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Federal Agencies Offer Regulatory Relief for Hurricane Victims
Federal agencies continue to announce regulatory relief for financial institutions aiding consumers affected by recent hurricane disasters. InfoBytes coverage on previous disaster relief measures can be accessed here, here, and here.
Freddie Mac. On September 25, Freddie Mac issued Bulletin 2017-21 (Bulletin) to extend certain temporary selling and servicing requirements meant to provide flexibility and relief for mortgages and borrowers in areas impacted by all hurricanes occurring on or after August 25 through the 2017 hurricane season. In particular, Freddie Mac will reimburse sellers for property inspections completed prior to the sale or securitization of mortgages secured by properties in disaster areas caused by a 2017 hurricane. Freddie Mac is also requiring servicers to suspend foreclosure sales and eviction activities on property located in eligible disaster areas affected by Hurricane Maria. However, the Bulletin provides that a servicer can proceed with a foreclosure sale if it can confirm that (i) inspection was completed on a mortgaged property “identified as vacant or abandoned prior to Hurricane Maria,” and (ii) the property sustained no “insurable damage.” The Bulletin also reminds servicers to report all mortgages affected by an eligible disaster that are 31 or more days delinquent to Freddie Mac.
Veterans Affairs (VA). On September 27, the VA issued Circular 26-17-28 to outline measures that it encourages mortgagees to utilize to provide relief to veterans affected by Hurricane Maria. Specific recommendations include: (i) extending forbearance to distressed borrowers; (ii) establishing a 90-day moratorium on initiating foreclosures on affected loans; (iii) waiving late charges; (iv) suspending credit bureau reporting with the understanding that servicers will not be penalized by the VA; and (v) extending “special forbearance” to National Guard members who report for active duty to assist recovery efforts.
FDIC. On September 27, the FDIC released a financial institution letter to provide additional guidance for depository institutions assisting affected consumers. As previously covered in Infobytes, the FDIC released guidance for Hurricane Harvey disaster relief, and issued a joint press release in conjunction with the Federal Reserve Board, Conference of State Bank Supervisors, and the OCC as a response to those affected by Hurricane Irma. The newest release, FIL-46-2017, announced regulatory relief for financial institutions affected by Hurricane Maria, and steps to facilitate recovery in affected areas, which include: (i) “extending repayment terms, restructuring existing loans, or easing terms for new loans,” and (i) “encourage[ing] depository institutions to use non-documentary verification methods permitted by the Customer Identification Program requirement of the Bank Secrecy Act for affected customers who cannot provide standard identification documents.” Further, banks that support disaster recovery efforts, the FDIC noted, may receive favorable Community Reinvestment Act consideration.
SEC. On September 28, the SEC issued an order providing regulatory relief to companies and individuals with federal securities law obligations who have been affected by recent natural disasters. The order provides conditional exemptions to certain securities laws requirements for specified periods of time. The Commission additionally adopted “interim final temporary rules” applicable to Regulation Crowdfunding and Regulation A filing deadline extensions.
Financial Crimes Enforcement Network (FinCEN). On October 3, FinCEN issued a notice to financial institutions that file Bank Secrecy Act reports to encourage communication with FinCEN and their functional regulator regarding any expected filing delays caused by recent hurricanes.
SEC Reaches Settlement with Broker-Dealer Over Alleged Sale of Unregistered Stocks and Failure to File SARs
On July 28, the SEC announced it had reached a settlement in an administrative proceeding against a broker-dealer firm for allegedly selling hundreds of millions of unregistered penny stock shares and failing to file Suspicious Activity Reports (SARs) for over $24.8 million in suspicious transactions with the Financial Crime Enforcement Network. Bank Secrecy Act regulations require a broker-dealer to file SARs if it “knows, suspects, or has reason to suspect that the transaction . . . involves funds derived from illegal activity or is intended . . . to hide or disguise funds” to evade anti-money laundering (AML) rules. A broker-deal must also file SARs if there is no apparent lawful purpose for the transaction or if the transaction is to facilitate criminal activity. According to the settlement, the firm’s actions violated the Securities Act and Exchange Act. In addition to being censured and agreeing pay a $200,000 penalty, the firm will no longer accept the deposit of stocks valued under $5.00 and will retain an independent consultant to assist with mandatory enhancements to the firm’s AML policies and procedures.
