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OFAC amends and reissues the Ukraine-Related Sanctions Regulations
On April 29, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced that it amended and reissued the Ukraine-Related Sanctions Regulations, renaming them the Ukraine-/Russia-Related Sanctions Regulations. According to OFAC, this action replaces the regulations that were published in abbreviated form on May 8, 2014 with a more comprehensive set of regulations, including additional interpretive and definitional guidance, general licenses, and other regulatory provisions. OFAC also announced that it is revising several FAQs for the Ukraine-/Russia-Related Sanctions Regulations. OFAC also noted that “[t[he publication of this final rule has triggered an automatic administrative update to a number of sanctions entries. The unique identifier numbers (UIDs) for the affected entries are listed . . . as part of this administrative update.” The Ukraine-/Russia-Related Sanctions Regulations take effect May 2.
The same week, OFAC published Russia-related General License 30, “Authorizing Transactions Involving Gazprom Germania GmbH Prohibited by Directive 3 under Executive Order 14024,” which authorizes all transactions involving Gazprom Germania GmbH, or any entity in which Gazprom Germania GmbH owns, under certain criteria.
Find continuing InfoBytes coverage on the U.S. sanctions response to Russia’s invasion of Ukraine here.
District Court approves final class action privacy settlement
On April 29, the U.S. District Court for the Western District of New York granted final approval of a class action settlement resolving privacy and data security allegations against a health insurance company and several related health insurance entities (collectively, “defendants”). According to the plaintiffs’ memorandum of support, the plaintiff filed suit in 2015, alleging that the defendants compromised the personal identifying information, Social Security numbers, and medical and financial data of approximately 9.3 million policy holders from a 2013 data breach. After the security incident was announced, 14 lawsuits were filed, which were consolidated with this case. Under the terms of the final settlement, the defendants are required to implement information security and compliance measures, and comprehensively address security risks. The settlement also includes $3.6 million in attorneys’ fees and $700,000 in litigation costs. Class representatives will be awarded service awards that range between $1,000-$7,500 each, which will total approximately $95,500.
5th Circuit: CFPB enforcement may proceed but funding questions remain
On May 2, the U.S. Court of Appeals for the Fifth Circuit issued an en banc decision vacating a district court’s interlocutory decision denying the plaintiff payday lenders’ motion for judgment on the pleadings, and holding that the CFPB can continue its enforcement action against a Mississippi-based payday lending company subject to further order of the district court. As previously covered by InfoBytes, the CFPB filed a complaint against two Mississippi-based payday loan and check cashing companies for allegedly violating the CFPA’s prohibition on unfair, deceptive, or abusive acts or practices. In March 2018, a district court denied the payday lenders’ motion for judgment on the pleadings, rejecting the argument that the structure of the Bureau is unconstitutional and that the agency’s claims violate due process. The 5th Circuit agreed to hear an interlocutory appeal on the constitutionality question. And, prior to the U.S. Supreme Court’s ruling in Seila Law LLC v. CFPB, a divided panel held that the CFPB’s single-director structure is constitutional, finding no constitutional defect with allowing the director of the Bureau to only be fired for cause (covered by InfoBytes here).
The 5th Circuit voted sua sponte to rehear the case en banc and issued an opinion in which the majority vacated the district court’s opinion as contrary to Seila Law. The majority did not, however, direct the district court to enter judgment against the Bureau because, though the Supreme Court had found that the director’s for-cause removal provision was unconstitutional, it was severable from the statute establishing the Bureau (covered by a Buckley Special Alert). The majority determined that the “time has arrived for the district court to proceed” and stated it “place[s] no limitation on the matters that that court may consider, including, without limitation, any other constitutional challenges.”
In dissent, several judges issued an opinion arguing that the case should be dismissed because the agency’s funding structure violates the Constitution’s separation of powers and “is doubly removed from congressional review.” The dissenting judges explained that the Bureau is not subject to the Congressional appropriations process for its budget, unlike most federal agencies, but rather receives its funding directly from the Federal Reserve Board. This budgetary process was intended to ensure full independence from Congress and prevent future congresses from using budget cuts to influence the Bureau’s agenda and priorities. The dissenting judges argued, however, that such a structure violates the Appropriations Clause of the Constitution. “The CFPB’s double insulation from Article I appropriations oversight mocks the Constitution’s separation of powers by enabling an executive agency to live on its own in a kingly fashion,” the dissent stated. “The Framers warned that such an accumulation of powers in a single branch of government would inevitably lead to tyranny. Accordingly, I would reject the CFPB’s novel funding mechanism as contravening the Constitution’s separation of powers. And because the CFPB funds the instant prosecution using unconstitutional self-funding, I would dismiss the lawsuit.”
