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NYDFS adds enhancements for detecting virtual currency fraud
On February 21, NYDFS Superintendent Adrienne A. Harris announced enhancements to the Department’s ability to detect fraud in the virtual currency industry. The new enhancements will improve NYDFS’s ability to combat financial crime and detect illegal activity among state-regulated entities engaged in virtual currency activity through new insider trading and market manipulation risk monitoring tools. Specifically, the enhancements will strengthen NYDFS’s virtual currency supervision and aid the Department in detecting potential insider trading, market manipulation, and front-running activity associated with regulated entities’ and applicants’ exposure or potential exposure to listed virtual currency wallet addresses. The announcement builds upon recently issued guidance related to the use of blockchain analytics tools, the issuance of U.S. dollar-backed stablecoins, and custodial guidance on crypto insolvency, as well as guidance for addressing measures for preventing market manipulation. (Covered by InfoBytes here, here, here, and here.)
NYC Banking Commission to combat lending and employment discrimination
On February 10, the New York City Banking Commission, which consists of the city’s mayor, the comptroller, and the Commissioner of the Department of Finance, announced two transparency measures to combat lending and employment discrimination by designated banks. Designated banks are those eligible to hold NYC deposits and are expected to provide approved banking products and services for city entities. The announcement states that beginning with this year’s biennial designation cycle, a public comment process will now be included prior to and during the Banking Commission’s public hearing to designate banks that will be eligible to hold deposits of city funds. Revisions have also been made to the certifications that banks are required to submit ahead of designation in order “to reinforce the obligation for depository banks to provide detailed plans and specific steps to combat different forms of discrimination in their operations.” NYC Mayor Eric Adams added “[t]hese new steps will ensure the Banking Commission is designating only those banks that have shown that they can protect taxpayer money and that are committed to promoting equity in all aspects of their operations.”
New York FY 2024 budget proposes to end unfair overdraft practices
On February 1, the New York governor released the state’s FY 2024 budget proposal, which includes measures for ending certain bank overdraft and insufficient fee practices. Specifically, the proposed legislation would amend section 9-y of the banking law to grant authority to the NYDFS superintendent to promulgate regulations related to (i) supervised banking organizations’ transaction processing practices; (ii) the charges (including overdraft and insufficient funds fees) that banks may impose in connection with dishonored transactions; and (iii) associated disclosures provided to consumers regarding how transactions are processed and any associated fees. In an accompanying budget briefing book, the governor said the proposed measures are part of “nation-leading legislation that comprehensively addresses abusive bank fee practices, which tend to disproportionally harm low- and moderate-income New Yorkers.” Proposed actions include “stopping the opportunistic sequencing of transactions in a way designed to maximize fees charged to consumers, ending other unfair overdraft and non-sufficient funds fee practices, and ensuring clear disclosures and alerts of any permissible bank processing charges.”
DFPI announces $22.5 million multistate settlement with crypto platform
On January 26, the California Department of Financial Protection and Innovation (DFPI) announced that it entered into a $22.5 million settlement agreement with a Cayman Islands digital asset firm to resolve a securities enforcement action regarding its interest-bearing virtual currency account. As previously covered by InfoBytes, in September 2022, the New York attorney general sued the firm for allegedly offering unregistered securities and defrauding investors. A North American Securities Administrators Association working group—composed of the DFPI and state regulators from Washington, Kentucky, New York, Oklahoma, Indiana, Maryland, South Carolina, Vermont, and Wisconsin—collaborated in the investigation into the firm. The states alleged that the platform failed to register as a securities and commodities broker but told investors that it was fully in compliance. According to the New York AG’s complaint, the platform promoted and sold securities through an interest-bearing virtual currency account that promised high returns for participating investors. The New York AG said that a cease-and-desist letter was sent to the platform in October 2021, and that while the platform stated it was “working diligently to terminate all services” in the state, it continued to handle more than 5,000 accounts as of July. The complaint charges the platform with violating New York’s Martin Act and New York Executive Law § 63(12), and seeks restitution, disgorgement of profits, and a permanent injunction. The announcement also noted the SEC entered into a separate settlement with the firm for the same penalty amount, alleging that it to register the offer and sale of its retail crypto-asset lending product (covered by InfoBytes here).
