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.
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:
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 his perspective: “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.”
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…
You can find further examples here (PDF).
If you have more questions about what UDAAP is and how to avoid potential risks of the “catch all” phrasing check Vera F&I and contact us today. If you’re ready for a demo, click here and add Vera F&I to the description.
