10.35 Consent Order Consumer Financial Protection Bureau




UNITED STATES OF AMERICA
CONSUMER FINANCIAL PROTECTION BUREAU


ADMINISTRATIVE PROCEEDING File No. 2013-CFPB-  0010
	
			
	 
	 
	 

	In the Matter of:
	 
	CONSENT ORDER

	 
	 
	 

	 
	 
	 

	 
	 
	 

	Ally Financial Inc.; and
	 
	 

	Ally Bank (collectively, "Ally")
	 
	 

	 
	 
	 






The Consumer Financial Protection Bureau ("CFPB"), through its examiners and other staff, has conducted  an examination  of the processes  for managing compliance with federal consumer financial laws implemented by Ally Financial Inc. and Ally Bank (collectively, "Ally" or "Respondents" as defined below) as well as compliance  with federal consumer financial laws, and identified violations of law and deficiencies in the applicable compliance systems with respect  to Respondents' compliance with the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. §§ 1691-1691f, and its implementing regulation, Regulation B, 12 C.P.R. pt. 1002.  Following its examination, the CFPB referred  the matter  to the United States through  the Civil Rights Division of the Department of Justice (''DO]") pursuant to Section 706(g) of the ECOA and the December 6, 2012 Memorandum of Understanding between the CFPB and the DO]. The CFPB and the DOJ engaged in a joint investigation into Respondents' compliance with the ECOA. The CFPB hereby issues, pursuant to 12 U.S.C. §§ 5563 & 5565, this Consent Order ("Consent Order") in coordination with the DOJ.

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I
Jurisdiction
		
	1.
	The CFPB has jurisdiction to enforce the ECOA  pursuant  to the Consumer  Financial Protection Act ("CFPA"), 12 U.S.C. §§ 5481(12)(D), (14), 5515(c)(1), 5563 and the ECOA, 15 U.S.C. § 1691c(a)(9).


		
	2.
	Each Respondent is a "covered person" as that term is defined by 12 U.S.C. § 5481(6).


		
	3.
	Each Respondent is an insured depository institution (or affiliate thereof) within the meaning of 12 U.S.C. § 5515(a)(1).


		
	4.
	Each Respondent is subject to the authority of the CFPB to initiate and maintain an administrative proceeding against it pursuant to 12 U.S.C. § 5563.


II
Stipulation
		
	5.
	Respondents, in the interest of compliance and resolution of this matter, have executed a "Stipulation and Consent to the Issuance of a Consent Order," dated December 19, 2013 ("Stipulation"), which is incorporated by reference and is accepted by the CFPB.  By this Stipulation, Respondents, solely for the purpose of this proceeding, have consented to the issuance of this Consent Order by the CFPB under Sections 1053 and 1055 of the CFPA, 12 U.S.C. §§ 5563 & 5565, without admitting or denying any of the findings or conclusions, except that Respondents admit to the CFPB's  jurisdiction over Respondents  and the subject matter of this action.


III
Definitions
		
	6.
	For purposes of this Consent Order, the following definitions shall apply:


a."Board" shall mean collectively the duly elected and acting Board of Directors for each of Ally Financial Inc. and Ally Bank.

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b."Effective Date" shall mean the date on which the Consent Order is issued.
c."Executive Officers" shall mean collectively the senior management of each of Ally Financial Inc. and Ally Bank, including but not limited to their Chief Executive Officer(s), Treasurer(s), President(s), Vice President(s), Chief Operating Officer(s), Chief Financial Officer(s), Chief Compliance Officer(s), and President(s) for Auto Finance.
d."Relevant Time Period" shall mean the period from April1, 2011 through  December 31,2013.
e."Respondents" shall mean Ally Financial Inc. and Ally Bank, and any direct or indirect subsidiaries and affiliates and their successors and assigns.
f."Related Consumer Action" shall mean a private action by or on behalf of one or more consumers  or any enforcement action by another governmental entity brought against either  Respondent with respect  to the Relevant Time Period based on substantially  the same facts set forth in Section IV of this Consent  Order.
IV
Findings and Conclusions
The CFPB finds the following:
		
	7.
	Respondent Ally Financial Inc. is a bank holding company, incorporated in the state of Delaware with a principal place of business in Michigan.  As of December 31, 2012, Respondent Ally Financial Inc. had $182 billion in total assets.


		
	8.
	Respondent Ally Bank is a subsidiary of Respondent Ally Financial Inc.  Ally Bank is chartered by the State of Utah and has deposits  that are insured by the Federal Deposit Insurance Corporation.  As of December 31, 2012, Respondent Ally Bank had $94.8 billion in total assets.



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	9.
	The CFPB conducted an examination of each Respondent for compliance with the ECOA and its implementing regulation, Regulation B, from September 2012 through  November 2012.


		
	10.
	On November 7, 2013, based on the CFPB’s finding that it had reason to believe Respondents have engaged in a pattern or practice of lending discrimination in violation of Section 701(a) of the ECOA, the CFPB referred the matter to the DOJ pursuant to Section 706(g) of the ECOA and the December 6, 2012 Memorandum of Understanding between the CFPB and the DOJ.


		
	11.
	On  November 13, 2013, the DOJ initiated an investigation under  the ECOA of Ally's pricing of automobile  retail installment  contracts.  The DOJ coordinated its investigation with the CFPB's investigation.