District Court orders evidence showing customer agreed to arbitration clause in clickwrap agreement
On April 15, the U.S. District Court for the Northern District of California ordered a defendant “teledentristry” practice to file a declaration evidencing a clickwrap agreement that shows that the plaintiff assented to an arbitration agreement in an addendum to a retail installment contract. The plaintiff filed a putative class action claiming the defendant failed to comply with consumer protection licensing requirements and made misleading and false representations to consumers about the scope of its services and the provided dental care. The defendant moved to compel arbitration, stating that when customers create an account on the defendant’s website, they are required to affirmatively check a clickwrap checkbox to provide informed consent and must agree to the defendant’s terms and conditions before finalizing the registration process. The checkbox is not pre-checked, the defendant stated, and customers can view the full terms and conditions when clicking on the hyperlinks for each policy. The defendant maintained that if the plaintiff had clicked on the “Informed Consent” hyperlink, he would have been presented with the arbitration clause. The defendant also claimed that its servers log customers’ electronic assent to the terms and conditions and provided evidence purportedly showing that the plaintiff accepted the terms and conditions. The plaintiff countered that he did not assent to the arbitration agreement.
The arbitration dispute concerns whether the plaintiff assented to the arbitration agreement, whether the agreement is valid and enforceable, and whether the agreement delegates questions of arbitrability to the arbitrator and not the court. According to the court, the defendant failed to show sufficient evidence that the plaintiff agreed to the arbitration agreement and stated it will issue a ruling once the defendant provides additional evidence showing what the plaintiff would have seen when he allegedly assented to the clickwrap agreement, as well as “the circumstances under which [plaintiff] received and allegedly assented to the addendum to the retail installment contract.” The court’s order also granted plaintiff’s motion to further amend the complaint but denied plaintiff’s motion to remand on the grounds that the Class Action Fairness Act of 2005 conferred subject-matter jurisdiction upon the court.
FDIC releases March enforcement actions
On April 29, the FDIC released a list of administrative enforcement actions taken against banks and individuals in March. During the month, the FDIC issued 13 orders consisting of “six orders terminating consent order, one order to pay civil money penalty, five Section 19 orders, and one order of termination of insurance.” Among the orders is a civil money penalty imposed against a Kentucky-based bank related to alleged violations of the Federal Deposit Insurance Act for allegedly “deceptively advertising interest rates and fees for residential mortgage loans as the lowest on the market, with a promise of a ‘best rate guarantee,’ comparative shopping for such rates, and lower rates due to the bank’s fee structure.” The order requires the payment of a $425,000 civil money penalty.
National Fair Housing Alliance settles redlining allegations against real estate company
On April 29, the National Fair Housing Alliance (NFHA) announced a settlement agreement with a real estate company resolving allegations that the company perpetuated redlining practices through its policies and procedures. NFHA, along with nine other fair housing organizations, sued the company following an investigation into its practices. The fair housing organizations alleged that the company’s minimum home price policy violated the Fair Housing Act by discriminating against sellers and buyers of homes in communities of color. Limiting or denying services for homes priced under a certain value can “perpetuate racial segregation and contribute to the racial wealth gap” the organizations claimed in the press release. According to the complaint, the company disproportionately withheld its services to homebuyers and sellers in these communities at a higher rate than in White zip codes in multiple major cities across the U.S, thereby disincentivizing homebuying within these communities, reducing housing demand and values, and perpetuating residential segregation. Under the terms of the settlement, the company will make several national operational changes and enhancements, including (i) expanding housing opportunities for consumers in communities of color in major cities throughout the country; (ii) eliminating its minimum housing price policy for a period of five years; and (iii) appointing a fair housing compliance officer, adopting an equal opportunity in housing policy, and developing a fair housing training program. The company will also pay $4 million to go towards expanding homeownership opportunities in the covered cities and to cover conduct monitoring, compliance efforts, litigation fees and costs.
CFPB examines servicers’ handling of auto lending add-on products
On May 2, the CFPB published a blog post examining how servicers handle overcharging for add-on products on auto loans. The post describes, among other things, that auto dealers and financial companies “often charge consumers all payments for any add-on products as a lump sum at origination of the auto loan, and they generally include the lump sum cost as part of the total vehicle financing agreement.” Bureau examiners have focused on how servicers manage these add-on product charges when the loan ends prior to when the add-on product’s potential benefits end. As previously covered by InfoBytes, the Bureau published a Supervisory Report, finding that servicers engaged in unfair practices by failing to request refunds from the third-party administrators for “unearned” fees associated with the add-on product guaranteed asset protection, among other things. As a response to these findings, the servicers remediated impacted consumers and implemented more controls, which are intended to ensure that add-on product refunds are processed after repossession, according to the post. The Bureau also cited servicers for engaging in unfair acts or practices for miscalculating ancillary auto product refunds after repossession and attempting to collect miscalculated deficiency balances (covered by InfoBytes here). The miscalculated refunds have decreased the refunds available to certain borrowers and led to deficiency balances that were higher by hundreds of dollars. The servicers attempted to collect the deficiency balances. In response to these findings, the servicers conducted reviews to identify and remediate affected borrowers. According to the post, the Bureau “will continue to scrutinize servicer practices to make sure that borrowers aren’t overcharged when their loans end early.”
