Tag Archive | "compliance"

FTC, 12 Partner Agencies Conduct Used Car Rule Compliance Sweep


WASHINGTON, D.C. — The Federal Trade Commission, working jointly with 12 partner agencies in seven states, conducted the first compliance sweep of car dealerships since its amended Used Car Rule took effect earlier this year, the regulator announced today.

The sweep was conducted in 20 cities nationwide between April and June 2018. According to the FTC, inspectors found Buyers Guides on 70% of the more than 2,300 vehicles inspected, with almost half of those displaying the revised Buyers Guide. Of the 94 dealerships inspected, 33 had the revised Buyers Guide on more than half of their inventory, and 14 had revised Buyers Guides on all of their used cars.

“Why check things out now? Well, dealers were required to start using the new version of the guide on January 28, 2018,” wrote Colleen Tressler, a consumer education specialist for the FTC, wrote in a blog posted today on the regulator’s website. “And here’s what we found. Of the more than 2,325 vehicles inspected, almost half had the revised Buyers Guide. Dealers not displaying the revised guide received letters warning them to bring their dealerships into compliance.”

Under the amended Used Car Rule, which took effect on Jan. 28, 2018, dealers must display a revised window sticker, or Buyers Guide, on each used car they offer for sale. The revised guide changes the description of an “As Is” sale, places boxes on the face of the guide dealer can check to indicate whether a vehicle is covered by a third-party warranty and whether a service contract may be available, and adds airbags and catalytic converters to the Buyers Guide’s list of major defects that may occur in used vehicles, among other changes.

Dealers who fail to comply face penalties of up to $41,484 per violation. State and local law enforcement agencies also enforce the recently amended rule.

Over the coming weeks, according to the FTC, dealerships that were not displaying the revised Buyers guide can expect follow-up inspections to ensure they have brought themselves into compliance with the amended rule.

The FTC, along with its partner agencies, inspected dealership in the following areas: 1) Burbank, North Hollywood, Richmond, San Bruno, San Jose, San Pablo, and Van Nuys, California; 2) Jacksonville, Florida; 3) Chicago, Illinois; 4) New York, New York (Queens); 5) Brooklyn Heights, Cleveland, East Cleveland, and Cleveland Heights, Ohio; 6) Arlington, Dallas, and Grand Prairie, Texas; and 7) Lakewood, Puyallup, and Tacoma, Washington.

Agencies involved include the California Department of Motor Vehicles Inspection Division; district attorney’s offices in Contra Costa County, Los Angeles County, Santa Clara County, San Mateo, Calif.; the Florida Bureau of Dealer Services; the Cuyahoga, Ohio, County Department of Consumer Affairs; the Ohio Bureau of Motor Vehicles; the City of Chicago Department of Business Affairs and Consumer Protection; the New York City Department of Consumer Affairs; the Texas Department of Motor Vehicles; and the Washington State Office of the Attorney General.

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Compliance Isn’t Solely F&I’s Responsibility


Just as many in the industry operate under the mistaken impression that compliance is just an “F&I thing,” many also operate under a similar mistaken impression that agents only help with training and assistance in the F&I office. I know many agents who spend a fair amount of time with sales managers on “road-to-the-sale” processes that affect compliance. If your agency offers sales process training, there are some compliance issues that either start or germinate in sales that you should be aware of.

The findings in our compliance consulting practice confirm that the majority of compliance concerns either start in sales or germinate during the sales process. Somehow, some way, the idea that compliance in the variable process has been pegged as “F&I compliance” is prevalent and misleading.

The fact that a majority of compliance issues are sales-related should not shock your system. Only one of the 10 steps on the road to the sale process takes place in F&I. Steps One through Eight are sales responsibilities. Step Nine is the F&I turnover, then back to sales for delivery.

Many touchpoints along the road to the sale with the consumer present a potential requirement to conform to a state or federal law or statute. Many other touchpoints require an employee to subscribe to dealer law to avoid a
deceptive practice.

Let’s look at the sales touchpoints in a 10-step “Road to the Sale” process:

1. Meet and greet: Not much here from a compliance perspective. Granted, it is bad business to greet a consumer with bad breath, matted hair and wrinkled clothes, but these are certainly not compliance concerns. In fact, there probably will not be any compliance concerns if the consumer walks away immediately.

However, consumer questions about the advertised price, a price quoted in a website, or factory incentivized financing may creep into the discussion.