		
	12.
	Ally is one of the largest indirect automobile finance companies  in the United States.  Ally purchases  retail installment contracts  from over 12,000 automobile dealers.


		
	13.
	Dealers submit applications  to Ally on behalf of consumers.   For those applications  that Ally approves, Ally sets a specified "buy rate." Ally determines  the buy rate using a proprietary underwriting and pricing model, and t hen communicates that buy rate to the dealer that submitted  the application  to Ally. Ally's buy rate reflects the minimum interest rate, absent additional discounts or reductions, at which Ally will finance or purchase a retail installment contract  from a dealer.


		
	14.
	Ally maintains a specific policy and practice that provides dealers discretion to mark up a consumer's interest rate above Ally's established risk-based buy rate.  The difference between  the buy rate and the consumer's interest  rate on the retail installment  contract (contract  rate) is known as the "dealer markup."  Ally compensates dealers from  the increased  interest  revenue to be derived from the markup.



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	15.
	Ally limits the dealer markup  to 250 basis points for contracts  with terms of sixty (60) monthly payments or less and to 200 basis points for contracts  with terms of greater than sixty (60) monthly  payments or for contracts  to borrowers assigned to the lowest two tiers of Ally's proprietary system of credit scoring.


		
	16.
	Ally regularly participates in the decision  to extend credit by taking responsibility  for underwriting, setting the terms of credit by establishing the risk-based  buy rate, and communicating those terms to automobile  dealers.  Ally influences  the credit decision by indicating to automobile dealers whether  or not Ally will purchase retail installment  contracts on the terms specified by Ally.


		
	17.
	Ally is a creditor within the meaning of the ECOA, 15 U.S.C. § 1691a(e), and Regulation B, 12 C.F.R. § 1002.2(l).


		
	18.
	The CFPB and the DOJ  analyzed the dealer markup of the non-subvented retail installment contracts that Ally purchased  between April1, 2011 and March 31, 2012.   During  the time period covered  by the analyses, Ally purchased  over 800,000 non-subvented  retail installment contracts.   From April, 2012 through  December 31, 2013, Ally will have purchased  over 1.3 million additional non-subvented retail installment contracts.   The CFPB and the DOJ determined that more than 20% of retail installment contracts  that Respondents purchased  had African-American, His panic, or Asian/Pacific Islander borrowers or co-borrowers.


		
	19.
	The retail installment contracts analyzed by the CFPB and the DOJ  did not contain information on the race or national origin of borrowers.  To evaluate any differences in dealer markup, the CFPB and the DOJ assigned race and national origin probabilities to applicants.  The CFPB and the DOJ  employed a proxy methodology that combines geography-based and name-based  probabilities, based on public data published  by the United States Census Bureau, to form a joint probability using the Bayesian Improved 



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Surname Geocoding (BISG) method.  The  joint race and national origin probabilities obtained  through  the BISG method  were then used directly in the CFPB's  and DOJ's models to estimate any disparities in dealer markup on the basis of race or national origin.
		
	20.
	The CFPB's  and the DOJ's markup analyses focused  on the interest rate difference between each borrower's contract  rate and Ally's buy rate.  The CFPB and the DOJ  considered potential explanatory variables offered by Respondents, and determined that Respondents failed to provide adequate evidence that additional variables appropriately  reflected legitimate business  needs.


		
	21.
	During  the time period covered  by the analyses, on average, African-American  borrowers were charged approximately 29 basis points more in dealer markup  than similarly-situated non-Hispanic whites for non-subvented retail installment contracts. These disparities  are statistically significant, and these differences are based on race and not based on creditworthiness or other  objective criteria related  to borrower  risk.  These disparities mean that during  the Relevant Time Period, approximately 100,000 African-American borrowers paid higher markups  than the average non-Hispanic white markup and were obligated to pay, on average, over $300 more each in interest  than similarly-situated  non-Hispanic white borrowers  over the life of their retail installment contracts.


		
	22.
	During  the time period covered by the analyses, on average, Hispanic borrowers  were charged approximately 20 basis points  more in dealer markup  than similarly-situated non­ Hispanic whites for non-subvented  retail installment  contracts.  These  disparities are statistically significant, and these differences are based on national origin and not based on creditworthiness or other objective criteria related to borrower  risk.  These disparities mean that during the Relevant Time Period approximately 125,000 Hispanic  borrowers  paid higher markups than the average non-Hispanic white markup and were 



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obligated to pay, on average, over $200 more each in interest  than similarly-situated  non-Hispanic white borrowers  over the life of their retail installment contracts.
		
	23.
	During the time period covered  by the analyses, on average, Asian/Pacific Islander borrowers were charged approximately  22 basis points more in dealer markup than similarly­ situated non-Hispanic whites for non-subvented retail installment contracts.   These disparities are statistically significant, and these differences are based on race and/ or national origin and not based on creditworthiness or other objective criteria related to borrower risk. These disparities mean that during the Relevant Time Period  approximately 10,000 Asian/Pacific Islander  borrowers  paid higher markups than the average non-Hispanic white markup and were obligated  to pay, on average, over $200 more each in interest  than similarly-situated non-Hispanic white borrowers over the life of their retail installment contracts.


		
	24.
	The higher markups  that were charged to African-American, Hispanic, and Asian /Pacific Islander  borrowers are a result of Ally's specific policy and practice of allowing dealers to mark up a consumer's interest  rate above Ally's established buy rate and then compensating dealers from that increased interest  revenue.


