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FTC, CFPB examine discriminatory background screenings
On February 28, the FTC and CFPB issued a request for information (RFI) on background screening issues affecting consumers seeking rental housing in the U.S., including ways criminal and eviction records and algorithms may lead to discriminatory screening outcomes. (See also CFPB blog post here.) According to the agencies, information used and collected in rental-screening checks may “unfairly prevent consumers from obtaining and retaining housing.” The announcement comes as part of an effort to identify practices that unfairly prevent applicants and tenants from accessing or staying in housing. As previously covered by InfoBytes, the Biden administration announced in January new actions for enhancing tenant protections and furthering fair housing principles. This marks the first time the FTC has issued an RFI that explores unfair practices in the rental market. Collected data will be used to inform enforcement and policy actions under each agency’s jurisdiction, the agencies said, adding that the FCRA (which both agencies enforce) also imposes requirements on several aspects of the tenant screening process.
Seeking feedback from current and prospective tenants, advocacy groups, landlords, and others who use or are subject to rental-screening checks, the RFI requests information covering a wide array of issues, including: (i) how housing decisions are impacted when criminal and eviction records (which may contain potential inaccuracies) are used; (ii) whether consumers are made aware of the criteria used in the screening process or notified about the reasons leading to a rejection; (iii) how application and screening fees are set; (iv) how the screening process uses algorithms, automated decision-making, artificial intelligence, or similar technology; and (v) ways the current screening process can be improved. Comments on the RFI are due May 30.
DFPI settles with student loan debt relief company
On February 28, the California Department of Financial Protection and Innovation (DFPI) announced a settlement with an unlicensed student debt relief company and its owner. The announcement is part of the DFPI’s continued crackdown on student loan debt relief companies found to have violated the California Consumer Financial Protection Law (CCFPL), the Student Loan Servicing Act (SLSA), and the Telemarketing Sales Rule (TSR). According to the settlement, a DFPI inquiry into the company’s practices found that since at least 2018, the company placed unsolicited phone calls to consumers advertising its student loan forgiveness and modification services. The company allegedly gave borrowers the impression that it was a part of, or affiliated with, an official government agency, and would act “as an intermediary between borrowers and the borrowers’ lenders or loan servicers with the goal of helping those consumers lower or eliminate their student loan debts.” The DFPI found that since 2018 at least 790 California consumers enrolled in the company’s debt relief program, whereby the company collected at least $713,000 through up-front servicing fees ranging from $116 to $2,449 from California consumers. By allegedly engaging in unlicensed student loan servicing activities, engaging in unlawful, unfair, deceptive, or abusive acts or practices with respect to consumer financial products or services, and by charging advance fees for debt relief services, the DFPI claimed the company violated the SLSA, CCFPL, and TSR.
Under the terms of the consent order, the company and owner must desist and refrain from engaging in the alleged conduct, rescind all debt relief, debt management, or debt consulting service agreements, and issue refunds to California consumers. The owner is also ordered to “desist and refrain from owning, managing, operating, or controlling any entity that services student loans, or which offers or provides any consumer financial products or services as defined by the CCFPL, unless and until he or the entity has the applicable approvals from the DFPI and is in compliance with the SLSA, CCFPL, TSR, and the Federal Trade Commission Act.”
OFAC sanctions Mexican arms trafficker for supplying weapons to cartel
On February 28, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions pursuant to Executive Order (E.O.) 14059 against a Mexican national for his role in providing, or having attempted to provide, financial, material, or technological support for, or goods or services in support of, the Cartel de Jalisco Nueva Generacion (CJNG). The CJNG is also designated under E.O. 14059. According to OFAC, the sanctions are part of a whole-of-government effort to combat global threats posed by illicit drug trafficking into the U.S. The agency stressed it will continue to coordinate with federal government partners and foreign counterparts to target and pursue accountability for foreign illicit drug actors. As a result of the sanctions, the designated individual’s property located in the U.S. or held by U.S. persons is blocked and must be reported to OFAC. Further, “any entities that are owned, directly or indirectly, individually or in the aggregate, 50 percent or more by one or more blocked persons are also blocked.” U.S. persons are generally prohibited from engaging in any dealings involving the property or interests in property of blocked or designated persons unless authorized by an OFAC-issued general or specific license, or exempt. OFAC further warned that “U.S. persons may face civil or criminal penalties for violations of E.O. 14059 and the Kingpin Act.”
OFAC sanctions persons supporting North Korea
On March 1, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against three entities and two individuals for their roles in illicitly generating revenue to support the government of the Democratic People’s Republic of Korea (DPRK). According to OFAC, two of the sanctioned entities are designated pursuant to Executive Order (E.O.) 13687 “for being agencies, instrumentalities, or controlled entities of the Government of North Korea or the Workers’ Party of Korea.” One of the entities is a subordinate to the Government of North Korea, and is used by the DPRK government to earn foreign currency, collect intelligence, and provide cover status for intelligence operatives. The other entity—a subordinate to the DPRK Ministry of People’s Armed Forces (which was previously sanctioned by OFAC)—allegedly generated funds for the DPRK government for decades by conducting art and construction projects on behalf of regimes throughout the Middle East and Africa. The two individuals are sanctioned, pursuant to E.O. 13810, for being North Korean persons who have generated revenue for the DPRK government or the Workers’ Party of Korea. These individuals, OFAC said, established the third sanctioned entity in the Democratic Republic of the Congo to earn revenue from construction and statue-building projects with local governments.
