United States: 美国消费者金融保护局(CFPB)关于线上市场借贷的声明:实则远非表象

Last Updated: April 14 2016
Article by C. Hunter Wiggins

美国消费者金融保护局(CFPB)关于线上市场借贷的声明:实则远非表象(英文版)

On March 7, the Consumer Financial Protection Bureau ("CFPB") announced it was accepting consumer complaints regarding online marketplace lenders.1 From the tone of the early press, this has been perceived by some as a significant new event, with the Bureau finally "taking aim" at marketplace lenders. A closer reading of the bulletin, however, reveals that the CFPB's announcement may be more show than substance.

The More Things Change, the More They Stay the Same

For example, the CFPB announced that it is "now" taking complaints regarding online marketplace lenders. In fact, depending on the product offered by a particular lender, the Bureau has been accepting complaints about marketplace lenders for quite some time. This is because the CFPB's consumer complaint system was built out product-by-product—for example, credit cards,2 then mortgages,3 then student loans4—and not based on the market delivery channels of those products, such as online versus storefront or bank versus non-bank.

The CFPB's own press release alludes to the product-by-product structure of the CFPB's consumer response system when it states: "[b]ecause marketplace lenders offer several types of consumer loans, a consumer submitting a complaint should select among the different complaint categories for products and services that best apply to their situation. For example, a consumer can select products such as 'mortgage,' 'consumer loan,' or 'student loan.'" Given this product-oriented focus, it should not be surprising that consumers were already filing complaints about marketplace lenders before this bulletin, and that those lenders have responded, as confirmed by a review of the CFPB's consumer complaint database.5

So what has changed about the CFPB's gathering of complaints regarding online marketplace lenders? The answer, in short, is not much. The front page of the CFPB's complaint webpage doesn't give the option to select "marketplace lending" as a product type, and there is no direct reference to marketplace lending on that page.6 There are no references to marketplace lending when a consumer seeks to submit a complaint about a mortgage, auto loan, or student loan. Indeed, other than a single sentence on the "Other Consumer Loan" complaint page, clarifying that marketplace loans are a type of installment loans,7 there are no references to marketplace lending or options to select marketplace lending as a complaint type anywhere on the Bureau's complaint portal.

Key Takeaways

Despite the lack of substance in the CFPB's announcement, the press release and accompanying consumer bulletin do contain some important lessons for businesses that are in or considering entering online marketplace lending.

First, the release signals that the CFPB intends to stake out significant turf regarding this emerging market. Online marketplace lenders have a number of state and federal regulators who may claim jurisdiction over their activity. As a national agency with authority over both banks and non-banks, the CFPB may see itself as best positioned to comprehensively address this market. Its ability to do that, however, is hampered by its current lack of supervisory authority over most non-bank marketplace lenders.

This lack of supervisory authority—which the CFPB recently stated it intends to remedy by passing a larger participant rule regarding installment lending8—leaves the Bureau with three principal levers: consumer education, consumer response (i.e., the complaint process), and enforcement. The March 7 release touches on two of these three levers, by providing consumer education and inviting consumer complaints.

Does that mean an onslaught of CFPB enforcement activity specifically targeted at marketplace lenders is close at hand? We think not, based on the CFPB's own lengthy list of near-term priorities set forth in its February 25 blogpost.9 That document, which outlines nine broad priorities over the next two years, addresses the concept of open-use credit but barely touches on marketplace lending, focusing more on traditional payday lending and related debt collection practices.

Given that the CFPB will be hard pressed to accomplish even these nine identified priorities, we think it unlikely it has the capacity to add a tenth, channel-specific priority at this time. Rather, we expect the CFPB to rely primarily on consumer education and the bully pulpit in the near term while it gathers information about how the market functions. That said, if the Bureau's priorities touch on your company's consumer lending, you may expect an increased focus, regardless of the channels you use.

Second, the release highlights the CFPB's expectations regarding online lenders' compliance management systems. Advocates for depository institutions have at various times criticized the CFPB for having a double standard when it comes to compliance expectations, permitting a higher tolerance for mistakes when it comes to non-banks. In his statement about marketplace lending, however, Director Cordray made clear that when it comes to consumer lending, the CFPB expects compliance from all lenders, from online startups to large banks.

While not necessarily a cause for alarm, non-bank lending entities should ensure that their compliance programs reasonably fit the size and complexity of their business, and that appropriate consumer protections are in place. For those lenders who have focused on growth, technology, and customer acquisition over legal compliance, the time to add a new priority is now. Because while we do not expect sweeping enforcement activity in the near term, the CFPB may look for an outlier in the market to make an example of and signal its enforcement presence.

Third, the CFPB's announcement may be seen as an intentional effort to encourage consumers to complain about their experiences with the online marketplace lending industry. Regardless of whether the CFPB uses these complaints to generate enforcement leads, if the Bureau is successful in drawing a substantial number of complaints, it will be significant to market participants. The CFPB's complaint database, which contains unverified and anonymous complaints, is searchable by other regulators and by the plaintiffs' bar, who may consider the information useful in their own efforts.

Further, given the competitive nature of the marketplace, the reputational impact of these complaints can have serious consequences on individual companies and potentially the entire fledgling industry. Marketplace lenders need to understand the Bureau's complaint system and figure out how to limit any negative impact both by heading off complaints before they enter the system and dealing with them effectively once they have been made.

While the CFPB's marketplace lending announcement is not really anything new, market participants should not be complacent but should instead use this time to build out or fine-tune their compliance functions in preparation for increased CFPB interest down the road.

Footnotes

1 Press Release, CFPB, "CFPB Now Accepting Complaints on Consumer Loans from Online Marketplace Lender" (Mar. 7, 2016).

2 Press Release, CFPB, "CFPB Ready to Help Consumers on Day One" (July 21, 2011).

3 Sartaj Alag, "CFPB Mortgage Complaint System Is Up and Running," CFPB BLOG (Jan 5, 2012).

4 Press Release, CFPB, "CFPB Now Taking Private Student Loan Complaints" (Mar. 5 2012).

5 CFPB, Consumer Complaints (last visited Mar. 9, 2016).

6 "Submit a Complaint," CFPB (last visited Mar. 9, 2016).

7 "Submit an Online, Store, or Other Loan Complaint to the CFPB," CFPB (last visited Mar. 9, 2016) ("Other loan complaints can be about problems ... other installment loans, such as those used for person-to-person or "marketplace" lending....").

8 Kelly Cochran, "Fall 2015 Rulemaking Agenda," CFPB BLOG (Nov, 20, 2015) (discussing plans to develop a "larger participant" rule for installment lending).

9 CFPB, "Policy priorities over the next two years" (Feb. 25, 2016).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.