The Consumer Financial Protection Bureau ("CFPB") indicated in recent Supervisory Highlights that is examining “unfair and deceptive practices” regarding rebates for certain ancillary products after examining the behavior by at least one captive finance company.
The CFPB found that vehicle buyers sometimes also finance the purchase of ancillary products such as an extended service contract when they enter into a retail installment sales contract for a vehicle. Then as finance companies know, if the contract holder later experiences a total loss or repossession, the servicer or contract holder may cancel the ancillary products in order to obtain pro-rated rebates of the premium amounts for the unused portion of the products.
In these situations, the Bureau acknowledged the rebate is payable first to the servicer to cover any deficiency balance and then to the borrower.
“Generally, the servicer contractually reserves the right to request the rebate without the borrower’s participation, although it does not obligate itself to do so. The borrower also retains a right to request the rebate,” the CFPB said.
During its examinations of extended warranty products and policies used by this unnamed captive, the CFPB found the amount of a potential rebate for the products depended on the number of miles driven. The Bureau said its examiners observed instances where one or more servicers used the wrong mileage amounts to calculate the rebate for extended service contract cancellations.
“For some borrowers who financed used vehicles, the servicers applied the total number of miles the car had been driven to calculate rebates,” the CFPB said. “However, the servicer(s) should have applied the net number of miles driven since the borrower purchased the automobile.”
The CFPB concluded that “The miscalculation reduced the rebate available to certain borrowers and led to deficiency balances that were higher by hundreds of dollars. The servicer(s) then attempted to collect the deficiency balances.”
The CFPB stated that “One or more examinations found that servicer attempts to collect miscalculated deficiency balances were unfair Collecting inaccurately inflated deficiency balances caused or was likely to cause substantial injury to consumers. And these borrowers could not reasonably have avoided collection attempts on inaccurate balances because they were uninvolved in the servicer’s calculation process.” These findings are the predicate for an unfair and deceptive practices action.
The CFPB concluded that the injury of this activity is not outweighed by countervailing benefits to consumers or competition. For example, officials emphasized the additional expense the servicers would incur to train staff or service providers to make certain that refund calculations are correct would not outweigh the substantial injury to consumers.
In response to its findings, the CFPB said the finance companies conducted reviews to identify and remediate affected consumers based on the mileage they drove before the repossession or total loss of their vehicles. The Bureau added that the finance companies also began to verify mileage calculations directly with the issuers of the products subject to rebate.
Additionally, the CFPB indicated its examiners observed instances where one or more servicers did not request rebates for eligible ancillary products after a repossession or a total loss. The finance company then sent these consumers deficiency notices listing a final deficiency balance claiming to net out available “total credits/rebates,” including insurance and other rebates. The notices also stated that future additional rebates may affect the amount of the surplus or deficiency, but that “at this time, we are not aware of any such charges.” This behavior too resulted in overstating deficiencies.
The CFPB said that the servicers’ records contained information that it had not sought the eligible rebates. Examinations showed that the average unclaimed rebate was roughly $1,700.
“One or more examinations identified these communications as a deceptive act or practice. The deficiency notices misled borrowers because it created the net impression that the deficiency balance reflected a setoff of all eligible ancillary-product rebates, when in fact, the servicers’ systems showed that it had not sought one or more eligible rebates,” the CFPB said.
The CFPB further concluded that “It was reasonable for consumers to interpret this deficiency balance as reflecting any eligible rebates because the servicers were both contractually entitled and financially incentivized to seek and apply eligible rebates to the deficiency balance. And the misrepresentation was material to consumers because they may have pursued rebates on their own had the servicers not represented that there were not additional rebates available.”
“In response to these findings, the servicers conducted reviews to identify and remediate affected borrowers. The servicers also changed deficiency notices to clarify the status of eligible ancillary product rebates,” the CFPB concluded.
It is critical that consumer deficiencies first take into consideration rebates from ancillary products based on the net mileage driven by the consumer at the time of repossession or total loss. Failing to credit the consumer with the net rebates can lead to an unfair and deceptive trade practice by the CFPB or FTC.