2. Interview: This is the needs-assessment step. Most dealers want to discover the consumer’s desires, so there should not be any gathering of nonpublic personal information (NPI), credit applications or trade-in specifics.

Some consumers may offer up information about a bad credit history or being upside down in a trade. Some veteran salespeople may then skip some of the “road to the sale” steps. They figure out that this consumer cannot buy or finance a vehicle and send them packing. The consumer must be given a privacy notice if this wily old dog has gathered NPI. Or, if the consumer signed a five-liner to pull credit, an adverse action notice is required.

What if the wily old dog figured out quickly that the consumer is a subprime candidate and moves to step three? The consumer is led to a used vehicle with a potential fee added to the sale price.

3. Vehicle selection: Potential compliance pop-ups inherent to this step including handling a subprime fee, CPO warranty or fees, and advertised price.

4. Walkaround: After the consumer selects a vehicle, the salesperson walks the consumer around the vehicle, pointing out the features, benefits and differences from competitive makes. During this walkaround, there may be questions about labeling on new vehicles such as the Monroney label or dealer addendum.

On a used vehicle or prior demonstrator, the used car buyer’s guide must be prominently displayed. A used vehicle may also be plastered with a “Certified” sticker, which may raise questions about CPO warranties or — heaven forbid — adding a CPO fee to a non-CPO vehicle.

If the discussion between salesperson and consumer for a used vehicle in Steps One through Four have been in Spanish, a Spanish-language buyer’s guide is required.

5. Test drive: A salesperson is usually instructed to gather up driver’s license and insurance information before the consumer is permitted to get behind the wheel. Gathering and copying the driver’s license is usually the first piece of NPI obtained by the salesperson. This triggers the federal requirement to provide the consumer with the dealership’s privacy notice.

Some dealers prefer to wait until the consumer becomes a customer and deliver the privacy notice in F&I. Assuming a 25% closing ratio, this means that three-quarters of required privacy notices are not provided.

6. Trade evaluation: Part of the trade evaluation must take current recalls, prior use, prior damage and branded titles into account. While pulling Carfax, AutoCheck, NMVTIS and SaferCar.gov searches are not a compliance requirement on a trade-in, they can certainly provide much-needed information on the value of the trade.

7. Present numbers and ask for the sale: This is the where the compliance concerns heat up. Potential pitfalls include accepting credit applications, pulling credit bureau reports, desking deals, powerbooking, providing credit score disclosure notices, running OFAC, dealer doc fees, factory incentives, and making a copy of a military ID.

8. Close: The close is where creative sales managers can revert to “Wizard of Oz” mode, sitting at the tower instead of behind a curtain. Sometimes, to close deals, a sales manager will resort to old-school tricks such as developing a deferred down payment plan, incorporating cash back to the customer, structuring a straw purchase, or requiring a backup contract be executed with a different down payment.

9. F&I turn: The F&I manager firms up the paper trail execution — including final pencil, menu, buyer’s order, RISC or lease, and product enrollment forms — and acts as the backup checker to make sure sales did everything it was supposed to do.

10. Delivery and service drive intro: Most of the dealer’s compliance requirements have been met with their newest customer. Potentially, though, the salesperson may start mining this new customer for prospects. Armed with the neighbor’s or relative’s name, address, phone, fax and cell numbers, the salesperson may ignore do-not-call lists or CAN-SPAM requirements.

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Phil Gramm, Jim Leach, Tom Bliley, and You


Compliance Questions

  • Would you like to be subjected to a potential fine of $41,484 per day?
  • Or enter into a 20-year consent judgment where you are subject to biannual audits?
  • Would you like to be subjected to as much as a $50,000 statutory penalty per violation?
  • Or pay legal fees, costs, and damages for breaches of contract or negligence claims that could run into the millions of dollars?

Answering These Questions in the Affirmative

If any of these results seem attractive to you, then haphazardly download great quantities of data from your dealer management system, especially nonpublic personal information (NPI), place it where other people can access it, or, better yet, share it with everyone. You and the dealership will face these consequences.

The Relevant Law Guiding these Results

Today, in 2018, it is only a footnote for the automotive industry that the Financial Services Modernization Act of 1999, better known as the Gramm-Leach-Bliley Act, or GLBA — named after its progenitors, Senator Gramm and Congressmen Leach and Bliley — was enacted to eliminate the Glass Steagall Act of 1933 which, in this author’s viewpoint, was a legislative error. Banks, brokerage firms, and insurance carriers were prohibited from merging under the Glass-Steagall Act, which prevented the concentration of capital.