As a result of the sanctions, all property and interests in property of the sanctioned persons that are in the United States or in the possession or control of U.S. persons must be blocked and reported to OFAC, as well as “any entities that are owned, directly or indirectly, 50 percent or more by one or more blocked persons.” Persons that engage in certain transactions with the designated individuals and entities may themselves be exposed to sanctions, and “any foreign financial institution that knowingly facilitates a significant transaction or provides significant financial services for any of the individuals or entities designated today could be subject to U.S. correspondent or payable-through account sanctions.”
CFPB asks for comments on alternative disclosures for construction loans
On February 27, the CFPB announced it is in the final stages of reviewing an application for alternative mortgage disclosures for construction loans submitted by a trade group representing small U.S. banks. The applicant maintains that it is not uncommon for first-time homebuyers in rural communities to build their home instead of purchasing an existing home due to the scarcity of “existing affordable ‘starter’ homes.” The applicant seeks to adjust existing mortgage disclosures to facilitate the offering of loans that finance both the construction phase and the permanent purchase of a home. According to the applicant, a consumer’s understanding of construction loans would be improved if disclosures are more specifically tailored to these types of transactions. The Bureau stated that should it approve this “template” application, individual lenders will be able to apply for enrollment in an in-market testing pilot. However, the Bureau noted that, as indicated in its Policy to Encourage Trial Disclosure Programs (covered by InfoBytes here), the mere approval of a template neither permits a lender to unilaterally conduct a trial disclosure program without further approval by the CFPB, nor does it “bind the CFPB to grant individual applications.”
The disclosure of the application comes as a result of efforts undertaken by the Bureau to be more open and transparent when adjusting regulations for new business models. The Bureau stated that in addition to publicly releasing the application, it is seeking input from stakeholders who have experience with construction loans. Comments will be accepted through March 29.
CFPB shutters mortgage lender, alleging deceptive advertising
On February 27, the CFPB entered a consent order against a California-based mortgage lender (respondent) for alleged repeat violations of the Consumer Financial Protection Act, TILA (Regulation Z), and the Mortgage Acts and Practices Advertising Rule (Regulation N), in relation to a 2015 consent order. As previously covered by InfoBytes, in 2015, the Bureau claimed the respondent (which is licensed in at least 30 states and Puerto Rico and originates consumer mortgages guaranteed by the Department of Veterans Affairs and mortgages insured by the FHA) allegedly led consumers to believe it was affiliated with the U.S. government. Specifically, respondent allegedly used the names and logos of the VA and FHA in its advertisements, described loan products as part of a “distinctive program offered by the U.S. government,” and instructed consumers to call the “VA Interest Rate Reduction Department” at a phone number belonging to the mortgage lender, thus implying that the mailings were sent by government agencies. The 2015 consent order required the respondent to abide by several prohibitions and imposed a $250,000 civil money penalty.
The Bureau contends, however, that after the 2015 consent order went into effect, the respondent continued to send millions of mortgage advertisements that allegedly made deceptive representations or contained inadequate or impermissible disclosures, including that the respondent was affiliated with the VA or the FHA. Additionally, the Bureau alleges that the respondent misrepresented interest rates, key terms, and the amount of monthly payments, and falsely represented that benefits available to qualifying borrowers were time limited. Many of these alleged misrepresentations, the Bureau claims, were expressly prohibited by the 2015 consent order.
The 2023 consent order permanently bans the respondent from engaging in any mortgage lending activities, or from “otherwise participating in or receiving remuneration from mortgage lending, or assisting others in doing so.” The respondent, which neither admits nor denies the allegations, is also required pay a $1 million civil money penalty.
FDIC issues January enforcement actions
On February 24, the FDIC released a list of administrative enforcement actions taken against banks and individuals in January. The FDIC made public 11 orders, including “four combined orders of prohibition and orders to pay civil money penalties, one 8(b) consent order, one order to pay civil money penalty, three orders of prohibition, one order terminating a Section 19 order, and one order terminating consent order.”
The actions include a civil money order against a Pennsylvania-based bank related to alleged violations of the Flood Disaster Protection Act (FDPA). The FDIC determined that the bank had engaged in a pattern or practice of violating the FDPA by failing to provide required notices of lender-placed flood insurance to borrowers in 16 instances.