		
	25.
	Ally's specific policy and practice of allowing dealers to mark up a consumer's interest  rate above Ally's established buy rate and then compensating dealers from that increased interest revenue continued  throughout the entire Relevant Time Period.


		
	26.
	During the Relevant Time Period, Ally did not monitor  whether  discrimination  on a prohibited  basis occurred  through  the charging of markups across its portfolio of retail installment  contracts, and, for most of the Relevant Time Period, it did not offer comprehensive fair lending training to its network of dealers.


		
	27.
	Ally's specific policy and practice are not  justified by legitimate  business need and constitute discrimination against applicants with respect to credit transactions on the basis 



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of race and national origin in violation  of the ECOA, 15 U.S.C. § 1691(a)(l), and Regulation B, 12 C.F.R. §§ 1002.4(a), 1002.6(a), 1002.6(b)(9).

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CONDUCT PROVISIONS
V
Order to Cease and Desist
IT IS HEREBY ORDERED, pursuant  to Sections 1053 and 1055 of the CFPA, 12 U.S.C. §§ 5563 & 5565, that:
		
	28.
	Consistent  with this Consent Order, Respondents shall cease and desist from engaging in any act or practice that discriminates on the basis of race or national origin in any aspect of the pricing of automobile loans in violation of the ECOA, 15 U.S.C. § 1691(a)(1), and Regulation B, 12 C.F.R. pt. 1002.


VI
Compliance Plan with Compliance Committee
IT IS FURTHER ORDERED that:
		
	29.
	The Board shall establish a Compliance Committee of at least three directors, no more than one of whom  ma y be an officer or employee of either Respondent or any of its affiliates. Within  twenty (20) days of the Effective Date, the Board shall provide in writing to the CFPB and the DOJ the name of each member  of the Compliance  Committee.  In the event of any change of membership, the Board shall submit  the name of any new member  in writing to the CFPB and the DOJ.


		
	30.
	Until the termination  of this Consent  Order, the Compliance Committee shall be responsible for monitoring and coordinating each Respondent's adherence  to the provisions of this Consent Order.  The Compliance Committee shall meet at least every other  month, and shall maintain minutes of its meetings.


		
	31.
	Within sixty (60) days of the Effective Date,  the Compliance Committee shall submit a Compliance Plan to the CFPB and the DOJ  for review and determination of non-objection that details: the actions Respondents plan to take or have already taken to 



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comply with this Consent  Order; the results and status of those actions, if any; and a compliance  program that shall go into effect within thirty (30) days after non-objection by the CFPB and the DOJ  to the Compliance Plan and remain in effect until the termination  of the Consent  Order, except as provided in paragraph 35 of this Consent  Order.  The Compliance  Plan shall, at a minimum, include:
		
	a.
	A dealer compensation policy that  limits the maximum rate spread  between Ally's buy rate and the contract  rate of the retail installment  contract  to an amount  no more than Ally's limits in effect throughout the Relevant Time Period;


		
	b.
	Regular notices to all dealers explaining the ECOA,  stating Respondents' expectations with respect  to ECOA  compliance, and articulating the dealer's obligation to price retail installment  contracts  in a non-discriminatory manner, including in exercising discretion to set a consumer's contract  rate when such discretion is permitted;


		
	c.
	Quarterly  analysis of dealer-specific retail installment contract  pricing data for disparities on a prohibited  basis resulting from Respondents' dealer compensation policy;


		
	d.
	Quarterly  and annual analysis of portfolio-wide retail installment  contract pricing data for disparities on a prohibited  basis resulting from Respondents' dealer compensation policy that reflects the same methods and controls the CFPB and the DOJ applied in their analyses described in paragraphs 18-23 of this Consent  Order, unless the CFPB and the DOJ  approve  the use of additional controls  or methodological changes proposed by Respondents;


		
	e.
	Appropriate corrective action with respect  to dealers who are identified in t he quarterly analysis of dealer-specific retail installment contract  pricing data for dis parities on a prohibited  basis, or otherwise  identified, culminating in the 



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restriction  or elimination of dealers' ability to exercise discretion in setting a consumer's contract  rate or exclusion of dealers from future transactions with Ally; and remuneration of affected  consumers, within sixty (60) days of analysis that identifies statistically significant disparities in dealer markup on a prohibited  basis within  an individual dealer's  transactions  with Respondents;
		
	f.
	For each of African Americans, Hispanics, and Asians/Pacific Islanders, remuneration of affected  consumers  by March 1 of each calendar year until the termination of this Consent Order, if portfolio-wide analysis described in paragraph 31d for the preceding calendar year identifies statistically significant dealer markup disparities for that group at or above the agreed upon  target.  Respondent  shall remunerate affected  consumers using the same methodology the CFPB and the DOJ  used to calculate the damages for the Relevant Time Period set forth in paragraph 41; and


		
	g.
	Specific timeframes and deadlines for implementation of the steps described  above.


		
	32.
	The CFPB and the DOJ  shall make a determination of non-objection to the Compliance Plan or direct  Respondents to revise it.  In t he event that the CFPB and the DOJ  direct Respondents to revise the Compliance Plan, Respondents shall make the revisions and resubmit  the Compliance Plan to the CFPB and the DOJ  within thirty (30) days.