FinCEN, California U.S. Attorney Assess Civil Money Penalties Against Virtual Currency Transmitter and Operator for AML Violations
On July 27, the Financial Crimes Enforcement Network (FinCEN), in partnership with the U.S. Attorney’s Office for the Northern District of California, assessed a more than $110 million civil money penalty against an internet-based, foreign-located virtual currency transmitter for willfully violating the anti-money laundering (AML) provisions of the Bank Secrecy Act. A second, separate $12 million penalty was assessed against one of the company’s operators, a Russian national. Additionally, a California grand jury handed down a 21-count indictment against the currency transmitter and the Russian national. According to allegations, the company exchanged fiat currency in addition to virtual currencies such as bitcoin, and “facilitated transactions involving ransomware, computer hacking, identity theft, tax refund fraud schemes, public corruption, and drug trafficking.” The company also processed transactions using stolen funds.
Pursuant to the terms of the assessment, from November 2011 through the present, both the company and the operator allegedly failed to (i) meet money services business (MSB) registration requirements; (ii) implement an effective AML program; (iii) detect suspicious transactions or file suspicious activity reports; and (iv) obtain and retain records for transmitted funds of $3,000 or more. FinCEN warned that regardless of ownership or location, foreign-located MSBs are “required to comply with U.S. AML laws and regulations . . . including AML program, MSB registration, suspicious activity reporting, and recordkeeping requirements.”
This is the first action FinCEN has taken against a foreign-located MSB conducting business in the U.S.
FinCEN Recognizes Law Enforcement Agencies for Use of BSA Reporting
On May 9, the Financial Crimes Enforcement Network (FinCEN) announced its third annual Law Enforcement Awards to law enforcement agencies that use Bank Secrecy Act data provided by financial institutions in their criminal investigations. The program seeks to recognize law enforcement agencies that made effective use of financial institution reporting to obtain a successful prosecution, and to demonstrate to the financial industry the value of its reporting to law enforcement. The following agencies were recognized:
- Suspicious Activity Report Review Task Force Category—New York State Police. Based on a financial institution reporting an unusual pattern of cash deposits, the New York State Police Special Investigations Unit identified suspicious transactions occurring in the Hudson Valley Region indicative of money laundering. The investigations led to the identification of expansive criminal organizations responsible for bringing large quantities of narcotics into the region, operating business fronts used for money laundering, and extensive gang activity.
- Transnational Organized Crime/Third Party Money Launderers Category—FBI. After receiving a referral from local law enforcement regarding an individual suspected of carrying out various fraud and money laundering schemes, the FBI conducted an investigation, and its review of sensitive financial information resulted in investigators uncovering a network of criminal actors located in the U.S. and Canada, which was bringing in $100-$300 million in annual criminal proceeds in North America alone.
- Transnational Security Threats Category—FBI. The FBI used a high volume of sensitive financial information obtained in connection with its investigation into a criminal organization moving hundreds of millions of U.S. dollars to support foreign nuclear and ballistic missile programs, to identify two families that operated a network of exchange houses, precious metals companies, trading companies, and front companies throughout the Middle East to carry out financial activity for the benefit of multiple OFAC-sanctioned entities, as well as several entities with close ties to foreign military organizations.
- Cyber Threats Category—Internal Revenue Service-Criminal Investigation (IRS-CI). A multi-year, multi-agency investigation led by IRS-CI focused on several targets selling narcotics on the dark web and distributing them throughout the U.S. The investigation identified sensitive financial information, which enabled investigators to corroborate the financial and personal information of the targets. The data also indicated that the subjects used Bitcoins in an effort to conceal their illicit proceeds. The information identified in the financial data and from subpoenas issued to numerous financial institutions and Bitcoin exchangers helped clarify the series of transactions conducted to launder the funds.
