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Financial Services Law Insights and Observations


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  • CFPB Holds Field Hearing On Prepaid Products, Proposes New Rule


    On November 13, the CFPB held a field hearing in Delaware to discuss its proposed rule regarding prepaid products. The proposal, which would amend Regulation E and Regulation Z, requires prepaid companies to provide certain protections under federal law.

    In his opening remarks, Director Cordray noted that the many prepaid card consumers are some of the most economically vulnerable among us and that such cards have few, if any, protections under federal consumer financial law. Cordray outlined the reasons the Bureau’s proposed rule would “fill key gaps” for consumers. First, the proposed rule would provide consumers free and easy access to account information. Second, the proposed rule would mandate that financial institutions work with consumers to investigate any errors on registered cards. Third, the proposed rule would protect consumers against fraud and theft. Fourth, the rule includes “Know Before You Owe” prepaid disclosures, which would highlight key costs associated with the cards. Fifth, where prepaid card providers also extend credit to consumers such offers would be treated the same as credit cards under the law.

    CFPB TILA Prepaid Cards EFTA Regulation Z

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  • CFPB Finalizes Rule Defining Larger Participants Of The International Money Transfer Market

    Consumer Finance

    On September 23, the CFPB issued a Final Rule that defines which nonbank covered persons are designated “larger participants” for purposes of the international money transfer market. In particular, this rule, which finalizes a January 2014 proposed rule, defines an entity as a larger participant if it has at least one million aggregate annual international money transfers. The final rule will be effective December 1, 2014. In addition, the Final Rule defines an international money transfer market to cover certain electronic transfers of funds sent by nonbanks that are international money transfer providers. These transfers must be requested by a sender in a State to be sent to a designated recipient in a foreign country. While the Final Rule’s definitions are modeled in part on the definitions of “remittance transfer” and related terms in the Electronic Fund Transfer Act (EFTA) and its implementing regulation, Regulation E, there are some substantive differences. For example, transfers of $15 or less can be ‘‘international money transfers’’ but not “remittance transfers.” The CFPB provides a procedure for a person to dispute whether it qualifies as a larger participant in the international money transfer market and also asserts that there are only approximately 10 potential larger participants that qualify as small businesses.

    CFPB EFTA Money Service / Money Transmitters

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  • OCC Updates Electronic Fund Transfer Act Booklet

    Consumer Finance

    On August 28, the OCC issued Bulletin 2014-43, which announces the issuance of a revised “Electronic Fund Transfer Act” booklet of the Comptroller’s Handbook. This booklet replaces the similarly titled booked issued in October 2011, and provides updated guidance to examiners and bankers relevant to recent changes made to Regulation E regarding remittance transfers. Specific updates address: (i) the transfer of rulemaking authority for the EFTA from the Board of Governors of the Federal Reserve System to the CFPB; (ii) Dodd-Frank’s amendments to the EFTA, which create a new system of consumer protections for remittance transfers; and (iii) the issuance of the CFPB’s final rule that restructures Regulation E and provides specific requirements for remittance service providers in new subpart B.


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  • Court Holds Payday Lender Violated EFTA By Requiring Preauthorization For Electronic Repayment

