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District Court denies bank’s motion to dismiss class action regarding overdrafts
On August 23, the U.S. District Court for the District of Connecticut denied a motion to dismiss a putative class action case, in which the plaintiff alleged that a national bank’s (defendant) overdraft opt-in notice failed to satisfy Regulation E of the Electronic Funds Transfer Act (EFTA), and that the bank’s assessment of overdraft fees in light of such failure violated the Connecticut Unfair Trade Practices Act (CUFTA). The plaintiff alleged that she and other members of the putative class “opted into [the defendant’s] overdraft program for debit card and ATM transactions,” and were charged overdraft fees on an “available” balance policy multiple times. However, the defendant’s opt-in disclosure agreement states that an overdraft only happens “when you do not have enough money in your account to cover a transaction, but we pay it anyway,” which is a description of the “actual” balance of an account. Accordingly, the defendant “charge[d] overdraft fees even at times when there [was] a sufficient amount of money in a consumer’s account.” The plaintiff alleged that the defendant continued this system with knowledge of EFTA’s requirements and “that its opt-in agreement did not provide an accurate, clear, and easily understandable definition of an overdraft.”
In its motion to dismiss, the defendant argued that the plaintiff failed to state a claim alleging violations of the EFTA because, among other things: (i) when the opt-in agreement is considered together with other documents provided to the customer upon opening an account, the policies are clearly explained; and (ii) the defendant is shielded from liability under the safe harbor provisions of the EFTA, because the opt-in language utilized is identical to the CFPB’s model form. The defendant also argued that it complied with Regulation E, “because the opt-in notice it used, when read together with an ‘Account Agreement’ and ‘Overdraft Disclosure’ it says were provided to [the plaintiff] when she opened her account, made clear that it would charge overdraft fees when her ‘available balance’ fell below zero.”
The court found that the defendant’s argument regarding compliance with Regulation E “relies on documents that are not attached to, incorporated in, or otherwise ‘integral’ to the complaint” and that Regulation E requires that the notice itself be a “segregated” document, which utilizes “clear and readily understandable” language. The court also ruled that though the defendant utilized language from the CFPB model form, the plaintiff plausibly alleges that use of the form was not “an appropriate model” since the language did not disclose the defendants overdraft program in a “clear and readily understandable” manner.
CFPB to issue Section 1071 NPRM by September 30
On August 23, the CFPB filed its sixth status report in the U.S. District Court for the Northern District of California as required under a stipulated settlement reached in February 2020 with a group of plaintiffs, including the California Reinvestment Coalition. The settlement (covered by InfoBytes here) resolved a 2019 lawsuit that sought an order compelling the Bureau to issue a final rule implementing Section 1071 of the Dodd-Frank Act, which requires the Bureau to collect and disclose data on lending to women and minority-owned small businesses. The newest status report follows a July court order, which requires the Bureau to issue a notice of proposed rulemaking on small business lending data by September 30 (covered by InfoBytes here). Among other things, the Bureau notes in its status report that it expects to meet the September deadline and that it “is continuing to work on the significant legal and policy issues that must be resolved to implement the Section 1071 regulations.”
Find continuing Section 1071 coverage here.
District Court prevents disposal of cryptocurrency linked to hack
On August 23, the U.S. District Court for the Southern District of New York preliminarily enjoined defendants “from selling, transferring, assigning, encumbering, or otherwise disposing of cryptocurrency transferred in [] transactions” following a July attack on a cryptocurrency exchange network with New York-based operations. According to the cryptocurrency exchange plaintiff’s petition for a temporary restraining order (TRO), the defendants allegedly hacked the network in order to make fraudulent transfers and defraud U.S. users by generating fake bitcoin in violation of the Commodities Exchange Act. The plaintiff contended that the defendants “transferred the cryptocurrency to other exchanges serving New York customers with the intent to sell them,” adding that if the defendants “are permitted to undertake such sales, they will almost certainly transact with New York-based counterparties.” The plaintiff urged the court to issue an injunction, arguing that because the defendants are foreign and it is “impossible to identify hackers intent on fraud, there is almost no likelihood that they would pay a damage award. Short of receiving an injunction of already-identified, fraud-begotten cryptocurrency, there is no way for Petitioner to secure ultimate recovery.” The court’s order also kept in place other third-party exchanges’ existing freezes on accounts thought to hold any of the cryptocurrency at issue. The order is intended to aid the plaintiff in its impending arbitration with the defendants.
