Consumer financial services at a crossroads: Student loans

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Supervision

The CFPB has historically focused on both federal and private student loans, with an increasing focus on loan servicing practices.

"The [Education] Department takes exception to the CFPB unilaterally expanding its oversight role . . . [t]he Department has full oversight responsibility for federal student loans.1"
US Department of Education

In part due to its change in leadership, in 2017, the  CFPB shifted noticeably toward providing the student lending and servicing markets more pro-active guidance and away from the enforcement-oriented approach that had been predominant for some time. Still, we do not view this shift as a harbinger of more CFPB regulation. To the contrary, we anticipate the Bureau's Acting Director, guided by Trump Administration priorities, will continue to cede oversight of the federal student lending and servicing markets to the US Department of Education (ED). Additionally, we expect the Bureau's new leadership to seize on the low number of student loan-related complaints the CFPB receives relative to other areas as reason to focus attention on other market segments or narrow its efforts on specific activities within the student lending and servicing markets (e.g., collections). As in other areas, states may seek to fill any perceived voids left by the CFPB; however, in the student loan market in particular, ED preemption issues loom large and may limit the effectiveness of such efforts.

Federal student loans

The CFPB has previously focused on closing the gap between federal student loan borrowers' rights and the servicing practices that delay or deter borrowers' access to federal protections (e.g., federal loan forgiveness, income-driven repayment (IDR) plans). The CFPB updated its education loan examination procedures in June 2017 to indicate that the Bureau will evaluate whether loan servicers clearly describe loan forgiveness programs and conditions for participation in them, and accurately evaluate borrowers' eligibility and progress toward loan forgiveness.3 This follows a 2016 update to the CFPB's examination procedures to include an evaluation of IDR application processing.4

The Bureau's supervisory efforts in 2017 also highlighted an issue that arises from loan servicers' reliance on third-party enrollment reporting companies. When these companies relay erroneous information concerning student enrollment status, it can cause loan servicers to terminate deferments automatically and prematurely, while a borrower is still in school. Although such erroneous termination may be corrected, some loan servicers did not reverse the late fees (charged for non-payment during periods when the borrower should have been in deferment) and interest capitalization that resulted.5 The CFPB had previously found that data errors caused borrowers' next-to-last payment to be significantly smaller, leading to longer repayment plans, and thus increased the total amount of interest that accrued.

Private student loans

CFPB supervision has also extended to the practices of private student loan lenders and servicers. In 2017, the CFPB noted that some servicers do not allocate payments for multiple private student loans according to borrower instructions.7 Previously, the CFPB also targeted the limited options (e.g., forbearance) for borrowers experiencing financial hardship or severe disabilities, as well as difficulty accessing advertised loan benefits and protections.8

It's important for New York to step up. When a student loan company breaks the law and misleads thousands of students into taking on loans they can't afford, that company should be held accountable. In the months ahead, I will continue doing exactly that.2
NY State Attorney General Eric T. Schneiderman

Enforcement

Two notable pending enforcement actions in 2018 concern alleged improper student loan servicing and collection practices: The Bureau took action against the largest US student loan servicer for failing to provide routine servicing functions, including by preventing borrowers from enrolling in IDRs, misallocating payments and failing to ensure accurate credit reporting. 9 The Bureau also targeted a conglomerate of private student loan trusts, among others, that misplaced loan documentation and initiated illegal lawsuits by filing false affidavits through third-party debt collectors. A proposed consent order was filed,10 but it is unclear how the new CFPB leadership will proceed in light of its ongoing review of pending enforcement actions, which may alter how it moves them forward, if at all.11

4.2%
Overall consumer complaints that were student loan-related (since CFPB’s creation)

In 2017, the Bureau's enforcement efforts focused on illegal servicing practices, including the charging of late fees and added interest, deferment irregularities, preventing borrowers from seeking important tax benefits (e.g., deduction of interest), as well as credit reporting violations involving borrowers' cosigners. The Bureau also targeted debt collection and debt relief issues, including a failure to prove that student debt was owed or within the applicable statute of limitations, filing false or misleading legal documents, and falsely implying an affiliation or endorsement by the federal government. Student loan debt relief scams were also the subject of a coordinated federal-state law enforcement initiative—Operation Game of Loans—led by the FTC in which it joined 11 states to bring 36 enforcement cases.12

Fintech outlook and student loans

New products and services, especially by fintech-driven market entrants and more established market participants with tech-forward approaches, may raise novel fair lending issues this year, notably:

$1.4 trillion
in outstanding loan balances spread across

40
million consumers

8 million
of whom are in default

  • New technology, including online platforms and the development of underwriting models using non-traditional sources of data (e.g., education and career details, income and cash flow, social media)13
  • New arrangements such as “Income-Share Agreements,” whereby students receive a fixed amount to pay for tuition and, in exchange, agree to pay back a fixed percentage of future income for a fixed number of years, in lieu of traditional student loans14

These have not been fully tested yet, and it is not clear how the new CFPB's leadership will approach these issues, or if it will defer to ED or the states.