    Consumer Finance

    On July 30, the U.S. District Court for the Northern District of California held that a payday lender whose loan agreements required borrowers to consent to electronic withdrawals of their scheduled loan payments violated the federal Electronic Fund Transfer Act’s prohibition on the conditioning of credit on a borrower preauthorizing electronic fund transfers (EFTs) for repayments. De La Torre v. CashCall, Inc., No. 8-3174, 2014 WL 3752796 (N.D. Cal. Jul. 30, 2014). The court previously certified a class seeking to recover actual and statutory damages under the EFTA. The class borrowers claim that the lender required borrowers to agree to electronic transfers of scheduled payments as a condition to obtaining their loans. The borrowers alleged those EFTs caused borrowers to incur insufficient fund fees on the accounts from which the loan payments were withdrawn. On summary judgment, the court rejected the lender’s argument that its promissory notes authorized, but did not require, payment by EFT, and that the EFTA only prohibits the conditioning of the extension of credit upon a requirement to make all loan payments by EFT. The court held that the plain meaning of the statute dictates that a violation of the EFTA occurs “at the moment of conditioning—that is, the moment the creditor requires a consumer to authorize EFT as a condition of extending credit to the consumer.” The court held that by extension, the borrowers also established that the lender violated the Unfair Competition Law. The court granted summary judgment in favor of the borrowers on both their EFTA and UCL claims. However, the court held that whether the EFTA violation caused borrowers to incur the insufficient fund fees is a disputed fact, which should be decided after liability is determined and with the borrowers’ claims for statutory damages and restitution.

    Payday Lending Class Action EFTA

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  • CFPB Proposes Remittance Rule Amendments


    On April 15, the CFPB issued a proposed rule and request for comment to extend a temporary exception to Regulation E’s requirement that remittance transfer providers disclose certain fees and exchange rates to consumers. Pursuant to Regulation E, as amended to implement section 1073 of the Dodd-Frank Act, insured depository institutions are permitted to estimate certain third-party fees and exchange rates in connection with a remittance transfer until July 21, 2015, provided the transfer is sent from the sender’s account with the institution, and the institution is unable to determine the exact amount of the fees and rates due to circumstances outside of the institution’s control. The CFPB is proposing to exercise its statutory authority to extend this exception for an additional five years, until July 21, 2020. The agency explained that, based on its outreach to insured institutions and consumer groups, allowing the initial temporary exception to lapse would negatively affect the ability of insured institutions to send remittance transfers. Comments on the proposed rule are due within 30 days of its publication in the Federal Register.

    The proposed rule also includes several clarifications and technical corrections to the CFPB’s final remittance rule and official commentary, which were subsequently amended or delayed—including in August 2012 and January 2013—leading to a May 2013 revised final rule. In this latest round of proposed amendments, the CFPB is seeking to address concerns about the remittance rule’s applicability to U.S. military installations abroad. Because the rule does not expressly address transfers to such installations, the CFPB now seeks (i) comments on whether to treat locations on U.S. military installations abroad as being located within a State or a foreign country for the purposes of the rule, (ii) data on the relative number of transfers sent to and from individuals and/or accounts located on U.S. military installations abroad, and (iii) comments on the appropriateness of extending any clarification regarding U.S. military installations to other U.S. government installations abroad, such as U.S. diplomatic missions.

    With respect to transfers from accounts (as defined under Regulation E), the CFPB is also proposing amendments to make clear that whether a transfer is for personal, family, or household purposes—and thus, whether the transfer could be a remittance transfer subject to the rule—is determined by ascertaining the purpose for which the account was established, rather than the purpose of the particular transfer. The proposed amendments would therefore clarify that the rule does not apply to, e.g., transfers from an account that was established as a business or commercial account or an account owned by a business entity. In addition, the proposed rule seeks to clarify that faxes are considered writings for purposes of the remittance rule, and that, in certain circumstances, a remittance transfer provider may give oral disclosures after receiving a written remittance inquiry from a consumer. The CFPB is also proposing to revise the rule’s error resolution requirements, including with regard to errors based on the sender’s provision of incorrect or insufficient information. Specifically, the proposed amendment would clarify that, where such errors occur, the remittance transfer provider may not deduct its own fee from the amount refunded or applied towards a new transfer.

