Bulletin 2022-04: Mitigating Harm From Repossession of Automobiles
| Published date | 03 March 2022 |
| Citation | 87 FR 11951 |
| Record Number | 2022-04508 |
| Section | Rules and Regulations |
| Court | Consumer Financial Protection Bureau |
11951
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations
1
Although the focus of this bulletin is UDAAPs,
the Bureau notes that certain provisions of the Fair
Debt Collection Practices Act and its implementing
Regulation F may also apply to the repossession of
automobiles. Fair Debt Collection Practices Act,
803(6), 15 U.S.C. 1692a(6); 12 CFR 1006.2(i)(1)
(effective November 30, 2021).
2
Dodd-Frank Act sections 1031, 1036, 12 U.S.C.
5531, 5536.
3
See CFPB Exam Manual at UDAAP 5.
4
12 U.S.C. 5531(d).
5
For convenience, this document generally refers
to historical findings by ‘‘the Bureau’’ in both
Supervision and Enforcement, even though in
Supervisory matters the findings are made by the
Bureau’s examiners rather than by the Bureau itself.
6
In the Matter of Nissan Motor Acceptance Corp.,
2020–BCFP–0017 (Oct. 13, 2020).
course of action that the Commission
intends to follow. This rule of agency
procedure does not constitute an agency
regulation requiring notice of proposed
rulemaking, opportunities for public
participation, prior publication, and
delay in effective date under 5 U.S.C.
553 of the Administrative Procedure Act
(‘‘APA’’). The provisions of the
Regulatory Flexibility Act, 5 U.S.C.
605(b), which apply when notice and
comment are required by the APA or
another statute, are not applicable.
Dated: February 18, 2022.
On behalf of the Commission,
Allen J. Dickerson,
Chairman, Federal Election Commission.
[FR Doc. 2022–04358 Filed 3–2–22; 8:45 am]
BILLING CODE 6715–01–P
BUREAU OF CONSUMER FINANCIAL
PROTECTION
12 CFR Chapter X
Bulletin 2022–04: Mitigating Harm
From Repossession of Automobiles
AGENCY
: Bureau of Consumer Financial
Protection.
ACTION
: Compliance bulletin and policy
guidance.
SUMMARY
: The Consumer Financial
Protection Bureau (Bureau or CFPB) is
issuing this Compliance Bulletin
regarding repossession of vehicles, and
the potential for violations of sections
1031 and 1036 of the Dodd-Frank Wall
Street Reform and Consumer Protection
Act’s (Dodd-Frank Act’s) prohibition on
engaging in unfair, deceptive, or abusive
acts or practices (collectively, UDAAPs)
when repossessing vehicles.
DATES
: This bulletin is applicable on
March 3, 2022.
FOR FURTHER INFORMATION CONTACT
: Pax
Tirrell, Counsel, Office of Supervision
Policy at 202–435–7097; Tara Flynn,
Senior Counsel for Enforcement Policy
and Strategy, Office of Enforcement at
202–435–9734. If you require this
document in an alternative electronic
format, please contact CFPB_
Accessibility@cfpb.gov.
SUPPLEMENTARY INFORMATION
:
I. Background
In recent months, there has been
extremely strong demand for used
automobiles. Since the start of the
COVID–19 pandemic, the average list
price for used automobiles has
continued to climb. While there are
many factors contributing to high prices,
the Consumer Financial Protection
Bureau is concerned that these market
conditions might create incentives for
risky auto repossession practices, since
repossessed automobiles can command
these higher prices when resold. To
mitigate harms from these risks, the
Bureau is issuing this bulletin to remind
market participants about certain legal
obligations under Federal consumer
financial laws.
To secure an auto loan, lenders
require borrowers to give creditors a
security interest in the vehicle. If a
borrower defaults, a creditor may
exercise its contractual rights to
repossess the secured vehicle. Servicers
collect and process auto loan or lease
payments from borrowers and are either
creditors or act on behalf of creditors.
