Update: The Department of Education published a notice in the Federal Register today, insisting that states back off in their regulation of federal student loan servicers.
“State regulation of the servicing of Direct Loans impedes uniquely federal interests,” said the filing. Additionally, the Department of Education insisted that separate state regulation “undermines uniform administration of the program.”
In the filing, the Education Department specifically calls out Massachusetts Attorney General Maura Healey, who has been suing a major federal loan servicer. The Department of Education claims that states like Massachusetts are seeking to forbid “conduct federal law requires and to require conduct federal law prohibits.”
However, this assertion is in conflict with 2016 guidance from the Obama administration, which indicated that state rules on student debt collectors wouldn’t be in opposition to federal law, according to reporting from the Boston Globe.
But Healey is vowing to continue the push to regulate student loan servicers if the federal government won’t.
“Secretary DeVos can write as many love letters to the loan servicers as she wants,” Healey said in a statement to the Boston Globe. “The last thing we need is to give this industry a pass while millions of students cannot afford to pay their loans.”
For now, involved states are likely to continue enforcing their own rules and requiring servicers to register according to state law — and wait for the courts to sort it out.
Original report: Once again, the Department of Education, headed by Secretary of Education Betsy DeVos, plans to take aim at policies put in place during President Obama’s administration. This time, reports Bloomberg, a forthcoming proposal could block states from regulating student loan debt collectors.
“This thing has been rumored for a while, but in recent days it’s looked like it might actually be released,” said Whitney Barkley-Denney, a policy counsel with the Center for Responsible Lending, a nonprofit research and policy organization committed to fighting predatory lending.
In recent years, some states — including Connecticut and Oklahoma — have enacted laws that tighten rules about the way companies seeking to collect on student loan debt interact with borrowers. The Department of Education is considering the release of a statement claiming federal law doesn’t allow states to regulate companies that act on its behalf.
Forbidding state regulation of student loan servicers
When President Trump entered office, he gave a mandate to government agencies to roll back regulations. The Department of Education rolled back several Obama-era rules in 2017, but this new move wouldn’t change federal regulations.
Instead, the proposed statement would prohibit states from imposing their own, stricter rules on student loan servicers. “The department believes such regulation is preempted by federal law,” according to Bloomberg’s reporting on the draft of a Federal Register notice that has yet to be filed by the Department of Education.
Bloomberg reports that the Education Department worries servicers would face increased costs as a result of state rules, and pass the costs on to the government — and eventually cost taxpayers more.
The move comes after industry groups related to the student loan industry called for restrictions on state probes into servicer practices.
In one letter sent to Betsy DeVos in June 2017, Debra J. Chromy, the President of the Education Finance Council (EFC) wrote, “EFC urges the Education Department (the Department) to publicly state that the entities with which it contracts to service student loans are governed by the Department’s rules and regulations, and that the Department’s rules hold preeminence in regulating the activities of their contractors.”
The EFC letter went on to say that servicers are already heavily regulated and state regulations wouldn’t provide any benefit to borrowers while being burdensome to student loan servicers.
States and consumer advocates fight back
Back in October, 25 state attorneys general, including some Republicans, sent their own letter to Betsy DeVos, asking her to not give into industry pressure.
“These requests defy the well-established role of states in protecting their residents from fraudulent and abusive practices, plainly exceed the scope of the Department’s lawful administrative authority, and would needlessly harm the students and borrowers at the core of the Department’s mission,” according to the letter.
Consumer advocates like student loan lawyer Jay Fleischman are concerned about what might happen if the Education Department stakes out this position.
“The effect is problematic because when you look at the overall position of the Department of Education, you see a body that is bent on rolling back any protections at all,” Fleischman said. “The federal government under President Trump has shown it’s unwilling to protect consumers and when you forbid the states from protecting them, there’s nowhere left for them to turn.”
Fleischman also cited the recent attacks on the Consumer Financial Protection Bureau (CFPB), including the appointment of Mick Mulvaney, an outspoken critic of the agency, to replace former head Richard Cordray, who was known for getting tough on student loan servicers.
“With the CFPB effectively de-clawed against the student loan servicing industry, the states are borrowers’ last line of defense against big companies using deceptive and unscrupulous practices,” Fleischman said.
Barkley-Denney doesn’t think the statement — if it is released — will hold up in court.
“I don’t believe that it will result in an end to state protections,” she said. “The attorneys general of involved states have a good litigation strategy.”
What she’s more concerned about is the impact on more state laws to protect borrowers. “I think the biggest concern is that this is going to confuse the landscape over what states are allowed to do,” Barkley-Denney said. “There’s a lot of forward momentum among state lawmakers who listen to their constituents to protect student loan borrowers, and this will confuse things.”
What student loan borrowers can do to protect themselves
“The Education Department is less concerned with protecting borrowers and taxpayers than helping servicers,” said Barkley-Denney. “We’ve been relying on states to fill the gap, and borrowers need to know what’s going on as well.”
The first step to protecting yourself is understanding the situation. Barkley-Denney said that it’s not just about big, well-known student loan servicers such as Navient and Nelnet. Smaller state guarantee agencies are also part of industry lobbying groups like the National Council of Higher Education Resources (NCHER), another group Bloomberg reports has asked the Department of Education to block states’ ability to regulate federal loan servicers.
“These state guarantee agencies are acting as servicers and working to overturn their own state laws,” said Barkley-Denney.
Contact your local state legislative representatives to let them know where you stand on legislation designed to protect borrowers. You can find information about your state and local representatives at USA.gov.
At the national level, you can track legislation related to student loans and higher education by using Student Loan Hero’s bill tracker.
On top of that, check with the National Student Loan Data System (NSLDS) to find out how much you owe and who your servicers are. Make sure you understand your repayment options and the protections you are entitled to.
For now, the Department of Education statement may never come out. However, student loan servicing groups continue to push Betsy DeVos to rein in state regulations, so it’s a possibility that’s increasingly likely.
“If it comes to pass, states shouldn’t take it lying down,” said Barkley-Denney. “We hope state attorneys general would fight it on behalf their borrowers and citizens.”
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