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Financial Services Law Insights and Observations


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  • Court vacates mandatory disclosures and 30-day credit linking restriction in Prepaid Accounts Rule


    On December 30, the U.S. District Court for the District of Columbia granted a payment company’s motion for summary judgment against the CFPB, vacating two provisions of the agency’s Prepaid Account Rule: (i) the short-form disclosure requirement “to the extent it provides mandatory disclosure clauses”; and (ii) the 30-day credit linking restriction. As previously covered by InfoBytes, the company filed a lawsuit against the Bureau alleging, among other things, that the Bureau’s Prepaid Account Rule exceeds the agency’s statutory authority “because Congress only authorized the Bureau to adopt model, optional disclosure clauses—not mandatory disclosure clauses like the short-form disclosure requirement.” The Bureau countered that it had authority to enforce the mandates under federal regulations, including the Electronic Fund Transfer Act (EFTA), TILA, and Dodd-Frank, arguing that the “EFTA and [Dodd-Frank] authorize the Bureau to issue—or at least do not foreclose it from issuing—rules mandating the form of a disclosure.” The Bureau also claimed that its general rulemaking power under either TILA or Dodd-Frank provides authority for the 30-day credit-linking restriction.

    With respect to the mandatory disclosure clauses of the short-form requirement in 12 CFR section 1005.18(b), the court concluded, among other things, that the Bureau acted outside of its statutory authority. The court stated that “Congress underscored the need for flexibility by requiring the Bureau to ‘take account of variations in the services and charges under different electronic fund transfer systems’ and ‘issue alternative model clauses’ for different account terms where appropriate” and it could not “presume—as the Bureau does—that Congress delegated power to the Bureau to issue mandatory disclosure clauses just because Congress did not specifically prohibit them from doing so.”  

    In striking the mandatory 30-day credit linking restriction under 12 CFR section 1026.61(c)(1)(iii), the court determined that “the Bureau once again reads too much into its general rulemaking authority.” First, the court determined that neither TILA nor Dodd-Frank vest the Bureau with the authority to promulgate substantive regulations on when consumers can access and use credit linked to prepaid accounts. Second, the court deemed the regulatory provision to be a “substantive regulation banning a consumer’s access to and use of credit” under the disguise of a disclosure, and thus invalid.  

    Courts CFPB Digital Commerce Prepaid Rule Fees Disclosures Prepaid Cards EFTA TILA Dodd-Frank

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  • Lawsuit says Prepaid Accounts Rule is “arbitrary and capricious”


    On December 11, a payments company filed a lawsuit against the CFPB in the U.S. District Court for the District of Columbia alleging that the Bureau’s Prepaid Account Rule (Rule), which took effect April 1 and provides protections for prepaid account consumers, exceeds the agency’s statutory authority and is “arbitrary and capricious” under the Administrative Procedures Act (APA). The company further asserts that the Rule violates its First Amendment rights by requiring it to make confusing disclosures that contain categories not relevant to the company’s products. According to the complaint, the Rule mandates that the company send “short form” fee disclosures to customers that include references to fees for ATM balance inquiries, customer service, electronic withdrawal, international transactions, and other categories, and “prohibits [the company] from including explanatory phrases within the disclosure box to describe the nature of these fee categories.” These disclosures, the company asserts, have confused many customers who mistakenly believe the company charges fees to access funds stored as a balance with the company, to make a purchase with a merchant, or to send money to friends or family in the U.S. The company also claims that the Bureau erroneously lumped it into the same category as providers of general purpose reloadable cards (GPR cards), and argues that the Rule ignores how prepaid cards fundamentally differ from digital wallets, which has resulted in several unintended consequences.