The CFPB found that vehicle buyers sometimes also finance the purchase of ancillary products such as an extended service contract when they enter into a retail installment sales contract for a vehicle. Then as finance companies know, if the contract holder later experiences a total loss or repossession, the servicer or contract holder may cancel the ancillary products in order to obtain pro-rated rebates of the premium amounts for the unused portion of the products.
In these situations, the Bureau acknowledged the rebate is payable first to the servicer to cover any deficiency balance and then to the borrower.
“Generally, the servicer contractually reserves the right to request the rebate without the borrower’s participation, although it does not obligate itself to do so. The borrower also retains a right to request the rebate,” the CFPB said.
During its examinations of extended warranty products and policies used by this unnamed captive, the CFPB found the amount of a potential rebate for the products depended on the number of miles driven. The Bureau said its examiners observed instances where one or more servicers used the wrong mileage amounts to calculate the rebate for extended service contract cancellations.
“For some borrowers who financed used vehicles, the servicers applied the total number of miles the car had been driven to calculate rebates,” the CFPB said. “However, the servicer(s) should have applied the net number of miles driven since the borrower purchased the automobile.”
The CFPB concluded that “The miscalculation reduced the rebate available to certain borrowers and led to deficiency balances that were higher by hundreds of dollars. The servicer(s) then attempted to collect the deficiency balances.”
The CFPB stated that “One or more examinations found that servicer attempts to collect miscalculated deficiency balances were unfair Collecting inaccurately inflated deficiency balances caused or was likely to cause substantial injury to consumers. And these borrowers could not reasonably have avoided collection attempts on inaccurate balances because they were uninvolved in the servicer’s calculation process.” These findings are the predicate for an unfair and deceptive practices action.
The CFPB concluded that the injury of this activity is not outweighed by countervailing benefits to consumers or competition. For example, officials emphasized the additional expense the servicers would incur to train staff or service providers to make certain that refund calculations are correct would not outweigh the substantial injury to consumers.
In response to its findings, the CFPB said the finance companies conducted reviews to identify and remediate affected consumers based on the mileage they drove before the repossession or total loss of their vehicles. The Bureau added that the finance companies also began to verify mileage calculations directly with the issuers of the products subject to rebate.
Additionally, the CFPB indicated its examiners observed instances where one or more servicers did not request rebates for eligible ancillary products after a repossession or a total loss. The finance company then sent these consumers deficiency notices listing a final deficiency balance claiming to net out available “total credits/rebates,” including insurance and other rebates. The notices also stated that future additional rebates may affect the amount of the surplus or deficiency, but that “at this time, we are not aware of any such charges.” This behavior too resulted in overstating deficiencies.
The CFPB said that the servicers’ records contained information that it had not sought the eligible rebates. Examinations showed that the average unclaimed rebate was roughly $1,700.
“One or more examinations identified these communications as a deceptive act or practice. The deficiency notices misled borrowers because it created the net impression that the deficiency balance reflected a setoff of all eligible ancillary-product rebates, when in fact, the servicers’ systems showed that it had not sought one or more eligible rebates,” the CFPB said.
The CFPB further concluded that “It was reasonable for consumers to interpret this deficiency balance as reflecting any eligible rebates because the servicers were both contractually entitled and financially incentivized to seek and apply eligible rebates to the deficiency balance. And the misrepresentation was material to consumers because they may have pursued rebates on their own had the servicers not represented that there were not additional rebates available.”
“In response to these findings, the servicers conducted reviews to identify and remediate affected borrowers. The servicers also changed deficiency notices to clarify the status of eligible ancillary product rebates,” the CFPB concluded.
It is critical that consumer deficiencies first take into consideration rebates from ancillary products based on the net mileage driven by the consumer at the time of repossession or total loss. Failing to credit the consumer with the net rebates can lead to an unfair and deceptive trade practice by the CFPB or FTC.
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