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Financial Services Law Insights and Observations


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  • New York increases homeowner safeguards, closes loopholes to prevent deed fraud and mortgage scams

    State Issues

    On August 14, the New York governor signed a package of bills intended to increase consumer homeowner protections. According to a press release issued by the governor, the three measures enact homeowner safeguards and close loopholes to prevent deed fraud and mortgage scams.

    • A 92 imposes obligations on banks or financial institutions that sell or transfer a mortgage after a borrower has applied for a loan modification. Specifically, the law requires the original holder of the loan to provide the borrower with a list of all modification application documents provided to the buyer or transferee of the mortgage. The measure also requires the new mortgage servicer to honor the terms and conditions of a loan modification that was approved by the original servicer. The act takes effect in 90 days.
    • A 1800 requires servicers of vacant or abandoned residential properties to continue to pay homeowners’ association fees or cooperative fees on properties in the state to ensure they do not become dilapidated before a foreclosure is finalized. The act takes effect immediately.
    • A 5615 amends state law related to distressed home loans to extend consumer protections for homes in default and foreclosure by, among other things, (i) providing homeowners additional time to cancel a covered contract with a purchaser; (ii) preventing distressed property consultants from inducing the consumer to transfer the deed to the consultant or anyone else; and (iii) allowing consumers to void contracts, deeds, or other agreements material to the consumer’s property where an individual was convicted of or pled guilty to making false statements in connection with that agreement. The act takes effect immediately.

    State Issues State Legislation Mortgages Foreclosure

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  • Florida AG settles UDAP action with auto dealership

    State Issues

    On August 5, the Florida attorney general announced a $1.2 million settlement with a Florida auto dealership and its owner (defendants) for allegedly violating the state’s Unfair and Deceptive Trade Practices Act by failing to pay off outstanding liens on vehicle trade-ins. According to a complaint filed in the Circuit Court of the 4th Judicial Circuit, the AG initiated an investigation alleging that the defendants, among other things, accumulated unpaid obligations of more than $1.2 million to lienholders on traded-in vehicles. As a result, consumers were held accountable for the debt and received invoices from the lienholders. For consumers who did not make payments on their trade-ins, the lienholders often reported the defaults to credit bureaus, with, in some instances, the adverse credit reporting affected service members’ security clearances. The AG also noted that in certain circumstances, the lienholder attempted to repossess vehicles that were no longer owned by the consumers. Additionally, the defendants also failed to process title transfers within the statutorily required time frame, which resulted in some consumers experiencing difficulty when trying to obtain financing and insurance on their other vehicles, and others being sold traded-in vehicles without having clear title. In 2018, the dealership was purchased and the outstanding liens paid by the acquiring company. Under the terms of the settlement, the defendants have agreed to pay approximately $1.2 million in equitable consumer restitution, $235,000 in civil penalties, and $15,000 for attorney’s fees and costs. The defendants are also permanently enjoined from owning, operating, or managing an auto or truck dealership in the state at any time in the future.

    State Issues State Attorney General Consumer Finance Consumer Protection Auto Finance Settlement

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  • NYDFS announces multistate investigation of payroll advance industry

    State Issues

    On August 6, NYDFS announced it is leading a multistate investigation into the payroll advance industry based on allegations of unlawful online lending. According to NYDFS, the investigation will focus on whether companies are violating state banking laws, including usury limits, licensing laws, and other applicable laws regulating payday lending. NYDFS alleges that some companies appear to collect unlawful interest rates disguised as “tips” as well as monthly membership and/or excessive additional fees, and may collect improper overdraft charges.

    In addition to New York, other states in the investigation include: Connecticut, Illinois, Maryland, New Jersey, North Caroline, North Dakota, Oklahoma, Puerto Rico, South Carolina, South Dakota, and Texas.

