On September 30, the U.S. Senate confirmed a new Director of the Consumer Financial Protection Bureau (CFPB). Rohit Chopra, formerly with the Federal Trade Commission, brings an enforcement mindset to his new role.
Chopra, 39, will serve a five-year term at the helm of the Bureau. He has a long history with the organization, which was created in the aftermath of the financial crisis of 2007 to 2008. He worked closely with Senator Elizabeth Warren on establishing the Bureau, then joined it in 2011 to investigate industry abuses in the student lending market.
His appointment comes at an interesting time for automotive dealers and lenders. As FTC Commissioner, Chopra actively pursued auto dealers perceived of implementing discriminatory practices. He also was a vocal proponent for more protections for consumers, specifically regarding auto lending abuses of all minority demographics and military families.
On Monday, President Donald J. Trump signed into law the Congressional S.J. 57 resolution repealing the Consumer Financial Protection Bureau’s (CFPB) guidance on dealer markup. Originally issued in March, 2013, the auto lending guidance quickly received negative feedback. In fact, the ruling caused several finance sources to either switch to a flat-fee compensation model or enforce lower caps on dealer markups. The ruling also prompted the CFPB to impose consent orders with several institutions resulting in millions of dollars in fines.
The retail automotive industry is cheering this move, which began five months ago when the Government Accountability Office said Congress had the power under the Congressional Review Act (CRA) to overturn the CFPB guidance. But, before you start thinking the good old days are back, consider what started the industry on this path.
The CFPB’s original guidance was designed to inform lenders that it would begin enforcing the fair lending requirements of the Equal Credit Opportunity Act (ECOA) using a theory on disparate impact. This theory refers to practices that adversely affect protected classes of individuals, even though employer rules and practices are meant to be neutral. The CFPB used this theory to make the argument that dealer markup practices could result in unintentional discrimination during the credit process, and must therefore be reined in.
While the CFPB can no longer use disparate impact theory to force lenders to reduce dealer markup, the ECOA and its fair lending requirements remain in full effect. Other federal, state and local compliance regulations also remain, which prompts me to remind our clients that remaining in compliance is still in the dealership’s best interest. And, it’s highly unlikely that lenders who invested millions of dollars into comprehensive compliance platforms will suddenly reverse all those process changes.
Compliance has been a hot topic going on three years in the auto finance space. Lenders, such as Ally Financial, Toyota Motor Credit, and the American Honda Finance Corporation, have reached resolutions with the CFPB based upon dealership practices. We’ve all known that the CFPB has been trying to regulate dealerships through lenders. With this heightened sensitivity to compliance, other regulatory bodies that have jurisdiction over automotive dealerships, such as the FTC, are now turning their gaze to dealership practices.
While everyone is frustrated with the ambiguity of the CFPB, there are some well-defined actions dealerships can take to ensure compliance with entities like the FTC. With this in mind, now is the time for dealers to brush up on their F&I practices to ensure compliance, starting with this simple question: When a dealership sells a car and secures financing, who is the creditor at the time of sale?
If you said the dealer is the creditor, you would be correct. However, many F&I managers often think that the lender is the creditor. This mindset opens the door for non-compliant behavior as the F&I manager could think that their actions have fewer repercussions. As a dealer who knows about the legal repercussions, wouldn’t you rather have an informed staff that takes accountability for their actions?