CFPB issues spring supervisory highlights
On May 2, the CFPB released its spring 2022 Supervisory Highlights, which details its supervisory and enforcement actions in the areas of auto servicing, consumer reporting, credit card account management, debt collection, deposits, mortgage origination, prepaid accounts, remittances, and student loan servicing. The report’s findings cover examinations completed between July and December 2021. Highlights of the examination findings include:
- Auto Servicing. Bureau examiners identified instances of servicers engaging in unfair, deceptive, or abusive acts or practices connected to wrongful repossessions, misleading final loan payment amounts, and overcharges for add-on products.
- Consumer Reporting. The Bureau found deficiencies in credit reporting companies’ (CRCs) compliance with FCRA dispute investigation requirements and furnishers’ compliance with FCRA and Regulation V accuracy and dispute investigation requirements. Examples include (i) both CRCs and furnishers failed to provide written notice to consumers providing the results of reinvestigations and direct dispute investigations; (ii) furnishers failed to send updated information to CRCs following a determination that the information reported was not complete or accurate; and (iii) furnishers’ policies and procedures contained deficiencies related to the accuracy and integrity of furnished information.
- Credit Card Account Management. Bureau examiners identified violations of Regulation Z related to billing error resolution, including instances where creditors failed to (i) resolve disputes within two complete billing cycles after receiving a billing error notice; (ii) reimburse consumers after determining a billing error had occurred; (iii) conduct reasonable investigations into billing error notices due to human errors and system weaknesses; and (iv) provide consumers with the evidence relied upon to determine a billing error had not occurred. Examiners also identified Regulation Z violations connected to creditors’ acquisitions of pre-existing credit card accounts from other creditors, and identified deceptive acts or practices related to credit card issuers’ advertising practices.
- Debt Collection. The Bureau found instances of FDCPA and CFPA violations where debt collectors used false or misleading representations in connection with identity theft debt collection. Report findings also discussed instances where debt collectors engaged in unfair practices by failing to timely refund overpayments or credit balances.
- Deposits. The Bureau discussed violations related to Regulation E, which implements the EFTA, including occurrences where institutions (i) placed duplicate holds on certain mobile check deposits that were deemed suspicious instead of a single hold as intended; (ii) failed to honor a timely stop payment request; (iii) failed to complete error investigations following a consumer’s notice of error because the consumer did not submit an affidavit; and (iv) failed to provide consumers with notices of revocation of provisional credit connected with error investigations regarding check deposits at ATMs.
- Mortgage Origination. Bureau examiners identified Regulation Z violations concerning occurrences where loan originators were compensated differently based on the terms of the transaction. Under the Bureau’s 2013 Loan Originator Final Rule, “it is not permissible to differentiate compensation based on credit product type, since products are simply a bundle of particular terms.” Examiners also found that certain lenders failed to retain sufficient documentation to establish the validity for revisions made to credit terms.
- Prepaid Accounts. The Bureau found violations of Regulation E and EFTA related to institutions’ failure to submit prepaid account agreements to the Bureau within the required time frame. Examiners also identified instances where institutions failed to honor oral stop payment requests related to payments originating through certain bill pay systems. The report cited additional findings where institutions failed to properly conduct error investigations.
- Remittances. Bureau examiners identified violations of the EFTA, Regulation E, and deceptive acts and practices. Remittance transfer providers allegedly made false and misleading representations concerning the speed of transfers, and in multiple instances, entered into service agreements with consumers that violated the “prohibition on waivers of rights conferred or causes of action created by EFTA.” Examiners also identified several issues related to the Remittance Rule’s disclosure, timing, and recordkeeping requirements.
- Student Loan Servicing. Bureau examiners identified several unfair acts or practices connected to private student loan servicing, including that servicers failed to make advertised incentive payments (which caused consumers to not receive payments to which they were entitled), and failed to issue timely refund payments in accordance with loan modification payment schedules.
The report also highlights recent supervisory program developments and enforcement actions, including the Bureau’s recent decision to invoke a dormant authority to examine nonbanks (covered by InfoBytes here).
CFPB provides Spanish translations
On April 29, the CFPB released Spanish translations for certain model and sample forms included in the Prepaid Rule in Regulation E and for certain adverse action model and sample notices included in Regulation B. According to the Bureau, the release is part of its continuing effort to ensure fair access to competitive and transparent markets for all consumers. The Bureau also reminded financial institutions of their obligation to serve the communities where they conduct business, which includes communities with limited English proficiency, in addition to encouraging the use of the translations as they work with Spanish-speakers.
FinCEN renews GTOs covering 12 metropolitan areas
On April 29, FinCEN reissued the renewal of its Geographic Targeting Orders (GTOs). The GTOs require U.S. title insurance companies to identify the natural persons behind shell companies that pay “all cash” (i.e., the transaction does not involve external financing) for residential real estate in the 12 major metropolitan areas covered by the orders. The renewed GTOs are identical to the October 2021 GTOs (covered by InfoBytes here). The purchase amount threshold for the beneficial ownership reporting requirement remains set at $300,000 for residential real estate purchased in the covered areas. The renewed GTOs take effect April 30 and end October 26, and cover certain counties within the following areas: Boston, Chicago, Dallas-Fort Worth, Honolulu, Las Vegas, Los Angeles, Miami, New York City, San Antonio, San Diego, San Francisco, and Seattle.
FinCEN FAQs regarding GTOs are available here.