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Virginia issues modified stay at home order identifying banks and financial institution as essential retail businesses
On December 10, the governor of Virginia issued a modified stay at home order limiting travel and gatherings for Virginia residents and operations for certain businesses. However, banks and other financial institutions with retail functions are considered essential retail businesses and may continue to remain open during normal business hours. All businesses, including essential retail businesses, are advised to adhere to the Guidelines for All Business Sectors.
On April 17, the commissioner of the Florida Office of Financial Regulation issued Emergency Order 2020-03, which temporarily expands the motor vehicle retail installment initial pay rule. The order permits a motor vehicle retail installment seller licensed under Chapter 520 of the Florida Statues to allow the first payment of a motor vehicle retail installment contract to be scheduled up to 90 days from the date of the loan.
On September 25, the SEC announced the expansion of its Enforcement Division’s focus on cyber-related misconduct with the creation of a Cyber Unit and a Retail Strategy Task Force. The Cyber Unit will focus on areas such as (i) market manipulation schemes involving electronically-transferred false information; (ii) data breaches intended to obtain nonpublic information; (iii) distributed ledger technology and initial coin offering violations; (iv) misconduct through the use of the dark web; (v) retail brokerage account intrusions; and (vi) cyber-related threats targeting trading platforms and other critical market infrastructures. The Cyber Unit will complement the SEC’s internal assessment of its cybersecurity risk profile. (See previous InfoBytes coverage here.) The goal of the Retail Strategy Task Force will be to “develop proactive, targeted initiatives to identify misconduct impacting retail investors [and] apply the lessons learned from those cases and leverage data analytics and technology to identify large-scale misconduct affecting retail investors.”
On July 15, the OCC, the FDIC, and the Federal Reserve released final revisions to the Interagency Questions and Answers Regarding Community Reinvestment document. The revised Questions and Answers document is based on a September 10, 2014 proposal and addresses questions from bankers, community organizations, and others pertaining to: (i) innovative or flexible lending practices; (ii) responsiveness and innovativeness of an institution’s loans, qualified investments, and community development services; (iii) availability and effectiveness of retail banking services; and (iv) community development-related issues, such as economic development, community development loans and activities, and community development services. According to the Questions and Answers document, the agencies did not adopt one of the revisions in the September 2014 proposal that had addressed “the availability and effectiveness of retail banking services.”
On February 19, the FDIC released a study showing that brick-and-mortar banking offices continue to be the principal means through which banks deliver services to customers, despite increased growth in the use of online and mobile banking. The study found that four main factors have contributed to the changes in the number and distribution of banking offices since 1935: (i) population growth and geographic shifts in population; (ii) banking crises; (iii) legislative changes to branching laws; and (iv) technological innovation and increased use of electronic banking. Notwithstanding the increase of online and mobile banking, the study found that visiting brick-and-mortar banking offices continues to be the most common way for customers to access their accounts and obtain financial services.
On August 15, the U.S. District Court for the Central District of California held that a bank responded too slowly to a government levy on a customer’s account and was therefore responsible for funds subsequently removed by the customer. The IRS notified the bank of a jeopardy levy on the account of a customer who received an improper tax refund and refused to return those funds to the government. Before the bank acted on the notice, the customer removed the funds from his account and the IRS was unable to recover them. The government then turned to the bank for relief, asserting that under the Internal Revenue Code, any person who fails or refuses to surrender any property subject to a levy is liable to the government. The court held that although the statute does not require the bank to immediately surrender the property, the bank was required, upon receiving notice, “to preserve that property or run the risk of paying the depositor’s tax bill.” The court explained that once the levy was served on the bank, the bank was in the best position to protect the property, and that even if the bank acted reasonably—i.e., without any undue delay—it could still be liable for the levied property.
On July 17, the New York Department of Financial Services (NYDFS) proposed a rule intended to govern the virtual currency marketplace. The proposed rule is extremely broad and as currently drafted would appear to capture products provided by traditional brick and mortar banks and other regulated financial institutions. For example, as proposed, the rule could regulate:
- Reward programs, "thank you" offers, or digital coupons that offer cash back or statement credits;
- Generated numbers that access cash;
- Prepaid access and other cards that will allow customers to receive cash, including those customarily exempt such as government funded transfers;
- P2P transfers; and
- Wallet providers where the customer can access cash.
If left unaddressed, these apparent unintended consequences could create a confusing regulatory environment for certain bank and card products. It is also noteworthy that the rule does not provide any customary exclusions for chartered entities, raising substantial preemption questions.