Former officials agree SEC usurped FinCEN’s BSA enforcement authority
On August 20, former FinCEN officials filed an amicus brief in support of a petition for certiorari filed by penny stock broker-dealer (petitioner) against the SEC claiming the agency usurped FinCEN’s Bank Secrecy Act (BSA) enforcement authority. The petition seeks to reverse a U.S. Court of Appeals for the Second Circuit decision, which upheld a $12 million penalty and concluded the SEC has the authority to bring an action under Section 17(a) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 17a-8 promulgated thereunder for failure to comply with the Suspicious Activity Report (SAR) provisions of the BSA. As previously covered by InfoBytes, the appellate court rejected the broker-dealer’s argument that the SEC is attempting to enforce the BSA, which only the U.S. Treasury Department has the authority to do. The appellate court noted that the SEC is enforcing the requirements of Rule 17a-8, which requires broker-dealers to adhere to the BSA in order to comply with requirements of the Exchange Act, which does not constitute the agency’s enforcement of the BSA. Moreover, the appellate court concluded that the SEC did not overstep its authority when promulgating Rule 17a-8, as SARs “serve to further the aims of the Exchange Act by protecting investors and helping to guard against market manipulation,” and that the broker-dealer did not meet its “‘heavy burden’ to show that Congress ‘clearly expressed [its] intention’ to preclude the SEC from examining for SAR compliance in conjunction with FinCEN and pursuant to authority delegated under the Exchange Act.”
The former officials’ brief states that they “have no interest in the facts” of the petitioner’s dispute with the SEC, but rather “are concerned that the Second Circuit’s misunderstanding of FinCEN’s delegated enforcement authority will lead to confusion among the financial institutions that must comply with the BSA; create multiple, conflicting BSA regulatory regimes; decrease American influence over global financial regulators; and hamper U.S. law enforcement and national security efforts by diminishing the value of BSA data.” They further pointed out that the appellate court “erred in conflating delegated compliance examination efforts with the exercise of enforcement authority and let stand SEC and lower court decisions applying materially different legal standards with a lower level of judicial oversight and review than that established by Congress.” The former officials stressed that the appellate court’s decision fails “to appreciate the nature of the AML regime and therefore FinCEN’s unique expertise and central role,” adding that the decision “threatens to undermine the BSA statutory regime and harm U.S. efforts to fight money laundering and terrorist financing” and may affect other regulators and regulated entities.
OCC cites preemption decision in valid-when-made rule challenge
On August 24, the OCC filed a statement of recent decision in support of its motion for summary judgment in an action brought against the agency by several state attorneys general challenging the OCC’s final rule on “Permissible Interest on Loans that are Sold, Assigned, or Otherwise Transferred” (known also as the valid-when-made rule). The final rule was designed to effectively reverse the U.S. Court of Appeals for the Second Circuit’s 2015 Madden v. Midland Funding decision and provide that “[i]nterest on a loan that is permissible under [12 U.S.C. § 85 for national bank or 12 U.S.C. § 1463(g)(1) for federal thrifts] shall not be affected by the sale, assignment, or other transfer of the loan.” (Covered by a Buckley Special Alert.) The states’ challenge argued that the rule “impermissibly preempts state law,” is “contrary to the plain language” of section 85 (and section 1463(g)(1)), and “contravenes the judgment of Congress,” which declined to extend preemption to non-banks. Moreover, the states contended that the OCC “failed to give meaningful consideration” to the commentary received regarding the rule, essentially enabling “‘rent-a-bank’ schemes.” (Covered by InfoBytes here.) Both parties sought summary judgment, with the OCC arguing that the final rule validly interprets the National Bank Act (NBA) and that not only does the final rule reasonably interpret the “gap” in section 85, it is consistent with section 85’s “purpose of facilitating national banks’ ability to operate their nationwide lending programs.” Moreover, the OCC asserted that 12 U.S.C. § 25b’s preemption standards do not apply to the final rule, because, among other things, the OCC “has not concluded that a state consumer financial law is being preempted.” (Covered by InfoBytes here.)
In its August 24 filing, the OCC brought to the court’s attention a recent order issued by the U.S. District Court for the Western District of Wisconsin. As previously covered by InfoBytes, the Wisconsin court reviewed claims under the FDCPA and the Wisconsin Consumer Act (WCA) against a debt-purchasing company and a law firm hired by the company to recover outstanding debt and purported late fees on the plaintiff’s account in a separate state-court action. Among other things, the court examined whether the state law’s notice and right-to-cure provisions were federally preempted by the NBA, as the original creditor’s rights and duties were assigned to the debt-purchasing company when the account was sold. The court ultimately concluded that the WCA provisions “are inapplicable to national banks by reason of federal preemption,” and, as such, the court found “that a debt collector assigned a debt from a national bank is likewise exempt from those requirements” and was not required to send the plaintiff a right-to-cure letter “as a precondition to accelerating his debt or filing suit against him.”
