Among the many acronyms, abbreviations, and jargon in the consumer finance industry, there are the obvious ones, and then there the assemblages of characters that look like the results of random pounding on a keyboard. “UDAAP” falls into the second category—but it’s not nearly as complicated as it looks. In theory, at least, UDAAP is actually relatively straightforward.
UDAAP stands for “unfair, deceptive, or abusive acts and practices.” The Consumer Financial Protection Bureau, which regulates the consumer finance market, usually pluralizes the term—”UDAAPs”—when referring to these acts and practices collectively; others forgo the “s.” Either way, the CFPB decides what counts as a UDAAP and what doesn’t, based on the agency’s assessment of how the act or practice in question affects consumers.
The idea of UDAAP blossomed out of the 2008–2009 financial crisis. The term “unfair, deceptive, or abusive” appears 12 times in the text of the Dodd–Frank Wall Street Reform and Consumer Protection Act, primarily under Title X, which established the CFPB. Indeed, protecting consumers from UDAAPs has been a core objective of the CFPB since day 1.
What Counts as a UDAAP?
So, what qualifies as a UDAAP? How can you ensure your organization doesn’t engage in unfair, deceptive, or abusive acts and practices? For better or worse, that’s up to the CFPB. The agency has written that “[a]n act or practice is unfair when:
- It causes or is likely to cause substantial injury to consumers;
- The injury is not reasonably avoidable by consumers; and
- The injury is not outweighed by countervailing benefits to consumers or to competition.”
Fair Lending Checklist
Download this checklist to see how well your organization embraces the 4 areas of a sound Compliance Management System (CMS) and if you can survive the compliance scrutiny.
Get the Checklist >>
If you think the list above is a recipe for broad, near-autocratic rule-making, you’re not alone. Critics have warned that unspecific UDAAP reasoning imparts the CFPB with unchecked authority, since what is and isn’t unfair, deceptive, or abusive is frequently a subjective question. And while the CFPB’s published guidance notes that “emotional impact and other subjective types of harm will not ordinarily amount to substantial injury,” it leaves in some room for subjectivity: “[I]n certain circumstances emotional impacts may amount to or contribute to substantial injury. In addition, actual injury is not required; a significant risk of concrete harm is sufficient.”
How Does the CFPB Define “Abusive?”
Michael Semanie, an attorney with Killgore, Pearlman, Stamp, Denius & Squires, P.A, gets that question all the time. Here’s what he recently told our audience during our Blueprint for a Modern Compliance Program webinar: “It’s a catch-all. If the CFPB doesn’t like what you’re doing, and it doesn’t really fit into ‘deceptive,’ or ‘unfair,’ [it’s] abusive.”
To substantiate his point, Mike read the relevant statutory language. According to the UDAAP provisions in Title X of the Dodd–Frank Wall Street Reform and Consumer Protection Act, “abusive” refers to…
“…an act that materially interferes with the ability of a consumer to understand a term or condition of a consumer financial product or service; or takes an unreasonable advantage of a lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service; the inability of the consumer to protect the interests of the consumer in selecting or using a consumer financial product or service; or the reasonable alliance by the consumer on a covered person to act in the interest of the consumer.”
Mike told us that the Act’s definition of “abusive” is longer than the “deceptive” and “unfair” provisions because lawmakers intended it to be as broad as possible—“to catch anything else that would maybe otherwise fall between the cracks of the deceptive and unfair, but the CFPB still believes it to be wrong somehow.”
Examples of UDAAPs
Statutory language aside, the CFPB’s list of examples of UDAAPs may better illustrate the agency’s reasoning in related enforcement actions. Some of the agency’s examples include…
- Failing to post payments timely or properly or to credit a consumer’s account with payments that the consumer submitted on time and then charging late fees to that consumer.
- Taking possession of property without the legal right to do so.
- Revealing the consumer’s debt, without the consumer’s consent, to the consumer’s employer and/or co-workers.
- Falsely representing the character, amount, or legal status of the debt.
You can find further examples here (PDF).
This is just a small peek at the wide, wild world of UDAAPs. For more information, as well as legal insights, make sure to check out our Resource Library.
Dig Deeper: Recent Posts About UDAAP
At its core, compliance is really about doing the right thing. But who gets to decide what’s right and wrong? The legislators who drafted the Dodd–Frank Wall Street Reform and Consumer Protection Act knew what they were doing when they wrote that lenders and financial service providers were prohibited from engaging in “unfair, deceptive, and […]
This week’s question addresses what the heck that second A in UDAAP stands for. Q: What does Abusive mean in UDAAP? Mike’s Answer: My initial reaction to that is that it’s a catch-all. If the CFPB doesn’t like what you’re doing, and it doesn’t really fit into the deceptive, or the unfair, abusive is it. […]
We get a lot of questions about UDAAP with the extra “A” so we thought we would revisit our post about it from the spring. Among the many acronyms, abbreviations, and jargon in the consumer finance industry, there are the obvious ones, and then there the assemblages of characters that look like the results of […]
We’ve said it before and we’ll say it again: to understand the CFPB, you need to understand another acronym—UDAAP. The Consumer Financial Protection Bureau exists, in large part, to guard consumers against what regulators deem “unfair, deceptive, or abusive acts and practices.” To that effect, half of the enforcement matters that the CFPB has made […]
There’s less than a week until our August webinar, Time for a Modern Compliance Program. On 8/23 at 11am Pacific (2pm Eastern), we’ll host an hour-long presentation about creating a compliance program flexible enough to survive today’s changing regulatory environment. Attendees will hear from a panel of industry veterans, including Michael Semanie, a business attorney […]
Innovation is in the eye of the beholder. The same tactics that automotive dealerships attempt to use to make more money from sales may appear, to regulators and attorneys, as unfair, deceptive, or abusive acts or practices.