Consumer Financial Protection Bureau (CFPB or Bureau) investigational fact finding – whether through a civil investigative demand (CID) or other means – might yield evidence for civil lawsuits brought by the Bureau and potential evidence for criminal matters prosecuted by the Department of Justice (DOJ). In addition to the monetary relief and civil money penalties the CFPB can impose, the Consumer Financial Protection Act (Title X of the Dodd-Frank Act) provides that if the CFPB "obtains evidence" of conduct that "may constitute a violation of Federal criminal law, the Bureau shall transmit such evidence" to the DOJ. Individuals or companies that receive a CID from the CFPB should take these requests seriously and approach them as if they are evidence-gathering mechanisms with far-reaching consequences. Recent enforcement actions demonstrate the extent to which the CFPB and DOJ are working together to investigate and prosecute alleged violations of consumer protection laws.
First CFPB Criminal Referral Results in Nine-Year Prison Sentence
On December 4, 2014, the CFPB announced a settlement with Premier Consulting Group LLC. In a May 2013 complaint the Bureau alleged that Premier and another debt-settlement firm, Mission Settlement Agency, violated the advance fee prohibition of the Telemarketing Sales Rule (TSR), 16 C.F.R. § 310, which provides that it is abusive to request or receive payment for debt relief services before renegotiating, settling, reducing, or otherwise altering the terms of a consumer's debts. The Bureau alleged that consumers never received the services for which the advance fees were charged and that the companies did not provide actual services, which caused consumers to incur unnecessary debt that further harmed them.
The proposed consent order requires Premier to pay a civil money penalty of $69,075. The consent order enjoins Premier from taking advance fees or violating the TSR, and Premier may not disclose, use, or benefit from customer information. Among other things, Premier is also required to take additional steps, such as adhering to a compliance plan (including creating and maintaining written policies, training programs, and monitoring processes), and must cooperate with the CFPB on related investigations.
In May 2013, in a related case involving some of the same parties, the DOJ unsealed charges against Mission Settlement Agency and several of its executives. Several employees have pleaded guilty, and the former owner was sentenced to nine years in prison on November 29, 2014. According to the CFPB and DOJ, Mission Settlement Agency and its employees offered debt settlement services to customers across the country and charged significant fees while providing little or no actual services. The criminal charges against the Mission Settlement Agency executives marked the first criminal charges stemming from a CFPB referral. The prison sentence for the owner is the first prison sentence resulting from a CFPB criminal referral to the DOJ.
The CFPB accused the defendants of engaging in unfair and deceptive acts or practices and violating the TSR, and the DOJ charged the defendants with mail and wire fraud. The owner and company pleaded guilty in April 2014 and were sentenced on November 19, 2014 in the U.S. District Court for the Southern District of New York. Several other principals still await sentencing. In addition to the nine-year prison sentence, the owner must serve three years of supervised release, pay a fine of $15,000, and pay forfeiture and restitution of almost $2.2 million. The company was ordered to pay a fine of nearly $4.4 million. In a joint press conference regarding Mission Settlement Agency, U.S. Attorney for the Southern District of New York Preet Bharara described the CFPB and DOJ as a "potent partnership." CFPB Director Cordray echoed this sentiment in his statement, and noted that the partnership is "integral to [the CFPB's and DOJ's] success and mission."
This partnership is ongoing: On November 18, 2014, the DOJ unsealed a criminal complaint against a Georgia debt collection company, Williams Scott & Associates (WSA), and its principals, based on a CFPB referral. The DOJ accused WSA, its owner, and several employees of conspiring to commit wire fraud in a debt collection scheme. The conspiracy allegedly involved WSA employees calling consumers and representing that they possessed governmental authority and the ability to have arrest warrants issued in order to threaten and coerce consumers into paying making payments on debts.
A CFPB investigation may be a prelude to a criminal case. The CFPB and DOJ have pursued several cases together, and the trend is likely to continue.
Other CFPB Updates:
- Sham credit cards: On December 17, 2014, the CFPB filed a lawsuit against a Texas-based company, Union Workers Credit Services (UWCS), alleging that Union Workers Credit Services deceived consumers into paying fees to sign up for a sham credit card. The complaint states that UWCS sells a buying-club membership card that the company advertises as a general-purpose credit card. The CFPB also contends that UWCS's website falsely suggests that the company is affiliated with labor unions. In addition to false advertising claims, the CFPB alleges that Union Workers Credit Services used consumer credit reports to target certain consumers without their consent. The New York State Attorney General and the U.S. Postal Service have also filed lawsuits against Union Workers Credit Services: the Postal Service sued UWCS in 2005. The New York Attorney General's office sued UWCS in 2013.
- Medical debt report: On December 11, 2014, the CFPB released a report finding that medical debt has a significant impact on consumer credit and that 43 million people have overdue medical debt on their credit reports. The report highlights the complexities of the medical debt collection system, lack of transparency, and use of credit reports as a collection tool as key areas of the Bureau's focus. The report states, as part of the issue, that the medical debt collection and reporting system "introduces multiple points where error can creep into the system." Director Cordray announced that the CFPB will now require the largest credit reporting companies to provide the Bureau with regular, standardized accuracy reports as part of the Bureau's ongoing examinations of key areas for consumers. "A top priority for the CFPB is to hold all players in the credit reporting market accountable for ensuring the accuracy of data in credit reports."
- Student debt relief: On December 11, 2014, the CFPB and Florida's Attorney General filed a proposed consent decree against a student debt relief company, College Education Services, and separately filed a lawsuit against Student Loan Processing US for allegedly illegally marketing student debt relief services. The Bureau alleges that College Education Services charged illegal advance fees and made false statements regarding student loans, including misrepresenting offers for lower payments and relief from default or garnishment. The Bureau seeks to permanently ban College Education Services from lending to students, and also has imposed a $25,000 civil money penalty against the company and its owners. The complaint filed against Student Loan Processing US (also known as Irvine Web Works, Inc.) alleges that the company charged illegal advance fees, deceived borrowers about the costs and terms of its services, and falsely represented an affiliation with the U.S. Department of Education. In addition to injunctive relief, the Bureau is seeking restitution to consumers and a civil money penalty against the company and its owner.
- Credit Card agreements among college students: On December 15, 2014, the CFPB issued a report on college credit card agreements. The report finds the college credit card agreements are declining, and being replaced by debit and prepaid card agreements, which are now more common than credit card agreements. The report also finds that 80 percent of the institutions surveyed by the Bureau do not put their agreement information on their websites. The report highlights that the CFPB is closely monitoring the marketing arrangements that colleges and universities may have with financial institutions – especially those related to deposit accounts, prepaid cards, debit cards, and other financial products.
For more details, or for questions regarding CFPB activities and actions, please contact Venable LLP's CFPB Task Force.