Generally, servicers do not immediately
repossess a vehicle upon default and
instead attempt to contact consumers
before repossession, usually by phone or
mail. Servicers may give consumers in
default the opportunity to avoid
repossession by making additional
payments or promises to pay. Servicers
generally use service providers to
conduct repossessions.
While some repossessions are
unavoidable, the Bureau pays particular
attention to servicers’ repossession of
automobiles. Loan holders and servicers
are responsible for ensuring that their
repossession-related practices, and the
practices of their service providers, do
not violate the law. The Bureau intends
to hold loan holders and servicers
accountable for UDAAPs related to the
repossession of consumers’ vehicles.
1
II. Unfair and Deceptive Acts or
Practices in Supervision and
Enforcement Matters
This Bulletin summarizes the current
law and highlights relevant examples of
conduct observed during supervisory
examinations or enforcement
investigations that may violate Federal
consumer financial law.
Under the Dodd-Frank Act, all
covered persons or service providers are
prohibited from committing unfair,
deceptive, or abusive acts or practices in
violation of the Act. An act or practice
is unfair when (i) it causes or is likely
to cause substantial injury to
consumers; (ii) the injury is not
reasonably avoidable by consumers; and
(iii) the injury is not outweighed by
countervailing benefits to consumers or
to competition.
2
Whether an act or practice is
deceptive is informed by decades of
precedent involving Section 5 of the
Federal Trade Commission Act.
3
The Dodd-Frank Act prohibits two
types of abusive practices. First,
materially interfering with the ability of
a consumer to understand a term or
condition of a product or service is
abusive. Second, taking unreasonable
advantage of statutorily specified market
imbalances is abusive. Those market
imbalances include (1) a consumer’s
lack of understanding of the material
risks, costs or conditions of a product or
service, (2) a consumer’s inability to
protect their interests in selecting or
using a product or service, or (3) a
consumer’s reasonable reliance on a
covered person to act in their interests.
4
a. Unfair or Deceptive Practices During
the Repossession Process
In its Supervisory and Enforcement
work, the Bureau has found the
following conduct related to
repossession of automobiles to be
UDAAPs.
5
Wrongful Repossession of Consumers’
Vehicles
Many auto servicers provide options
to borrowers to avoid repossession once
a loan is delinquent or in default.
Failure to prevent repossession after
borrowers complete one of these
options, where reasonably practicable
given the timing of the borrowers’
action, may constitute an unfair act or
practice.
For example, in a public enforcement
action, the Bureau found that an entity
engaged in an unfair act or practice
when it wrongfully repossessed
consumers’ vehicles.
6
The servicer told
consumers it would not repossess
vehicles when they were less than 60
days past due. Additionally, the servicer
maintained a policy and told consumers
that it would not repossess vehicles of
consumers who had entered into an
agreement to extend the loan, or who
had made a promise to make a payment
on a specific date and that date had not
passed or who successfully kept a
promise to pay. Nevertheless, the
servicer wrongfully repossessed
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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations
7
Supervisory Highlights, Issue 16—Summer 2017;
Supervisory Highlights, Issue 17—Summer 2018.
8
Supervisory Highlights, Issue 24—Summer 2021.
9
In re Wells Fargo Bank, N.A., 2018–BCFP–0001
(Apr. 20, 2018).
10
See also Supervisory Highlights, Issue 24—
Summer 2021.
vehicles from hundreds of consumers
who had:
•Made and kept promises to pay that
brought the account current;
•Made payments that decreased the
delinquency to less than 60 days past
due;
•Made promises to pay where the
date had not passed; or
•Agreed to extension agreements.
Each of these actions taken by
consumers should have prevented
repossessions of their vehicles. The
Bureau found the servicer’s wrongful
repossessions constituted an unfair act
or practice. They caused substantial
injury by depriving borrowers of the use
of their vehicles, and many consumers
also experienced consequences such as
missed work, expenses for alternative
transportation, repossession-related
fees, detrimental credit reporting, and
vehicle damage during the repossession
process. Such injury was not reasonably
avoidable, and the injury was not
outweighed by countervailing benefits
to the consumer or to competition.
