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Monday, August 22, 2016

Mystery Shoppers Reveal Mortgage Loan Discrimination

Mystery Shoppers Reveal Mortgage Loan Discrimination

In 2013, a loan officer at BancorpSouth Bank’s Madison, Ala., branch received visits from two people with similar profiles within 10 days of each other, both saying they were first-time home buyers—one white, the other black. The employee allegedly steered the black customer to a smaller and more expensive loan, even though her stated income and credit score were higher than the white applicant’s.

When the Consumer Financial Protection Bureau took action against the bank in June for allegedly discriminating against African-American customers in mortgage lending, the federal watchdog agency disclosed that the aspiring borrowers were “mystery shoppers,” or undercover investigators, sent in by the agency.

The case is the latest example of the five-year-old CFPB testing boundaries with its enforcement tactics, a pattern that has sparked clashes between the agency and the financial industry and Republican lawmakers.


Undercover operations are common in criminal probes. But they are rarely used by regulators in civil law-enforcement cases because of limits imposed under the 1974 Privacy Act and other concerns. That law maintains that government officials must identify themselves if seeking information from individuals. Some agencies interpret that as prohibiting any covert investigations. The CFPB and others argue it doesn’t apply to “mystery shopping,” because that tactic is used only to seek information that would be available to any member of the public, and doesn’t involve eliciting personal information about individuals.

The agency won’t discuss the extent of its use of such mystery shoppers, and the BancorpSouth case is the only one in which the CFPB has disclosed deploying them. Quyen Truong, a partner at Stroock And Stroock And Lavan LLP who served as the agency’s deputy general counsel until May, said implementing the mystery-shopping program “took significant efforts but it’s been up and running.” She added that the agency developed the program “after evaluating all the potential legal restrictions.”

The use of mystery shoppers signals the CFPB’s new emphasis on combating so-called redlining—a bank’s refusal to lend to residents in certain neighborhoods marked by a hypothetical red line on a map—and other forms of alleged lending discrimination against minority borrowers. “To this day, the lines of segregation remain evident and their impact persists,” CFPB Director Richard Cordray said in a July 19 speech, as he pledged to fight “active discrimination.”

BancorpSouth signed a $10.6 million settlement with the CFPB and the Justice Department on June 29. It didn’t admit wrongdoing and it disputed the findings, though it didn’t specify which parts. The bank also criticized the methods used in the case. “We have concerns with the way the information was collected, and selectively released,” the Tupelo, Miss.. bank said in a statement, adding that it has “zero tolerance for this type of behavior” from employees.

The CFPB’s use of undercover investigators “is a worrisome precedent, because...we see more and more aggressive civil law-enforcement activity by the government, so that civil law enforcement borders on, if not bleeds into, criminal law enforcement,” said Andrew Vollmer, a former deputy general counsel at the Securities and Exchange Commission who now teaches at the University of Virginia’s law school. “What we do not have are the corresponding protections of the criminal law-enforcement system for the accused.”

Sam Gilford, a CFPB spokesman, said the privacy act’s limits pertain to personal information collected from individuals and don’t apply to cases such as that of BancorpSouth, adding, “The Bureau will continue to use all available tools, as the circumstances warrant, to further its mission of protecting consumers from discrimination.”

CFPB critics have previously raised questions about the agency’s tactics, including the agency’s reliance on educated guesses to identify minority borrowers in auto lending discrimination cases and the unusually heavy application of fines for a real-estate transaction law, now contested in court by lender PHH Corp.

In a case revolving around the scope of the CFPB’s investigative authority, a district court in April ruled against the agency’s attempt to compel a college accrediting agency to hand over oral testimony in an investigation.


Spokesmen for the SEC and the Financial Crimes Enforcement Network, the Treasury Department’s anti-money-laundering unit, said their agencies don’t use undercover operations. 

In 2011, criticism from Republican lawmakers prompted the Department of Health and Human Services to drop plans to use mystery shoppers disguised as patients to probe care access at doctors’ offices.

Wireless Camera Finder

In explaining the CFPB’s actions, the agency’s Mr. Gilford said that “testing has long been an investigative tool used by federal agencies” such as the Justice Department and the Department of Housing and Urban Development.
But there appear to be differences between those efforts and the consumer agency’s tactics.

The Justice Department says it does use “testers” for civil fair-housing investigations, although the tactic appears to be applied on a smaller scale than that deployed by the CFPB. It says on its website that the 96 cases resolved using testers since 1992 have yielded a total of $12.9 million in penalties and other damages, about the same size as the single BancorpSouth settlement.

A HUD spokeswoman said the agency doesn’t do undercover investigations itself. But the department does provide funding to nonprofit fair-lending groups that routinely use testers, and HUD uses information gathered by these testers in building its cases.


The Federal Trade Commission also uses undercover tests to confirm whether certain types of firms, including funeral homes, comply with consumer-protection laws. A former director of the FTC’s consumer protection bureau,Lydia Parnes, said the testers “obtained in the shoes of consumers” public information, rather than personal information, so their conduct doesn’t call into question privacy laws, echoing the CFPB argument.

Your questions and comments are greatly appreciated.

Monty Henry, Owner


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