State spotlight

  • New state laws. Various states have introduced new legislation or proposed bills to protect student borrowers, a trend that shows no signs of waning. California, Connecticut, the District of Columbia, Illinois and Washington have already enacted such laws,15 while Missouri, New Jersey, New York, Ohio and Virginia have proposed bills.16 
  • ED may challenge new state laws. Despite these state initiatives, ED has published an interpretation that outlines why it believes states are preempted from regulating federal student loan servicing under the Higher Education Act (HEA),17 including state laws that prohibit the misrepresentation or omission of material information, unfair or deceptive acts or practices in so much as the laws “proscribe conduct Federal law requires” or “require conduct Federal law prohibits.” ED also states that the HEA specifically preempts state disclosure requirements for federal student loans.18

ED's interpretation extends this preemption to “informal or non-written communications to borrowers as well as reporting to third parties such as credit reporting bureaus.”19 ED also believes that “to the extent that it undermines uniform administration of the program,” preemption applies to state regulation for the servicing of private loans guaranteed by the federal government through the discontinued Federal Family Education Loan (FFEL) Program.20 

  • Parallel state enforcement. The AGs of Pennsylvania, Washington and Illinois,21 have brought parallel suits to one notable CFPB enforcement action involving alleged unfair practices, including steering borrowers toward short-term forbearances and engaging in misleading collection tactics, among others.22 Even assuming a willing CFPB, these pending state actions, and others that may still follow, will complicate a global resolution.
  • Independent state enforcement. Other state AGs have also targeted violations of applicable laws covering a range of actors operating in this market segment. Although ED's preemption interpretation could limit the states in some respects, activities that are clearly within the states' purview will likely be subject to heightened enforcement scrutiny, including licensing violations (e.g., collections or debt adjustment), and enforcement of state laws against unfair or deceptive acts or practices that protect borrowers. State AGs may also seek to raise their constituents' awareness regarding federal student loan programs (e.g., the North Carolina College Tour),23 as well as advocate for the creation of simpler federal repayment plans. In 2017, AGs in New Jersey, Massachusetts, North Carolina and Florida brought or settled such student loan related-suits.24 

1 U.S. Dep’t of Ed., Letter to Richard Cordray (Aug. 31, 2017), https://edworkforce.house.gov/uploadedfiles/2017-09-01_signed_letter_to_cfpb.pdf.
2 Eric T. Schneiderman, Student Loan Companies Should Be Held Accountable, MEDIUM (Aug. 31, 2017), https://medium.com/new-york-state-attorney-general/student-loan-companies-should-be-held-accountable-865113b553d9.
3 CFPB Supervisory Highlights, Issue 16 (September 2017), at 44-45, https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201709

_cfpb_Supervisory-Highlights_Issue-16.pdf.
4 See CFPB, CFPB Supervision Recovers $11 Million for 225,000 Harmed Consumers (Oct. 31, 2016), https://www.consumerfinance.gov/about-us/newsroom/cfpb-supervision-recovers-11-million-225000-harmedconsumers  (announcing updated Education Loan Examination Procedures). See also U.S. Department of Education, FSA Training Conference for Financial Aid Professionals: Servicing Update (2016), http://fsaconferences.ed.gov/conferences/library/2016/

2016FSAConfSession14.ppt (strengthening contractual requirements for servicers handling federal student loans by requiring them to proactively communicate with borrowers who submit an incomplete IDR application and prohibiting them from summarily denying these applications).
5 CFPB Supervisory Highlights, Issue 15 (Spring 2017), at 12-13, https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/

201704_cfpb_Supervisory-Highlights_Issue-15.pdf.
6 CFPB Supervisory Highlights, Issue 13 (Fall 2016), at 19, http://files.consumerfinance.gov/f/documents/Supervisory_Highlights