Supervision has identified similar
unfair practices in numerous
examinations.
7
Supervision observed
that these violations frequently
occurred, after consumers acted to
prevent repossession, because of one of
the following errors:
•Servicers incorrectly coded
consumers as delinquent;
•Servicer representatives failed to
cancel repossession orders that had
previously been communicated to
repossession agents; or
•Repossession agents failed to
confirm that the repossession order was
still active prior to repossessing a
vehicle.
Other Practices Causing Wrongful
Repossession
Supervision has also identified other
practices related to repossession that
resulted in unfair acts or practices. For
example, the Bankruptcy Code imposes
an automatic stay that bars collection
activity, including repossession, from
the moment a consumer has filed a
bankruptcy petition. Supervision found
that when servicers received notice that
consumers had filed bankruptcy
petitions and their accounts were
subject to an automatic stay, the
servicers committed an unfair act or
practice by repossessing vehicles subject
to such automatic bankruptcy stays.
Additionally, Supervision has
identified that servicers committed an
unfair act or practice by wrongfully
repossessing vehicles after
communicating inaccurate information.
For example, Supervision has found
that some servicers sent consumers
letters stating that loans would not be
considered past due if the consumer
paid the amount due by a specific date.
Consumers reasonably expected the
servicers not to repossess before the date
listed in the letter. When the servicers
repossessed the vehicles prior to that
date, they committed an unfair act or
practice.
Representations of Amounts Owed
Supervision has also identified that
servicers committed deceptive acts or
practices by failing to provide
consumers with accurate information
about the amount required to bring their
accounts current. For example, when
consumers called to determine what
amount would bring their accounts
current, servicing personnel erroneously
represented to consumers an amount
due that was less than what was
actually owed. As a result of this
misrepresentation consumers paid an
amount insufficient to avoid
delinquency and the consequences of
delinquency. This later led to
repossessions that would not have
occurred had consumers received
accurate information. This conduct was
deceptive because the servicer told
consumers that an amount would bring
their accounts current when, in fact,
that amount would not bring their
account current.
b. Unfair or Deceptive Practices That
May Lead to Repossession
The following are examples of
practices that lead to repossession of
consumers’ vehicles that the Bureau has
considered to be UDAAPs.
Applying Payments in a Different Order
Than Disclosed to Consumers, Resulting
in Repossession
Payment application for auto loans is
governed by the finance agreements
between servicers and consumers.
Supervision has found that entities
engaged in a deceptive act or practice
when they made representations to
consumers that payments would be
applied in a specific order, and then
subsequently applied payments in a
different order. For example,
Supervision found that servicers
represented on their websites that
payments would be applied to interest,
then principal, then past due payments,
before being applied to other charges,
such as late fees. Instead, the servicers
applied partial payments to late fees
first, in contravention of the
methodology disclosed on the website.
Because servicers applied payments to
late fees first, some consumers were
deemed more delinquent than they
would have been under the disclosed
payment allocation order, and these
servicers repossessed some consumers’
vehicles.
Under these circumstances, servicers’
websites provided inaccurate
information about payment allocation
order. In some instances, the underlying
contract provided the servicer the right
to apply payments in any order, which
did not immunize the company from
liability for the deceptive website
content.
8
Unlawful Fees That Push Consumers
Into Default and Repossession
Enforcement has brought claims
under the CFPB’s unfairness authority
where unlawful fees push consumers
into default and repossession.
For example, in a public enforcement
action, the Bureau found that an entity
engaged in an unfair act or practice by
operating its force-placed insurance
(FPI) program in an unfair manner, in
some instances resulting in
repossession.
9
The entity purchased
duplicative or unnecessary FPI policies
and, in some instances, maintained the
policies even after consumers had
obtained adequate insurance and
provided adequate proof of coverage.
This conduct caused the entity to charge
consumers for unnecessary FPI,
resulting in additional fees, and in some
instances delinquency or loan default.
