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Financial Services Law Insights and Observations

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  • Nevada Passes Bill Revising Motor Vehicle Technology Device Provisions, Assigns Responsibility to Creditors and Lessors

    State Issues

    On June 12, Nevada Governor Brian Sandoval signed into law SB 350, which amends deceptive trade practices provisions to prohibit certain creditors and lessors of motor vehicles from installing or requiring installation of certain GPS and starter interrupt devices without written notice. Specifically, the bill requires creditors or long-term lessors to either provide advance written notice to, or obtain written agreement from, the consumer purchasing or leasing the vehicle before installing or requiring the installation of GPS devices. Additionally, the creditor/lessor must receive a written agreement from the consumer consenting to installation and use of a starter interrupt device. The bill outlines requirements and restrictions on the use of these technology devices, and provides that “such technology devices generally are the responsibility of a creditor or long-term lessor or, if applicable, any successor in interest or another secured party . . . .” It further specifies that “such responsibility includes paying for certain costs associated with, and any damage to a motor vehicle that is caused by, the use of such technology devices.” With the passage of SB 350, any violation of the aforementioned is a “deceptive trade practice.” The law takes effect July 1, 2017.

    State Issues Auto Finance State Legislation

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  • Maine Amends Consumer Credit Code to Regulate Mortgage Loan Servicers

    State Issues

    On May 30, Maine Governor Paul LePage signed into law S.P. 444, which amends the state’s Consumer Credit Code to improve the mortgage foreclosure process by regulating mortgage loan servicers. Under the Consumer Credit Code, “creditors” must be licensed and must comply with the provisions of the Consumer Credit Code. The amendment revises the definition of “creditor” to now include a “mortgage loan servicer,” which means a person or organization that undertakes direct collection of payments from or enforcement of rights against debtors arising from a supervised loan secured by a dwelling. The law, according to state rules, takes effect 90 days after adjournment of the legislature.

    State Issues Mortgage Servicing State Legislation Foreclosure

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  • Connecticut Law Expands Credit Card Fraud Statutes, Addresses Penalties for Rent Collections on Foreclosed Property

    State Issues

    On June 6, Connecticut Governor Dannel Malloy signed into law Public Act No. 17-26, which expands the statutes on credit card fraud to cover crimes involving debit cards—including payroll and ATM cards—and outlines larceny penalties for collecting rent on foreclosed property. Paper and electronic checks or drafts are excluded from the definition of debit card under revised measure. Additionally, the law specifies changes pertaining to how “notice of a card’s revocation must be sent for purposes of these crimes and expands certain credit card crimes to cover falsely loading payment cards (credit or debit cards) into digital wallets.” Regarding larceny penalties, the law provides that a “previous mortgagor of real property against whom a final judgment of foreclosure has been entered” cannot continue to collect rent after the final judgment if there is no lawful right to do so. Penalties vary from a class C misdemeanor to a class B felony depending on the amount involved. The law takes effect October 1.

    State Issues Credit Cards Debit Cards Prepaid Cards State Legislation Financial Crimes Mortgages Digital Commerce Fraud

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  • Texas Bans Credit Card Surcharges

    State Issues

    On May 27, Texas passed legislation that bans surcharges on credit card transactions. Existing Texas law prohibits businesses from increasing the price charged for goods or services for buyers who pay with a debit card or stored value card. With the passage of S.B. 560 , the prohibition on such surcharges will now extend to credit card transactions as well. The law takes effect September 1, 2017. Any person who violates the law can incur a civil penalty of up to $500 for each incident.

    State Issues State Legislation Credit Cards

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  • Alabama Enacts Law Regarding Refund Obligations

    State Issues

    On May 26, Governor Kay Ivey signed into law HB 420, which authorizes and regulates the transactions of guaranteed asset protection (GAP) waivers related to vehicle loans. Importantly, the law requires that if the GAP waiver is cancelled due to early termination of the finance agreement, “the creditor shall provide, or cause the administrator or retail seller to provide, within 60 days of termination, any refund due to a borrower without requiring the borrower to request cancellation of the waiver.” Furthermore, cancellation refunds can be applied toward the amount owed under the finance agreement unless it has proven to be paid in full. The law goes into effect January 1, 2018.

    State Issues State Legislation Auto Finance

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  • First State Moratorium on Blockchain Taxes in Nevada

    State Issues

    On June 5, the governor of Nevada signed into law legislation (SB 398) that prohibits local governments from taxing or establishing restrictions on blockchain use—making it the first state to outlaw blockchain taxes. In addition to taxes, the new law prohibits requiring a license, permit, or certificate or any other condition on the use of blockchain. The bill also states that blockchain data can now be submitted in situations where the law requires a record to be in writing.

