MINNEAPOLIS — Dealers signed up with U.S. Bank received a notice this week containing the bank’s policy in regards to fair and responsible lending. Also detailed was the bank’s dealer monitoring program, which, according to the notice, isn’t just focused on how dealers mark up interest rates on finance contracts.
Obtained by F&I and Showroom, the notice was similar to ones distributed by other finance sources, explaining that regulators like the Consumer Financial Protection Bureau (CFPB) have interpreted fair lending laws to prohibit not only intentional discrimination, but also “certain neutral practices that have an adverse discriminatory impact on a prohibited basis (i.e., disparate impact).” But in explaining its monitoring program, the bank didn’t focus on rate markups; it focused on how F&I products are priced and sold.
“If this monitoring program finds unexplained differences in pricing or excessive add-on product financing on a prohibited basis, then we will notify you,” the notice read, in part. “We will ask you to provide any additional information that you believe we should consider regarding the matter. If you are unable to provide an explanation for the identified differences, or if the unexplained differences persist, we will consider taking further action.”
Since the CFPB issued its March 2013 guidance on dealer participation — which warned finance sources that they’d be held liable for the way dealers mark up interest rates — finance sources have warned dealers that they are monitoring their rate markup practices. But the U.S. Bank notice could be the first to add F&I product sales to those efforts.
The question is: Does the CFPB have jurisdiction over the sale of F&I products? It’s a question that has been debated during F&I and Showroom’s annual conference for the past two years.
During a panel discussion at Industry Summit 2013, Nikki Munro, a partner with Hudson Cook LLP, said she didn’t believe the bureau had jurisdiction over the F&I industry. She noted that the CFPB-creating Dodd-Frank Act contains a catch-all provision that raises more questions than it answers.
“There’s a lot of gray area there,” she said at the time. “With aftermarket products that are financial in nature — and the easiest one to refer to is GAP — we think the CFPB can exercise jurisdiction over those types of products, because they are related to the extension of credit — they pay off the extension of credit if there’s a total loss.
“With nonfinancial products like vehicle service contracts, tire-and-wheel, paintless dent repair … we’re just not sure,” she added. “The CFPB will probably take the position that those types of products offered in connection with the loan gives them jurisdiction.”
At Industry Summit 2014, Rick Hackett, a former CFPB official who now serves as a partner at Hudson Cook LLP, confirmed the bureau’s interest in how F&I products are priced and sold, saying that the regulator can’t connect how dealers price F&I protections with the value they provide consumers.
“If I found out that Walmart set the price [of their products at different levels], and they were all the same products, and they were just hoping I would buy one for $20.95 because I was a particularly gullible consumer, I’d be grumpy,” he said. “That’s the bureau’s perspective of variable pricing of ancillary products.”
Hackett offered several scenarios as to how the bureau might proceed. One of them involved the data the bureau has collected from the tens of millions of transactions it reviewed during its investigation of dealer participation. If the bureau comes up with its own determination on how F&I protections should be priced, it could say that anything above that price is a finance charge. The bureau could then say a finance source provided “reckless substantial assistance” for financing a product with an artificially inflated price, Hackett noted.
“So there’s the question,” he said. “Will the bureau try to make finance companies a cop for dealers’ pricing of ancillary products?”
U.S. Bank’s dealer notice points to a “Yes,” although a spokesperson for the bank played down its significance. “We regularly distribute updated policy notifications to our dealers across our footprint,” read a statement the bank issued to F&I and Showroom. “We have and continue to work closely with our dealership partners on changing guidance and regulation in our industry to provide the best service for our clients.”