Additionally, the FDIC issued a consent order against an Iowa-based bank alleging the bank engaged in “unsafe or unsound banking practices and violations of law or regulations” relating to, among other things, its process for testing a proposed debit/prepaid card program. The FDIC stipulated that before starting the testing phase of any new debit card program or similar program, the bank “must develop, adopt, and implement an effective program addressing anti-money laundering (AML) / combating the financing of terrorism (CFT) controls” for the new program and conduct an independent assessment. The bank is also ordered to revise its AML/CFT policy and conduct a review of its information security program to ensure it reflects current risks.
DFPI modifies CCFPL proposal
On February 24, the California Department of Financial Protection and Innovation (DFPI) released modifications to proposed regulations for implementing and interpreting certain sections of the California Consumer Financial Protection Law (CCFPL) related to commercial financial products and services. As previously covered by InfoBytes, DFPI issued a notice of proposed rulemaking (NPRM) last June to implement sections 22159, 22800, 22804, 90005, 90009, 90012, and 90015 of the CCFPL related to the offering and provision of commercial financing and other financial products and services to small businesses, nonprofits, and family farms. According to DFPI, section 22800 subdivision (d) authorizes the Department to define unfair, deceptive, and abusive acts and practices in connection with the offering or provision of commercial financing. Section 90009, subdivision (e), among other things, authorizes the Department’s rulemaking to include data collection and reporting on the provision of commercial financing or other financial products and services.
After considering comments received on the NPRM, changes proposed by the DFPI include the following:
- Amended definitions. The proposed modification defines a “commercial financing transaction” to mean “a consummated commercial financing transaction for which a disclosure is provided in accordance with California Code of Regulations, title 10, section 920, subdivision (a).” The modifications to the definitions also amend a “covered provider” to exclude “any person exempted from division 24 of the Financial Code under Financial Code section 90002,” and defines a “small business” to be “a business entity organized for profit with annual gross receipts of no more than $16,000,000 or the annual gross receipt level as biennially adjusted by the Department of General Services in accordance with Government Code section 14837, subdivision (d)(3), whichever is greater.” In determining a business entity’s annual gross receipts, the proposed modifications state that covered providers “may rely on any relevant written representation by the business entity, including information provided in any application or agreement for commercial financing or other financial product or service.”
- UDAAP. In addition to making several technical changes, the proposed modifications clarify that “[i]t is unlawful for a covered provider to engage or have engaged in any unfair, deceptive, or abusive act or practice in connection with the offering or provision of commercial financing or another financial product or service to a covered entity.” The changes remove text that would have made it unlawful should a covered provider “propose to engage” in any if these practices.
- Annual reporting requirements. The proposed modifications specify that covered providers who offer commercial financing will be required to electronically file reports to the DFPI on or before March 15 of each year starting in 2025. The proposed changes to the reporting requirements also clarify certain terms, address when covered providers are not required to calculate or report certain information, and stipulate that covered providers “licensed under division 9 (commencing with section 22000) of the Financial Code shall not include in the report required under this section information for activity conducted under the authority of that license.”
Comments on the proposed modifications are due March 15.
New York AG sues crypto trading platform for failing to register
On February 22, the New York attorney general filed a petition in state court against a virtual currency trading platform (respondent) for allegedly failing to register as a securities and commodities broker-dealer and falsely representing itself as a cryptocurrency exchange. The respondent’s website and mobile application enable investors to buy and sell cryptocurrency, including certain popular virtual currencies that are allegedly securities and commodities. According to the AG, securities and commodities brokers are required to register with the state, which the respondent allegedly failed to do. The AG further maintained that the respondent claimed to be an exchange but failed to appropriately register with the SEC as a national securities exchange or be designated by the CFTC as required under New York law. Nor did the respondent comply with a subpoena requesting additional information about its crypto-asset trading activities in the state, the AG said. The state seeks a court order (i) preventing the respondent from misrepresenting that it is an exchange; (ii) banning the respondent from operating in the state; and (iii) directing the respondent to undertake measures to prevent access to its mobile application, website, and services from within New York.
FinCEN warns financial institutions of surge in mail theft-related check fraud
On February 27, FinCEN issued an alert to financial institutions on the nationwide surge in check fraud schemes targeting the U.S. mail. Mail theft-related check fraud, FinCEN explained, generally relates to the fraudulent negotiation of checks stolen from the U.S. postal service, and represents one of the most significant money laundering threats to the U.S. The alert is intended to ensure financial institutions file suspicious activity reports (SARs) that appropriately identify and report suspected check fraud schemes possibly linked to mail theft. The alert highlighted red flags to help financial institutions identify and report suspicious activity, and reminded financial institutions of their Bank Secrecy Act (BSA) reporting requirements. According to FinCEN, BSA reporting for check fraud has increased significantly over the past three years. “In 2021, financial institutions filed over 350,000 [SARs] to FinCEN to report potential check fraud, a 23 percent increase over the number of check fraud-related SARs filed in 2020,” the agency said, adding that in 2022, SARs related to check fraud reached over 680,000. When suspecting this type of fraud, financial institutions are advised to refer customers to the United States Postal Inspection Service in addition to filing a SAR.