UNITED STATES OF AMERICA CONSUMER FINANCIAL …

2016-CFPB-0013 Document 1 Filed 08/22/2016 Page 1 of 34

UNITED STATES OF AMERICA CONSUMER FINANCIAL PROTECTION BUREAU

ADMINISTRATIVE PROCEEDING File No. 2016-CFPB-0013

In the Matter of:

CONSENT ORDER

Wells Fargo Bank, N.A.

The Consumer Financial Protection Bureau (Bureau) has reviewed certain student loan servicing practices of Wells Fargo Bank, N.A. (Respondent, as defined below) and has identified the following law violations: (1) unfair and deceptive practices related to payment allocation in violation of Sections 1031 and 1036 of the Consumer Financial Protection Act of 2010 (CFPA), 12 U.S.C. ?? 5531, 5536; (2) unfair practices related to payment aggregation in violation of Sections 1031 and 1036 of the CFPA, 12 U.S.C. ?? 5531, 5536; (3) unlawful practices related to payment aggregation in violation of Section 623 of the Fair Credit Reporting Act (FCRA), 15 U.S.C. ? 1681s-2(a)(2), and Section 1022.42 of Regulation V, 12 C.F.R. 1022.42(a); and (4) unfair practices related to the assessment of late fees in violation of Sections 1031 and 1036 of the CFPA, 12 U.S.C. ?? 5531, 5536. Under Sections 1053 and 1055 of the CFPA, 12 U.S.C. ?? 5563, 5565, the Bureau issues this Consent Order (Consent Order).

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I Jurisdiction 1. The Bureau has jurisdiction over this matter under Sections 1053 and 1055 of the CFPA, 12 U.S.C. ?? 5563, 5565, and under Section 621 of the FCRA, 15 U.S.C. ? 1681s(b)(1)(H).

II Stipulation 2. Respondent has executed a "Stipulation and Consent to the Issuance of a Consent Order," dated August 18, 2016 (Stipulation), which is incorporated by reference and is accepted by the Bureau. By this Stipulation, Respondent has consented to the issuance of this Consent Order by the Bureau under Sections 1053 and 1055 of the CFPA, 12 U.S.C. ?? 5563 and 5565, without admitting or denying any of the findings of fact or conclusions of law, except that Respondent admits the facts necessary to establish the Bureau's jurisdiction over Respondent and the subject matter of this action.

III Definitions 3. The following definitions apply to this Consent Order: a. "Affected Consumers" means, collectively, the Grace Period Affected Consumers, Payment Aggregation Affected Consumers, and Payment Allocation Affected Consumers as defined herein. b. "Board" means the duly-elected and acting Board of Directors of Wells Fargo Bank, N.A. c. "Clearly and prominently" means:

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i. In textual communications (e.g., printed publications or words displayed on the screen of an electronic device), the disclosure must be of a type size and location sufficiently noticeable for an ordinary consumer to read and comprehend it, in print that contrasts with the background on which it appears;

ii. In communications disseminated orally or through audible means (e.g., radio or streaming audio), the disclosure must be delivered in a volume and cadence sufficient for an ordinary consumer to hear and comprehend it;

iii. In communications disseminated through video means (e.g., television or streaming video), the disclosure must be in writing in a form consistent with subsection (i), and must appear on the screen for a duration sufficient for an ordinary consumer to read and comprehend it;

iv. In communications made through interactive media such as the internet, online services, and software, the disclosure must be unavoidable and presented in a form consistent with subsection (i);

v. In communications that contain both audio and visual portions, the disclosure must be presented simultaneously in both the audio and visual portions of the communication; and

vi. In all instances, the disclosure must be presented before the consumer incurs any financial obligation, in an understandable language and syntax, and with nothing contrary to, inconsistent with, or in mitigation of the disclosures used in any communication with the consumer.

d. "EFS" means the Respondent's Education Financial Services line of business. e. "Effective Date" means the date on which the Consent Order is issued.

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f. "Eligible Payment" means a payment on a student loan account that is sufficient to satisfy the scheduled payment amount due for a billing cycle.

g. "Grace Period" means the allotted time period following the monthly payment due date, as defined under the terms of the loan's promissory note, during which a consumer who is past due on the loan will not incur a late fee if the consumer pays the past due amount within that allotted time period.

h. "Grouped Account" means a student loan account serviced by Respondent containing two or more student loans with the same monthly due date in repayment status, for which the consumer receives a single billing statement.

i. "Grace Period Affected Consumers" means any consumer who incurred a late fee that was not refunded or waived on a student loan despite making a payment sufficient to bring the account current within the Grace Period at any time between January 1, 2010 and May 31, 2013.

j. "Overpayment" means a payment towards a student loan account that is more than the total amount due for that billing cycle, except when such payment is an exact multiple of the consumer's regular monthly payment amount.

k. "Partial Payment" means a payment towards a student loan account that is less than the scheduled payment amount due for that billing cycle.

l. "Payment Aggregation Affected Consumers" means any consumer who between February 17, 2010 and December 11, 2011 incurred a late fee that was never refunded or waived and/or for whom Respondent furnished credit information to consumer reporting agencies that was never corrected or updated despite either: (i) making multiple Partial Payments within a single billing cycle that, when or if combined, constituted or would have constituted an Eligible Payment for the consumer's