For some consumers the additional
costs of unnecessary FPI contributed to
a default that resulted in the
repossession of a consumer’s vehicle.
Charging unnecessary amounts to
consumers and subjecting them to
default and repossession caused or was
likely to cause substantial injury. This
injury was not reasonably avoidable and
was not outweighed by countervailing
benefits.
10
c. Unfair Practices That May Result in
Illegal Fees After Repossession
The following are examples of
practices that led to illegal fees after
repossession of consumers’ vehicles that
the Bureau has considered to be
UDAAPs.
Charging Illegal Personal Property Fees
The Bureau has identified an unfair
practice concerning illegal personal
property fees. Borrowers often keep
personal property in the repossessed
vehicles. These items often are not
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11
In the Matter of Nissan Motor Acceptance
Corp., 2020–BCFP–0017 (Oct. 13, 2020).
12
Supervisory Highlights, Issue 13—Fall 2016.
13
Supervisory Highlights, Issue 24—Summer
2021.
14
CFPB Compliance Bulletin and Policy
Guidance; 2016–02, Service Providers (Oct. 31,
2016), https://www.consumerfinance.gov/
documents/1385/102016_cfpb_OfficialGuidance
ServiceProviderBulletin.pdf.
merely incidental but can be of
substantial practical importance or
emotional attachment to borrowers.
State law typically requires auto loan
servicers and repossession companies to
secure and maintain borrowers’
property so that it may be returned to
the borrower upon request. Some
companies charge borrowers for the cost
of retaining the property.
In a public enforcement action, the
Bureau found that an entity engaged in
an unfair act or practice by withholding
consumers’ personal property unless the
consumers paid an upfront fee to
recover the property.
11
Many of the
repossession agents employed by the
entity imposed fees on consumers for
holding personal property in the
repossessed vehicles. The agents often
refused to return consumers’ personal
property unless and until the consumers
paid the fees. The Bureau found that the
servicer was responsible for its agents
withholding consumers’ personal
property unless the consumer paid an
upfront fee to recover it and thus caused
substantial injury that was not
reasonably avoidable and not
outweighed by countervailing benefits
to consumers or competition.
Supervision has also identified this
unfair act or practice at other servicers
where the servicers withheld
consumers’ personal property unless
they paid an upfront fee.
12
Charging for Collateral Protection
Insurance After Repossession
Supervision found that servicers
engaged in unfair acts or practices by
collecting or attempting to collect force-
placed collateral protection insurance
(FPI) premiums after repossession even
though no actual insurance protection
was provided for those periods. FPI
automatically terminates on the date of
repossession, and consumers should not
be charged after this date. Despite this,
servicers charged consumers for FPI
after repossession in four different
circumstances. First, servicers failed to
communicate the date of repossession to
the FPI service provider due to system
errors. Second, servicers used an
incorrect formula to calculate the FPI
charges that needed to be removed due
to the repossession. Third, servicers’
employees entered the wrong
repossession date into their system of
record, resulting in improper
termination dates. Fourth, servicers
charged consumers—who had a vehicle
repossessed and subsequently reinstated
the loan—post-repossession FPI
premiums, including for the days the
vehicle was in the servicer’s possession,
despite the automatic termination of the
policy on the date of repossession.
These errors caused consumers
substantial injury because they paid
amounts they did not owe or were
subject to collection attempts for
amounts they did not owe. This injury
was not reasonably avoidable because
consumers did not control the servicers’
cancellation processes. The substantial
injury to consumers was not outweighed
by any countervailing benefits to
consumers or competition.
13
III. The Bureau’s Expectations
As explained in greater detail above,
the Bureau has held auto lenders, loan
holders, and servicers accountable if
they or their agents commit UDAAPs
when repossessing automobiles,
including when they:
•Repossessed vehicles if consumers’
loan account is current, even if there
was a prior delinquency.
•Repossessed vehicles if consumers
entered an agreement to extend the loan.
•Repossessed vehicles if consumers
followed any instructions the company
said would result in avoiding
repossession.