		
	33.
	Upon  notification  that the CFPB  and the DOJ  have made a determination of non-objection to the Compliance  Plan, Respondents shall implement  and adhere  to the steps, recommendations, deadlines, and timeframes set forth in the Compliance  Plan.


		
	34.
	To  the extent Respondents seeks to materially change its Compliance  Plan after its initial implementation, Respondents shall submit to the CFPB and the DOJ  for review and determination of non-objection a description  of the change to the Compliance Plan.  



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Upon notification, the CFPB and the DOJ  shall make a determination  of non-objection to the change or direct Respondents to revise it.  In the event that the CFPB and the DOJ direct Respondents to revise the change, Respondents  shall make the revisions and resubmit  the change to the CFPB and the DOJ  within thirty (30) days.
		
	35.
	At any time during the pendency of this Consent Order, Respondents may submit a Non-­ discretionary Dealer Compensation Plan to the CFPB and the DOJ  for review and determination  of non-objection.


		
	a.
	The Non-discretionary Dealer  Compensation Plan shall set forth a proposed  non­ discretionary dealer compensation structure  that includes an appropriate compliance management system that ensures compliance with the ECOA and shall be implemented within ninety (90) days after non-objection by the CFPB and the DOJ  to the Non­ discretionary Dealer Compensation Plan and remain in effect until the termination  of this Consent  Order.


		
	b.
	The CFPB and the DOJ  shall make a determination of non-objection to the Non­ discretionary Dealer Compensation Plan or direct Respondents to revise it.  In the event that the CFPB and the DOJ  direct Respondents to revise the Non-discretionary Dealer Compensation Plan, Respondents shall make the revisions and resubmit the Non­ discretionary  Dealer Compensation Plan to  the CFPB and the DOJ  within thirty (30) days.


		
	c.
	Upon notification  that the CFPB and the DOJ  have made a determination of non­ objection  to the Non-discretionary Dealer Compensation Plan, Respondents shall implement and adhere  to the steps, recommendations, deadlines, and timeframes set forth in the Non-discretionary Dealer Compensation Plan.


		
	d.
	To the extent Respondents seek to subsequently  change its Non-discretionary Dealer Compensation Plan after its initial implementation, Respondents shall 



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submit  to the CFPB and the DOJ  for review and determination  of non-objection a description  of the change. Upon  notification, the CFPB and the DOJ shall make a determination of non­ objection  to the change or direct Respondents to revise it.  In the event that the CFPB and the DOJ direct Respondents to  revise the change, Respondents shall make d1e revisions and resubmit  the change to the CFPB and the DOJ  within  thirty (30) days. Respondents ma y request the CFPB and the DOJ  to conduct  an expedited  review of any proposed changes when required  by circumstances  related to the non-discretionary dealer compensation structure.  The CFPB and the DOJ  shall conduct an expedited review of the change as soon  as practicable and make a determination of non-objection to the change or direct Respondents to revise it.
		
	e.
	Upon implementation of the Non-discretionary Dealer Compensation Plan, Respondents ma y terminate  those elements  of the Compliance  Plan that were required by paragraphs 31a and 31c-g of this Consent  Order.


		
	36.
	Six (6) months  after the Effective Date and every six (6) months  thereafter until the Compliance Committee described in paragraph 29 of this Consent  Order, and the CFPB and the DOJ shall meet and confer (including in person or telephonically) to discuss the Compliance Plan, results achieved by the Compliance Plan, and any modifications to the Compliance  Plan that may be warranted, based on the Plan's results, changes in the indirect automobile lending industry, or any other reason.  Any records of such communications shall be deemed confidential information under 12 C.F.R. pt 1070.



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VII
Reporting Requirements
IT IS FURTHER ORDERED that:
		
	37.
	Within forty-five (45) days of the end of the second calendar quarter after the Effective Date, and within forty-five (45) days of the end of each quarter thereafter  until the termination  of this Consent  Order, Respondents shall submit to the CFPB and the DOJ  a true and accurate written Compliance Progress  Report,  which has been approved  by each Board, and which shall at a minimum:


		
	a.
	Separately list each action required  by the Compliance  Plan pursuant  to paragraph 31 and this Consent Order;


		
	b.
	Describe the status of each action  taken or to be taken to comply with the Compliance Plan pursuant  to paragraph  31, as well as each action taken or to be taken to comply with the other  provisions of this Consent  Order; and


		
	c.
	Summarize and provide supporting data of the activities set forth in paragraphs 31c-31f, including  the just-completed  quarter's  (and year's, if applicable) portfolio-wide  analysis required by paragraph  31d.


		
	38.
	Until the termination  of this Consent  Order, Respondents shall notify the CFPB and the DOJ of any change in Respondents that may affect compliance obligations arising under this Consent  Order,  prior to such change, including but not limited to, a dissolution, assignment, sale, merger, or other  action that would result in the emergence of a successor  company; the creation or dissolution  of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this Consent  Order; the proposed  proceedings or filings related to bankruptcy or insolvency by or against either Respondent; or a change in Respondent Ally Financial Inc.'s or Respondent Ally Bank's  name or main address.



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VIII
Role of the Board
IT IS FURTHER ORDERED that:
		
	39.
	The Board shall review all submissions  (including  plans, reports, programs, policies, and procedures)  specifically required by this Consent Order  prior to submission  to the CFPB and the DOJ.


