By Thomas B. Hudson and Nicole F. Munro
Here’s our monthly article on legal developments in the auto sales, finance and lease world. This month, we’re reporting on activities of the Consumer Financial Protection Bureau, the Department of Justice and the courts. As usual, this month’s article features our “Case of the Month.”
Note that this column does not offer legal advice. Always check with your lawyer to learn how what we report might apply to you, or if you have questions.
This Month’s CARLAWYER© Compliance Tip
It’s that time of year again – dealer and finance company associations are gearing up for their spring conferences. If you plan to attend one or more of these in search of ways to improve your operations, remember as you listen to the various presenters that state laws governing what dealers can and cannot do vary. What’s permitted in State A might be a violation of the law in State B. To put it another way, what might win an award in a 20-group’s “Best Ideas” contest might be legal in State A but might constitute a felony in State B. So if you pick up a great idea at a conference, make sure that your lawyer blesses it for your state before you implement it. And don’t forget to visit us at the CounselorLibrary.com booth and listen in on a few compliance sessions.
Servicemembers and Leasing. On February 22, the Department of Justice announced that it settled a case against a captive auto finance company, resolving allegations that the company violated the Servicemembers Civil Relief Act by failing to refund certain up-front lease amounts to servicemembers who lawfully terminated their vehicle leases early.
This is the first DOJ case addressing a vehicle lessor’s SCRA obligation to refund certain types of lease payments. The SCRA allows servicemembers to end vehicle leases early after entering military service or receiving qualifying military orders for a permanent change of station or to deploy.
When servicemembers lawfully terminate vehicle leases, the SCRA requires that they be refunded all lease amounts paid in advance. At issue in this case is which categories of fees are paid “in advance” that must be refunded under the SCRA.
The DOJ alleged that part of the lease’s capitalized cost reduction (“CCR”) is subject to a pro rata refund. The CCR is an amount the consumer pays to the dealer at lease signing that reduces the amount of lease payments. The CCR could come from a consumer’s cash payment, trade-in equity, or rebate or other credit provided by the manufacturer, lessor, or a third party.
Lessors have often contended that none of the CCR is an amount paid in advance on the lease, but rather the CCR acts as a form of down payment, retained by the dealer and not paid to or received by the lease assignee.
Without admitting factual allegations or statements of law, the finance company agreed to refund over $2 million to 492 servicemembers and their co-lessees. In addition, the company will pay $60,788 to the U.S. Treasury.
What’s the Plan? On February 12, the CFPB released its 5-year strategic plan. The plan sets forth the CFPB’s mission to regulate the offering and provision of consumer financial products and services under the federal consumer financial laws and to educate and empower consumers to make better-informed financial decisions. CFPB’s strategic goals include: (1) to ensure that all consumers have access to markets for consumer financial products and services; (2) to implement and enforce the law consistently to ensure that markets for consumer financial products and services are fair, transparent, and competitive; and (3) to foster operational excellence through efficient and effective processes, governance, and security of resources and information. Acting Director Mulvaney stated: “If there is one way to summarize the strategic changes occurring at the Bureau, it is this: we have committed to fulfill the Bureau’s statutory responsibilities, but go no further.”
New CFPB Faces. On February 6, Mulvaney named Kirsten Sutton Mork as the CFPB’s new chief of staff. Mork has been staff director of the House Financial Services Committee since early 2017. In addition, on January 30, Mulvaney advised CFPB staff that the Office of Fair Lending and Equal Opportunity will be transferred to the Director’s Office, as part of the Office of Equal Opportunity and Fairness. The Office of Fair Lending will continue to focus on advocacy, coordination, and education, but will no longer have enforcement responsibility.
More Information, Please! The CFPB recently issued five Requests for Information as part of Mulvaney’s call for evidence to ensure the CFPB is fulfilling its proper and appropriate functions to best protect consumers. These RFIs invite the public to submit feedback and suggest ways to improve outcomes for both consumers and covered entities. We reported last month on the first of these, dealing with the CFPB’s civil investigative demand process. Here are four more CFPB RFIs.
The CFPB’s second RFI seeks public comment on whether and how the CFPB might improve its administrative adjudication processes, including its Rules of Practice for Adjudication Proceedings, which pertain to the general conduct of administrative adjudication proceedings; the initiation of such proceedings and prehearing rules; hearings; decisions and appeals; and temporary cease-and-desist proceedings. Comments are due by April 6, 2018.