•Repossessed vehicles from
consumers who have filed for
bankruptcy, and thus are protected by
an automatic stay of collection activity.
•Repossessed vehicles as a result of
processing payments in a different order
than had been communicated to
consumers.
•Repossessed vehicles after unlawful
fees pushed the consumer’s account into
default.
•Withhold personal property found
in repossessed vehicles until consumers
pay an upfront fee to recover the
property.
•Charged for collateral protection
insurance after a vehicle is repossessed.
To prevent these unfair, deceptive, or
abusive acts or practices, entities should
consider doing the following:
•Review policies and procedures,
including call scripts, to ensure that
they provide employees with accurate
information about steps consumers can
take to prevent repossession.
•Review policies and procedures
regarding cancellation of repossession
orders to ensure that there is an
appropriate process for cancelling
repossessions if consumers take steps
that should result in cancellation.
•Ensure prompt communications
between the servicer and repossession
service provider when the servicer
cancels a repossession. For example,
servicers may call repossession service
providers to confirm cancelation or use
mobile phone applications that push
cancellation updates to repossession
service providers’ phones.
•Monitor repossession service
providers for compliance with
repossession cancellations.
•Incorporate monitoring of wrongful
repossession in regular monitoring and
audits of communications with
consumers.
•Ensure that the entity has a
corrective action program to address any
violations identified and to reimburse
consumers for the direct and indirect
costs incurred as a result of unlawful
repossessions when appropriate.
•Review payment allocation policies
and procedures to validate that they are
consistent with the payment allocation
order disclosed in contracts and other
consumer facing disclosures, such as
websites.
•Monitor for illegal fees charged after
repossession.
•Review consumer contracts to
validate that any fees charged to
consumers are authorized under the
terms of applicable contracts.
•Review consumer complaints
regarding repossession and ensure there
is an appropriate channel for receiving,
investigating, and properly resolving
consumer complaints relating to
wrongful repossession and illegal fees
after repossession.
•Perform regular reviews of service
providers, including repossession
vendors, as to their pertinent
practices.
14
•Monitor any FPI program to ensure
that consumers are not charged for
unnecessary FPI. This may include
review of FPI cancellation rates.
IV. Conclusion
The Bureau will continue to review
closely the practices of entities
repossessing automobiles for potential
UDAAPs, including the practices
described above. The Bureau will use all
appropriate tools to hold entities
accountable if they engage in UDAAPs
in connection with these practices.
V. Regulatory Requirements
The Bulletin constitutes a general
statement of policy exempt from the
notice and comment rulemaking
requirements of the Administrative
Procedure Act (APA). It is intended to
provide information regarding the
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Bureau’s general plans to exercise its
supervisory and enforcement discretion
for institutions under its jurisdiction
and does not impose any legal
requirements on external parties, nor
does it create or confer any substantive
rights on external parties that could be
enforceable in any administrative or
civil proceeding. Because no notice of
proposed rulemaking is required in
issuing the Bulletin, the Regulatory
Flexibility Act also does not require an
initial or final regulatory flexibility
analysis. The Bureau has also
determined that the issuance of the
Bulletin does not impose any new or
revise any existing recordkeeping,
reporting, or disclosure requirements on
covered entities or members of the
public that would be collections of
information requiring approval by the
Office of Management and Budget under
the Paperwork Reduction Act.
Rohit Chopra,
Director, Consumer Financial Protection
Bureau.
[FR Doc. 2022–04508 Filed 3–2–22; 8:45 am]
BILLING CODE 4810–AM–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–2021–1049; Airspace
Docket No. 21–ASO–36]
RIN 2120–AA66
Amendment of Class E Airspace;
Hampton, GA
AGENCY
: Federal Aviation
Administration (FAA), DOT.
ACTION
: Final rule.
SUMMARY
: This action amends Class E
airspace extending upward from 700
feet above the surface for Atlanta
Speedway Airport (formerly Clayton
County-Tara Field), Hampton, GA by
updating the airport’s name and
geographical coordinates to coincide
with the FAA’s database. This action
also increases the radius and removes
excessive verbiage from the legal
description of the airport. Controlled
airspace is necessary for the safety and
management of instrument flight rules
(IFR) operations in the area.