		
	40.
	Although  this Consent  Order  requires Respondents to submit certain documents for review or non-objection by the CFPB and the DOJ, the Board shall have the ultimate responsibility for proper and sound  oversight of Respondents and for ensuring that Respondents comply with federal consumer  financial law, including the ECOA, and this Consent  Order.  In each instance in this Consent  Order in which the Board is required to ensure adherence  to, or undertake to perform, certain obligations of Respondents, the Board shall:


		
	a.
	Authorize  and adopt such actions on behalf of Respondents as may be necessary for Respondents to perform its obligations and undertakings  under the terms of this Consent  Order;


		
	b.
	Require the timely reporting  by Respondents' management of such actions  directed  by Respondents' management to be taken under  the terms of this Consent Order; and


		
	c.
	Require corrective action be taken in a timely and appropriate manner in the case of any material non-compliance with such actions.



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MONETARY PROVISIONS
IX
Order to Pay Redress
IT IS FURTHER ORDERED that:
		
	41.
	Within thirty (30) days of the Effective Date, Respondents shall deposit into an interest­ bearing escrow account  eighty million dollars ($80,000,000.00), which represents  the amount of total consumer  monetary  and other damages caused  by the practices described  in Section IV during the Relevant Time Period.  This will constitute  the Settlement  Fund.  Respondents shall provide written verification of the deposit  to the CFPB and the DOJ  within five (5) days of depositing the funds described in this paragraph.  Any interest  that accrues will become part of the Settlement Fund and will be utilized and disposed  of as set forth herein. Any taxes, costs, or other  fees incurred  by the Settlement  Fund shall be paid by Respondents.


		
	42.
	Within  sixty (60) days of the Effective Date, Respondents shall enter into a contract retaining an Independent Settlement Administrator ("Administrator") to conduct  the activities set forth in paragraphs  44 through  52.  The selection of the Administrator and the terms of the Administrator's contract  related to the Administrator's duties pursuant  to this Consent  Order  shall be subject  to the non-objection of the CFPB and the DOJ. Respondents shall bear all costs and expenses of the Administrator. Respondents' contract with the Administrator shall require the Administrator to comply with the provisions of this Consent  Order  as applicable to the Administrator.  The Administrator's contract shall require the Administrator to work cooperatively with Respondents and the CFPB and the DOJ  in the conduct  of its activities, including reporting  regularly to and providing all reasonably requested information to the CFPB and the DOJ.  The Administrator's contract shall require the Administrator to comply  with all 



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confidentiality  and privacy restrictions applicable to the party who supplied the information and data to the Administrator.
		
	43.
	In the event that the CFPB or the DOJ  have reason to believe that the Administrator is not materially complying with the terms of its contract with Respondents, Respondents shall present  for review and determination of non-objection a course of action to effectuate  the Administrator's material compliance with its contract  with Respondents. The CFPB and the DOJ  shall make a determination of non-objection to the course of action or direct Respondents to revise it.  In the event that the CFPB and the DOJ  direct revisions, Respondents s hall make the revisions and resubmit the course of action  to the CFPB and the DOJ  within thirty (30) days. Upon notification  that the CFPB and the DOJ  have made a determination of non-objection, Respondents shall implement the course of action.


		
	44.
	The Administrator's contract  shall require the Administrator, as part of its operations, to establish cost-free  means for affected consumers to contact it, including an email address, a website, a toll-free  telephone  number, and means for persons  with disabilities to communicate effectively, including TTY.  The Administrator's contract  shall require the Administrator to make all reasonable  efforts to provide effective  translation services to affected consumers, including but not limited to providing live English and foreign­ language-speaking operators  to speak to affected consumers who call the toll-free telephone number  and request a live operator, and providing foreign  language interpretations and translations  for communications with affected consumers.


		
	45.
	The CFPB and the DOJ shall request  from Respondents information and data the CFPB and the DOJ  reasonably believe will assist in identifying affected consumers and determining any monetary and other damages, including but not limited to a database of all retail installment  contracts  booked  by Respondents during the Relevant Time Period 



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and all data variables  the CFPB obtained  during its examination.   Within ninety (90) days of the Effective Date, Respondents shall supply the requested information and data.
		
	46.
	The CFPB and the DOJ  shall jointly provide to the Administrator and Respondents a list of retail installment  contracts with consumers that the CFPB and the DOJ  have determined  are eligible to receive monetary relief pursuant  to this Consent  Order  after receipt of all the information and data they requested  pursuant  to paragraph 45.  The  total amount  of the Settlement  Fund shall not be altered based on the number of listed retail installment contracts.


		
	47.
	Within thirty (30) days after the date the CFPB and the DOJ  provide  the list of retail installment contracts  referenced in paragraph 46, Respondents will provide to the CFPB, the DOJ, and the Administrator the name, most recent mailing address in its servicing  records, Social Security number, and other information  as requested  for the primary borrower  and each co-borrower (if any) on each listed retail installment contract  ("Identified  Borrower"). Such information and data shall be used by the CFPB, the DOJ, and the Administrator only for the law enforcement purposes of implementing the Consent  Order.  The  total amount  of the Settlement  Fund  shall not be altered based on the number  of Identified  Borrowers.


