Yesterday, the CFPB released the Winter 2019 edition of its Supervisory Highlights.  The report discusses the Bureau’s examination findings in the areas of automobile loan servicing, deposits, mortgage loan servicing, and remittances.  In this blog post, we focus on the Bureau’s findings relating to auto loan servicing.  (We will discuss the Bureau’s other findings in a separate blog post.)

The auto loan servicing findings include a discussion of interest to auto finance companies, based on the now-familiar topic of ancillary products.   Notably, however, the ancillary product issues identified concern refunds on such products when a consumer’s vehicle is repossessed or is declared a total loss.  These observations underline not only the Bureau’s continued interest in ancillary product issues, but also its high degree of attention to repossession- and collection-related issues in auto finance, which have been present in numerous examinations over the past couple of years.  The Bureau’s emphasis on ancillary product cancellation and refund issues also mirrors similar efforts by state regulators that we have observed.

The discussion in Supervisory Highlights mentions two practices that the Bureau found to be unfair or deceptive.  First, the Bureau stated that “one or more servicers” had made errors in requesting refunds on extended service contracts purchased with used cars.  In essence, the servicers allegedly had used the total mileage on the cars in calculating the refund amount, when the correct calculation should have been based on the miles driven by the consumer after purchase.  The Bureau noted that this error reduced the amount of the refunds provided to consumers, which in turn increased their deficiency balances.  According to the Bureau, the attempts made to collect these inflated balances were “unfair” under Dodd-Frank.  The servicer(s) involved remediated the issues (although the type of remediation is unspecified), and began to “verify mileage calculations” on service contract refunds.

Our take on this issue is that it reflects a pattern we continue to see in CFPB examinations – that errors in operations – be they human or system errors – are still a fertile ground for UDAAP findings by the CFPB.  And, as noted below, when those errors affect deficiency balances or collections, they Bureau will likely identify them as UDAAP violations.

The second issue discussed in Supervisory Highlights seems to be potentially more generally applicable.  The Bureau noted that “one or more servicers” failed altogether to request refunds on ancillary products after repossession or total loss events.  According to the CFPB, the servicers then sent deficiency balance notices to consumers, including a line item for “total credits/rebates.”  The Bureau concluded that this deceived consumers, who interpreted the statements as including any available refunds from ancillary products, when in fact no refunds had been requested by the servicer.  The Bureau went on to note that the servicer(s) involved “remediate[d] affected borrowers,” and “changed deficiency notices to clarify the status of eligible ancillary product rebates.”

On the one hand, this seems like a fairly obvious issue – auto finance companies should make an effort to request ancillary product refunds in the event of a total loss or repossession.  But there are two very strange things about the CFPB’s discussion of this issue that will tend to confuse, rather than assist, auto finance companies.  First, the Bureau notes this as purely a disclosure issue, arguing that the wording of the deficiency notices was misleading.  Second, the going-forward solution was for the deficiency balance disclosure to be changed to “clarify the status” of refunds on ancillary products.

That’s easy for auto finance companies to do, but industry players will undoubtedly be asking the question, “what is the extent of my duty to request ancillary product refunds in these situations?”  This is a significant operational question for auto finance companies, especially because many ancillary products are offered by dealers and administered by companies with which the finance company or bank has no relationship.  The CFPB’s discussion of this issue seems to suggest that there is no duty to request a refund, and indeed there is no indication that the entity involved was required to actually request refunds.  But we think that conclusion is probably a risky one to adopt, since we know that the Bureau (on other occasions) and state regulators have insisted that the finance company or bank does have such a duty.   But, since the Bureau’s discussion is confined solely to disclosure issues, we don’t know what the scope of that duty is.

We also note that although the discussion of this issue in Supervisory Highlights concerned repossessions and total loss situations, it can also arise in the context of early payoffs, when a consumer has purchased a GAP waiver product.  In our view, banks and auto finance companies should be equally sensitive to requesting refunds, calculating those refunds properly, and disclosing their status to consumers when an early payoff makes a GAP product no longer necessary for a consumer.

