Tag Archive | "guidance"

House Approves Resolution to Repeal CFPB’s Dealer Participation Guidance


WASHINGTON, D.C. — The U.S House approved on Tuesday its version of the resolution of disapproval of the Consumer Financial Protection Bureau’s dealer participation guidance. The resolution now heads to President Trump’s desk, where it is expected to be signed.

The 234-175 vote was cast largely along party lines, although 11 Democrats crossed the aisle to approve the resolution. One Republican, Ileana Ros-Lehtinen of Florida, voted against the resolution, which, when signed by President Trump, will bring an end to the automotive retail and finance industry’s five-year effort to get the bureau’s controversial March 2013 guidance rescinded.

“This vote indicates that American consumers have spoken to their elected representatives to say they want competitive pricing on vehicle loans,” said Chris Stinebert, president and CEO of the American Financial Services Association, in a statement issued by the lender trade group. “We are an industry that competes for consumers’ trust as well as their business while helping them acquire vehicles that support their transportation needs.”

The vote comes less than a month after the U.S. Senate voted 51-47 to approve its version of the resolution and five months after the Government Accountability Office (GAO) said Congress has the power under the Congressional Review Act (CRA) to repeal the bureau’s dealer participation guidance.

Under the CRA, both houses must approve resolutions of disapproval by a simple majority and receive the president’s signature to kill a regulation. When the latter happens to S.J. Res. 57, which was introduced in March by Sen. Jerry Moran (R-Kansas), it’ll mark the first time the CRA has been used on a rule that has been in effect for several years. And once repealed, the CRA prohibits the reissuance of a rule in substantially the same form unless authorized by Congress.

The CFPB alleged in its five-page fair lending guidance that bank policies which allow auto dealers to mark up interest rates on retail installment sale transactions as compensation for services rendered create a significant risk of unintentional, disparate impact discrimination. It also warned lenders active in the indirect auto finance channel that they would be held liable for unlawful, discriminatory markups.

The bulletin goes on to state that lenders operating in the indirect auto finance channel “should take steps to ensure that they are operating in compliance with the [Equal Credit Opportunity Act] and Regulation B as applied to dealer markup and compensation policies.” It then listed a variety of steps and tools they could employ to address the bureau’s stated fair lending risks, including “eliminating dealer discretion to markup buy rates and fairly compensate dealers using another mechanism, such as a flat fee per transaction, that does not result in discrimination.”

Auto industry trade groups have argued that the bureau used its guidance to indirectly regulate the activities of dealers, which are mostly exempt from the bureau’s oversight under the Dodd-Frank Act. They also claimed the bureau was aware its methodology for determining disparate impact and potential harm to protected classes was flawed and prone to overestimation, yet pushed forward with claims of discrimination that resulted in enforcement actions that imposed millions of dollars in fines on auto finance sources, including Ally Financial.

The guidance also caused several finance sources, including BB&T and BMO Harris, to switch to a flat-fee compensation model. BB&T switched back to a dealer spread compensation plan earlier this year, while BMO switched to a three-tiered flat-rate model last summer.

The guidance was also behind consent orders the CFPB entered into with Fifth Third Bank, Toyota Motor Credit Corp., and American Honda Finance Corp regarding their dealer markup policies. As a result of those orders, the bank and two captives agreed to lower their markup caps to 1.25% and 1%. Fifth Third’s consent order, however, is set to expire this September, while Toyota Motor Credit’s and Honda Finance’s consent orders are set to expire in February 2019 and July 2020, respectively. The three finance sources yet to say whether they’ll return to a dealer participation model when they do.

“There’s no question that this is a rule masquerading as guidance. The CFPB never submitted the guidance to the GAO. They could have done so. Had they done so the 60-day clock would have run, we wouldn’t be here,” David Regan, executive vice president of legislative affairs for the National Automobile Dealers Association (NADA), said last week during a press briefing. “They chose not to submit that to Congress because they did not want the additional exposure to public notice and comment. Within just a few weeks of the guidance being issued in March of 2013, the congressional inquiries started pouring in asking very specific questions about the methodology that we now know was flawed. And yet, the agency repeatedly refused to respond to these questions.”

Congress has attempted to kill the bureau’s guidance through the legislative route. In November 2015, the House of Representatives approved the Reforming CFPB Indirect Auto Finance Guidance Act by a 332-96 vote. The bill, however, was not acted upon by the Senate before the end of the 114th Congress.

Last March, Sen. Toomey asked the GAO whether the CFPB’s guidance on dealer participation falls under the CRA. The agency delivered its answer this past December, writing in a letter to Toomey that it did.

When it initially issued its guidance, the bureau argued that because it had no legal effect on regulated entities, the CRA does not apply. The GAO, however, stated in its response to Toomey’s request that the bulletin “fits squarely within the Supreme Court’s definition of a statement of policy,” because it provides information on the manner in which the bureau planned to exercise its discretionary enforcement power.

And according to the GAO, the CRA “establishes special expedited procedures under which Congress may pass a joint resolution of disapproval that, if enacted into law, overturns the rule.” In a statement posted on its website just after the GAO delivered its answer, Sen. Toomey said he intended “to do everything in my power” to repeal the bureau’s guidance under the CRA.

“The joint resolution is a measured response to the CFPB’s attempt to avoid congressional scrutiny by issuing ‘guidance’ that imposed a new policy without necessary procedural safeguards,” said Peter Welch, president and CEO of the NADA, in a statement issued following the House vote. “Enactment of S.J.Res. 57 will help ensure every consumer’s right to get a discounted loan in the showroom.

