December 11, 2017
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Maine consumers may lose their right to challenge big banks’ unfair lending practices

By Jody Harris, Special to the BDN
George Danby | BDN | BDN
George Danby | BDN | BDN

If you’re like most people, chances are you’ve signed a bank or credit card agreement without reading the fine print. Not only is the print too small to read, but it is wordy and hard to understand. Even more egregious for consumers in Maine and throughout the country, the legal print you’re likely to ignore often includes language that takes away your rights.

The Consumer Financial Protection Bureau wants that to change. That’s why last month, the bureau announced a new rule aimed at protecting the right of Mainers and consumers across the U.S. to hold banks accountable in court.

Often buried in that fine print is language that prevents consumers from banding together in public, class-action lawsuits against big banks. Instead, the fine print requires them to use private arbitration — called “forced arbitration” — and negotiate with the very companies they are fighting. The bureau’s rule would prohibit forced arbitration clauses with class-action lawsuit bans in financial contracts and help people take court action against companies’ fraudulent practices.

The question, however, is whether Congress will move to strip Mainers of their right to hold banks accountable in court. Unfortunately, the House of Representatives has already begun the attack, and Rep. Bruce Poliquin voted on July 25 to strike down the new rule. If the House measure passes the Senate, the bureau would be barred from ever issuing another rule to restrict forced arbitration. We hope Sens. Susan Collins and Angus King will once again stand in the best interests of their constituents by voting against repeal of this long-awaited protection. In doing so, they would be siding with Mainers against the rampant abuses of forced arbitration.

Study after study has shown that big banks almost always win forced arbitration cases while regularly exploiting working and middle-class families. A recent Economic Policy Institute report found that arbitrators grant consumers relief regarding their claims in only 9 percent of disputes, but when companies make claims or counterclaims, arbitrators side with them 93 percent of the time. Instead of getting the relief he or she seeks through arbitration, the average consumer is ordered to pay their bank or lender $7,725, according to the Economic Policy Institute. Further, class-action lawsuits are critical when small-dollar amounts are at issue. Ultimately, an individual consumer involved in a small dispute of only tens or hundreds of dollars cannot afford to arbitrate on his or her own.

An ongoing lawsuit involving Wells Fargo customers illustrates the kind of banking behavior the Consumer Financial Protection Bureau rule aims to end. For years, Wells Fargo illegally re-ordered the sequence of debit card transactions from highest to lowest dollar amount instead of posting the transactions chronologically.

Imagine you have $150 in your checking account, then spend $3 on a cup of coffee in the morning, $5 for a sandwich at lunch, and then $155 for groceries after work. If the transactions were processed in the correct order, you would face a single overdraft fee for the groceries at the end of the day. But what if Wells Fargo took those transactions and applied them to your account from largest to smallest? Now, you must pay three overdraft fees of up to $35 each. For someone living paycheck to paycheck, this can be a devastating sequence of events.

America’s banks have used this scam to defraud consumers out of billions of dollars. While other big banks ultimately settled their cases, Wells Fargo is attempting to force its customers into private arbitration proceedings to avoid being held accountable in court. If Wells Fargo is successful, consumers will need to pursue secret arbitration one-by-one to recoup their money. And in arbitration, customers routinely lose and end up on the hook for thousands of dollars from bank counterclaims. Most individual customers simply won’t take that risk.

If the Wells Fargo overdraft scandal, or the myriad other big bank abuses are any indication, we can expect Wall Street to continue to put profits over the rights and welfare of consumers. Consumers need our elected representatives to help protect us against this abusive behavior that has become all too common among big banks. The Consumer Financial Protection Bureau rule is an important part of this protection, but it also will require that lawmakers like Collins and King resist overturning it.

Jody Harris is the associate director of the Maine Center for Economic Policy.

 


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