District Court denies request to set aside $120.2 million judgment in Belizean real estate scheme
On August 24, the U.S. District Court for the District of Maryland denied a request to set aside a more than $120.2 million judgment against several defaulted defendants involved in an international real estate investment development scheme. As previously covered by InfoBytes, the FTC initiated the action in 2018 against several individuals and corporate entities, along with a Belizean bank, asserting that the defendants violated the FTC Act and the Telemarketing Sales Rule by advertising and selling parcels of land that were part of a luxury development in Belize through the use of deceptive tactics and claims. In 2019, a settlement was reached with the Belizean bank requiring payment of $23 million in equitable relief, and in 2020, the district court ordered the defaulted defendants to pay over $120.2 million in redress and granted the FTC’s request for permanent injunctions (covered by InfoBytes here and here).
In their motion, the defaulted defendants argued that the U.S. Supreme Court’s decision in AMG Capital Management, LLC v. FTC (which unanimously held that Section 13(b) of the FTC Act “does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement”—covered by InfoBytes here) nullified the judgment. The district court disagreed, stating that the AMG Capital decision does not render his judgments in the case void and that “[i]n its Opinion rendered before the Supreme Court reached its decision, the Court considered the effect that a decision in AMG Capital adverse to the FTC might have, reasoning that: ‘this Court’s findings of fact and determinations as to liability—including contempt of court and violations of the Telemarketing Services Rule []—would not be affected by a decision in AMG.’” Moreover, the court pointed out that immediate denial of the motion is also warranted because the defaulted defendants failed to comply with a local rule requiring submission of a memorandum of law in support of their motion. The court asked, “In failing to do so, they have skirted among other fundamental questions: What authority do they, as defaulted defendants, involved as part of a common enterprise with virtually all other [d]efendants, have to upset a final and valid judgment against them after willfully defaulting?”
5th Circuit orders plaintiff to pay outstanding loan
On August 16, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court decision to require the plaintiff CEO of several petrochemical companies, who defaulted on a revolving line of credit that he guaranteed, to repay national lenders (defendants) an outstanding amount, rejecting the CEO’s argument that the agreements were fraudulently induced. The plaintiff allegedly withdrew a $90 million revolving line of credit from the defendants. His personal liability arose after his companies began breaching some of the loans’ financial covenants. To avoid acceleration, the CEO himself guaranteed the companies’ outstanding debt. Because his companies continued breaching their loan obligations and the defendants were “concerned about the borrowers’ cash burn, ‘collateral deterioration,’ and ‘poor accounting controls,’” the parties modified the total debt to $72 million. In addition, the defendants and the companies amended their credit agreement and the plaintiff “executed a personal guaranty of the debt his companies assumed.” At the defendants’ recommendation—or, as the CEO maintains—“the borrowers also brought on a chief restructuring officer (CRO) to help turn the companies around.” When the companies continued to default on the loan obligations, the CEO and the borrowers entered into two forbearance agreements with the defendants that imposed financial, operational, and reporting obligations on the borrowers. After the second agreement expired and the borrowers' defaults remained, the company sued the defendants for over $1.5 billion in damages for negligence, fraud, conversion, among other things, in which the defendants “counterclaimed and impleaded [the CEO] and the remaining borrowers and guarantors, alleging breach of contract and breach of guaranty.” According to the opinion, “[t]hose third-party defendants then counterclaimed against the lenders, asserting the same tort claims initially lodged by the company.” Furthermore, the CEO asserted the following four defenses: fraudulent inducement, duress, unclean hands, and equitable estoppel. The district court rejected each of the plaintiff’s arguments, ordering him to pay the defendants, plus interest and attorney fees, noting “that the underlying breach of guaranty was ‘not contested.’” The district court held that the waivers and releases the plaintiff signed as part of the two forbearance agreements “foreclosed any claim that he was fraudulently induced into signing the earlier Guaranty,” and determined that his allegations of intense business pressure fell short of establishing duress.
On appeal, the 5th Circuit agreed with the district court, affirming that the plaintiff failed to prove that he signed onto the agreements under duress. According to the 5th Circuit, “[t]he district court detected a glaring problem with this theory: the timeline of events refutes it,” and the plaintiff “learned of the purported fraud—the supposed scheme to replace him with the CRO—before he ratified the Guaranty.”
Supreme Court lifts federal eviction moratorium
On August 26, the U.S. Supreme Court issued a 6-3 decision in Alabama Association of Realtors et al. v. U.S. Department of Health and Human Services et al. to lift the federal government’s eviction moratorium, stating the CDC lacked authority to impose the ban. This decision follows the Court’s June decision, which previously denied the group’s request to lift the eviction moratorium in order to let the ban expire at the end of July as intended to allow for a “more orderly distribution of the congressionally appropriated rental assistance funds.” (Covered by InfoBytes here.) In agreeing with the group’s argument that the law on which the CDC relied upon did not allow it to implement the current ban, the majority held that “[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts,” pointing out that, as the Court noted in its June decision, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” This decision vacates a stay on the U.S. District Court for the District of Columbia’s judgment placed by the same court and renders the district court’s judgment enforceable. As previously covered by InfoBytes, the district court ruled that the CDC exceeded its authority when it imposed the temporary ban and stated that because the Public Health Service Act (PHSA) does not “grant the CDC the legal authority to impose a nationwide eviction moratorium” the moratorium must be set aside.
