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33 Life After Herbies – 33 Life After Herbies –

33 Life After Herbies – - PowerPoint Presentation

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33 Life After Herbies – - PPT Presentation

Cash vs Credit pricing and the CFPB TEXAS InDEPENDENT AUTO DEALERS ASSOCIATION July 26 2016 The Long Arc of Consumer Protection Laws William Proxmire to Elizabeth Warren 1968 to 2016 ID: 583513

herbies cfpb finance continued cfpb herbies continued finance dealer consumers charges pushing groups laws enforcement state actions financing ban

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Presentation Transcript

Slide1

33

Life After Herbies –

Cash

vs

. Credit pricing and the CFPB

TEXAS

InDEPENDENT

AUTO DEALERS ASSOCIATION

July 26, 2016 Slide2

The Long Arc of Consumer Protection Laws

William Proxmire to Elizabeth Warren,

1968 to 2016Slide3

What has Driven the Changes?

Dealers and finance companies behaving badly

Federal and state legislation

and regulation

Consumer demands and expectations

Technological advancesSlide4

Often media provoked

NY Times – BHPH and Independent Dealers, GAP and Starter Interrupt Devices

LA Times – BHPH, GAP and Starter Interrupt DevicesSlide5

Who is driving the changes

we are seeing?

Consumer advocates

National Consumer Law Center

Center for Responsible Lending – “Under the Hood”

Public Citizen – Arbitration Report (2007), Rip-Off Nation (2007), Repo Madness (2010)

State AGs – Used Car Rule, spot deliveries

FTC petitioned to investigate open recallsSlide6

What are these groups pushing for?

A national finance charge cap (proposed federal law, new DOD Regulation)

An “all-in” APR (proposed federal law, current DOD rule, proposed CFPB payday lending rule)

Ban on in-person collection visitsSlide7

What are these groups pushing for?

(Continued)

Limitation on calls to the workplace and calls to references

A ban on predispute arbitration (Dodd-Frank) – probably a “done deal”Slide8

What are these groups pushing for?

(Continued)

New Laws

A ban on or severe restrictions on spot deliveries (State AG initiative) – FTC quiet so far, but stay tuned

A ban on dealer participation, or at least a requirement for “flats” (CFPB enforcement actions) – Will direct lenders benefit? Slide9

What are these groups pushing for?

(Continued)

New Laws

An end to discretionary pricing for F&I products (CFPB enforcement actions) - CFPB sees discrimination possibilities everywhere

A ban on self-help repossession (Public Citizen study, NCLC UCC proposal) – Not likely, but indicates how radical some of the proposals can be

Dealer disclosure of cash price of cars (CA BHPH legislation, NC DOJ settlement, Herbies) – A real crimp on BHPH and Special FinanceSlide10

What are these groups pushing for?

(Continued)

New Laws

A ban on GPS and starter interrupt devices (proposed laws – several states)

Fair Debt Collection Practices Act applicability to 1

st

party creditors (CFPB statements) – BHPH dealers and most finance companies now exemptSlide11

What are these groups pushing for?

(Continued)

New Laws

A ban on the sale of cars with open recalls (recently defeated amendments to federal Highway Bill, FTC Enforcement Action, AutoNation Announcement)

A 3-day right to rescind (CA Car Buyers’ Bill of Rights) – Most consumers think this is already the lawSlide12

What are these groups pushing for?

(Continued)

The enforcement of existing laws:

Discrimination (ECOA and Reg B) – CFPB actions vs. Ally, Honda

Advertising (TILA, Reg Z and UDAP) – FTC “Operation Steer Clear”Slide13

What are these groups pushing for?