    State Issues State Legislation Blockchain Fintech Distributed Ledger

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  • Colorado Extends Fair Debt Collection Practices Act Through 2028

    State Issues

    On June 1, Colorado Governor John Hickenlooper enacted legislation (SB 17-216) executing recommendations from the Department of Regulatory Agencies’ 2016 Sunset Report, and extending the Colorado Fair Debt Collection Practices Act (Act) an additional 11 years through September 1, 2028. The Act was originally set to be repealed on July 1, 2017. Specifically, the legislation will implement the following points:

    • defines a “debt buyer” as an individual who “engages in the business of purchasing delinquent or defaulted debt for collection purposes,” regardless of whether the debt is collected by the debt buyer, a third-party, or through litigation. The Act applies to debt buyers who purchase consumer debts sold or resold on or after January 1, 2018;
    • states that debt collectors or collection agencies that bring legal actions on debts must follow outlined requirements;
    • defines collection agency expectations for the purchase, sale or attempted collection of a purchased debt;
    • sets the statute of limitations for public actions brought by the administrator of the Act to two years and sets the limit to one year for private actions;
    • requires the administrator to prepare a biannual report to address enforcement actions, complaint processing statistics, and significant legal filings, among other things, in addition to hosting biannual meetings to disseminate the findings.

    SB 17-216 went into effect June 1, 2017 with the exception of certain provisions governing debt buyers, documentation for legal actions, and Uniform Consumer Credit Code Administrator reporting requirements that take effect January 1, 2018.

    State Issues Debt Collection FDCPA State Legislation Debt Buying

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  • Vehicle Financing Company Owners Plead Guilty to $11 Million Fraud

    Lending

    On May 25, the Massachusetts U.S. Attorney’s Office announced that two vehicle financing company owners (Defendants) entered guilty pleas admitting to counts of mail and wire fraud. The Defendants’ company raised capital by securing investments from individuals to fund its operations. In 2015, the DOJ filed a criminal complaint alleging the Defendants represented to investors that retirement account funds could be rolled over into investments held by the company without triggering the payment of income taxes on the transferred monies. Investors allegedly transferred retirement funds based on these representations, and the Company ultimately lost more than $11 million of the investors’ money. However, the Defendants allegedly never obtained approval from Treasury for the company to act as an authorized custodian or trustee of retirement funds as required in order for the rules permitting tax-free transfers to apply, and therefore solicited the investment funds based on “deceptive acts, false and fraudulent statements and misrepresentation of material facts.” The company ultimately filed for bankruptcy. The plea agreements stipulate maximum penalties of “20 years in prison, three years of supervised release, a fine of $250,000 or twice the gross gain or loss, whichever is greater, a mandatory special assessment of $100, restitution, and forfeiture to the extent charged in the Indictment” and can be accessed here and here. Sentencing is set for September 20, 2017.

    Lending Auto Finance Fraud UDAAP State Issues

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  • City Agrees to Settlement of Housing Discrimination Suit with DOJ

    Courts

    On May 26, the Department of Justice (DOJ) and the city of Jacksonville, Florida (city), agreed on a settlement over claims that the city violated the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). The DOJ alleged that the city denied permission for the development of permanent supportive housing for individuals with disabilities in an historic district and discriminated on the basis of the intended residents’ disabilities.

    The settlement provides for a civil penalty of $25,000 to be paid to the U.S. Treasury as well as the creation by the city of a $1.5 million grant to be awarded to a qualified developer of permanent supportive housing in the community. The city also agreed to take additional specific steps to comply with the requirements of the ADA and FHA.

    Two other plaintiffs whose suits were consolidated with the DOJ’s—Ability Housing, Inc. and Disability Rights Florida, Inc.—also received compensation for reasonable attorneys’ fees and other costs.

    As part of the settlement, the city denied any wrongdoing alleged by the DOJ.

    Courts State Issues DOJ FHA Department of Treasury Litigation

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  • South Carolina Governor Amends Mortgage Lender, Broker Licensing Requirements

    State Issues

    On May 19, South Carolina Governor Henry McMaster signed into law amendments (S 366) to the state’s Mortgage Lending Act, Mortgage Broker Act, and related laws to revise a variety of mortgage lending definitions, licensing procedures and requirements, and disclosure obligations. The legislation also adds license requirements for mortgage lenders who act as mortgage brokers on the majority of their mortgage loans. The amendments take effect September 16, 2017.

    State Issues Mortgage Lenders Licensing State Legislation

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