 

A new CFPB report, “Growth in Longer-Term Auto Loans”, discusses a CFPB finding that there has been a significant increase in the use of longer-term “auto loans” since 2009.  The report could presage greater CFPB scrutiny of longer-term auto loans in supervisory examinations of banks and auto finance companies.  This greater scrutiny might include an attempt by the CFPB to use its UDAAP authority to restrict the availability of longer-term auto loans, such as by imposing an “ability to repay” standard with respect to such loans.

In December 2016, the CFPB unveiled Consumer Credit Trends, which it described as “a web-based tool to help the public monitor developments in consumer lending and forecast potential future risks.”  The tool uses de-identified credit information taken from a nationally-representative sample of credit records maintained by one of the nationwide consumer reporting agencies and tracks originations for mortgages, credit cards, auto loans, and student loans by borrower credit score, income level, and age.

When the tool was unveiled, the CFPB indicated that it planned to “offer analyses on notable findings as warranted.”  In the new report, which the CFPB describes as “the first Quarterly Consumer Credit Trends report” and an “update to the CFPB’s Consumer Credit Trends dashboard,” the CFPB “explore[s] what the data reveals about the increased use of these longer-term loans.”  For purposes of the report, “longer-term loans” are defined as loans with terms of six years or more.  In the accompanying press release, the CFPB stated that “the average length of ownership of a vehicle is approximately 6.5 years” and asserted that “[t]his means that many consumers might still owe on loans after they are no longer driving the vehicle.”

The report says that it uses the same definition of “auto loans” as is used in the Consumer Credit Trends dashboard. The dashboard defines the term to mean “closed-end loans used by consumers to finance the purchase of a new or used auto, where the auto is used as collateral for the loan.”  Although the dashboard uses the term “loan,” we assume that the data analyzed also includes the predominant form of purchase money auto finance transactions – retail installment sale transactions with automobile dealerships.

In purporting to paraphrase the dashboard definition of “auto loans,” the report also refers to leases used to finance automobile purchases.  We assume that this reference to leases was included unintentionally because the dashboard definition of “auto loans” does not refer to leases, and consumer lease transactions are not purchase money consumer credit transactions.

The CFPB report includes the following findings based upon its review of the sample “auto loan” dataset:

  • The share of longer-term loans increased from 26 percent of auto loans originated in 2009 to 42 percent of 2017 auto loan originations (with six-year term loans being the most common “longer-term loan”).
  • The credit scores of borrowers who obtain longer-term loans are lower than the scores of borrowers who obtain five-year loans. (The average credit score of borrowers taking out longer-term loans is 39 points below the average score of borrowers obtaining five-year loans, although the report notes that the lowest average credit scores are for borrowers who obtain loans with terms of less than three years.)
  • Longer-term loans tend to be used to finance larger amounts.
  • Default rates associated with longer-term loans are higher than those for shorter-term loans.

The CFPB makes the following observations based on its findings:

  • Consumers may be increasingly using longer-term loans because they are buying more expensive cars, making smaller down payments, or otherwise financing larger amounts.
  • While longer-term loans may make monthly payments more affordable, financing costs are higher over the life of the loan.  As a result, it is not clear consumers are better off obtaining longer-term loans or are likely to be more successful in repaying those loans.
  • Riskier borrowers are more likely to opt-for a longer-term loan to ease their monthly debt burden.
  • The movement toward longer-term loans may increase the likelihood of borrower default (although the CFPB notes that default rates for both five- and six-year loans have been increasing).

The first three observations appear to be statements of the obvious and/or inferences that are speculative in nature.  The last observation is based upon data comparing cumulative default rates by origination-year cohort for five- and six-year loans, with “default” being defined as 90 or more days past due or having a major derogatory event such as a repossession.  Notably, the report states that “[t]he higher default rates observed for six-year loans should not be interpreted as a causal relationship” since “riskier borrowers” may prefer longer-term loans.  Nevertheless, the report concludes that the absence of a decline in the default rates for six-year loans as they have become more widely used “suggests that the movement toward these longer-term loans may increase the likelihood of borrower default, potentially posing greater risks to both borrowers and lenders.”

This concluding observation of the CFPB regarding default rates, and its findings regarding credit scores and loan amounts, may foreshadow supervisory scrutiny with respect to the underwriting of “auto loans” with terms of six years or more.  The end result of such scrutiny may be to restrict the availability of longer-term loans to the ultimate detriment of consumers.