    State Issues Lending Online Lending State Regulators NYDFS Overdraft Usury Interest Rate

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  • New Jersey establishes Office of the Student Loan Ombudsman, provides student loan servicer regulations

    State Issues

    On July 30, the New Jersey governor signed S1149 to, among other things, establish the Office of the Student Loan Ombudsman within the Department of Banking and Insurance and provide licensing requirements for student loan servicers. Notably, federal or state chartered banks, savings banks, savings and loan associations, and credit unions, as well as their wholly owned subsidiaries, are exempt from the bill’s licensure requirements

    The appointed ombudsman’s responsibilities will include (i) reviewing, analyzing, and resolving borrower complaints; (ii) providing information to the public, agencies, legislators, and others regarding borrower concerns; (iii) reviewing complete student loan histories for borrowers who have provided written consent; (iv) establishing and maintaining a student loan borrower education course, including providing information on “monthly payment obligations, income-based repayment options, loan forgiveness, and disclosure requirements”; and (v) providing a report 12 months following the date of appointment to the Commissioner of Banking and Insurance (Commissioner) conveying any additional steps that may be necessary to address the licensing and enforcement of student loan servicers.

    Additionally, the bill establishes licensing provisions for student loan servicers, and requires all servicers and certain other exempt entities to maintain student loan records for at least two years after the final payment or assignment of the loan, whichever comes first.

    The bill also gives the Commissioner authority to conduct investigations and examinations of licensed servicers, as well as impose fines of not more than $10,000 for the first violation, and $20,000 for the second and for offenses thereafter. Student loan servicers must also comply with applicable federal laws, including the Truth in Lending Act. The bill notes that “any violation of any federal law or regulation shall be deemed a violation of this section and a basis upon which the [C]ommissioner may take enforcement action.”

    The bill will take effect November 27.

    State Issues State Legislation Student Lending Licensing Student Loan Servicer

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  • North Carolina enacts state SCRA, expands protections

    State Issues

    On July 25, the North Carolina governor signed SB 420, the “NC Servicemembers Civil Relief Act” (NCSCRA), which, among other things, incorporates into state law the rights, benefits and protections of the federal Servicemembers Civil Relief Act (SCRA) and extends those provisions to members of the North Carolina National Guard serving on state active duty and to members of the National Guard of other states serving on state active duty who reside in North Carolina. In addition to the rights afforded to servicemembers in the SCRA, the NCSCRA (i) expands certain protections for dependents of servicemembers, including protections against default judgments and an interest rate cap of six percent; (ii) authorizes the termination of certain service contracts, allowing servicemembers and their dependents to terminate telephone, internet, cable TV, satellite radio, and prepaid entertainments contracts upon relocation orders for 90 days or more to a location that does not support such services; and (iii) allows for the extension of residential lease agreements until 10 days after a member of the North Carolina National Guard or a member of another state’s National Guard who is residing in North Carolina’s active duty terminates. The NCSCRA provides for action by the attorney general for any violation, with a civil penalty up to $5,000 per violation and also allows for a private right of action by an aggrieved servicemember.

    State Issues Military Lending State Legislation SCRA

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  • Rhode Island says service contracts are not insurance

    State Issues

    On July 15, the Rhode Island governor signed H 5674, which clarifies that service contracts, vehicle theft protection product warranties, and vehicle maintenance agreements are not considered insurance and are therefore exempt from the state’s insurance code. The bill also amends definitions under the law’s chapter relating to service contracts. The amendments take effect January 1, 2020.

    State Issues State Legislation Service Contracts Insurance

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  • North Carolina AG sues unlicensed debt collector for multiple violations

    State Issues

    On July 17, the North Carolina attorney general announced a lawsuit filed against multiple debt collection entities and their owner for allegedly collecting or attempting to collect on consumer debts in North Carolina without filing the appropriate registration or obtaining the necessary permits to operate as a debt collection agency in the state. According to the complaint, the entities, based and registered in Texas, purchased unpaid debts from a national rent-to-own consumer goods company. North Carolina customers allegedly received misleading collection notices from the entities simulating actual court notices and implying the customers had committed criminal offenses. Additionally, the complaint alleges that the entities filed criminal complaints against the customers, containing misleading information and resulting in actual summonses being issued. The complaint alleges violations of North Carolina’s Unfair and Deceptive Trade Practices Act, Business Corporation Act, Professional Corporation Act, Uniform Partnership Act, and North Carolina’s Prohibited Practices by Collection Agencies Engaged in Collection of Debts from Consumers and seeks among other things, civil penalties, restitution, and injunctive relief.