The CFPB’s third RFI seeks information to assess the overall efficiency and effectiveness of its processes related to the enforcement of federal consumer financial laws. Comments are due by April 13, 2018.
The fourth RFI seeks information to assess the overall efficiency and effectiveness of the CFPB’s supervision program. Comments are due by May 21, 2018.
Finally, the CFPB’s fifth RFI on external engagements seeks information on ways to engage the public and receive feedback on the agency’s work. Comment deadlines for the fifth RFI have not yet been published.
No ACE up Their Sleeves? On January 25, the Office of the Associate Attorney General at the U.S. Department of Justice issued a memorandum to its litigators announcing its policy regarding the use of agencies’ guidance documents in affirmative civil enforcement (“ACE”) cases. The AAG states: “Guidance documents cannot create binding requirements that do not already exist by statute or regulation. Accordingly, effective immediately for ACE cases, the [DOJ] may not use its enforcement authority to effectively convert agency guidance documents into binding rules. Likewise, [DOJ] litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable law in ACE cases. The [DOJ] may continue to use agency guidance documents for proper purposes in such cases. For instance, some guidance documents simply explain or paraphrase legal mandates from existing statutes or regulations, and the [DOJ] may use evidence that a party read such a guidance document to help prove that the party had the requisite knowledge of the mandate. However, the [DOJ] should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”
Case of the Month
Some lessons seem to require learning over and over again. The lesson this month is: Don’t employ multiple arbitration agreements in a single transaction. Here’s what happened in a recent case.
Chuck Willis filed an adversary proceeding in his Chapter 7 bankruptcy case against Tower Loan of Mississippi, LLC. Willis alleged that Tower Loan violated the Truth in Lending Act and Regulation Z by providing misleading and incorrect disclosures in his installment loan agreement with regard to, among other things, the credit insurance he bought in connection with the loan.
At the hearing on the motion, the parties presented to the court, for the first time, an Endorsement to Require Binding Arbitration, which represented the “additional pages” referenced in the arbitration disclaimer. Willis argued that because the Arbitration Agreement and the Endorsement contained different and conflicting terms regarding the number of arbitrators, how the arbitrators will be selected, the notice required to arbitrate, the location of the arbitration, who pays the cost of arbitration, who would be entitled to attorneys’ fees and when, and when arbitration proceedings need not be initiated, there was no meeting of the minds with respect to arbitration.
The court denied Tower Loan’s motion to compel arbitration. The court first addressed Tower Loan’s argument that the Arbitration Agreement and the Endorsement governed different issues and/or parties, and the dispute in this case was governed by the Arbitration Agreement. The court disagreed, noting that both the Arbitration Agreement and the Endorsement governed claims against Tower Loan arising under the loan agreement, including any insurance purchased in connection with the loan.
The court went on to address the impact of the inconsistent and conflicting provisions and determined that, under Tenth Circuit precedent, the terms of the arbitration agreements were not “sufficiently definite” as required by Mississippi law, which governed the loan agreement. Therefore, the court concluded that there was no “meeting of the minds” as to how to arbitrate claims under the arbitration agreements and, thus, no agreement to arbitrate.
Is it time to review your paperwork again?
In re Willis (Willis v. Tower Loan of Mississippi, LLC), 2017 Bankr. LEXIS 4243 (Bankr. S.D
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So, there’s this month’s roundup! Stay legal, and we’ll see you next month.
Tom (firstname.lastname@example.org) is Of Counsel and Nikki (email@example.com) is a Partner in the law firm of Hudson Cook, LLP. Tom has written several books and is the publisher of Spot Delivery®, a monthly legal newsletter for auto dealers. He is the CEO of CounselorLibrary.com, LLC and the Editor in Chief of CARLAW®, a monthly report of legal developments for the auto finance and leasing industry. Nikki is a contributing author to the F&I Legal Desk Book and frequently writes for Spot Delivery®. For information, visit www.counselorlibrary.com. © CounselorLibrary.com 2018, all rights reserved. Single publication rights only, to the Association. (3/18). HC/4843-0068-2590v1.