Sizing Up the CFPB's Favorite Enforcement Targets

Mortgage lenders, debt collectors and credit card companies have borne the brunt of the Consumer Financial Protection Bureau's public enforcement actions over the past four years, yet banks have paid the most in penalties and restitution, according to a new study released by an agency insider.

Banks were the subject of 25% of the agency's 122 enforcement actions between 2012 and 2015, but paid more than 63% of the civil money penalties and 65% of the $11 billion in consumer relief collected by the agency during that time.

The findings were part of a 59-page study by Christopher Peterson, a special adviser to CFPB Director Richard Cordray and a professor at the S.J. Quinney College of Law at the University of Utah. His study yields insights into where the agency is targeting its enforcement activities.

Among the results: No bank has ever contested a public enforcement action and the 14 cases alleging abusive practices were all against nonbanks. Roughly 24% of the CFPB's enforcement actions have been contested.

Peterson said he hopes the study will be used to rebut criticisms that the CFPB is overreaching its authority, arguing it shows the agency stays within its mandate.

It's "a needle to deflate the absurdly overheated political rhetoric used to grandstand against the CFPB's mission and accomplishments," Peterson wrote.

Though Peterson is connected with the agency, the study contains a disclaimer that the views do not represent the CFPB or its staff. The agency declined to comment on its findings, which are due to be published soon in the Tulane Law Review.

Peterson called the many criticisms heaped on the agency "vapid allegations" that are "thoughtlessly untethered from reality." One example of such criticism was the U.S. Chamber of Commerce's broadside against the CFPB's arbitration rule as "the worst-of-all-worlds Frankenstein monster."

Roughly 30% of enforcement actions have charged individuals with illegal activity, but nearly all were brought against nonbanks. Most actions were taken with other state and federal law enforcement agencies.

"In every case in which the bureau charged a defendant with illegal discrimination against a protected class of consumers, the bureau proceeded in partnership with another law enforcement agency," Peterson wrote.

In some ways, Peterson makes the case that banks have gotten off easy.

By the end of 2015, tbhe CFPB had charged only one bank employee, in a case alleging a mortgage kickback scheme. Last month, the bureau charged another bank employee, a Wells Fargo loan officer in Beverly Hills, Calif., for allegedly manipulating escrow fees to make more loans. The bureau brought more cases under the Real Estate Settlement Procedures Act than any other consumer law.

Still, much of the bureau's supervisory and enforcement work is in the form of confidential exams and investigations that are not publicly announced. Peterson wrote that he focused on the agency's public enforcement actions "because they can provide a window into the substantial or troubling illegal activity uncovered by the CFPB."

Ed Mierzwinski, the consumer program director at the U.S. Public Interest Research Group, noted that the paper shows most of the actions are related to deceptive practices.

"The study shows that most of these cases are brought under deception because there are a lot of deceptive practices in the marketplace and the CFPB is cleaning it up," Mierzwinski said.

While 60% of public enforcement actions asserted illegal deception, just 10% were brought for abusive acts or practices, the study found.

The breakdown may seem like legal hair-splitting, but the banking industry has been particularly concerned about the CFPB's authority under the Dodd-Frank Act to target firms for "unfair, deceptive, or abusive acts or practices."

Dodd-Frank added a new standard of "abusive" to earlier law that has causedcontroversy for financial firms. The agency has denied repeated requests to define what the term "abusive" means. Lawyers for financial firms argue the CFPB uses the catchall UDAAP standard to issue rules or enforcement actions to address any area that smacks of exploitation of consumers.

"It really does appear that the CFPB looks at UDAAP as a 'You know it when you see it' standard," said Joe Rodriguez, of counsel at Morrison & Foerster, who was formerly Southeast regional counsel at the CFPB. "There is a concern that folks have about whether there is rigor around UDAAP claims. There is not a lot of hard evidence put forth in their consent orders, such as an economic analysis regarding claims of unfairness or an actual consumer perception study to show whether a statement is misleading or not regarding claims of deception."

The study includes breakdowns of the CFPB's contested cases and administrative enforcement actions.

Debt settlement providers contested the CFPB's claims in more than 60% of debt relief cases, "making this group more likely than any other to refuse the bureau's settlement offers," Peterson wrote. Then again, debt settlement providers have faced relatively steep civil money penalties, he noted.

Ari Karen, an attorney at Offit Kurman in Bethesda, Md., said that it is often expensive to fight an enforcement action, so most companies choose to settle.

"They've got a big hammer," Karen said, adding that his biggest frustration is that the CFPB does not provide clarity about some of its rules. "The debate is, can they balance the hardship and benefits of regulation and enforcement, and where do they draw the line?"