- Significant Fraud Category—Defense Criminal Investigative Service (DCIS). DCIS initiated a long-term investigation based on structuring and excessive credit card charges identified by multiple financial institutions on a single individual. Investigators determined that one of the subjects was transferring funds to a shell company owned by a U.S. military official. A detailed analysis of sensitive financial information and contract documents revealed that the U.S. military official had received bribes from the primary target in exchange for helping the primary target win military contracts in Afghanistan.
- Third-Party Money Launderers Category—Immigration and Customs Enforcement Homeland Security Investigations (HSI). HSI investigators utilized an extensive volume of sensitive financial information to assist in their investigation into a large-scale illegal third-party money laundering organization. The investigation began based largely on information gleaned from a FinCEN-issued Geographic Targeting Order (GTO). The GTO information used by investigators allowed them to identify an “armored car company, which was importing U.S. dollars and Mexican pesos from casas de cambio in Mexico and depositing them into shell company bank accounts that were opened and operated by the two individuals who owned and operated the company.”
Federal Regulators Enter Settlement Agreement with Former Chief Compliance Officer Following AML Program Investigation
On May 4, FinCEN and the U.S. Attorney’s Office for the Southern District of New York announced a $250,000 settlement with the former chief compliance officer of an international money transfer company over allegations that he failed to report suspicious activity and knowingly participated in the company’s failure to maintain an effective anti-money laundering program. The settlement resolves a lawsuit filed in December of 2014 against the defendant, in which the district court dismissed the defendant’s motion to dismiss, ruling that the Bank Secrecy Act’s (BSA) general civil penalty provision, § 5321(a)(1), could subject a partner, director, officer, or employee of a financial institution to civil penalties for violations of any provision of the BSA or its regulations, excluding the specifically excepted provisions, and that because § 5318(h) was not listed as one of those exceptions, “the plain language of the statute provides that a civil penalty may be imposed on corporate officers and employees like [the defendant], who was responsible for designing and overseeing [the company's] AML program.” U.S. Dep’t of Treasury v. Haider, No. 15-cv-01518, WL 107940 (Dist. Ct. Minn. Jan. 8, 2016). (See previous InfoBytes summary.) In the stipulation and order of settlement and dismissal, the defendant (i) accepted responsibility for failing to further investigate consumer fraud reports; (ii) is required to pay $250,000 to the Department of the Treasury; and (iii) is banned for three years from performing compliance functions for other U.S.-based money transmitters. Notably, in February 2016, the money transfer company agreed to pay $13 million to settle claims from 49 states and the District of Columbia over charges that it transferred money to third parties that were defrauding customers. As part of the company’s settlement, it was required to ensure its agents attend mandatory compliance training, enhance its comprehensive anti-fraud compliance program, and implement a hotline system for employees to report noncompliance.
House Financial Services Subcommittee Explores Ways to Safeguard Financial System from Terrorist Financing
On April 27, the Financial Services Subcommittee on Terrorism and Illicit Finance held a hearing entitled Safeguarding the Financial System from Terrorist Financing to examine information sharing and data collection practices at the Financial Crimes Enforcement Network (FinCEN) and assess how the process could be improved. According to a Committee memorandum released in advance of the hearing, the hearing was also called for the purposes of considering whether to amend the Bank Secrecy Act and USA PATRIOT Act to improve FinCEN’s effectiveness in disrupting terrorist financing and money laundering.
Jamal El-Hindi, the Acting Director of the Financial Crimes Enforcement Network (FinCEN) at the Department of the Treasury, was the only witness. For just over an hour, the Acting Director offered testimony and answered questions concerning, among other things, the collection, analysis and dissemination of Bank Secrecy Act data and information sharing between the public and private sectors. Mr. El-Hindi also discussed several new and evolving money laundering and terrorist financing challenges, including potential money laundering vulnerabilities associated with “all cash” real estate transactions, virtual currency, and cybersecurity.
