Litigating Abusiveness: A Quasi-Fiduciary Duty Emerges

Law360, New York (February 7, 2017, 11:35 AM EST) -- The Consumer Financial Protection Bureau filed a lawsuit just two days before President Donald Trump's inauguration that sheds additional light on how the agency views its authority to prohibit "abusive" acts and practices and adds to a growing body of cases suggesting that the CFPB believes that in certain circumstances companies have a duty to act in the best interest of consumers. The lawsuit against Navient Corp. and two subsidiaries alleged that Navient's steering of student loan borrowers into forbearance as opposed to income-driven repayment programs and other servicing practices were illegal.[1] The steering claim is based, in part, on the CFPB's "abusiveness" authority.[2] Below, we discuss the nature of the CFPB's abusiveness authority, how the abusiveness claim against Navient squares with the agency's prior use of this tool, and how the CFPB seems to be sending a message that companies need to look out for consumers' best interests in certain circumstances....

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