Car Dealers Fight Back Against CFPB Auto Financing Rule

WASHINGTON — Auto dealership advocates are warning that costs will rise for borrowers if the Consumer Financial Protection Bureau presses banks to curtail auto loan markups determined by dealers.

The warning followed the CFPB's bulletin this week that said banks are responsible for discrimination if their partner dealers mark up the interest rates on loans for minority borrowers or engage in other fair lending abuses. The agency is encouraging lenders to adopt a flat-fee model for dealer compensation.

But dealer industry representatives said doing so would hurt competition and ultimately boost car prices.

"The dealer-assisted financing model (indirect auto lending) has been enormously successful in both increasing access to, and reducing the cost of, credit for millions of Americans," the National Automobile Dealers Association and the National Association of Minority Automobile Dealers said in a joint statement released late Thursday. "The CFPB's attempt to eliminate the dealer's ability to discount the APR that it offers to consumers will only weaken the consumer's ability to secure financing at the lowest possible cost."

The CFPB said Thursday that internal research showed a disparity in interest rate markups for minorities, particularly African Americans and Hispanics. The agency does not have authority to supervise auto dealerships directly, so it instead is cracking down by effectively forcing lenders to oversee how their partners mark up loans and whether they discriminate against certain borrowers.

"Such discrimination may not be consciously intended, but for consumers who are disadvantaged by these policies, the result is the same," CFPB Director Richard Cordray said at the National Community Reinvestment Coalition annual conference Friday. "We cannot afford to tolerate practices, intentional or not, that unlawfully price out or exclude whole segments of the population from the credit markets."

Cordray received a standing ovation at the NCRC conference and many other consumer advocates have praised the guidance.

"This is a bedrock principle throughout the banking industry across all products," said Richard Hunt, president and CEO of the Consumer Bankers Association, in a statement issued Thursday. "We look forward to working with the CFPB and all our regulators to ensure every consumer is protected."

Auto dealer advocates also supported the CFPB's anti-discrimination approach, but they questioned the research that prompted the agency to target markups.

The CFPB "is relying on a theory of discrimination that is based on a statistical analysis of past transactions - not intentional conduct — and the CFPB has not provided any information about how it is conducting its analysis," said the national auto dealers associations. "Without such basic information as how the CFPB is identifying different groups of consumers, how it is controlling for factors that can affect finance rates but are unrelated to the consumer's background, and what constitutes a finding of disparate impact, one can have little confidence that the CFPB is conducting its analysis in a statistically-reliable manner."

Industry representatives have said the research-gathering on consumer demographics between the auto dealers and lenders has cracks, often leaving regulators to depend more on inconsistent bank proxies.

"The available name and geography proxies are ineffective in identifying the race of the borrower," said Andrew Sandler, a partner with BuckleySandler, in a recent interview with American Banker.

The CFPB's guidance did not address the aggregate proxy methodology that banks should use to test for discrimination at particular dealerships. But Kenneth Rojc, managing partner of the auto finance group at Nisen & Elliott LLC, says that will be next for the agency.

"The CFPB did announce they are looking at coming out with specific guidance on proxy methodology and the industry is eagerly awaiting that," he said, noting some banks have already begun implementing restrictions on dealerships. Once clear methodology is released, "banks will be able to fashion and construct compliance management systems to achieve the goals the CFPB has established."

Regardless of the guidance, consumers still have the option of going to their lender directly or negotiating for a lower rate at the dealership.

But dealer advocates argue the dealer-assisted financing is more convenient and competitive. They pressed the CFPB to rethink the guidance and take a more traditional rulemaking approach by seeking public comment as well as input from other regulators like the Federal Reserve Board and Federal Trade Commission.

"The guidance issued by the CFPB today attempts to force auto finance sources into changing the way they compensate dealers without any indication that the Bureau has examined the effect this change could have on the cost of credit for consumers," stated the NADA and NAMAD. "This anti-competitive approach is not in the interests of consumers and should not be accomplished through guidance and enforcement actions that lack transparency, the opportunity for public comment, and the benefits of a data driven analysis into the effects they would have on consumers and the automobile financing marketplace."