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student loan account; or (ii) making Overpayments and Partial Payments over multiple billing cycles that, when combined, constituted an Eligible Payment for the consumer's student loan account.

m. "Payment Allocation Affected Consumers" means any consumer with a Grouped Account who at any time between January 1, 2010 and August 31, 2012, (i) made one or more Partial Payments toward the Grouped Account; (ii) whose payment(s) was sufficient to constitute an Eligible Payment, inclusive of any amount in arrears, for at least one loan in the Grouped Account; (iii) did not designate how such Partial Payments should be allocated among the loans in the Grouped Account; and (iv) was charged more than one late fee.

n. "Regional Director" means the Regional Director for the West Region for the Office of Supervision for the Consumer Financial Protection Bureau, or his/her delegate.

o. "Related Consumer Action" means a private action by or on behalf of one or more consumers or an enforcement action by another governmental agency brought against Respondent based on substantially the same facts as described in Section IV of this Consent Order.

p. "Respondent" means Wells Fargo Bank, N.A., and its successors and assigns. q. "Service Provider" shall have the meaning set forth in 12 U.S.C. ? 5481(26). r. "Student Loan File" means (i) a schedule of all transactions credited or debited to

the student loan account; (ii) a copy of the consumer credit agreement evidencing the student loan; (iii) any notes created by Respondent personnel reflecting communications with the borrower about the servicing of the student loan account; (iv) copies of all written communications with the borrower about the servicing of

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the student loan account; and (v) the data fields in Respondent's electronic student loan servicing system relating to the borrower's student loan accounts.

IV Bureau Findings and Conclusions The Bureau finds the following: 4. Respondent, which is a national bank headquartered in Sioux Falls, South Dakota, is an insured depository institution with assets greater than $10,000,000 within the meaning of 12 U.S.C. ? 5515(a). 5. Respondent is the second-largest private student lender in the United States. EFS is a division of Respondent that bears responsibility for Respondent's student lending operations. Currently serving approximately 1.3 million consumers in all 50 states, EFS both originates and services private student loans. 6. Respondent is a "covered person" as that term is defined by 12 U.S.C. ? 5481(6). Findings and Conclusions as to Respondent's Payment Allocation Practices 7. Prior to 1999, Respondent required consumers to send each payment toward their private student loans with a separate payment coupon for each loan. In 1999, however, to consolidate the monthly billing process, Respondent began generally grouping together consumers' student loans serviced on one of its proprietary servicing platforms when they had the same monthly due date. From 1999 through at least the date of this Consent Order, Respondent provided consumers a monthly billing statement which grouped all qualifying loans and therefore included a single payment coupon for all the loans in the Grouped Account.

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8. The first page of Respondent's grouped billing statement disclosed the aggregate "current payment due" for all the loans in the consumer's Grouped Account.

9. On the second page of the billing statement, Respondent provided consumers a "loan detail sheet" that separately identified each loan in the Grouped Account and displayed the "payment amount" for each loan.

10. Pursuant to consumers' loan agreements, Respondent could assess late fees on consumers who did not make their full monthly payment, inclusive of any amount in arrears. Even though Respondent combined loans in the grouped billing account and disclosed a single "current payment due" each month, it charged late fees at the individual loan level because each loan remained a separate debt obligation subject to its loan agreement.

11. Each of a consumer's loans was assigned to one of six possible late fee structures, depending on a consumer's initial loan agreement. Four of the six late fee structures charged consumers a late fee amounting to the greater of 5% of the monthly payment amount charged or a minimum late fee (ranging up to $28); the other two late fees structures imposed either a flat fee or a percentage fee that amounted to the lesser of 5% or $5. In November 2011, Respondent established a maximum monthly late fee per loan of $28 for student loans that previously did not have a late fee limit.

12. Respondent accepted Partial Payments and applied such payments to consumers' accounts; however Respondent provided limited information about the potential consequences of making a Partial Payment. Prior to November 2011, the billing statement provided the following disclaimer to consumers related to Partial Payments:

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"A partial payment (an amount less than your Current Payment Amount) will not advance your next payment due date." 13. Beginning in or around November 2011, Respondent modified the first page of its billing statement to make the following disclaimer about Partial Payments: "Paying less than what's due? The minimum required payments must be received in full each month, in order to advance your next payment due date and protect your good credit." 14. Neither of these disclaimers stated that consumers could advance the next payment due date for any loan in their Grouped Account by making an Eligible Payment for that loan and directing Respondent to allocate the payment to that loan. 15. Moreover, Respondent did not disclose its methodology for allocating Partial Payments among loans in a Grouped Account. 16. Beginning at least January 1, 2010 through August 31, 2012, in the absence of consumer instructions, Respondent allocated Partial Payments across all loans in a Grouped Account as follows: a. Payment was first allocated proportionally to any delinquent loans in the billing

group to bring those loans as current as possible; b. If the loans for a consumer were all current, then payment was allocated

proportionally (based off the scheduled monthly payment amount) across the loans. 17. Respondent used the payment allocation methodology described in the preceding

Paragraph for all consumers who did not designate the manner in which their Partial Payment should be allocated among the loans in their Grouped Account, even when consumers made a Partial Payment that was sufficient to satisfy at least one of the loans in the Grouped Account. As a result, Respondent's allocation of a Partial Payment proportionally to all loans in the account sometimes caused consumers' payments to

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