InfoBytes Blog
Filter
Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
FCC issues $4.1 million fine for deceptive robocalls
On April 22, the FCC imposed a $4.1 million fine against a phone carrier for allegedly impersonating other carriers in telemarketing calls and deceiving consumers into changing carriers without consent. The FCC first proposed the fine in 2018 after the agency, state regulators, and the Better Business Bureau received many complaints about this conduct. According to the FCC, the company’s “actions specifically harmed elderly and infirm consumers who, in some cases, were left without telephone service for extended periods of time while the company refused to reinstate service until the unauthorized charges were paid in full.” FCC acting Chairwoman Jessica Rosenworcel issued a statement condemning the “ugly scam” as a violation of the Communications Act, and warned: “To anyone else using our nation’s phone systems to perpetuate this kind of scam, take note because our efforts won’t stop here.”
State AGs urge Congress to rescind OCC’s “true lender” rule
On April 21, a coalition of 26 state attorneys general sent a letter urging Congress to exercise its authority under the Congressional Review Act (CRA) and rescind the OCC’s “True Lender Rule” in order to “safeguard states’ fundamental sovereign rights to protect their citizens from financial abuse.” As previously covered by InfoBytes, the OCC’s final rule amended 12 CFR Part 7 to state that a bank makes a loan when, as of the date of origination, it either (i) is named as the lender in the loan agreement or (ii) funds the loan. The final rule also clarified that if “one bank is named as the lender in the loan agreement and another bank funds the loan, the bank that is named as the lender in the loan agreement makes the loan.” In their letter, the AGs expressed concern that the final rule “establishes a simplistic standard to redefine the meaning of ‘true lender,’” enabling predatory lenders to “circumvent” state interest-rate caps through “rent-a-bank” schemes, which would in turn allow banks to act as lenders in name only while passing state law exemptions for banks to non-bank entities. The letter references a complaint filed by eight state AGs against the OCC in January challenging the final rule (covered by InfoBytes here) and argues that in finalizing the rule the OCC “acted in a manner contrary to centuries of case law [and] the OCC’s own prior interpretation of the law,” and seeks to preempt state usury law and “infringe on the States’ historical police powers and facilitate predatory lending.”
In March, both House and Senate Democrats introduced CRA resolutions (see H.J. Res. 35 and S.J. Res. 15) intended to provide for congressional disapproval and invalidation of the OCC’s final rule. The OCC responded on April 14, arguing that “disapproval of the rule would return bank lending relationships to the previous state of legal and regulatory uncertainty, which. . . adversely affects the function of secondary markets and restricts the availability of credit.” The OCC further stated that the final rule is intended to enhance the agency’s ability to supervise bank lending and “does not change bank’s authority to export interest rates” nor does it “permit national banks to charge whatever rate they like” as both federal and state-chartered banks are required to conform to applicable interest rate limits. “Disparities of interest rates from state to state result from differences in the state laws that impose these caps, not OCC rules or actions,” the OCC stressed, adding that “[s]tates retain the authority to set interest rates.” However, the Conference of State Bank Supervisors sent a letter to Congress in support of S.J. Res. 15, disagreeing with the OCC and noting that the final rule, if it stands, would “eviscerate the power of state interest rate caps and rid state regulators of the most effective tool to protect consumers from such predatory lending.”
FTC settles with MCA providers for $9.8 million
On April 22, the FTC announced a settlement with two New York-based merchant cash advance providers and two company executives (collectively, “defendants”) for allegedly engaging in deceptive practices by misrepresenting the terms of their merchant cash advances (MCAs), using unfair collection practices, making unauthorized withdrawals from consumers’ accounts, and misrepresenting collateral and personal guarantee requirements. As previously covered by InfoBytes, the FTC filed a complaint against the defendants last year claiming, among other things, that the defendants (i) falsely advertised that MCAs do not require collateral or personal guarantees, but when consumers defaulted on their financing agreements, the defendants frequently filed lawsuits against them, including against individual business owners who provided personal guarantees, to collect the unpaid amount; (ii) misrepresented the amount of total financing in the contract that consumers would receive by withholding fees that are deducted from the promised funds; and (iii) made unfair, unauthorized withdrawals from customers’ bank accounts in excess of consumers’ authorization without express informed consent, while continuing to debit customers’ bank accounts after the MCAs were fully repaid.