		
	48.
	After receipt of all the information required to be provided by paragraph 47, the CFPB and the DOJ  shall provide Respondents and the Administrator with the initial estimate of the amount  each Identified Borrower  will receive from the Settlement  Fund.  No individual, agency, or entity may request  that any court, the CFPB, the DOJ,  Respondents, or the Administrator review the selection of Identified Borrowers  or the amount  to be received. The  total amount  of the Settlement  Fund shall not be altered based on the amounts  that Identified Borrowers  receive.



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	49.
	The Administrator's contract shall require the Administrator to adopt effective methods, as requested  by the CFPB and the DOJ,  to confirm  tl1e identities and eligibility of Identified Borrowers  and provide to the CFPB and the DOJ  a list of Identified  Borrowers whose identities and eligibility have been confirmed  ("Confirmed Borrower'') within 270 days from the date the CFPB and the DOJ  provide the information described in paragraph 48.


		
	50.
	Within sixty (60) days after the date the Administrator provides  to the CFPB and the DOJ the list of Confirmed Borrowers,  the CFPB and the DOJ  shall provide to the Administrator a list containing the final payment amount  for each Confirmed  Borrower.  The  total amount of the Settlement  Fund shall not be altered  based on the number  of Confirmed  Borrowers or the amounts  they receive.  No individual, agency, or entity may request  that any court, the CFPB, the DOJ, Respondents, or the Administrator review the final payment amounts.


		
	51.
	The Administrator's contract shall require the Administrator to deliver payment to each Confirmed Borrower in the amount  determined by the CFPB and the DOJ  as described in paragraph  50 within forty-five (45) days. The Administrator's contract  shall also require the Administrator to skip trace and  redeliver any payment that is returned  to t11e Administrator as undeliverable, or not deposited  within six (6) months.


		
	52.
	The Administrator's contract  shall require the Administrator to maintain  the cost-free means for consumers to contact it described in paragraph 44 and finalize distribution  of the final payments described in paragraphs 50 and 51 within 12 months  from the date the CFPB and the DOJ  provide  the list of final payment amounts  to the Administrator in accordance with paragraph 50.  Confirmed Borrowers shall have  until  that date  to request reissuance of payments that  have not  been  deposited.



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	53.
	The  details  regarding administration of the Settlement Fund set forth  in paragraphs 42 through 52 can be modified by agreement of the CFPB,  the DOJ, and Respondents. Payments from the Settlement Fund to Confirmed Borrowers collectively shall not exceed the amount of the Settlement Fund, including accrued  interest.


		
	54.
	Respondents will not  be entitled to a set-off, or any other reduction, of the amount of final payments to Confirmed Borrowers because of any debts  owed  by the Confirmed Borrowers. Respondents also will not  refuse  to make a payment based on a release of legal claims or account modification previously signed  by any Confirmed Borrowers.


		
	55.
	In  the event  that  the amount of redress provided to Confirmed Borrowers after  the Administrator completes distribution of funds is less than  the amount of the Settlement Fund (including accrued interest), Respondents are ordered to transfer all remaining money in the Settlement Fund to the CFPB, in the  form  of a wire transfer to the CFPB or to such agent  as the CFPB  may direct, and in accordance with wiring instructions to be provided by counsel for the CFPB.   Respondents shall make  this payment within  thirty (30)  days of when the Administrator finalizes distribution of the final payments described in paragraphs 50 and 51, or 12 months from the date the CFPB  and  the DOJ provide the list of final payment amounts to the Administrator in accordance with  paragraph 50, whichever is earlier.


		
	56.
	If the CFPB and  the DOJ determine, in their sole discretion, that additional redress  to affected consumers is wholly or partially impracticable, otherwise inappropriate, or if funds remain  after  the additional redress is completed, the CFPB  and  the DOJ may apply any remaining funds for such other equitable relief, including consumer information remedies, determined to be reasonably related  to the conduct and violations described in Section IV of this Consent  Order.   Any funds not used for such equitable relief shall be deposited in the U.S. Treasury as disgorgement.   Respondents shall have 



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no right to challenge any actions that the CFPB, the DOJ, or their representatives may take under this paragraph.
X
Order to Pay Civil Money Penalties
IT IS FURTHER ORDERED that:
		
	57.
	Pursuant  to Section 1055(c) of the CFPA, 12 U.S.C. § 5565(c), by reason of the violations of law set forth in Section IV of this Consent  Order, and taking into account  the factors set forth in 12 U.S.C. § 5565(c)(3), Respondents shall pay a civil money penalty of eighteen million dollars ($18,000,000.00)  to the CFPB, as directed  by the CFPB and as set forth herein.


		
	58.
	Within ten (10) days of the Effective Date, Respondents shall pay the civil money penalty in the form of a wire transfer to the CFPB or to such agent as the CFPB may direct, and in accordance with wiring instructions to be provided  by counsel  for the CFPB.


		
	59.
	The civil money penalty paid under  this Consent  Order  shall be deposited  in the Civil Penalty Fund of the CFPB in accordance with Section 1017(d) of the CFPA, 12 u.s.c. § 5497(d).


		
	60.
	Respondents shall treat the civil money penalty as a penalty paid to the government for all purposes.  Regardless of how the CFPB ultimately uses those funds, Respondents shall not:


		
	a.
	Claim, assert, or apply for any tax benefit for any civil money penalty that Respondents pay under  this Consent  Order; or


		
	b.
	Seek or accept, directly or indirectly, reimbursement or indemnification from any source, including but not limited to payment made under any insurance  policy, with regard to any civil money penalty that Respondents pay under this Consent  Order.