    As a result of the complaint filing, the court approved a temporary restraining order prohibiting the entities from engaging in debt collection practices and scheduled a preliminary injunction hearing.

    State Issues State Attorney General Debt Collection Licensing

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  • Rhode Island creates Student Loan Bill of Rights Act

    State Issues

    On July 15, the Rhode Island governor signed HB 5936, which creates the “Student Loan Bill of Rights Act” to define responsibilities for student loan servicers and establish guidelines related to the issuance of postsecondary loans. Notably, federal or state chartered banks or credit unions, as well as their wholly owned subsidiaries, that originate student loans or act as servicers are exempt from the majority of the act’s requirements, including sections 19-33-4, 19-33-6 through 19-33-11, 19-33-12(9), and 19-33-14.

    The act requires non-exempt student loan servicers that service at least six or more postsecondary student loans within a consecutive 12 month period to comply with certain requirements, including (i) registering with the Department of Business Regulation (Department) no later than September 30 “or within 30 days of conducting student loan servicing, whichever is earlier”; (ii) maintaining loan transaction records; (iii) filing annual reports with the Department; (iv) disclosing repayment program terms and refinance options to borrowers; and (v) responding to borrower inquiries within specified time frames concerning, among other things, credit reporting disputes, application of payments, and record transfers.

    Additionally, the act prohibits student loan servicers from, among other things, (i) employing any scheme designed to defraud or mislead borrowers; (ii) engaging in unfair or deceptive practices; (iii) misapplying payments; (iv) failing to report payment histories to credit bureaus; (iv) failing to communicate with a borrower’s authorized representative; (v) making false statements or omitting material facts in connection with information filed with a government agency or provided in the course of an investigation; and (vi) failing to properly evaluate a borrower’s eligibility for public service loan forgiveness programs or income-driven repayment programs.

    The act gives the Department authority to conduct investigations and examinations of registered servicers, as well as impose fines of not more than $2,000 per violation. Furthermore, the Rhode Island attorney general may enforce violations of prohibited conduct as unlawful acts or practices. The act is effective immediately.

    The Department of Education has issued an interpretation that servicers that are servicing Direct Loans for the Department of Education would be exempt from state licensing and substantive requirements, but the act does not accommodate that interpretation.

    State Issues State Legislation Student Lending Student Loan Servicer Department of Education

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  • NY extends law allowing licensed lenders to charge annual fees

    State Issues

    On July 3, the New York governor signed SB 6100, which extends for an additional two years the existing provision of the banking law allowing licensed lenders to charge annual fees on open-end personal loans. Effective immediately, the law will now remain in full force and effect until June 30, 2021.

    State Issues State Legislation Lending Fees Open-End Credit

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  • NY AG settlement resolves deceptive practices action with ticket resale companies

    State Issues

    On July 10, the New York attorney general announced a settlement with two ticket resale companies that allegedly deceived thousands of consumers by selling event tickets that the companies did not actually own. According to the announcement, the defendants’ practice of selling “speculative tickets” to consumers involved listing and selling tickets the companies did not possess and attempting to purchase such tickets only after a consumer had already placed an order. The attorney general claimed the defendants often charged premiums or inflated prices for tickets then “kept the difference between the price they actually paid and the price at which the speculative ticket was sold to a consumer.” Additionally, one of the defendants also allegedly misled consumers in instances when tickets could not be provided by blaming technical errors or vague supplier issues. While the defendants have not admitted any liability, under the terms of the settlement—subject to court approval—they have agreed to pay $1.55 million and adopt reforms designed to protect ticket purchasers in the future, including, where appropriate, providing clear and conspicuous disclosures stipulating that the ticket seller does not possess the listed tickets and is merely offering to obtain such tickets on a consumer’s behalf.

    State Issues State Attorney General Enforcement Deceptive Disclosures

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