(Continued)

The enforcement of existing laws:

Payment packing (TILA, Reg Z and UDAP) – several state AG enforcement actions, much FTC interest

Hidden finance charges (TILA and Reg Z) – CFPB enforcement actionsSlide14

The CFPB and Herbies

January, 2016 –

CFPB action against Herbies Auto Sales

Herbies – a single location CO buy-here-pay-here used car dealer

The CFPB alleged that Herbies unlawfully advertised a misleadingly low 9.99 percent APR, without disclosing charges for a required warranty, a payment reminder device and other credit costs as finance charges. The CFPB claimed that this helped Herbies convince consumers that they would get the 9.99 percent APR instead of a much higher rate actually charged. Also, the CFPB claimed that Herbies engaged in abusive practices. Slide15

The CFPB and Herbies

(Continued)

The CFPB alleged that Herbies:

Hid finance charges and advertised a far lower APR than consumers received:

Herbies

“lied

to

consumers”

about finance charges and APRs in marketing materials,

showroom

window displays, and in Truth-in-Lending Act disclosures. Hidden finance charges included $1,650 for a

required

repair warranty and $100 for a

required

GPS payment reminder device.

Slide16

The CFPB and Herbies

(Continued)

The CFPB

alleged

that Herbies:

Hid finance charges that stemmed from a refusal to negotiate car prices:

Herbies refused to negotiate prices with credit customers, but did negotiate with cash customers.

The difference in price was a

finance

charge that

should have been included in the

APR.

Slide17

The CFPB and Herbies

(Continued)

The CFPB

alleged

that Herbies:

Used abusive practices:

Herbies’

“financing scheme”

lured consumers with misleading advertising and then kept them in the dark about the true cost of financing, taking advantage of consumers’ inability to protect their interests in selecting or using Herbies’ financing.

Slide18

The CFPB and Herbies

(Continued)

The CFPB

required

Herbies to:

Pay $700,000 to consumers to

consumers who financed cars with Herbies and pay a civil penalty of $100,000 (suspended

if consumers are

paid).

Stop

misrepresenting interest rates, finance charges, or amounts financed, or any other fact material to consumers concerning the financing of any vehicle.

 

Slide19

The CFPB and Herbies

(Continued)

The CFPB

required

Herbies to:

Clearly and prominently post the purchase price

on all automobiles for sale when offering auto financing

.

Provide

consumers certain information about the financing offer, including the actual APR, price of the car, and all finance charges, and get a signed acknowledgment from consumers that they received the required information before or at the time financing is offered.

 

Slide20

Dealer Challenges

Avoiding CFPB and FTC enforcement actions

Complaint portals, private suits, state AG actions, whistleblowers, “hidden camera” investigative news reporters

 

Slide21

Dealer Challenges

(Continued)

Really understanding legal requirements - Training

AFIP Certification Program

NAF Certification program (for BHPH or for advanced training)

NIADA TrainingSlide22

Dealer Challenges

(Continued)

Addressing compliance – written

C

ompliance

M

anagement

S

ystem

Board (ownership)

Management oversight

Written compliance program

Complaint response program, auditSlide23

Dealer Challenges

(Continued)

You cannot just buy a form, manual or program “off the shelf”

There is no “plug and play”

No substitute for a hard slog, actually learning compliance

You cannot outsource the responsibility for getting it right

You are responsible for everything done in your nameSlide24

Dealer Challenges

(Continued)

Resources are available, but at the end of the day, YOU have to get this compliance stuff right!

“We’ve always done it that way” won’t work for compliance Slide25

Resources

Go to

www.ftc.gov

Click on “Tips and Advice,” then on “Business Center,” then on “Advertising and Marketing”

You will find these publications:

Advertising and Marketing Basics

Online Advertising and Marketing

Telemarketing

Read Them!!!!!Slide26

More Resources

State Auto Dealer Associations

State Independent Auto Dealer Associations

NADA

NIADA

TIADA

Vendors (but be very careful)Spot DeliveryF&I Legal Desk BookSlide27

Questions?Slide28

Contact Information:

Tom Hudson

Hudson Cook, LLP

7037 Ridge Road, Suite 300

Hanover, MD 21076

410.865.5411,

thudson@hudco.com Eric JohnsonHudson Cook, LLP8524 South Western Avenue, Suite 114

Oklahoma City, OK 73139

405.602.3812,

ejohnson@Hudco.com