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	61.
	To preserve the deterrent  effect of tl1e civil money penalty, in any Related Consumer Action, Respondents shall not argue that Respondents are entitled  to, nor shall Respondents benefit by, any offset or reduction  of any monetary remedies imposed  in the Related Consumer Action, because of the civil money penalty paid in this action ("Penalty Offset").   If the court in any Related Consumer Action grants such a Penalty Offset, Respondents  shall, within thirty (30) days after entry of a final order granting  the Penalty Offset,  notify the CFPB, and pay the amount  of the Penalty Offset  to the U.S. Treasury.  Such a payment shall not be deemed  an additional civil money penalty and shall not be deemed to change the amount  of the civil money  penalty imposed  in this action.  Notwithstanding the foregoing, Respondents may offer evidence of this Consent  Order  and its monetary  remedies and / or penalties in response to any request or demand  for exemplary or punitive damages in any Related Consumer  Action.



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XI
Additional Monetary  Provisions
		
	62.
	In the event of any default on Respondents' obligation to make payment under Sections IX and X, interest, computed pursuant  to 28 U.S.C. § 1961, as amended, shall accrue on any outstanding amounts nor paid from tl1e date of default to the date of payment, and shall immediately become due and payable.


		
	63.
	Respondents shall relinquish all dominion, control, and title to the funds paid pursuant  to this Consent  Order to the fullest extent permitted  by law. Respondents shall make no claim to or demand  for return of the funds, directly or indirectly, through  counsel or otherwise.


		
	64.
	In accordance with 31 U.S.C. § 7701, Respondents, unless it has already done so, shall furnish to the CFPB its taxpayer identifying numbers, which shall be used for purposes  of collecting and reporting on any delinquent  amount  arising out of this Consent  Order.


		
	65.
	Within thirty (30) days of the entry of a final judgment, consent  order, or settlement  in a Related Consumer Action, Respondents shall notify the CFPB and the DOJ  of the final judgment, consent  order, or settlement in writing.  That  notification  shall indicate the amount  of redress, if any, that Respondents  paid or are required to pay to consumers  and should describe the consumers or classes of consumers to whom  that redress has been or will be paid.



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ADMINISTRATIVE PROVISIONS
XII
Order Distribution and Acknowledgment
IT IS FURTHER ORDERED that:
		
	66.
	Within thirty (30) days of the Effective Date, each Respondent shall deliver a copy of this Consent  Order  to each of its Board members  and Executive  Officers.


		
	67.
	Until the termination  of this Consent  Order, each Respondent shall deliver a copy of this Consent  Order  to any future Board Members and Executive Officers within thirty (30) days that an individual becomes a Board Member or Executive  Officer, respectively.


		
	68.
	Respondents shall secure a signed  and dated statement acknowledging receipt of a copy of this Consent Order, with any electronic signatures complying with the requirements  of the E-Sign Act, 15 U.S.C. § 7001 et seq., within thirty (30) days of delivery, from all persons receiving a copy of this Consent  Order pursuant  to this Section.



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XIII
Recordkeeping
IT IS FURTHER ORDERED that:
		
	69.
	Respondents shall create or retain the following business records:


		
	a.
	All documents and records necessary to demonstrate full compliance with each provision of this Consent  Order, including but not limited to, reports  submitted  to the CFPB and the DOJ, analyses and all information related to the analyses conducted pursuant  to paragraph  31, and all documents  and records  pertaining to redress, as set forth in Section IX above;


		
	b.
	For Respondents' consumer  automobile lending  business lines, accounting records showing the gross and net revenues generated  by Respondents, and all relevant affiliates; and


		
	c.
	All consumer  complaints related to Ally's retail installment  contracts  alleging discrimination (whether  received directly or indirectly, such as through  a third party), and any responses  to those complaints  or requests.


		
	70.
	All business  records created  or retained pursuant  to this Section shall be retained at least until the termination  of this Consent  Order, and shall be made available upon  the CFPB's  or the DOJ's request to CFPB  representatives  or DOJ  representatives, respectively, within thirty (30) days of a request.





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XIV
Notices
IT IS FURTHER ORDERED that:
		
	71.
	Unless otherwise directed in writing by a CFPB or DOJ  representative, all submissions, requests, communications, consents, or other documents relating to this Consent  Order  shall be in writing and shall be sent by overnight  courier (not the U.S. Postal Service), as follows:


To the CFPB:


Steve Kaplan
Regional Director, CFPB Northeast Region
Consumer Financial Protection Bureau
140 East 4S'h Street, 4th Floor
New York, NY 10017
The subject line shall begin:  In re Ally, dated December 19, 2013


To the DOJ:


Chief
Housing  and Civil Enforcement Section
Civil Rights Division,
U.S. Department of Justice,
1800 G Street NW, Suite 7002
Washington, DC 20006
Attn: DJ 188-37-28


To Respondents:


William B. Solomon, Jr.
General Counsel
Ally Financial Inc.
M/C  482-B09-B11
200 Renaissance Center
Detroit, MI 48265-2000


Hu Benton
General Counsel
Ally Bank
6985 Union Park Center
Midvale, UT 84047



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XV
Compliance and  Extensions of Time
IT IS FURTHER ORDERED that:
		
	72.
	Upon  a written showing of good  cause, the CFPB ma y, in its discretion, and after consultation with the DOJ , modify any non-material  provision of this Consent  Order  (e.g., reasonable extensions  of time for, and changes to, reporting  requirements). Any such modification by the CFPB shall be in writing.