Businesses engaging in activities covered by the proposed rule would be required to apply for a license from the NYDFS within 45 days of the effective date of the regulation. The proposed rule also sets out comprehensive compliance obligations involving consumer protection, cybersecurity, anti-money laundering, and anti-fraud, and the rule would subject licensed institutions to examination by the NYDFS. Failure to obtain a license could result in disciplinary action by the NYDFS.
The comment period on the proposed rule ends on September 6, 2014.
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Our Digital Commerce & Payments Practice group is experienced in regulatory matters arising at the intersection of digital payments, financial institutions, and technology providers, and is uniquely positioned to assist virtual currency and related companies whose business brings them into contact with the CFPB and/or the NYDFS.
Please contact one of the attorneys listed below if you would like to discuss the scope of the obligations set forth in the NYDFS proposed rule.
- Manley Williams, (202) 349-8060
On August 6, the CFPB’s Student Loan Ombudsman, Rohit Chopra, published a blog post addressing the financial arrangements between financial institutions and institutions of higher education that market financial products to students. Last year, the CFPB urged banks to disclose any agreements with colleges and universities to market debit, prepaid, and other products to students and warned that “[t]he CFPB prioritizes its supervisory examinations based on the risks posed to consumers” and “[failing to make] college financial product arrangements transparent to students and their families . . . increase[s] such risks.” In this latest review, the CFPB assessed the Big Ten schools and found that at least 11 have established banking partners to market financial products to students. Of those 11, the CFPB found only four contracts on the bank websites, and it characterized three of those four contracts as “partial”—i.e. in the CFPB’s view, the disclosed agreements “did not contain important information, such as how much they pay schools to gain access to students in order to market and sell them financial products and services.” Concurrent with the blog post, the CFPB sent letters to schools asserting that “their bank partner has not yet committed to transparency when it comes to student financial products.”
Over the past week, members of Congress from both parties have sent several letters to the Department of Education (DOE or ED) regarding its ongoing rulemaking related to the ways higher education institutions request, maintain, disburse, and otherwise manage federal student aid disbursements. As part of that rulemaking, the DOE is considering changes that would, among other things, clarify permissible disbursement practices and agreements between education institutions and entities that assist in disbursing student aid, and increase consumer protections governing the use of prepaid cards and other financial instruments. In general, the letters from Congress express concern that the draft rule is too broad and will limit student access to financial services. For example, in a July 17 letter from Congressman Luetkemeyer (R-MO), Senator Hoeven (R-ND), and 40 other lawmakers, including six Democrats, the members expressed concern that the DOE proposal could cover any account held by a student or a parent of a student if the financial institution had any arrangement, however informal, with a school and regardless of when or why the account was opened. The members support efforts to protect students from abuses made in disbursing student aid, but ask the DOE to tailor the rule such that it could not be construed so broadly as to restrict students’ access to financial services. Earlier this year, another group of lawmakers called on the DOE to “mandate contract transparency, prohibit aggressive marketing, and ban high fees when colleges partner with banks to sponsor debit cards, prepaid cards, or other financial products used to disburse student aid.”
On May 8, the New York Court of Appeals held that in certain circumstances a bank and its customer may agree to shorten the statutory time period under the state’s Uniform Commercial Code within which a customer must notify its bank of an improperly paid item in order to recover the payment. Clemente Bros. Contracting Corp. v. Hafner-Milazzo, No. 64, 2014 WL 1806924 (N.Y. May 8, 2014). The court explained that New York's version of the UCC imposes strict liability on a bank that charges against its customer's account any "item" that is not "properly payable", but bars a customer's claim for recovery on a wrongfully paid item when the customer fails to report the irregularity within one year after the bank provides the statement and item, regardless of either party's failure to exercise reasonable care. In this case, the customer’s account agreement reduced the one-year reporting period to 14 days. The court held that the parties are permitted to vary the one-year period by agreement, and that the 14-day period is not manifestly unreasonable where the customer is a “corporate entity that either is financially sophisticated or has the resources to acquire professional guidance.” The court stressed that the same would not hold true where the customer is an unsophisticated small business or individual.
- Steven R. vonBerg to discuss "Non-QM market overview and the impact & key details of the sunrise of seasoned non-QM/extension of the patch" at the IMN Non-QM Virtual Conference
- Buckley Webcast: Looking ahead — Tighter scrutiny of deposit and payment practices
- Jeffrey P. Naimon to discuss "What have you bought non-QM post-Covid?" at the IMN Non-QM Virtual Conference
- Garylene D. Javier to moderate "Innovation in an evolving privacy landscape" at the American Bar Association Business Law Section Consumer Financial Services Committee Winter Meeting