pilot states that it is a “market-monitoring” order. As you may know, the CFPB was tasked by Congress to ensure that markets for consumer financial products and services are fair, transparent, and competitive. The CFPB claims that it routinely asks “lenders” in different sectors of the market to provide information and data that help it monitor risks to consumers and then publishes aggregated findings that are in the public interest. The CFPB claims that the data collected from the creditors’ responses to the orders will help it build a quality data set that provides insights into “lending” channels and “loan” performance and inform potential future data collection efforts.

Why is the CFPB issuing the orders now? The CFPB points to how the auto finance market has changed significantly over the past two years, from rising car prices to larger “loan” amounts and higher monthly payments. You may remember that the CFPB announced its intention to build a new auto “lending” data set last November, held multiple discussions with stakeholders, and gathered public input into the auto “lending” areas that were “most in need of greater transparency.” It said a December stakeholder event identified three areas where “additional data visibility” would be important: “lending” channel differences; data granularity, consistency, and quality; and “loan” performance trends. It also stated that stakeholders had expressed a desire to gain insight into the kinds of technology used during repossession, like GPS tracking and starter-interrupt devices.

A review of the sample order highlights the instructions for responding to the order and the types of information the CFPB seeks. Here are some highlights:

Instructions

The creditor is first instructed to retain, and suspend any procedures that may result in the destruction of, any documents, information, and tangible things that are in any way
relevant to responding to the order. The responses must be accompanied by an affidavit or declaration, made by one or more officers of the creditor who are authorized to represent the creditor, affirming that the provided responses are true and accurate and do not contain any omissions that would cause the responses to be materially misleading. Also, when a creditor has written policies or procedures that contain responsive information, it must provide those documents with the creditor’s answer.
The CFPB may also issue follow-up requests in connection with a creditor’s responses.

Questions
Originations

The CFPB requested data on originations to better understand how the components of auto “loan” transactions have changed over time. The CFPB is asking the creditor to provide certain information for all auto “loans” it originated or serviced during the period from January 1, 2018, through December 31, 2022, including the cash price of the vehicle; total fees paid for all “add-on” products, such as GAP, service contracts, and extended warranties, including a breakdown of the price to the consumer for GAP, service contracts, prepaid maintenance plans, and extended warranties; the APR; the term of the contract; the buy rate; the dealer markup or reserve; whether the contract was subvented or not; any amounts paid by the creditor or the original creditor to the dealer; the dealer’s zip code; the consumer’s credit score at origination; the source of the consumer’s income; the consumer’s zip code and military status; and whether there was a co-buyer, among many other requests.

Servicing

The CFPB is also seeking additional clarity into “loan” servicing and repossession. The CFPB is asking the creditor to provide certain information for every account serviced at any point from January 1, 2018, through December 31, 2022, including if an automatic stay in a bankruptcy proceeding was lifted; if a reaffirmation agreement was signed; if the balance was charged off; if the account was assigned to repossession or voluntary surrender; if the consumer requested or was granted an accommodation; if the consumer filed a complaint against the creditor; or if a wrongful repossession occurred.

If the account was assigned to repossession or voluntary surrender during the life of the “loan,” additional information is requested, including the date the account was assigned; whether the assignment was cancelled for any reason; the date it was cancelled; the number of days past due when it was assigned; and the outstanding account balance when it was assigned.

For each completed repossession or voluntary surrender, certain information from origination to repossession or voluntary surrender is requested, including the date completed; the number of days past due and the outstanding account balance when completed; whether the repossession assignment was issued to a repossession forwarding company; whether the repossession assignment was issued to one repossession agent or to more than one repossession agent or license plate recognition (LPR) network; whether the repossession was completed using LPR or an LPR network or with the use of a starter-interrupt or GPS device; whether any starter-interrupt functionality was used at any point in the process; the total amount of fees paid to third parties and charged to the consumer for the repossession or disposal of the vehicle; the consumer’s deficiency balance or surplus and whether any deficiency was recovered or reported to one or more nationwide consumer reporting agencies; the total amount of fees charged to the consumer as part of the repossession process and a breakdown of such fees (including recovery fees, towing charges, storage charges, reconditioning charges, personal property charges, attorneys’ fees, third-party fees, “lender” fees, and any other fees), among many other requests.

Finally, the order includes an Appendix with 54 definitions that will need to be studied and analyzed in responding to the order. Some of the definitions are specific to the order, while others are specific to repossessions and voluntary surrenders.

The information provided in response to the order is reportedly intended to be used for monitoring for risks to consumers in the offering or provision of consumer financial products or services, including developments in markets for such products or services. Note that the CFPB reserves the right to use and share internally the information for any purpose permitted by law. In addition, the CFPB is not giving the auto creditors a choice of responding; compliance with the order is mandatory.

CounselorLibrary.com, LLC, provides articles on its website written by attorneys with Hudson Cook, LLP, and by other authors, for information purposes only. CounselorLibrary.com, LLC, and Hudson Cook, LLP, do not warrant the accuracy or completeness of the articles, and have no duty to correct or update information contained on the CounselorLibrary.com website. The views and opinions contained in the articles do not constitute the views and opinions of CounselorLibrary.com, LLC, or Hudson Cook, LLP. Such articles do not constitute legal advice from such authors or from Hudson Cook, LLP, or CounselorLibrary.com, LLC. For legal advice on a matter, one should seek the advice of legal counsel.

Copyright © 2023 CounselorLibrary.com LLC. All rights reserved. This article appeared in
Spot Delivery®. Reprinted with express permission from CounselorLibrary.com

Eric Johnson
Eric Johnson
Eric L. Johnson is a partner in the Oklahoma City, OK office of Hudson Cook, LLP. Eric can be reached at (405) 602-3812 or [email protected]. Johnson also serves as General Counsel for the NAF Association. This article is provided for informational purposes and is not intended nor should it be taken as legal advice. ©Copyright 2021 Eric L. Johnson. All rights reserved. Single print publication rights Non-Prime Times.