GLBA repealed this law so that these types of institutions can merge. But two elements of the GLBA are relevant to people in the automobile industry: the Privacy Rule and the Safeguards Rule.

The Privacy Rule: As the name implies, privacy is the issue. When a consumer relationship begins, the dealer must provide a privacy notice to that consumer. There are almost 300 variations of these notices which must tell the consumer how data is collected, shared, used, and protected. In addition, there must be an option provided to the consumer by which he can opt out of any sharing of his data with third parties. This notice must be provided annually. The model privacy form, can be found at: http://www.ftc.gov/privacy/privacyinitiatives/PrivacyModelForm.pdf.

The Safeguards Rule: The Safeguards Rule is the corollary of the Privacy Rule. As one should recognize, dealers are creditors and, as such, must develop a written security plan detailing how the dealership is protecting consumer data. A compliance officer should be appointed to oversee these safeguards. A dynamic plan should be developed which addresses the risk, with designed and tested programs redressing this risk, and reevaluations for changes in the plan as the nature of the business evolves. Encryptions, firewalls, passwords, locked vaults, and desks are examples of safeguards.

Access to Data in the Dealer Management Systems (DMS)

Reckless dealers will allow free access to the data stored in the DMS. And reckless F&I managers will access this data with abandon if given the opportunity. A sophisticated DMS will only provide data to personnel at the store commensurate with their job status and need. In other words, the general manager will have greater access to the stored data than an F&I manager.

User access to data should be reviewed and updated continuously as the Safeguards Rule requires. In DMS parlance, “PII” is being protected. PII is personally identifiable information — any data that could potentially identify a specific individual. Any information that can be used to distinguish one person from another and can be used to solve for anonymous data can be considered PII. NPI is the acronym from GLBA itself for “personally identifiable financial information” and is similar in concept to the PII. Private consumer information, which is not readily available, would be considered NPI. It is “derived using any personally identifiable financial information” that is “not publicly available.”

What Must be Done 

GLBA was passed in 2003 so it would be astounding if a dealer hadn’t already complied with its requirements and continues to do so. It is important to emphasize that the Safeguards Rule must be dynamic and continually updated. Anyone who works at the store should consult this written plan. As the organization evolves, these changes should be expressed in the written plan. This plan should include certain basic protocols for keeping consumer information secure and confidential, such as:

  • Locking rooms and file cabinets where records are kept;
  • Not sharing or openly posting employee passwords in work areas;
  • Encrypting sensitive consumer information when it is transmitted electronically via public networks;
  • Referring calls or other requests for consumer information to designated individuals who have been trained in how your company safeguards personal data; and
  • Reporting suspicious attempts to obtain consumer information to designated personnel.
  • Ensure that storage areas are protected against destruction or damage from physical hazards, like fire or floods.
  • When consumer information is stored on a server or other computer, ensure that the computer is accessible only with a “strong” password and is kept in a physically secure area.
  • Where possible, avoid storing sensitive consumer data on a computer with an internet connection.
  • Maintain secure backup records and keep archived data secure by storing it offline and in a physically secure area.
  • Maintain a careful inventory of your company’s computers and any other equipment on which consumer information may be stored.
  • Copiers and fax machines may keep records of all documents which have been copied and faxed. These electronic files should be completely deleted before discarding or returning this equipment.
  • When you transmit credit card information or other sensitive financial data, use a Secure Sockets Layer (SSL) or other secure connection, so that the information is protected in transit.
  • If you collect information online directly from consumers, make secure transmission automatic. If you must transmit sensitive data by email over the internet, be sure to encrypt the data.
  • Dispose of consumer information in a secure way and, where applicable, consistent with the FTC’s Disposal Rule. This means one must burn, pulverize, or shred papers containing consumer information so that the information cannot be read or reconstructed.
  • Destroy or erase data when disposing of computers, disks, CDs, magnetic tapes, hard drives, laptops, PDAs, cell phones, or any other electronic media or hardware containing consumer information.
  • Check with software vendors regularly to get and install patches that resolve software vulnerabilities;
  • Use anti-virus and anti-spyware software that updates automatically;
  • Maintain up-to-date firewalls, particularly if you use a broadband internet connection or allow employees to connect to your network from home or other offsite locations;
  • Regularly ensure that ports not used for your business are closed; and
  • Promptly pass along information and instructions to employees regarding any new security risks or possible breaches.
  • Keep logs of activity on your network and monitor them for signs of unauthorized access to consumer information;
  • Use an up-to-date intrusion detection system to alert you of attacks;
  • Monitor both in- and outbound transfers of information for indications of a compromise, such as unexpectedly large amounts of data being transmitted from your system to an unknown user; and
  • Insert a dummy account into each of your consumer lists and monitor the account to detect any unauthorized contacts or charges.