XVI
Other Provisions
		
	73.
	Except  as set forth in paragraph 74, the provisions of this Consent  Order  shall not bar, estop, or otherwise  prevent  the CFPB or the DOJ, or any other  federal or state agency or department, from taking any other action against Respondents. Respondents expressly reserve all rights and defenses  against any other  public or private plaintiff other  than the CFPB and the DOJ.


		
	74.
	The CFPB releases and discharges Respondents, and all affiliates, directors,  officers, agents, servants, and employees of Respondents, from all potential liability for violations of law that have been or might have been asserted  by the CFPB based on the practices described  in Section IV of this Consent  Order, to the extent such practices occurred  prior to the Effective Date and are known  to the CFPB as of the Effective Date.   Notwithstanding the foregoing, the practices alleged in this Consent  Order  may be utilized by the CFPB in future enforcement actions against Respondents and its affiliates, including without limitation,  to establish a pattern  or practice of violations  or the continuation of a pattern  or practice of violations  or to calculate the amount  of any penalty.  This release shall not preclude or affect any right of the CFPB to determine and 



25




ensure compliance with the terms and provisions of this Consent  Order, or to seek penalties for any violations  thereof.
		
	75.
	This Consent  Order is intended  to be, and shall be construed  to be, a final order issued under Section 1053 of the CFPA, 12 U.S.C. § 5563, and expressly does not form, and may not be construed to form, a contract  binding the CFPB or the United States of America.


		
	76.
	This Consent  Order  shall terminate  ninety (90) days after Respondents have conducted two (2) years of annual portfolio-wide analysis and provided any associated consumer remuneration pursuant  to paragraphs 31d and 31f, unless Respondents' second annual portfolio-wide  analysis conducted  pursuant  to paragraph 31d yields statistically significant dealer markup disparities based on race or national origin at or above the agreed upon  target for African Americans, Hispanics, or Asians/Pacific Islanders, in which case the Consent Order  shall terminate  ninety (90) days after Respondents have conducted three (3) years of annual portfolio-wide analysis and provided any associated consumer  remuneration pursuant to paragraphs 31d and 31f.  This Consent  Order  shall remain effective and enforceable until such time, except to the extent that any provisions of this Consent  Order  shall have been amended, suspended, waived, or terminated  in writing by the CFPB or its designated agents. The CFPB will not pursue any potential violations  of the ECOA against Respondents for conduct  undertaken  pursuant to this Consent  Order  during the period of this Consent Order.


		
	77.
	Calculation of time limitations shall run from the Effective Date and shall be based on calendar days, unless otherwise  noted.


		
	78.
	In the event Respondents seek to transfer or assign all or part of its operations, and the successor or assign intends  on carrying on the same or similar use, as a condition  of sale, Respondents shall obtain  the written accession of the successor or assign to any 



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obligations remaining under this Consent  Order  for its remaining term with respect to the specific operations transferred  or assigned.  For purposes  of this paragraph,  the requirements  relating to the transfer or assignment  of "operations" do not include the transfer or assignment of portions  of Respondents' portfolio of retail installment contracts  to an independent third party entity.
		
	79.
	The provisions of this Consent  Order  shall be enforceable  by the CFPB.  In the event that any disputes arise about  the interpretation of or compliance with the terms of this Consent Order,  the CFPB, the DOJ, and Respondents shall endeavor in good faith to resolve any such dispute between  themselves before bringing it to a court  for resolution.  The CFPB and the DOJ  agree that if they reasonably believe that Respondents have materially violated any provision of this Consent  Order, they will provide Respondents written notice thereof and give it thirty (30) days to resolve the alleged violation before presenting the matter to a court. Any violation  of this Consent  Order  may result in the imposition by the CFPB of the maximum amount  of civil money penalties allowed under Section 1055(c) of the CFPA, 12 U.S.C. § 5565(c).


		
	80.
	The provisions  of this Consent  Order  shall be severable and, should any provisions be declared  by a court of competent jurisdiction to be unenforceable, the other provisions shall remain in full force.


		
	81.
	This Consent  Order, which shall be construed to include Section III of the CFPB's Supervisory Letter associated with the CFPB's September  2012 examination  and the accompanying Stipulation, contains  the complete agreement  between the parties.  No promises, representations, or warranties other  than those set forth in this Consent  Order and the accompanying Stipulation  have been made by any of the parties.  This Consent  Order and the accompanying Stipulation supersede all prior communications, discussions, or understandings, if any, of the parties, whether  oral or in writing.



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	82.
	Nothing in this Consent  Order  or the accompanying Stipulation shall be construed  as allowing Respondents, their Board, Executive Officers, or employees to violate any law, rule, or regulation.


		
	83.
	To the extent  that a specific action  by Respondents is required both  by this Consent  Order and any Consent  Order  entered by the United States District Court  for the Eastern  District of Michigan in the civil action styled United States of America v. Ally Financial Inc. and Ally Bank, filed on or about  December 20, 2013, action by Respondents that satisfies a requirement under any such District Court Consent  Order  will satisfy that same requirement  under this Consent  Order.






IT IS SO ORDERED, this 19th day of December, 2013.


/s/ Richard Cordray
Richard Cordray
Director
Consumer Financial Protection Bureau

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