On January 11, 2023, the Consumer Financial Protection Bureau (“CFPB” or the “Bureau”) announced designs to create a public registry of terms and conditions in form contracts. Under the proposed rule (“Rule”), certain nonbank entities, including nonbank student loan servicers, would be required to register and submit information related to its terms and conditions that purport to waive or limit consumer rights and protections, along with identifying company information. The Bureau has opened up the Rule for a sixty-day comment period (closing on March 13, 2023), after which decisions will be made on its final form. Continue reading “Consumer Financial Protection Bureau Proposes Mandatory Registration of Terms and Conditions: Nonbank Student Loan Servicers Among Those Potentially Impacted”
FSA Delays Annual Student Loan Acknowledgment Requirement
On March 8, 2021, the Federal Student Aid office (“FSA”) of the U.S. Department of Education (“Department”) published an Electronic Announcement that delays the implementation date for the Annual Student Loan Acknowledgment. In a November 21, 2019 Electronic Announcement, the Department had previously notified schools about a change to the Master Promissory Note (MPN) confirmation process.
Pursuant to the new process, student and parent borrowers are required to view how much they currently owe in federal student loans, and to acknowledge that they have seen this amount before a school can make the first disbursement of the first Direct Loan that a student or parent borrower receives for each new award year.
The Annual Student Loan Acknowledgement process will continue to be available on StudentAid.gov. However, borrower completion of the Annual Student Loan Acknowledgement prior to disbursement will not be required for the 2021–22 Award Year.
At this time, all processing related to the Annual Student Loan Acknowledgement will continue under existing business rules. Schools will continue to receive information about a borrower’s completion of the Annual Student Loan Acknowledgement process on StudentAid.gov.
Please see the November 2019 Electronic Announcement for more information about the Annual Student Loan Acknowledgement process and the technical requirements.
Implementing the 2016 Borrower Defense to Repayment (BDR) Rule – Arbitration Agreements and Class Action Waivers
This Alert addresses the actions that postsecondary institutions participating in the federal Direct Loan Program must take now and in the near future if they require students to enter into binding pre-dispute arbitration agreements or class action waivers with the institution. Below, we address how the guidance may affect ongoing arbitrations and current and future arbitration agreements. We will cover the financial responsibility reporting requirement triggers in our next Alert.
The March 15, 2019, guidance makes clear that the 2016 BDR Rule is now in effect. Accordingly, schools are no longer permitted to rely on binding pre-dispute arbitration agreements and class action waivers with Direct Loan borrowers in connection with so-called “borrower defense claims.” Borrower defense claims are those based on an act or omission of the institution attended by the claimant student that relates to the making of a Direct Loan for enrollment at the institution or the provision of educational services for which the loan was provided. The guidance excludes, for example, personal injury tort claims and sexual and racial harassment claims from being categorized as borrower defense claims. Other claims, such as educational malpractice claims, may also be excluded, so long as they do not meet the definition of a borrower defense claim.
Schools should keep in mind certain key deadlines as they work with counsel to determine the best path forward for complying with the 2016 BDR Rule.
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To read the full text of this Alert, please visit the Duane Morris website.