In a statement delivered by Rep. Maxin Waters (D-CA), the Ranking Member of the Committee on Financial Services, the Congresswoman noted, among other things, that “high-end U.S. real estate is a key sector used by corrupt foreign leaders, drug traffickers and other criminals to launder illicit money.” The Ranking Member explained further that she “find[s] it disturbing that FinCEN continues to largely exempt the real-estate sector from even the most basic anti-money laundering requirements,” and urged the regulator to “take more urgent action to address these risks nationwide and on a permanent basis.”
A video recording of the hearing may be accessed here.
FinCEN Seeks Comments on Proposed Renewal of its AML, Due Diligence Program Requirements for Correspondent Banks
The Financial Crimes Enforcement Network (FinCen) published a notice and request for comments in the March 30 Federal Register. The notice sought public comment on its proposed renewal, without change, of the regulation implementing Section 5318(i)(1) & (2) of the Bank Secrecy Act (found at 31 CFR 1010.610). The regulation generally requires covered financial institutions (as defined in 31 CFR 1010.605(e)(1)) to establish due diligence policies, procedures, and controls reasonably designed to detect and report money laundering through correspondent accounts that covered U.S. financial institutions establish or maintain for certain foreign financial institutions. Written comments must be received on or before May 30.
FinCEN and OCC Penalize CA Bank for BSA/AML Violations
On February 27, the Financial Crimes Enforcement Network (FinCEN) announced that it had assessed a $7 million civil money penalty against a bank specializing in providing services for check-cashers and money transmitters, for alleged “willful violations” of several Bank Secrecy Act provisions. The OCC also identified deficiencies in the bank’s practices and assessed a $1 million civil money penalty for “violations of previous consent orders entered into by [the bank].” As noted in the release, the bank’s payment of the $1 million OCC penalty will go towards satisfying the FinCEN penalty. According to FinCEN, the bank allegedly failed to (i) “establish and implement an adequate anti-money laundering program;” (ii) “conduct required due diligence on its foreign correspondent accounts;” and (iii) “detect and report suspicious activity.” Furthermore, FinCEN claims $192 million in high-risk wire transfers were processed through some of these accounts.
FinCEN Proposes SAR Data Fields Revisions
FinCEN published, at 82 FR 9109 in the Federal Register, a notice and request for comment on proposed updates and revisions to the collection of information filings by financial institutions required to file such reports under the Bank Secrecy Act (“BSA”). While the notice does not propose any new regulatory requirements or changes to the requirements related to suspicious activity reporting, it suggests changes to the required data fields used when filing SARs under the BSA. The majority of the proposed changes would alter the "checklist" of violations in Part II of the filings, including the addition of several fields related to cyber events. Written comments must be received on or before April 3.
FinCEN Issues Guidance on Sharing Suspicious Activity Reports with U.S. Parents and Affiliates of Casinos
On January 4, the Financial Crimes Enforcement Network (FinCEN) issued guidance to “confirm that, under the Bank Secrecy Act (BSA) and its implementing regulations, a casino that has filed a Suspicious Activity Report (SAR) may share the SAR, or any information that would reveal the existence of the SAR, with each office or other place of business located within the United States of either the casino itself or a parent or affiliate of the casino.” As explained in the guidance, FinCEN expects that the anti-money laundering efforts of the casino’s affiliates could be enhanced by virtue of their access to a clearer and more comprehensive picture of the activities the casino has identified as suspicious. The guidance also specified that casinos may not share SARs or information that would reveal the existence of a SAR with non-U.S. offices or affiliates, individuals or entities within the casino’s corporate famile that perform functions unrelated to gaming, a financial institution without an independent SAR obligation, or unaffialited money services businesses located within the casino. Finally, the guidance specified that a domestic affiliate that receives a SAR or revealing information from a casino may not further share that SAR with an affiliate of its own.