    The company asserts that the Rule is unlawful and invalid under the APA and the Constitution for three principal reasons:

    • The Rule contravenes the Bureau’s statutory authority by (i) establishing a mandatory and misleading disclosure regime that is not authorized by federal law; and (ii) “impos[ing] a 30-day ban on consumers linking certain credit cards to their prepaid account—a prohibition the law nowhere authorizes the Bureau to impose.”
    • Even if the Bureau possesses the statutory authority it claims to have, the rulemaking process was “fundamentally flawed” due to its one-size-fits-all Rule that misunderstands the different characteristics of digital wallets compared to GPR cards. By treating digital wallets as if they are GPR cards, the Rule violates the APA’s reasoned decision-making requirement. Additionally, the Rule is marked by “an insufficient cost-benefit analysis that failed to properly weigh the limited benefits consumers might derive from the Rule against the costs” stemming from the Rule’s changes.
    • The Rule violates the First Amendment by failing to satisfy the heightened standard that a law or regulation “directly advances a substantial government interest” because it requires the company to makes certain disclosures that are irrelevant to its digital wallet product. Moreover, the Rule’s disclosure obligations “functionally impair the speech in which [the company] might otherwise engage” by mandating that it provide confusing and misleading disclosures about the nature of its offerings.

    The complaint asks that the Rule be vacated and declared arbitrary, an abuse of discretion, not in accordance with the law, and unconstitutional, and additionally seeks injunctive relief, attorneys’ fees and costs.

    Courts CFPB Digital Commerce Prepaid Rule Fees Disclosures Prepaid Cards

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  • CFPB updates Prepaid Small Entity Compliance Guide

    Agency Rule-Making & Guidance

    On April 26, the CFPB released version 3.1 of its Prepaid Small Entity Compliance Guide to incorporate previously issued submission instructions for issuers submitting account agreements pursuant to the prepaid account rule through the electronic submission system “Collect.” (See previous InfoBytes coverage here.)

    Agency Rule-Making & Guidance CFPB Small Entity Compliance Guide Prepaid Rule Compliance

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  • OCC announces interagency examination procedures for prepaid accounts rule

    Agency Rule-Making & Guidance

    On March 26, the OCC released Bulletin 2019-16, which announces that the FFIEC Task Force on Consumer Compliance developed new interagency examination procedures to reflect the amendments to Regulations Z and E under the CFPB’s Prepaid Accounts Rule (covered by InfoBytes here), which go into effect on April 1. Specifically, the examination procedures reflect (i) Regulation E requirements covering disclosures, limited liability and error resolution, periodic statement, and posting of account agreements; and (ii) Regulation Z requirements covering overdraft credit features with prepaid accounts.

    Agency Rule-Making & Guidance OCC Supervision FFIEC Examination Prepaid Rule CFPB

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  • CFPB announces electronic submission system for prepaid issuers

    Agency Rule-Making & Guidance

    On February 27, the CFPB released new technical specifications for prepaid account issuers to use when submitting account agreements pursuant to the prepaid account rule. Issuers can now register to use the new electronic submission system “Collect” before the April 1, 2019 effective date of the Bureau’s prepaid rule. (See previous InfoBytes coverage on the prepaid rule here.) The Bureau reminded issuers that all prepaid account agreements offered as of April 1, 2019, must be submitted to the CFPB by May 1, 2019. After May 1, issuers are required to make rolling submissions to the Bureau within 30 days whenever a new agreement is offered, amendments are made to a previously submitted agreement, or a previously submitted agreement is withdrawn. Along with the technical specifications, the Bureau also released several compliance resources, including a user guide, quick reference guide, FAQs and a recorded webinar.


    Agency Rule-Making & Guidance CFPB Prepaid Rule Compliance

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  • CFPB updates prepaid rule Small Entity Compliance Guide

    Agency Rule-Making & Guidance

    On March 13, the CFPB released version 3.0 of its prepaid rule Small Entity Compliance Guide and the guide to Preparing Short Form Disclosure for Prepaid Accounts. The updated guides reflect the 2018 final rule governing prepaid accounts (Rule). As previously covered by Infobytes, in December 2017, the Bureau announced its plan to delay the effective date and adopt the final amendments to the Rule. In January, the Bureau finalized the Rule and moved the effective date to April 1, 2019.

    Agency Rule-Making & Guidance CFPB Prepaid Rule

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  • CFPB finalizes prepaid rule updates; moves effective date

    Agency Rule-Making & Guidance

    On January 24, the CFPB released updates to the final rule governing prepaid accounts (Rule) delaying the effective date of the rule by one year, to April 1 2019. In December, as previously covered by InfoBytes, the Bureau announced its plan to delay the effective date and adopt final amendments to the Rule. In addition to certain clarifications and other minor adjustments, the updates include: (i) finalizing that the requirement for consumers to register their accounts to receive fraud and error protection benefits will only be applied prospectively, after a consumer’s identity has been verified; and (ii) creating a limited exception to certain provisions of the Rule for instances where traditional credit card accounts, subject to Regulation Z open-end credit rules, are linked to digital wallets.

