WASHINGTON, November 24, 2015 -

Consumer Watchdog Pushed Discrimination Case on Vulnerable Firm: Report

Republicans say Consumer Financial Protection Bureau targeted Ally on likelihood of settlement to gain restructuring approval

By YUKA HAYASHI

Nov. 24, 2015

WASHINGTON—When federal regulators launched a controversial crackdown on alleged discrimination in auto lending two years ago, they knew their methodology would be questioned. But they calculated they could secure a market-shaping settlement by going after a company unlikely to fight the charges because it needed to avoid a complaint to clinch government approval for a broader restructuring.

That is the conclusion of a report, based on internal documents and emails written by the staff of the Consumer Financial Protection Bureau, released Tuesday by congressional Republicans who have long been harshly critical of the discrimination probe.

“Some of the claims being made in this case present issues…that would pose litigation risks…,” CFPB staff members wrote in one 2013 memo addressed to the bureau’s director, Richard Cordray, which was included in the report.

But such concerns, the officials said in the same 23-page document, would be offset by the likelihood of a settlement by the target company, Ally Financial  Inc. “Ally may have a powerful incentive to settle the entire matter quickly without engaging in protracted litigation,” the agency’s lawyers wrote, noting that the company’s failure to secure approval to become a holding company would force it to divest key businesses, primarily its insurance subsidiaries.

The report didn’t include evidence that Mr. Cordray read the memo, nor how, if at all, he responded to it.

Samuel Gilford, a CFPB spokesman, said the bureau wasn’t able to comment immediately, and added it hadn’t had the time to review the report or verify the authenticity of the accompanying documents.

“The CFPB’s goal has been, and continues to be, the elimination of illegal discrimination,” he said, adding that the bureau will fairly and consistently enforce the related law to “ensure borrowers harmed by discrimination receive the relief they deserve.”

The $98 million settlement with Ally was the government’s biggest case involving alleged discrimination in the auto loan market and the first case for the CFPB in the industry. The regulators accused the auto lender, formerly known as GMAC, of offering a pricing system that resulted in 235,000 minority borrowers being charged higher interest rates than white customers by auto dealers.

The agency’s campaign to pursue auto lenders has set off fury among industry officials and many lawmakers. They have two main complaints: The CFPB’s foray into the industry despite its lack of authority over auto dealers; and the methodology used to measure the extent of discrimination based on guesswork, rather than concrete data. Proponents of the action say the CFPB has shed light on questionable industry practices previously unknown to the public, and succeeded in reaching settlements worth over $200 million.

The report was put together by the Republican majority staff of the House Financial Services Committee, which has led the political charge by conservatives trying to defang the CFPB, created by the 2010 Dodd-Frank Act following the financial crisis. The report was released days after the House passed legislation that would rescind the bureau’s 2013 guidance aimed at protecting minority borrowers from being charged higher rates by auto dealers. The bill received bipartisan support, with 88 Democrats joining 244 Republicans.

An Ally spokeswoman said, “It is a very comprehensive report, and we decline to comment further.”

Part of the 54-page document prepared by the Financial Services Committee examines the December 2013 deal the CFPB and the Justice Department reached with Ally, in which the company agreed to settle the allegations of discrimination without admitting or denying wrongdoing.

Offering a rare look into regulators’ tactics for a major enforcement case, the report cites, among other things, the 23-page memorandum addressed to Mr. Cordray and dated Oct. 7, 2013, from staff members of the bureau’s Office of Enforcement and Office of Fair Lending, including Patrice Ficklin, the assistant director of Fair Lending & Equal Opportunity.

The staffers identified Ally as “one of the largest auto loan lenders” in the U.S. that was “in the end stages of a major reorganization.” They explained the company hoped to exit the government control it was put under during the financial crisis and was trying to raise capital through an initial public offering.

To do so, Ally—the company formerly known as GMAC that had been hit by the subprime crisis—needed to receive approval from the Federal Reserve and the Federal Deposit Insurance Corp. to convert to a holding company and maintain key business units.

“Ally may be strongly inclined to reach a timely and robust resolution of this matter if it can potentially result in (Ally’s) successfully converting to a financial holding company,” the CFPB lawyers wrote.

They explained to Mr. Cordray that the Federal Reserve had indicated that a finding of a fair lending violation would “most likely result in the denial of holding company status.” They added the Fed had also suggested that if Ally took “prompt and robust corrective action,” that would be taken into consideration.

The FDIC, the lawyers said, had also indicated a similar intent in awarding a rating needed for Ally to convert to a new status.

Five days before its deadline to achieve financial holding company status, Ally on Dec. 20, 2013, signed a settlement with the CFPB and the Justice Department. On Dec. 23, the company said the Federal Reserve approved its application to become a financial holding company.

In essence, “settlement of the Bureau’s fair lending investigation was a prerequisite for Ally’s status change,” the House Republicans’ report said.

Ally isn’t the only company that has settled with the CFPB cases over alleged violations of fair lending rules. In September this year, Hudson City Bancorp. Inc. reached a settlement over allegations that the New Jersey bank withheld mortgages from minority borrowers. Days later, the bank received regulatory approval on its long-awaited merger with M&T Bank Corp., announced more than three years earlier.

Beginning with its settlement with Ally, its first case in the auto lending industry, the CFPB has reached agreements worth more than $200 million with several other auto financing companies. The cases center on the so-called dealer markup, which allows car dealers to add or subtract a few percentage points to the interest rates borrowers pay. Regulators say that dealers have been charging higher markups for minority borrowers than for their nonminority counterparts.