_Issue_13__Final_10.31.16.pdf.
7 CFPB, CFPB Annual Report of the CFPB Student Loan Ombudsman (Oct. 2017), at 22-25.
8 CFPB, CFPB Annual Report of the CFPB Student Loan Ombudsman (Oct. 2017), at 18.
9 Consumer Fin. Prot. Bureau v. Navient Corp. et al., case no. 3:17-cv-00101 (M.D. Pa. Jan. 1, 2017).
10 Consumer Fin. Prot. Bureau v. The National Collegiate Master Student Loan Trust, et al., case no. 1:17-cv-01323 (D. Del. Sept. 18, 2017).
11 See CFPB, Call for Evidence (Jan. 17, 2018), https://www.consumerfinance.gov/policy-compliance/notice-opportunities-comment/open-notices/call-for-evidence; CFPB, Request For Information On Enforcement Processes (Feb. 7, 2018), https://www.consumerfinance.gov/about-us/newsroom/cfpb-issues-request-information-enforcement-processes
12 Kate Berry, CFPB Handled Over 84K Debt Collection Complaints Last Year: Report, American Banker (Mar. 21, 2018), https://www.americanbanker.com/news/cfpb-handled-over-84k-debt-collection-complaints-last-year-report.
13 See Upstart No-Action Letter.
14 Fintech companies, such as Lumni, Upstart, and Vemo Education, are all involved in ISAs. i also https://www.usnews.com/education/blogs/student-loan-ranger/articles/2018-01-24/alternative-to-student-loans-income-share-agreements.
15 A.B. 2251 (Ca 2016); H.B. 6915, Gen. Assemb. (Ct. 2015); District of Columbia Student Loan Borrower's Bill of Right (2017); S.B. 1351, 100th Gen. Assemb. (Il. 2017); S.B. 6029, 65th Leg., Reg. Sess. (Wa. 2017). 
16 H.B. 620, 99th Gen. Assemb., Reg. Sess. (Mo 2017); S.B. 3198, 217th Leg. (NJ 2017); A.B. 8862, Ass., Reg. Sess. (NY 2017); H.B. 432, 132th Gen. Assemb. (Oh. 2017); H.B. 1915, Gen. Assemb. (Va. 2017).
17 Dep't of Educ., Federal Preemption and State Regulation of the Department of Education's Federal Student Loan Programs and Federal Student Loan Services, 83 Fed. Reg. 10619 (Mar. 12, 2018), https://www.gpo.gov/fdsys/pkg/FR-2018-03-12/pdf/2018-04924.pdf
18 20 U.S.C. § 1098g.
19 Dep't of Educ., Federal Preemption and State Regulation of the Department of Education's Federal Student Loan Programs and Federal Student Loan Servicers, 83 FR 10619 (Mar. 12, 2018), https://www.gpo.gov/fdsys/pkg/FR-2018-03-12/pdf/2018-04924.pdf
20 Dep't of Education Notice of Interpretation, Federal Preemption and State Regulation of the Department of Education's Federal Student Loan Programs and Federal Student Loan Servicers, at 5, https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-04924.pdf
21 See Illinois v. Navient Corp.,Cir. Court of Cook County (Jan. 17, 2018), http://www.illinoisattorneygeneral.gov/pressroom/2017_01/

NavientFileComplaint11817.pdf; Pennsylvania v. Navient Corp., case no. 3:17-cv-01814-RDM (M.D. Pa. Oct. 5, 2017); Washington v. Navient Corp. (Jan. 18, 2017), http://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_

Releases/20170118ComplaintRedacted.pdf.
22 There is also a related class action suit. See In re Evan Brian Haas, et al. v. Navient Sols, LLC, et al., Case No 15-35586 (DRJ) (Bankr. S.D. Tex. Jan. 26, 2017).
23 North Carolina Attorney General College Tour: http://www.ncdoj.gov/Consumer/Attorney-General-College-Tour.aspx.24
24 See, e.g., Florida v. Strategic Student Sols LLC (2017 Fla. Cir.); Massachusetts v. Pennsylvania Higher Educ. Assistance Agency, case no. 1784-cv-02682 (Mass. Super Ct. Aug. 23, 2017); New Jersey v. LPL Fin., LLC, CRD 6413 (Oct. 24, 2017); North Carolina v. Student Loan Grp., et al., case no. 16-cv-12135 (N.C. Super Ct. Mar. 6, 2017).

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