    Agency Rule-Making & Guidance CFPB Succession CFPB Prepaid Rule Regulation Z

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  • CFPB Succession: An end to “regulation by enforcement,” says Mulvaney

    Federal Issues

    On January 23, acting CFPB Director Mick Mulvaney sent an email to staff (a similar version was later published as an op-ed in the Wall Street Journal) outlining his vision for how the CFPB will enforce consumer protection laws. In the email, Mulvaney emphasizes that the CFPB will no longer “push the envelope” in pursuit of the agency’s mission, a phrase which he attributes to former CFPB Director Richard Cordray. While Mulvaney acknowledges that there will be times the agency will need to take “dramatic action to protect consumers,” he states that this will only be done as “the most final of last resorts,” after all other resolutions have failed. In terms of what this means for the Bureau’s current work, Mulvaney states that enforcement will be focused on “quantifiable and unavoidable harm to the consumer.” As for regulation, there will be “more formal rulemaking on which financial institutions can rely, and less regulation by enforcement.” Mulvaney also suggests that prioritization will be guided by complaint data, specifically noting that, in 2016, debt collection accounted for almost a third of complaints received by the CFPB whereas prepaid cards and payday lending accounted for nine-tenths of a percent and two percent respectively. 

    The statements in Mulvaney’s letter to staff are in line with many of the CFPB’s recent actions, including last week’s announcement that the Bureau intends to reconsider its final rule addressing payday loans and its December 21 announcement that it will be amending its prepaid card rule (previously covered by InfoBytes here and here). Additionally, on January 23, a national installment loan lender announced an end to a multi-year investigation by the CFPB, stating that the Bureau does not intend to recommend an enforcement action into the company’s practices. As previously covered by InfoBytes, the CFPB also recently dismissed its case against four online installment lenders.

    Leandra English’s challenge to Mulvaney’s authority to serve as acting director of the CFPB continues. On January 23, a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit agreed to the expedited appeal of English’s case, ordering English’s brief due by January 30 and the government’s response due by February 23. 

    Federal Issues CFPB Succession Enforcement Payday Lending Prepaid Rule English v. Trump

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  • Arguments Heard in English Litigation; CFPB Announces Relaxed Compliance Requirements for HMDA; Other Proposed Rulemakings

    Federal Issues

    On December 22, Judge Timothy Kelley heard arguments from both parties related to Leandra English’s litigation against President Trump and Mick Mulvaney. Judge Kelley did not rule on the matter at the close of the hearing. As previously covered by InfoBytes, English filed an amended complaint for declaratory and injunctive relief and a motion for preliminary injunction on December 6.

    In response to English’s new arguments, the defendants filed an opposition motion on December 18.  Among other things, the response counters an argument—raised by English for the first time in her amended complaint—that the Federal Vacancies Reform Act (FVRA) cannot be used to appoint an acting CFPB Director because the Director is also a member of the FDIC. Defendants responded that the FVRA provision excluding appointments to independent multi-member boards or commissions only applies to direct appointments and not to positions that serve as “ex officio” members, as the CFPB Director does on the FDIC. The defendants go on to explain that English’s interpretation would prevent the use of FVRA to fill multiple Cabinet and other high-ranking Executive Branch positions that serve as ex officio members of independent agencies. The defendants also alleged that English failed to satisfy the requirements of the federal quo warranto statute – the exclusive means, according to the defendants, for directly challenging Mulvaney’s authority to perform as Acting Director of the CFPB. English replied to the defendant’s opposition motion on December 21.   

