Tag Archive | "Compliance"

Judge Again Rules in Favor of Trump in Battle for Control of CFPB


WASHINGTON, D.C. — A federal judge once again sided with the White House in the battle for control of the Consumer Financial Protection Bureau, denying last Wednesday a request by CFPB Deputy Director Leandra English for a preliminary injunction to remove President Donald Trump’s appointee as acting head of the agency.

The ruling comes less than 50 days after U.S. District Judge Timothy J. Kelly denied English’s request for a restraining order to block President Trump’s appointment of White House Budget Director Mick Mulvaney as acting director. It now sets the stage for an appeal by English, who has said she is the rightful acting director.

“The Court finds that English is not likely to succeed on the merits of her claims, nor is she likely to suffer irreparable harm absent the injunctive relief sought,” Judge Kelly wrote in his 46-page decision. “Moreover, the balance of the equities and the public interest also weigh against granting the relief. Therefore, English has not met the exacting standard to obtain a preliminary injunction.”

Judge Kelly originally denied English’s request for a temporary restraining order to block Mulvaney’s appointment on Nov. 28. The ruling, however, pertained to the restraining order and not the merits of the case, with English’s attorney Deepak Gupta hinting that Kelly’s ruling “would not be the final answer.”

Gupta then filed an amendment complaint on behalf of English on Dec. 6 requesting a preliminary injunction. Unlike the temporary restraining order, the injunction can be appealed to the U.S. Court of Appeals for the D.C. Circuit if not granted.  Gupta gave no indication that Wednesday’s ruling would be appealed, although he expressed disappointment in Kelly’s decision in a Twitter post.

“The law is clear: President Trump may not circumvent the Senate confirmation process by installing his White House budget director to run the CFPB part time,” Gupta wrote. “Mr. Mulvaney’s appointment undermines the bureau’s independence and threatens its mission to protect American consumers.”

When Cordray formally resigned as CFPB director on Nov. 24, he elevated English, his former chief of staff, to deputy director. The move established her as acting director until the Senate confirms Trump’s permanent appointee.

Hours after Cordray’s announcement, Trump appointed Mulvaney as acting director, citing his authority through the Federal Vacancies Reform Act (FVRA). English filed suit two days later to block the appointment, arguing that she was the rightful acting director due to a successor statute in the CFPB-creating Dodd-Frank Act.

English’s attorneys also questioned whether allowing Mulvaney, who once characterized the bureau as a “sick joke,” to continue serving as a White House official would compromise the bureau’s independence. The argument was backed by the former lawmakers who championed the CFPB-creating Dodd-Frank Act.

“That was our intent, to strip this away from the politics of the moment, to give consumers the sense of confidence that there was one place here — when it came to their financial services — [where] there would be people watching out for them, regardless of political party or partisanship,” said former Sen. Chris Dodd during media call on Nov. 30.

Dodd joined former Rep. Barney Frank and more than 30 current and former members of Congress in writing one of five separate amicus briefs in support of English’s position. In Wednesday’s ruling, however, Judge Kelly said that argument is completely without support in the text of the Dodd-Frank, adding that the court “declines to create such a restriction out of whole cloth.”

“Simply put, Dodd-Frank does not prohibit the director of the OMB from also serving as the acting director of the CFPB,” Kelly wrote in his ruling.

“The President has designated Mulvaney the CFPB’s acting director, the CFPB has recognized him as the acting director, and it is operating with him as acting director,” Kelly continued. “Granting English an injunction would not bring about more clarity; it would only serve to muddy the waters.”

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Dealertrack Unveils 2018 Compliance Guide


NORTH HILLS, N.Y. — Integrated dealership technologies provider Dealertrack (div. Cox Automotive) has released its 2018 Compliance Guide, which outlines the changes and updates in compliance that will affect dealers in 2018. Now in its 13th year, the Compliance Guide is a popular resource on current trends and best practices in F&I compliance.

“Dealers understand that compliance can be critical to their bottom line, but many do not know how to balance staying current in today’s ever-changing regulatory environment with the day-to-day needs of running and growing their business,” said Jay Seirmarco, assistant general counsel at Cox Automotive. “For the last 13 years, Dealertrack has offered the Compliance Guide, free of charge, because we know how valuable such a resource can be for dealers seeking to improve their dealership’s operational efficiency.”

With “Confidence in Every Deal” as this year’s theme, the guide focuses on the Consumer Financial Protection Bureau’s examination of automotive dealer transactions under the Larger Participant Rule. It is further anticipated that the CFPB will seek to enforce compliance with federal consumer credit protection laws in auto financing. Additionally, it is expected that the Federal Trade Commission will continue to examine claims of so-called “yo-yo” financing and perhaps initiate claims related to lack of disclosure of applicable safety recalls for vehicles at dealerships.

To register to receive a complimentary copy of Dealertrack’s 2018 Compliance Guide, click here.