    CFPB Dodd-Frank EFTA Remittance Money Service / Money Transmitters Agency Rule-Making & Guidance

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  • CFPB Releases Money Transfer Exam Procedures, Launches New e-Regulations Tool

    Consumer Finance

    On October 22, the CFPB released the procedures its examiners will use in assessing financial institutions’ compliance with the remittance transfer requirements of Regulation E. Amendments to those regulations, finalized by the CFPB earlier this year, are set to take effect October 28, 2013. In general, the rule requires remittance transfer providers that offer remittances as part of their “normal course of business” to: (i) provide written pre-payment disclosures of the exchange rates and fees associated with a transfer of funds as well as the amount of funds the recipient will receive; and (ii) investigate consumer disputes and remedy errors. The rule does not apply to financial institutions that consistently provide 100 or fewer remittance transfers each year, or to transactions under $15.

    The new examination procedures detail the specific objectives examiners should pursue as part of the examination, including to: (i) assess the quality of the regulated entity’s compliance risk management systems with respect to its remittance transfer business; (ii) identify acts or practices relating to remittance transfers that materially increase the risk of violations of federal consumer financial law and associated harm to consumers; (iii) gather facts that help to determine whether a supervised entity engages in acts or practices that are likely to violate federal consumer financial law; and (iv) determine whether a violation of a federal consumer financial law has occurred and, if so, whether further supervisory or enforcement actions are appropriate. In doing so, CFPB examiners will look not only at potential risks related to the remittance regulations, but also outside the remittance rule to assess “other risks to consumers,” including potential unfair, deceptive, or abusive acts or practices and Gramm-Leach-Bliley Act privacy violations.  Finally, consistent with other examination procedures published by the CFPB, the examiners are instructed to conduct both a management- and policy-level review as well as a transaction-level review to inform the stated examination objectives.

    Also on October 22, the CFPB announced a new tool designed to make it easier for the public to navigate the regulations subject to CFPB oversight. To start, the new eRegulations tool includes only Regulation E, which implements the Electronic Fund Transfer Act and includes the remittance requirements discussed above. Noting that federal regulations can be difficult to navigate, the CFPB redesigned the electronic presentation of its regulations, including by (i) defining key terms throughout, (ii) providing official interpretations throughout, (iii) linking certain sections of the “Federal Register preambles” to help explain the background of a particular paragraph, and (iv) providing the ability to see previous, current, and future versions. The CFPB notes that the tool is a work in progress and that suggestions from the public are welcome. Further, the CFPB encourages other agencies, developers, or groups to use and adapt the system.

    CFPB Examination UDAAP EFTA Remittance Money Service / Money Transmitters Privacy/Cyber Risk & Data Security

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  • CFPB Issues Guidance on Payroll Cards

    Consumer Finance

    On September 12, the CFPB issued a bulletin stating that the Electronic Fund Transfer Act (EFTA) and Regulation E apply to payroll card accounts, which Regulation E defines as “accounts that are established directly or indirectly through an employer, and to which transfers of the consumer’s salary, wages, or other employee compensation are made on a recurring basis.”  This bulletin follows pressure from federal legislators on the CFPB to clarify the protections afforded to consumers receiving wages on payroll card accounts and to investigate the fees and practices associated with such accounts, and reports of at least one state-level investigation of payroll card practices.

    The bulletin and press release emphasize that the following provisions apply to payroll card accounts:

    • Fee disclosures.  At account opening or before the first electronic fund transfer (EFT), a payroll card issuer must provide disclosures of any fees imposed by the financial institution for EFTs, limitations on liability, and other required information.  The bulletin notes that some state laws dictate that certain information be provided before an employee elects to receive wages via payroll card.

    • Account information.  A payroll card issuer must provide periodic statements as required by Regulation E generally or, alternatively, must make available to the consumer - (i) by telephone, the consumer’s account balance; (ii) electronically (such as through a website); or (iii) in writing (if requested) - a history of the consumer’s transactions and fees covering the preceding 60 days.

    • Unauthorized transfers.  With limited exceptions regarding the period within which an unauthorized transfer must be reported, Regulation E’s limited liability protections apply to payroll cards.