DATES
: Effective 0901 UTC, May 19,
2022. The Director of the Federal
Register approves this incorporation by
reference action under 1 CFR part 51,
subject to the annual revision of FAA
Order JO 7400.11 and publication of
conforming amendments.
ADDRESSES
: FAA Order JO 7400.11F,
Airspace Designations and Reporting
Points, and subsequent amendments,
can be viewed online at https://
www.faa.gov/air_traffic/publications/.
For further information, you can contact
the Airspace Policy Group, Federal
Aviation Administration, 800
Independence Avenue SW, Washington,
DC 20591; Telephone: (202) 267–8783.
FAA Order JO 7400.11F is also available
for inspection at the National Archives
and Records Administration (NARA).
For information on the availability of
FAA Order JO 7400.11F at NARA, email
fr.inspection@nara.gov or go to https://
www.archives.gov/federal-register/cfr/
ibr-locations.html.
FOR FURTHER INFORMATION CONTACT
: John
Goodson, Operations Support Group,
Eastern Service Center, Federal Aviation
Administration, 1701 Columbia Ave.,
College Park, GA 30337; Telephone
(404) 305–5966.
SUPPLEMENTARY INFORMATION
:
Authority for This Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106, describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, part A, subpart
I, Section 40103. Under that section, the
FAA is charged with prescribing
regulations to assign the use of airspace
necessary to ensure the safety of aircraft
and the efficient use of airspace. This
regulation is within the scope of that
authority as it amends Class E airspace
extending upward from 700 feet above
the surface to support IFR operations in
Hampton, GA.
History
The FAA published a notice of
proposed rulemaking in the Federal
Register (86 FR, 69181, December 7,
2021) for Docket No. FAA–2021–1049 to
amend Class E airspace extending
upward from 700 feet above the surface
for Hampton, GA.
Interested parties were invited to
participate in this rulemaking effort by
submitting written comments on the
proposal to the FAA. No comments
were received.
Class E airspace designations are
published in Paragraph 6005 of FAA
Order JO 7400.11F, dated August 10,
2021, and effective September 15, 2021,
which is incorporated by reference in 14
CFR 71.1. The Class E airspace listed in
this document will be published
subsequently in FAA Order JO 7400.11.
Availability and Summary of
Documents for Incorporation by
Reference
This document amends FAA Order JO
7400.11F, Airspace Designations and
Reporting Points, dated August 10,
2021, and effective September 15, 2021.
FAA Order JO 7400.11F is publicly
available as listed in the
ADDRESSES
section of this document. FAA Order JO
7400.11F lists Class A, B, C, D, and E
airspace areas, air traffic routes, and
reporting points.
The Rule
The FAA amends 14 CFR part 71 by
amending Class E airspace extending
upward from 700 feet above the surface
at Atlanta Speedway Airport (formerly
Clayton County-Tara Field), Hampton,
GA, by updating the airport’s name and
updating the geographical coordinates
to coincide with the FAA’s database. In
addition, this action amends the radius
to 9.2 miles (formerly 6.8 miles) and
eliminates excessive verbiage in the
legal description.
Class E airspace designations are
published in Paragraph 6005 of FAA
Order JO 7400.11F, dated August 10,
2021, and effective September 15, 2021,
which is incorporated by reference in 14
CFR 71.1. The Class E airspace
designations listed in this document
will be published subsequently in the
Order.
FAA Order JO 7400.11, Airspace
Designations and Reporting Points, is
published yearly and effective on
September 15.
Regulatory Notices and Analyses
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current. It, therefore: (1) Is not a
‘‘significant regulatory action’’ under
Executive Order 12866; (2) is not a
‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is minimal. Since this is a
routine matter that only affects air traffic
procedures and air navigation, it is
certified that this rule, when
promulgated, does not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
Environmental Review
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
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