    Throughout the week, the CFPB took action regarding current and future rulemakings:

    HMDA. On December 21, the CFPB issued a statement regarding compliance with the Home Mortgage Disclosure Act (HMDA) final rule and amendments to the HMDA final rule. Although the Bureau did not delay the January 1, 2018 effective date as some had hoped, it acknowledged the difficulties of coming into compliance with the new requirements, stating that the Bureau “does not intend to require data resubmission unless data errors are material or assess penalties with respect to errors for data collected in 2018 and reported in 2019.” According to the CFPB, compliance with the HMDA requirements pose “significant system and operational challenges” and therefore, institutions should focus the 2018 data collection on identifying areas for improvement in their HMDA compliance management systems for future years. The Bureau further advised that it expects that supervisory examinations of 2018 HMDA data will be “diagnostic” to help “identify compliance weaknesses, and will credit good-faith compliance efforts.” However, institutions will still use the CFPB’s new HMDA Platform for data collected in 2017.  The FDIC and the OCC issued similar announcements, Financial Institution Letter FIL-63-2017 and OCC Bulletin 2017-62 respectively, and other regulators are expected to do the same. 

    The Bureau’s stated intent to focus on “good-faith compliance efforts” and “material” errors in the early days of the new HMDA requirements is similar to the approach taken for implementation of the Ability-to-Repay/Qualified Mortgage Rule and the TILA-RESPA Integrated Disclosure Rule.  While this flexible approach is generally beneficial for lenders and consumers, it does produce some uncertainty over what will be considered “good faith” or “material.”

    The Bureau also announced its intent to engage in additional HMDA rulemaking that may (i) re-examine the criteria determining whether institutions are required to report data; (ii) adjust the requirements related to reporting certain types of transactions; and (iii) re-evaluate the required reporting of additional information beyond the data points required in HMDA, as amended by the Dodd-Frank Act.

    Prepaid Accounts. On December 21, the CFPB also issued a statement on the final rule covering prepaid accounts and the proposed amendments to that rule. In the statement, the CFPB announced that it intends to adopt final amendments “soon after the new year” and that it expects to further extend the April 1, 2018 effective date to allow more time for implementation. The Bureau did not give details on the nature of the amendments or the length of the expected extension.

    Debt Collection. On December 14, OMB released a Notice of Action, which reflected that the CFPB withdrew its plan to conduct a survey related to debt collection disclosures of 8,000 individuals. According to OMB’s notice, the CFPB withdrew the plan because “Bureau leadership would like to reconsider the information collection in connection with its review of the ongoing related rulemaking.”

    Federal Issues CFPB Succession Courts CFPB Debt Collection Prepaid Rule HMDA English v. Trump

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  • CFPB Seeks Comments on Proposed Amendments to Prepaid Rule, Releases Updated Small Entity Compliance Guide

    Agency Rule-Making & Guidance

    On June 15, the CFPB announced a request for comment on proposed amendments to Regulation E, which concerns prepaid accounts under the Electronic Fund Transfer Act (EFTA) and the Truth in Lending Act (Regulation Z). According to the Bureau, the request aims to address prepaid companies’ concerns over “unanticipated complexities” regarding certain aspects of the rule. As previously covered in InfoBytes, in April the CFPB issued a final rule delaying the general effective date to April 1, 2018. The prepaid rule provides consumers, among other things, additional federal protections under EFTA on prepaid financial products, person-to-person payment products, and other electronic accounts with the ability to store funds. Specifically, the proposed amendments would impact error resolution requirements for unregistered accounts, enhance flexibility for credit cards linked to digital wallets, and open for consideration whether a further delay to the rule’s effective date is necessary due to the proposed amendments or if safe harbor provisions should be added for early compliance. The proposal also addresses amendments affecting the following: (i) the exclusion of loyalty, award, or promotional gift cards; (ii) “unsolicited issuance of access devices and pre-acquisition disclosures”; and (iii) submission of account agreements to the Bureau. Comments are due 45 days after the request is published in the Federal Register.

    Separately, on the same day, the Bureau released an updated edition of its small entity compliance guide for the prepaid rule. The guide notes the new effective date, and also offers clarification on prepaid reload packs, the consistent use of fee names and other terms, foreign language disclosure requirements, URL names in short form disclosures, mobile accessible transaction histories, account agreement submissions to the Bureau, and clarification that stipulates “reversing a provisional credit does not otherwise trigger Regulation Z coverage under the Prepaid Rule.”

    Agency Rule-Making & Guidance CFPB Prepaid Rule EFTA TILA Regulation E Regulation Z Prepaid Cards

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