The dissenting judges faulted the Court for deciding the issue without full briefing and argument, arguing that a stay entered by a lower court cannot be vacated “unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’” Among other things, they pointed out that “it is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order” as the CDC’s current, modified order targets only regions experiencing a spike in transmission rates. They further argued that the PHSA’s language authorizes the CDC “to design measures that, in the agency’s judgment, are essential to contain disease outbreaks,” and that “the balance of equities strongly favors leaving the stay in place.” According to the minority, “public interest strongly favors respecting the CDC’s judgment at this moment, when over 90% of counties are experiencing high transmission rates.”
Notably, the decision impact’s the CFPB’s interim final rule (Rule) amending Regulation F to require all landlords to disclose to tenants certain federal protections put in place as a result of the ongoing Covid-19 pandemic (covered by InfoBytes here). As previously covered by InfoBytes, the U.S. District Court for the Middle District of Tennessee denied a request in May for a temporary restraining order to block the Rule, but noted however, that “by its own terms the Rule applies only during the effective period of the CDC Order, only to tenants to whom the CDC Order reasonably might apply, and only in jurisdictions in which the CDC Order applies. Defendant CFPB has opined, in its response to the Motion, that ‘the Rule’s provisions—by the Rule’s own operation—have no application where the CDC Order, on account of a court order or otherwise, does not apply.’ . . . The Court concurs with this view, and it intends to hold CFPB to this view (and believes that other courts perhaps should do likewise).”
District Court: "Least sophisticated consumer" would not be misled by collection letter disclosures
On August 23, a magistrate judge of the U.S. District Court for the District of Colorado granted a defendant’s motion for summary judgment, ruling pursuant to the “least sophisticated consumer standard” that the debt collection letter accurately conveyed the subject FDCPA rights. The plaintiff alleged the defendant debt collector’s letter violated several sections of the FDCPA by, among other things, making false and misleading representations in violation of Section 1682e by informing the plaintiff that “calling for further information or making a payment is not a substitute for disputing the debt” because it implied that disputing the debt was mandatory instead of optional. Additionally, the plaintiff contended that this language overshadowed and contradicted the required disclosure on the second page of the letter by “suggest[ing] that disputing the debt was mutually exclusive to making a payment”—an alleged violation of Section 1692g. The defendant moved for summary judgment, arguing that the plaintiff lacked standing to sue, or in the alternative, that he lacked sufficient evidence to prove his FDCPA claims.
The court disagreed, ruling that the plaintiff’s alleged injuries (that the FDCPA violation caused him to not pay his debt and that he lost out on the ability to make payments or to, among other things, negotiate a separate payment plan) did not rise to the level of tangible harm necessary to satisfy Article III standing. The court then reviewed the letter’s disclosures under the least sophisticated consumer standard and determined that “it is one thing to say that making a payment and disputing a debt are different, and another entirely to suggest that they are mutually exclusive. The phrase, ‘IS NOT A SUBSTITUTE FOR,’ does not carry any reasonable implication of exclusivity, and in fact demonstrates, when read in full context, that Defendant is informing Plaintiff that making a payment does not take the place of disputing the debt. In other words, both can be pursued without exclusivity.” Moreover, because the language is not misleading or contradictory, the court ruled that it did not overshadow the second-page disclosure, which informed him of his right (but not obligation) to dispute the debt.
District Court approves RESPA class action settlement
On August 19, the U.S. District Court for the District of Maryland granted preliminary approval of a proposed class action settlement claiming a mortgage company engaged in an allegedly illegal kickback scheme with a title company. According to the memorandum in support of the plaintiffs’ motion for preliminary approval, the title company paid, and the mortgage company received and accepted, kickbacks in exchange for the mortgage company’s “assignment and referral of residential mortgage loans, refinances, and reverse mortgages to [the title company] for title and settlement services.” This conduct, the plaintiffs contended, violated RESPA and RICO. While the mortgage company denied all substantive allegations and liability, the parties reached a proposed settlement, in which class members (defined as borrowers with federal mortgage loans originated by the mortgage company for which the title company provided settlement services) will each receive approximately $3,200 from a $990,000 settlement fund. The preliminarily approved settlement also provides for class counsel fees and expenses and class representative service awards for a total not to exceed roughly $1.27 million.