California Consumer Finance Law - Hot Topics and Recent Developments

07/03/24 • 54 min

California frequently is in the vanguard of consumer financial issues and legislation, foreshadowing trends that may spread to other states. Today’s episode, during which we explore important hot topics and recent developments in California consumer finance law, is hosted by Ballard Spahr partner Melanie Vartabedian, and features Partners Michael Guerrero and Joel Tasca, and Of Counsel John Kimble.

We first discuss what the future likely holds for proposed rules issued under the California Consumer Financial Protection Law (CCFPL) by the California Department of Financial Protection and Innovation (DFPI). The proposed rules include complex registration and reporting requirements for certain consumer products, and are under revision after rejection by the California Office of Administrative Law for lack of clarity. We then explore the DFPI's most recent annual report on activity under the CCFPL, which recaps the DFPI's rulemaking, enforcement efforts, complaints received, and efforts in connection with education outreach and the Office of Financial Innovation. Highlights include a rule that applies consumer-type “unlawful, unfair, deceptive, or abusive acts and practices” (referred to in the report as “UUDAAP”) prohibitions to financial products and services provided to small businesses; ramped-up enforcement efforts; and high-dollar settlements as well as litigation in progress. Next, we turn to a comparison of California’s Rosenthal Fair Debt Collection Practices with the federal Fair Debt Collection Practices Act, and discuss their similarities, differences, and litigation trends under both laws. We then focus on the California Consumer Credit Reporting Agencies Act, which poses challenges for companies that report consumer data to consumer reporting agencies over and above the requirements of federal law. We conclude with a look at unique issues arising in California with respect to the FTC “holder rule”.

Previous Episode

Consumer Financial Protection Bureau Wins in Supreme Court But Can the Fed Continue to Fund the CFPB Without Earnings?

Special guest Alex J. Pollock, Senior Fellow with the Mises Institute and former Principal Deputy Director of the Office of Financial Research in the U.S. Treasury Department, joins us to discuss his recent blog post published on The Federalist Society website in which he urges Congress to look into the question of whether the Federal Reserve can lawfully continue to fund the CFPB if (as now) the Fed has no earnings. We begin with a review of the Supreme Court’s recent decision in CFSA v. CFPB which held that the CFPB’s funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. Alex follows with an explanation of the CFPB’s statutory funding mechanism as established by the Dodd-Frank Act, which provides that the CFPB is to be funded from the Federal Reserve System’s earnings. Then Alex discusses the Fed’s recent financial statements and their use of non-standard accounting, the source of the Fed’s losses, whether Congress when writing Dodd-Frank considered the impact of Fed losses on the CFPB’s funding, and how the Fed can return to profitability. We conclude the episode by responding to arguments made by observers as to why the Fed’s current losses do not prevent its continued funding of the CFPB, potential remedies if the CFPB has been unlawfully funded by the Fed, and the bill introduced in Congress to clarify the statutory language regarding the CFPB’s funding.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

Next Episode

Interest Rate Exportation Under Attack Part I

The 1978 landmark opinion in Marquette National Bank v. First of Omaha Service Corp held that under the National Bank Act, a national bank has the right to export the interest rate authorized by the state where the bank is located to borrowers located elsewhere. Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") conferred equivalent rate exportation powers on state-chartered, FDIC-insured banks.

These interest rate exportation powers (which also extend to certain fees), coupled with technological advances in recent years and the advent of “bank-model” and “banking as a service” (BaaS) programs, have created a robust, competitive smorgasbord of credit products for consumers.

However, rate exportation, and the programs it enables, increasingly are subject to challenges from a variety of sources.

In this two-part episode, which repurposes portions of a recent webinar, we describe the nature of these attacks, the defenses being deployed by the industry, and who is winning these contests so far, and address what the future may hold for rate exportation.

In Part I, we first review a brief history of rate exportation, and explore the three primary theories used to attack rate exportation. We then focus on current and pending state laws and bills seeking to “opt out” of DIDMCA’s rate exportation authority. Next, we turn to the current court battle being waged in Colorado, where three trade groups recently won a preliminary injunction against enforcement of Colorado’s recently adopted opt-out legislation, and discuss the decision and its ramifications, including potential impacts on existing and pending opt-out legislation in other states, implications for nonmembers of the three trade group plaintiffs, and the prospects for enforcement in Colorado and other opt-out states by the FDIC based on the position (contrary to the preliminary injunction) advocated in its amicus brief.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates episode, joined by Ronald Vaske, a Partner in the Group, and Mindy Harris, Of Counsel in the Group.