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UDS Launches Online Training Platform


Clearwater, Fla. – United Development Systems, Inc. (UDS) announces the launch of its e-Learning platform for F&I Training.

Available immediately to any F&I Professional looking to create an advantage for themselves, this robust learning management system (LMS), located within UDSTraining.com, delivers its first course, Ethics and Compliance Certification, via an engaging online experience.

“Many years in the making, our e-Learning platform is a true game changer to the way F&I Training content can be delivered today. With subsequent courses in the works, we only thought it be appropriate to release Ethics and Compliance Certification first, given the importance of doing things the right way,” says Randy Crisorio, UDS President and CEO.

The Ethics and Compliance Certification course itself was designed directly from our printed/classroom material with the guidance of a team of instructional designers. The course was built to be as engaging as possible with video intro’s to each lesson, full voiceover utilization and complete with quizzes plus a final exam. A printable/downloadable certificate of completion is awarded for those that pass the final exam.

“Being a 3-time award winner in the Compliance Training category of the annual Dealers’ Choice Awards solidified our decision to get this course built and available to the masses,” adds Crisorio.

For full course information, visit UDSTraining.com/ethics or contact Brian Crisorio at 800-282-1154.

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Lawn Mowers, Kill Switches and the Future of Compliance


The easiest way to predict the future accurately is to wait until it happens and be the first to announce it. This is aided, in part, by the fact that homo sapiens, as a species, don’t have an impressive track record when it comes to learning from the past. This means that history tends to repeat itself. So to predict the future of compliance, I will first discuss the history of lawn mowers and product liability.

Mind the Blades

Lawn mowers are pretty simple devices. All you need is a sharp blade and a way to make it move at a rate high enough to cut grass. In the beginning, lawn mowers got their power from the people operating them. Push mowers connected curved blades to the drive wheels and presto! — neatly mown lawns.

Then came power mowers. Whether walk-behind or riders, they incorporated gasoline engines and rotary blades. The combination was much more powerful, much more effective, and much more dangerous.

The increased danger led to injuries, lots of them, and most of them horrific. Until the 1960s, the law did not favor plaintiffs in this area. The law of negligence was not much help, as the duty of due care was usually breached by the victim or a close family member. And product liability law didn’t help, as the product generally worked just fine as designed and built — it was that very fact that made the injury possible. What was a plaintiff’s lawyer to do?

Then came the Restatement (2nd) of Torts in 1965. The Restatements of the Law are published by the American Law Institute as a general summary of the common law to guide judges. For those of you who didn’t go to law school, there are two broad areas of law: statutory law, meaning written laws passed by the appropriate legislature, and common law, meaning the interpretations of law by judges. In case of a tie, statutory law is supposed to win. But it’s the common law-creating judges who determine what constitutes a tie. So while the restatements aren’t themselves binding precedent, they are considered very, very persuasive.

Restatement (2nd) of Torts brought about a revolution that transformed products liability law. In section 402A, the Restatement offered up a new principle: Manufacturers could be held liable for unsafe aspects of their products if a means of preventing that unsafe aspect was available and not unreasonably expensive. This meant that Toro, say, could be held liable for a perfectly well-made lawn mower if an inexpensive kill switch was not incorporated into the design.

This notion became known as the “risk-benefit test.” The crucial question was whether the risks of a particular design were outweighed by its benefits. Courts considered “the likelihood that the product will cause injury, the gravity of the danger posed, and the mechanical and economic feasibility of an improved design.”

So every time your lawn mower turns off when you let go of the kill switch beneath the push bar or get off the seat or a rider, or if the blade disengages when you put the rider in reverse (No Mow In Reverse — “NMIR” — is a thing), think of the Restatement (2nd) Torts. Lawn care is safer because of it.

Injury Potential

All of which brings us back to the future of F&I compliance. Consider the state of products liability jurisprudence and substitute “service” for “product.” Let us assume that a consumer can be injured in the process of financing a vehicle, and that the monetary injury can be severe. Is it possible for players in the finance process to prevent such injuries?

At first blush, the answer would seem to be “No.” Deceptive practices can be perpetrated when there is no method of recording:

  • What was said to a customer and when?
  • What was the basis for quoted payments?
  • There was no leg in the payment quoted.
  • No variance in APR was attributable to race or other impermissible reasons.
  • The final pencil information flowed seamlessly into the menu presentation.
  • The initial and final payments through the menu process were accurate.
  • The deal terms reflected at the end of the menu presentation flows into the buyer’s order.
  • The information on the buyer’s order is reflected in the retail installment sale contract.
  • The product prices on the RISC match those on the product contracts.

And at second blush, the answer would still seem to be “No.” After all, dealers may have a desking tool provided by one vendor, a menu system from a different vendor, and a third-party DMS. None of those functions talk to the others.

But what if there was a system that tracked and recorded every step of the vehicle finance process? What if every representation made to a customer was recorded and time-stamped? What if all the math had to add up? The injury from deceptive practices could be drastically reduced, or eliminated altogether.

