In early February, the Federal Trade Commission (FTC) sent its annual letter to the Consumer Financial Protection Bureau (CFPB). The letter explained the FTC’s activities related to the Equal Credit Opportunity Act (ECOA) and Regulation B of ECOA. Pursuant to a January 2012 memorandum of understanding between the CFPB and the FTC, and consistent with the Dodd-Frank Act, the FTC continues to coordinate enforcement, rulemaking, and other activities in accordance with ECOA.
Among other things, the Dodd-Frank Act made important changes to ECOA and other consumer laws, such as giving the CFPB rulemaking and enforcement authority for ECOA. Under the Dodd-Frank Act, the FTC retained its authority to enforce ECOA and Regulation B. In addition, the Dodd-Frank Act gave the FTC the authority to enforce any CFPB rules applicable to entities within the FTC’s jurisdiction, which include most providers of financial services that are not banks, thrifts, or federal credit unions.
The FTC’s annual letter noted only one development within the fair-lending enforcement space. Specifically, the CFPB, FTC, Department of Justice, and Federal Reserve Board jointly filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit in Fralish v. Bank of America One, N.A. In particular, the amicus brief requests that the Seventh Circuit reverse the district court’s ruling that a lender’s customer who has already received credit, and who was not currently applying for credit, is not an “applicant” under ECOA’s adverse action notice requirements.
In addition, the FTC’s letter had more to say regarding fair lending research and policy development. In this space, the FTC discusses (1) a report issued by the FTC in 2021, which noted differences in the way that fraud and other consumer problems affect communities of color; (2) the FTC Military Task Force’s continuation of its work on military consumer protection issues and the FTC staff’s role as a liaison to the American Bar Association’s Standing Committee on Legal Assistance for Military Personnel, which supports initiatives to deliver legal assistance and services to servicemembers, veterans, and their families; and (3) the FTC’s continuation of its (a) service as a member of the Interagency Task Force on Fair Lending along with the CFPB, DOJ, HUD and the federal banking agencies, and (b) participation in the Interagency Fair Lending Methodologies Working Group, which consists of staff members from the FTC, CFPB, DOJ, HUD, federal banking agencies, and the Federal Housing Finance Agency.
Lastly, the FTC discussed in the letter developments in consumer and business education. The letter addresses the FTC’s efforts to provide education on significant issues regarding Regulation B. These efforts include blog posts published by the FTC, one post for consumers and two posts for businesses.
Federal regulators continue to signal that fair lending enforcement will be a top priority. In particular, regulators have made it clear that they consider all phases of the lending process – from advertising to loss mitigation and all points in-between – to be subject to ECOA. Lenders should spend time and effort shoring up their fair lending controls, and should strongly consider performing fair lending and fair servicing audits on a regular basis.