Should a breach occur in spite of your best efforts the following steps should be implemented:

  • Take immediate action to secure any information that has or may have been compromised.
  • Preserve and review files or programs that may reveal how the breach occurred; and
  • If feasible and appropriate, bring in security professionals to help assess the breach as soon as possible.
  • Notify consumers if their personal information is subject to a breach that poses a significant risk of identity theft or related harm;
  • Notify law enforcement if the breach may involve criminal activity or there is evidence that the breach has resulted in identity theft or related harm;
  • Notify the credit bureaus and other businesses that may be affected by the breach.
  • Check to see if breach notification is required under applicable state law.

Compliance Questions Explained

The Federal Trade Commission (FTC) enforces the Privacy Rule and Safeguards Rule against franchise dealers. Its regulatory penalty for violations is $41,484 per day. Certain independent and BHPH dealers will be disciplined by the CFPB.

These two rules don’t specifically allow for individual claims. However, this is not a problem for plaintiffs since violating the GLBA is considered a violation of the state’s Unfair and Deceptive Trade Practices Act (UDAP) which means both state attorneys general and consumers can file lawsuits for these types of violations. In the state of Illinois, for example, the UDAP statutory damage amount is $50,000 per incident.

Furthermore, common law also provides a cause of action, should a dealership and F&I manager fail to carefully safeguard consumers’ NPI. This legal theory is the tort of negligence. A negligence claim has these elements:

  1. The defendant (dealer and/or F&I manager) has a duty to the consumer to keep the data secure;
  2. The defendant breached this data security duty;
  3. This breach was the cause of the consumer’s injury; and
  4. The consumer suffered damages because of the defendant’s breach of its data security duty.

Finally, many contracts include language which addresses the privacy and safeguards of consumer data. If such a contract is materially breached consumers can sue the dealer and you.

The privacy and safeguarding of a consumer’s data is a solemn responsibility. Dealers and all dealer employees need to be cognizant of these responsibilities.

Govern yourselves accordingly.

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CFPB Official Who Sued Trump Resigns, Drops Suit


WASHINGTON, D.C. — Leandra English, who former Consumer Financial Protection Bureau Director Richard Cordray’s picked to succeed him as acting director, is ending her court battle to unseat Mick Mulvaney as acting head of the bureau and her employment with the embattled regulator.

On Friday, English’s attorney, Deepak Gupta, posted a statement on Twitter that English is stepping down from her role as deputy director and that she plans to file court papers today to bring her litigation over the leadership of the CFPB to a close following President Trump’s nomination of Kathy Kraniger as permanent director of the agency.

“I will be stepping down from my position at the Consumer Financial Protection Bureau early next week, having made this decision in light of the recent nomination of a new director,” the statement, attributed to English, reads. “I want to thank all of the CFPB’s dedicated career civil servants for your important work on behalf of consumers. It has been an honor to work alongside you.”

On Monday, Mulvaney announced that Brian Johnson, who currently serves as the bureau’s principal policy director, will assume the bureau’s second leadership post as acting director. Prior to his appointment to the CFPB, Johnson served as senior counsel to Rep. Jeb Hensarling (R-Texas) at the House Financial Services Committee.

Mulvaney described Johnson as an “indispensable advisor,” noting that he was the first person he hired at the bureau. “Brian knows the bureau like the back of his hand. He approaches his role as a public servant with humility and unsurpassed dedication,” Mulvaney said in a statement released late Monday. “His steady character, work ethic, and commitment to free markets and consumer choice make him exactly what our country needs at this agency.”

When Cordray resigned on Nov. 24, 2017, he elevated English, his former chief of staff, to deputy director — a move that 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 under the Federal Vacancies Act (FVRA) of 1988. English filed suit two days later (Nov. 26) 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 this past November.

On Nov. 29, three days after filing suit, English’s request for a restraining order to block Mulvaney’s appointment was denied by U.S. District Judge Timothy J. Kelly. English’s attorneys then filed an amended complaint on Dec. 6, 2017, requesting a preliminary injection to remove Mulvaney as acting head of the agency. That request was also denied by Kelly, a ruling set the stage for English’s appeal.

