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David N. Anthony

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David Anthony handles litigation against consumer financial services businesses and other highly regulated companies across the United States. He is a strategic thinker who balances his extensive litigation experience with practical business advice to solve companies’ hardest problems.

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We are pleased to share our annual review of regulatory and legal developments in the consumer financial services industry. With active federal and state legislatures, consumer financial services providers faced a challenging 2023. Courts across the country issued rulings that will have immediate and lasting impacts on the industry. Our team of more than 140 professionals has prepared this concise, yet thorough analysis of the most important issues and trends throughout our industry. We not only examined what happened in 2023, but also what to expect — and how to prepare — for the months ahead.

According to a recent year-in-review report by WebRecon, reversing the trend of the last two years, filings under the Telephone Consumer Protection Act (TCPA) increased in 2023 as compared to 2022. Likewise, complaints filed with the Consumer Financial Protection Bureau (CFPB) were up for the year. Fair Credit Reporting Act (FCRA) and Fair Debt Collection Practices Act (FDCPA) filings, however, were both down from the previous year. In all, the FCRA maintained its lead in the number of filings, followed by the FDCPA, and with the TCPA in third place.

On January 11, the Consumer Financial Protection Bureau (CFPB or Bureau) issued two “advisory opinions” addressing the CFPB’s views of the obligations of consumer reporting agencies (CRAs) under the Fair Credit Reporting Act (FCRA). The advisory opinions are interpretive rules issued under the Bureau’s authority to interpret the FCRA pursuant to § 1022(b)(1) of the Consumer Financial Protection Act of 2010.

In a change of course, the Utah court of appeals has reversed the dismissal of a plaintiffs’ suit against a debt collector based on its alleged failure to register as a collection agency prior to filing collection suits. While the Utah Collection Agency Act (UCAA) was repealed by the Utah legislature last year, discussed here, cases asserting this theory of liability remain pending before state and federal courts in the state. Late last year, in Meneses v. Salander Enterprises LLC, discussed here, the court of appeals held that a violation of the UCAA was not a deceptive or unconscionable act. The court distinguished this case from Meneses by finding that the defendant made affirmative representations in the lawsuits at issue that precluded dismissal at this stage.

A magistrate judge in the Northern District of Georgia recently recommended granting summary judgment in a Fair Credit Reporting Act (FCRA) case in favor of a background reporting company on the grounds that a report given only to the consumer is not a consumer report and including a valid conviction on a report does not violate the FCRA as long as its expungement is also included.

On December 8, the Consumer Financial Protection Bureau (CFPB) and Federal Trade Commission (FTC) (collectively, the agencies) filed an amici curiae brief urging the U.S. Court of Appeals for the Fourth Circuit to reverse a district court’s decision finding that furnishers need not investigate indirect disputes involving purely legal questions under the Fair Credit Reporting Act (FCRA).

On December 15, the Consumer Financial Protection Bureau (CFPB) announced it had reached a settlement with medical debt collector Commonwealth Financial Systems, Inc. (Commonwealth) in its lawsuit over alleged illegal debt collection practices. Specifically, the CFPB alleged that Commonwealth failed to conduct reasonable investigations of disputes and violated the Fair Debt Collection Practices Act (FDCPA) by attempting to collect disputed debt without obtaining substantiating documentation. Under the settlement agreement, Commonwealth is banned from debt collection activities, must request CRAs to delete all consumer accounts to which it had previously furnished information, and must pay a $95,000 penalty to the CFPB’s victims relief fund.

On December 13, New York Governor Kathy Hochul signed into law S4907A, which prohibits hospitals, medical providers, or ambulance services from providing negative information about medical debt to consumer reporting agencies (CRAs). The law also requires that these entities include a provision in their contracts with collection agencies prohibiting the reporting of any portion of a medical debt to a CRA. Any debt that is reported to a CRA will be deemed void. The law became effective immediately after it was signed.

A U.S. District Court in the Southern District of California recently held that a Federal Rule of Civil Procedure 68 offer of judgment must clearly state that attorneys’ fees and costs are limited or waived, as Arvest Central Mortgage Company (Arvest) learned to its detriment. The plaintiff had a mortgage with Arvest, entered into a forbearance agreement, and made the payments on the property, but claimed Arvest inaccurately reported that he was late on his October 2020 payment. The plaintiff sued Arvest and nine other defendants for violations of the Fair Credit Reporting Act and California’s Consumer Credit Reporting Agencies Act, ultimately resolving his claims against all defendants except Arvest.

According to a recent report by WebRecon, court filings under the Fair Credit Reporting Act (FCRA) and Telephone Consumer Protection Act (TCPA) were down for the month of October, but filings under the Fair Debt Collection Practices Act (FDCPA) were up. Complaints filed with the Consumer Financial Protection Bureau (CFPB) were also up for the month.