Latest Enforcement Confirms Nonfeasance UDAAP Standard By Ari Karen

When the concept of of unfair or deceptive acts and practices was first introduced, I like many, assumed it would target companies that adopted practices that were either intentionally and/or willfully misleading. As the standard has developed through enforcement, it is clear that the standard for UDAAP is more akin to mere negligence. The latest enforcement under UDAAP — this time against JP Morgan — demonstrates that UDAAP claims can be predicated on activities that are likely more the result of systemic failures as opposed to any intention to mislead consumers. In the JP Morgan case, the CFPB initiated enforcement action associated with credit card debt that was sold by Chase to bad debt relief/collection companies. Specifically, Chase sold debts that had been charged off, resolved via a payment plan/discount, and/or included debts that involved incorrect amounts. Since Chase knew that the purchasers of those debts would attempt to collect on them it was considered an unfair and deceptive act or practice. Further, Chase was cited for using robosigners to confirm the debts prior to sale and/or collection efforts. Again, there were no allegations of evil or wrongful intent, but rather claims associates with systemic shortcomings and breakdowns such that it demonstrated a lack of care to ensuring that correct, up-to-date and verified information was being sold to parties who would ultimately be seeking collection from borrowers. In connection with the enforcement action, Chase was required to pay $106 million to 47 states, a $30 million penalty to the CFPB, $50 million in refunds to consumers, and halt collection efforts on over 500,000 accounts. The nature and extent of this action illustrate the fact that an entity’s failures to establish systems that protect consumers from avoidable mistakes can be as significant and serious as actually misleading consumers.