“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.”

Kelly’s ruling set the stage for English’s appeal, on which a three-judge federal appeal panel in Washington, D.C., has yet to issue a ruling.

On June 19, Trump nominated Kraninger, a White House budget official who works under Mulvaney and served as an aide to several Republican senators, to serve as the next director of the bureau. The announcement came a week before Mulvaney’s interim term was set to end.

“I have never worked with a more qualified individual than Kathy. Her commitment to the law, to protecting consumers and to defending what works in our vibrant financial services sector, all while respecting hard-working taxpayers who pay their bills and play by the rules ensures that the bureau will be in good hands throughout her term,” Mulvaney said in a statement issued the same day Kraninger’s nomination was announced. “Vigorous independence, sharp-as-a-tack intelligence, and simple, old-fashioned, Midwestern humility make her the ultimate public servant. I know that my efforts to rein in the bureaucracy at the Bureau of Consumer Financial Protection to make it more accountable, effective and efficient will be continued under her able stewardship.”

Critics like Democratic Sen. Elizabeth Warren, however, have questioned Kraninger’s qualifications for the job because of her lack of experience in financial regulation or consumer protection.

email hidden; JavaScript is required Warren, who considered the architect of the CFPB, tweeted the day Kraninger’s appointment was announced. “That’s bad news for seniors, servicemembers, students — and anyone else who doesn’t want to get cheated. And it gets even worse.”

As for English’s Friday announcement, Warren said the following in a statement: “From the earliest days of the CFPB, Leandra has directed her passion and formidable skills to building a strong, professional agency that stands up for consumers. I’m grateful for her service and wish her the best in her future endeavors.

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EFG Companies: Dealers Must Embrace Industry Paradigm Shift


DALLAS, Texas — Staffing and customer engagement models are the top issues impacting the future health of the retail automotive industry, EFG Companies President and CEO John Pappanastos said today.

The F&I product provider’s chief executive delivered his comments as part of a state of the industry address the company posted on its website. Pappanastos encourage dealership principals and senior managers to quickly address those issues or risk becoming a dinosaur in today’s rapidly changing consumer car-buying mode, noting that digital buying habits, millennial and Gen Z consumers, and women are forcing industry change.

According to the National Automobile Dealers Association’s 2017 Workforce Study, retail automotive suffered from a 43% turnover rate — up two points from 2016. Additionally, the automotive industry experienced an 88% attrition rate among female new hires, and a below average rate of millennial new hires when compared to other industries.

Pappanastos said many retail automotive businesses lack a comprehensive plan to become an employer of choice, and instead rely heavily on traditional “bell-to-bell” hours, commission-only payment plans, and limited training. He urged them to immediately develop a strategy for hiring, training, and promoting the best and brightest employees to operate in a world where consumers are demanding a more digital process with a better customer experience.

The executive noted that a single poor hiring decision in F&I can easily result in up to $75,000 in lost profit due to onboarding costs and lost production, adding that the retail automotive industry’s focus on daily operations also hampers leadership development and obscures the growth path for millennial hires who, as a group, require opportunities for promotion.

The F&I product executive also touched on recent research from Cox Automotive, which showed that 80% of consumers want to complete at least half of the car-buying process digitally. He also cited a 2018 Deloitte study showing that “dealers create a fragmented and inconsistent approach to the customer,” which leads to inefficient customer contact, inconsistent messaging, and ultimately failure to sell and build loyalty.

“While I realize change is difficult, dealership principals must incorporate greater consumer-facing digital platforms into their dealerships,” said Pappanastos, adding that hiring employees who are experts in online customer engagement and digital sales approaches represents one solution. “Failure to do so will result in lost revenue. We must remember the old adage of ‘meet the customer where they are.’ And today’s customer is clearly online.”

Pappanastos also encouraged dealerships not to lose sight of compliance. “Job skills are easy to assess. What’s difficult is finding candidates who have solid character,” the executive said. “During these tumultuous times, dealerships must maintain a high degree of integrated compliance. The resulting fines, and damage to reputation, can result in significant business loss due to very clear and public online postings and reviews.”

Pappanastos remarks during his state of the industry address focused on the future health of the retail automotive industry and sounded a wakeup call to dealership principals to quickly embrace changing consumer buying preferences. He also encouraged future millennial and Gen Z employees to seek out careers in retail automotive, noting that exciting changes and their opportunity to make industrywide impact.

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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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