    • Error resolution.  Financial institutions must respond to a consumer’s report of errors regarding a payroll card account if the report is received within 60 days of the consumer either accessing an electronic account history or receiving a written account history on which the error appears, whichever is earlier, or within 120 days after the alleged error occurs.

    • Compulsory use.  An employer may not require that its employees receive their wages by electronic transfer to a payroll card account at a particular institution.  An employer may, however, offer employees the choice of receiving their wages on a payroll card or receiving it by some other means.  The bulletin notes that most states’ laws contain additional restrictions on the manner in which employers may make wages available to their employees and that the EFTA and Regulation E preempt state laws “relating to” EFTs, among other things, only to the extent of any inconsistency.  A state law is not considered inconsistent with the EFTA and Regulation E if the state law affords consumers greater protections.

    Lastly, the bulletin notes the CFPB’s authority to examine supervised entities’ use of third-party service providers and to enforce the EFTA and Regulation E against both financial institutions and employers.

    CFPB Prepaid Cards EFTA

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  • CFPB Updates Remittance Rule Resources


    On August 8, the CFPB released an updated small business guide for the remittance transfer rule it finalized last year and revised in May 2013. The updated guide summarizes the remittance rule and discusses the new requirements, which take effect on October 28, 2013. The CFPB also issued technical corrections to the May 2013 amendments, and released a video that provides an overview of the rule and the recent changes, as well as implementation guidance.

    CFPB Bank Compliance EFTA Remittance

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  • Magistrate Judge Finds Tribal Payday Lender Subject to FTC Act; Lender Agrees to Settle Some FTC Charges

    Consumer Finance

    On July 22, the FTC announced that it obtained a partial settlement of claims it filed last year against a Native American Tribe-affiliated payday lending operation that allegedly charged undisclosed and inflated fees, and collected on loans illegally by threatening borrowers with arrest and lawsuits. FTC v. AMG Servs, Inc. No. 12-536 (D. Nev.). The agreement does not include any monetary resolution of the claims, but (i) prohibits the defendants from certain collection practices, (ii) prohibits the defendants from conditioning the extension of credit on preauthorized electronic fund transfers, and (iii) requires the defendants to implement enhanced compliance policies that are subject to new reporting requirements. The settlement follows a report and recommendation issued last week by the magistrate judge assigned to the case in which he concluded that the FTC has authority under the FTC Act to regulate “Indian Tribes, Arms of Indian Tribes, employees of Arms of Indian Tribes and contractors of Arms of Indian Tribes” with regard to the payday lending activities at issue in the case. Relying on Ninth Circuit precedent, the magistrate judge held that while the FTC Act does not expressly apply to Indian Tribes, it is a statute of general applicability with reach sufficient to cover the Tribal entities. Further, the magistrate judge concluded that “both TILA and EFTA provide the FTC the power to enforce the statutes without regard for any jurisdictional limitations contained in the FTC Act.” The FTC will continue litigating other charges against the defendants, including allegations that they deceived consumers about the cost of their loans by charging undisclosed charges and inflated fees.

    FTC Payday Lending TILA Debt Collection EFTA Internet Lending

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  • Federal, State Officials Focus on Employee Payroll Cards


    On July 11, a group of Democratic Senators urged the CFPB and the Department of Labor to “take swift action” regarding prepaid payroll cards. The Senators expressed concern that workers do not understand the “excessive fees” and “harmful practices” associated with such cards, and suggested that those fees and practices - specifically, those relating to ATM use, balance inquiry, swipe purchases, overdraft, and inactivity, among others – may violate the Electronic Fund Transfer Act and its implementing regulation, Regulation E. The lawmakers asked the CFPB to conduct a study to better understand these fees and their impact on workers, and to clarify through a rulemaking or other supervisory action the options employers must provide to their employees under Regulation E. The Senators’ letter follows reports of an investigation by New York Attorney General Eric Schneiderman into potential state law violations related to employers’ use of payroll cards.

    CFPB State Attorney General Prepaid Cards EFTA

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