NYDFS gives custodial guidance on crypto insolvency
On January 23, NYDFS reiterated expectations for sound custody and disclosure practices for entities that are licensed or chartered to custody or temporarily hold, store, or maintain virtual currency assets on behalf of customers (virtual currency entities or “VCEs”). NYDFS explained that under the state’s virtual currency regulation (23 NYCRR Part 200), VCEs operating under the BitLicense and Limited Purpose Trust Charter are required to, among other things, “hold virtual currency in a manner that protects customer assets; maintain comprehensive books and records; properly disclose the material terms and conditions associated with their products and services, including custody services; and refrain from making any false, misleading or deceptive representations or omissions in their marketing materials.”
The regulatory guidance on insolvency clarifies standards and practices intended to ensure that VCEs are providing high levels of customer protection with respect to licensed asset custody. Specifically, the guidance addresses customer protection concerns regarding:
- The segregation of and separate accounting for customer virtual currency. VCEs “should separately account for, and segregate a customer’s virtual currency from, the corporate assets of the VCE Custodian and its affiliated entities, both on-chain and on the VCE Custodian’s internal ledger accounts.”
- VCEs limited interest in and use of customer virtual currency. VCEs that take possession of a customer’s assets should do so “only for the limited purpose of carrying out custody and safekeeping services” and must not “establish a debtor-creditor relationship with the customer.”
- Sub-custody arrangements. VCEs may choose, after conducting appropriate due diligence, to safekeep a customer’s virtual currency through a third-party sub-custody arrangement provided the arrangement is consistent with regulatory guidance and approved by NYDFS.
- Customer disclosures. VCEs are “expected to clearly disclose to each customer the general terms and conditions associated with its products, services and activities, including how the VCE Custodian segregates and accounts for the virtual currency held in custody, as well as the customer's retained property interest in the virtual currency.” Additionally, a customer agreement should be transparent about the parties’ intentions to enter into a custodial relationship as opposed to a debtor-creditor relationship.
NYDFS issues check-cashing fee regulations
On January 18, NYDFS announced that it has adopted an updated check cashing regulation. As previously covered by InfoBytes, NYDFS issued a proposed check cashing regulation in June 2022, following an emergency regulation announced in February 2022, that halted annual increases on check-cashing fees and locked the current maximum fee set last February at 2.27 percent (covered by InfoBytes here). The regulation establishes a new fee methodology that evaluates the needs of licensees and consumers who use check cashing services. Two tiers of fees for licensed check cashers are recommended: (i) the maximum fee that a check casher may charge for a public assistance check issued by a federal or state government agency (including checks for Social Security, unemployment, retirement, veteran’s benefits, emergency relief, housing assistance, or tax refunds) is set at 1.5 percent; and (ii) the maximum fee a check casher is permitted to charge for all other checks, drafts, or money orders is $1 or 2.2 percent, whichever is greater. According to NYDFS Superintendent Adrienne Harris, “the existing fee methodology wasn’t just outdated, but inappropriate and punitive to consumers.” She further noted that “[c]heck cashers should not be entitled to automatic, annual fee increases.”
NYDFS describes plan to include medical debt in Consumer Credit Fairness Act
On January 10, NYDFS announced that the New York governor revealed several healthcare-related proposals in the State of the State address, including a plan to include medical debt in the state’s Consumer Credit Fairness Act. NYDFS noted that the governor “will create a comprehensive plan to address excessive medical debt” by amending “the Consumer Credit Fairness Act to cover medical debt, launching an industry and consumer education campaign that addresses medical debt and affordability, and reforming hospital financial assistance applications to require hospitals to use a uniform application form.” According to NYDFS, the best way to combat “medical debt is a commitment to an affordable and equitable healthcare system with transparency that empowers consumers, regardless of their socioeconomic status.”