“Every customer deserves to be treated honestly and fairly when purchasing or financing a car or truck, and there is no room for discrimination of any kind, period,” he continued. “We continue to encourage all local dealerships to take up NADA’s voluntary fair credit compliance program, which is based on a U.S. Department of Justice model. It helps eliminate fair credit risk in auto lending while ensuring a competitive marketplace.”

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Bill to Rescind CFPB Auto Lending ‘Guidance’ Gains Support in Congress


WASHINGTON – More than 400 new-car dealers and dealer association executives from across the country traveled to the nation’s capital last week urging lawmakers to support a new bipartisan bill that nullifies the Consumer Financial Protection Bureau’s flawed “guidance” on auto lending (NADA).

H.R. 5403 – Reforming CFPB Indirect Auto Financing Guidance Act – sponsored by Reps. Marlin Stutzman (R-Ind.) and Ed Perlmutter (D-Colo.), already has 50 cosponsors in the House since the bill was introduced on September 8. The bill is a narrower version of H.R. 4811, which was reported out of the House Financial Services Committee by a bipartisan vote of 35-24 in June.

“[Dealers] are such an important part of the economy,” Rep. Stutzman told attendees at the 2014 National Automobile Dealers Association’s (NADA) Washington Conference on September 10. “The CFPB is one of the most unaccountable agencies in the federal government,” he added.

The Stutzman-Perlmutter bill requires the CFPB to provide a public comment period before reissuing any guidance on auto finance. The bill also requires transparency and accountability from the agency by making public any studies, data and analyses used to determine future auto finance guidance.

In remarks to his fellow dealers in the audience at the two-day legislative conference, Rep. Mike Kelly (R-Pa.), who played football at the University of Notre Dame, sounded every bit like a head coach talking to his team. In a passionate tone, he urged dealers to stand together, invite Members of Congress to visit their dealerships and become more active in the political process by “getting good people elected.”

Kelly, a multifranchise dealer in Butler, Pa., added that there are a lot of marginal customers who benefit from dealer-assisted financing and that officials from the CFPB do not understand the dealership business.

“[The Stutzman-Perlmutter bill] is incredibly important to us,” Kelly said.

Sen. Jerry Moran (R-Kan.) told dealers that Democrats and Republicans should come together to oversee the CFPB.

In March 2013, the CFPB issued guidance that threatens to eliminate the flexibility of dealers to discount the interest rate offered to consumers to finance vehicle purchases. The CFPB claims that negotiated interest rates between dealers and their customers create a significant risk of unintentional “disparate impact” discrimination. However, there are a variety of legitimate business-related factors that can affect finance rates, such as beating a competing rate.

NADA Chairman Forrest McConnell in comments during the general session highlighted NADA’s recent legislative accomplishments and outlined the challenges ahead.

“In the past year, NADA helped repeal outdated bills that were time-takers and money-wasters,” said McConnell, a Honda/Acura dealer in Montgomery, Ala. “We’ve led the charge against harmful tax reform proposals, including LIFO, heavy-duty truck excise taxes and broad recall legislation on rental vehicles.”

Other speakers included House Minority Whip Steny Hoyer (D-Md.); Rep. Jamie Herrera Beutler (R-Wash.); NADA President Peter Welch; Jeff Carlson, chairman of the NADA’s Dealers Election Action Committee and a Ford and Subaru dealer in Glenwood Springs, Colo.; and political analyst Charlie Cook.

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NADA Supports Bipartisan Effort to Reform CFPB Auto Lending Guidance


WASHINGTON – America’s new-car dealers convene on Capitol Hill this week to urge Members of Congress to cosponsor H.R. 5403—the Stutzman-Perlmutter bill.

The National Automobile Dealers Association is urging Congress to pass a new bipartisan bill (H.R. 5403) that nullifies the Consumer Financial Protection Bureau’s flawed guidance on auto lending and requires more transparency and accountability from the agency on future guidance.

“The CFPB’s actions will likely raise the cost of credit for car buyers,” said NADA Chairman Forrest McConnell. “The CFPB is attempting to change the $905 billion auto loan market and limit market competition without prior public comment and without analyzing the impact of its guidance on consumers.”

The new bill, “Reforming CFPB Indirect Auto Financing Guidance Act,” would allow the agency to reissue its guidance under a more transparent process. The measure is sponsored by Reps. Marlin Stutzman (R-Ind.) and Ed Perlmutter (D-Colo.), and was introduced Sept. 8. The bill is a narrower version of H.R. 4811, which was reported out of the House Financial Services Committee by a bipartisan vote of 35-24 in June.

“A majority of car buyers choose to finance their purchases through indirect financing at dealerships, which is always optional,” added McConnell, a Honda/Acura dealer from Montgomery, Ala. “Dealers often discount these interest rates to earn their customers’ business.”

In March 2013, the CFPB issued guidance that threatens to eliminate the flexibility of new-car dealerships to discount the interest rate offered to consumers to finance vehicle purchases. The CFPB claims that negotiated interest rates between dealers and their customers create a significant risk of unintentional “disparate impact” discrimination. However, there are a variety of legitimate business-related factors that can affect finance rates, such as beating a competing rate.

“H.R. 5403 is needed because it requires the CFPB to follow a transparent process when issuing auto finance guidance,” McConnell said. “The bill would rescind the 2013 auto finance guidance and require public participation for future guidance before it is issued.”

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