In fact, such a system does exist and is already on the market (and no, I am not an employee, agent, or investor). And if one company can do it, others can as well. The state of the art proves that transparency can be dramatically enhanced and fraud drastically reduced. A court’s analysis could move on to consideration of the risks of noncompliant systems versus the benefits of maintaining such a system. Any bets on how a court would come down on that question?

So what is the future? It’s the present: using existing technologies to make fraud nearly impossible. All that remains is for a court (I’m guessing in California) to decide that what can be done to protect consumers must be done.

The providers and administrators that make that technology available first will not just profit in the future, they’ll help create it.

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N.J. Dealer Agrees to Pay $136,000 to Resolve Consumer Fraud Investigation


NEWARK, N.J. — Sansone Hyundai has agreed to pay $136,000 to resolve charges that it failed to disclose the total price of certain advertised vehicles and charged consumers for F&I products listed at “no charge” on certain leases and sales contracts,” New Jersey Attorney General Christopher S. Porrino and the state’s Division of Consumer Affairs announced on Friday.

The dealership, winner of DealerRater’s 2016 and 2017 Consumer Satisfaction Award, also agreed to change its advertising, sales, and leasing practices, including disclosing all costs and fees associated with the purchase or lease of a vehicle before consumers sign on the dotted line.

“Consumers should be able to purchase a new car without having to worry about misinformation and hidden costs,” said Attorney General Porrino. “This settlement ensures that consumers will receive transparency and honesty from this dealership, as required by law.”

The settlement was announced three days after New York’s Nissan of Rochelle, located two hours north of Sansone, agreed to pay more than $298,000 to settle Attorney General Eric Schneiderman’s charges that it willfully defrauded 298 car buyers by tacking on a window-etch programs after customers agreed to a price for the vehicle and often without their knowledge.

In a consent order with the Division of Consumer Affairs, Sansone Hyundai and its directors agreed not to add and charge for aftermarket products, such as window etch and service contracts, without the consumers’ knowledge and/or authorization, or represent to consumers that certain dealer-installed options are mandatory when they’re not.

The New Jersey dealership also agreed not to sell consumers aftermarket products that overlap or provide similar benefits the consumer has already purchased through the lease and sale transaction; accurately reflect in leases the “gross capitalized cost” as required by the consumer leasing act; provide consumers with an opportunity to review all leases and/or sales documents and/or aftermarket contracts prior to signing; and not identify the advertised prices of vehicles by reference to the MSRP sticker, when the vehicle includes an addendum to the MSRP sticker that reflects a higher total price.

The dealership must also comply with all applicable state and/or federal laws, rules, and regulations, including the Consumer Fraud Act, the Motor Vehicle Advertising Regulations, the Automotive Sales Regulations, and the Consumer Leasing Act, according to the consent order.

“Dealerships must fully disclose all costs and fees associated with the purchase or lease of a vehicle before consumers sign on the dotted line,” said Steve Lee, director of New Jersey’s Division of Consumer Affairs. “We will continue to enforce the laws and regulations in place to ensure consumers have the facts they need to make informed decisions.”

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‘Total Loss Protection’ at Center of NY Dealer’s $298K Settlement With State AG


ALBANY, N.Y. — Nissan of New Rochelle will pay more than $298,000 to settle claims that the dealership willfully defrauded 298 car buyers of a total of $276,127 by tacking on a window-etch program that included a “Total Loss Protection” benefit after customers had agreed to a price for the vehicle and often without their knowledge or consent, Attorney General Eric Schneiderman announced this week.

In addition to refunding the cost of the product, which varied from $215 to more than $5,000 per vehicle, the dealership’s owners have agreed to pay the state $22,084 in penalties, fees and costs. They also agreed to “certain reforms” of the dealership’s sales and F& processes.

“Consumers should not have to worry that they are being scammed into adding on bogus products and services when they purchase a car,” Schneiderman said. “Buying a car is already a major investment for many families, and tacking on thousands of dollars extra can become a significant financial burden. I am pleased that we are able to return hundreds of thousands of dollars in restitution to the nearly 300 consumers who were scammed and defrauded.”

According to Schneiderman, his office’s investigation into the 2015 complaint revealed that the product, described as a window- and windshield-etch program backed by a $3,000 or $5,000 guarantee against theft, was deceptive or outright fraudulent on at least three counts — tacking on the cost of the product without customers’ knowledge being one of them.

The regulator also charged that conditions and limitations related to the guarantee made it “essentially worthless.” The regulator noted that only one car buyer was issued credit under the program. The attorney general’s investigation also revealed that the “etching” of each vehicle’s VIN was actually a sticker affixed to the inside of a door or doorjam, and in many cases was not performed at all.

As part of the settlement, Nissan of New Rochelle’s directors have agreed to include full disclosures and explanations for each product and express consent on the car buyer’s part before any products can be added to the deal, according to the regulator’s statement.

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