NY restricts lenders’ ability to reset statute of limitations on foreclosures
In December, the New York governor signed A 7737-B, the “Foreclosure Abuse Prevention Act,” which amends the rights of parties in foreclosure actions. Among other things, the law provides that a lender or servicer’s voluntary discontinuance of a foreclosure action does not reset New York’s 6-year statute of limitations on foreclosures, according to New York CPLR §213. Further, pursuant to the new law, if an action to foreclose a mortgage or recover any part of the mortgage debt is time-barred, any other action seeking to foreclose the mortgage or recover the debt is also time-barred. The amendments are effective immediately and, notably, apply to all pending actions in which a final judgment of foreclosure and sale has not been enforced.
NYDFS announces winter storm relief
On December 27, NYDFS announced actions to provide financial relief to New Yorkers in the Western and North Country regions in the aftermath of a historic winter storm. The relief is part of New York’s continuing and comprehensive efforts to address the historic winter storm that caused statewide devastation. According to the announcement, NYDFS requested that state-chartered banking organizations, federally-chartered banks, and credit unions operating in the area provide fee-free access services to nearby customers and non-customers while travel conditions remain dangerous. NYDFS will also issue temporary adjuster permits to qualified out-of-state independent insurance adjusters to expedite insurance claims in light of the winter storm. Expediting permits will increase the number of adjusters available to process claims and help New Yorkers get their claims paid faster. Insurers are encouraged to make any necessary applications on the NYDFS website. NYDFS urged the insurance industry to work towards a fair and speedy resolution of all claims and provide the necessary resources to do so.
CFPB and New York say auto lender misled consumers
On January 4, the CFPB and New York attorney general filed a complaint against a Michigan-based auto finance company accused of allegedly misrepresenting the cost of credit and deceiving low-income consumers into taking out high-interest loans on used vehicles. (See also AG’s press release here.) The joint complaint alleges, among other things, that the defendant based the price of a loan (and then artificially inflated the principal amount) and the payment to the dealer on the projected amount that may be collected from the consumer during the life of the loan (without factoring in whether consumers could actually afford the loan).
The Bureau and AG further argued that the true cost of credit is hidden in inflated principal balances in order to evade state interest rate caps. An investigation conducted by the AG found that while the defendant’s loan agreements in New York claimed an APR of 22.99 percent or 23.99 percent (just below the 25 percent usury cap), the defendant actually charged on average more than 38 percent (and on many occasions charged an APR in excess of 100 percent). These high-interest loans, the AG claimed, often caused consumers to accrue additional fees and become delinquent on their loans.
The complaint also alleged the defendant failed to consider consumers’ ability to repay their loans in full, engaged in aggressive debt collection tactics, and created financial incentives for dealers to add on extra products, such as vehicle service contracts. Add-on products generated roughly $250 million in revenue for the defendant in 2020, the complaint said, adding that these alleged deceptive lending practices lowered consumers’ credit scores and cost borrowers millions of dollars. The complaint further maintained that the defendant packaged the consumer loans into securities that were sold to investors on the premise that the underlying loans complied with applicable law. These alleged false representations, the complaint said, constituted securities fraud under New York’s Martin Act.
The complaint — which also alleges violations of the Consumer Financial Protection Act’s prohibition against deceptive and abusive acts or practices, New York usury limits, and other state consumer and investor protection laws — seeks, among other things, injunctive relief, monetary relief, disgorgement, and civil money penalties of $1,000,000 for each day of violations.
The defendant was previously targeted for violating consumer protection laws in 2021 by the Massachusetts attorney general, who announced a $27.2 million settlement to resolve allegations of predatory lending and deceptive debt collection practices. (Covered by InfoBytes here.)