Under the terms of the stipulated order, which was approved by the court on May 5, the defendants are required to pay more than $9.8 million to the FTC to go towards redress to affected customers. The defendants are also permanently prohibited from making misleading statements to consumers about the terms of their financing or making withdrawals from consumers’ bank accounts without first receiving their express informed consent, and are required to clearly and conspicuously disclose any financing fees as well as the actual amount consumers will receive after the fees are assessed. Further, the defendants must establish a process to monitor any marketers or funding companies that work on their behalf to ensure, among other things, that such companies abide by the terms of the settlement.
Fed announces enforcement actions against Montana and Iowa state banks
On April 22, the Federal Reserve Board announced enforcement actions against two state banks. In a consent order with a Montana-based bank, the Fed alleged that the bank violated the National Flood Insurance Act (NFIA) and Regulation H. The order assesses a $9,500 penalty against the bank for an alleged pattern or practice of violations of Regulation H but does not specify the number or the precise nature of the alleged violations. The maximum civil money penalty under the NFIA for a pattern or practice of violations is $2,252 per violation.
Separately, an Iowa-based bank entered a written agreement with the Fed and the Iowa Superintendent of Banking “to strengthen board oversight of the management and operations of the Bank, by improving the Bank’s condition and maintaining control of the Bank’s main operations and activities, including the Bank’s credit risk management, asset quality, capital, and earnings.” According to the agreement, the bank must provide an acceptable written plan designed to reinforce credit risk management practices to the Fed and the Superintendent within 60 days. In addition, the plan must include: “(i) a comprehensive budget for 2021, including income statement and balance sheet projections; and (ii) a description of the operating assumptions that form the basis for, and adequately support, major projected income, expense, and balance sheet components.”
FTC testifies on combating Covid-19 scams
On April 27, FTC staff testified on behalf of the Commission before the Senate Commerce Committee’s Subcommittee on Consumer Protection, Product Safety, and Data Security, briefing lawmakers on the FTC’s efforts to protect consumers from scams and frauds connected to the Covid-19 pandemic. During the testimony, presented by acting Director of the Bureau of Consumer Protection Daniel Kaufman, the FTC highlighted that the agency filed more than a dozen law enforcement actions, led the elimination of deceptive claims made by more than 350 companies, and released more than 100 alerts to update consumers and businesses on identifying and avoiding these schemes. According to the testimony, the FTC responded rapidly to identify and stop schemes that have proliferated during the pandemic in response to the demand for scarce goods, to peddle potential treatments and cures, and to exploit consumers’ and businesses’ financial hardships during the crisis. Acting Director Daniel Kaufman noted that “the FTC issued its first warnings to consumers about COVID-19 related scams in February 2020, even before the declaration of a national emergency.” Additionally, the FTC has brought enforcement actions to protect consumers’ privacy and data from digital harms amplified by the ongoing pandemic, and has partnered with the CFPB to ensure “that renters are not subjected to unlawful practices in light of the eviction crisis caused by COVID-19.” The testimony also pointed out that the FTC has received more than 436,000 reports concerning fraud, identity theft, and other consumer problems since January 2020, reflecting $399 million in fraud losses.
CFPB, NY AG sue debt collector to seize transferred property
On April 22, the CFPB and the New York attorney general filed a complaint against the owner of a now-defunct debt-collection firm for allegedly transferring ownership of his $1.6 million home to his wife and daughter for $1 shortly after he received a civil investigative demand and learned that the Bureau and the AG were conducting an investigation into his debt-collection activities. As previously covered by InfoBytes, the Bureau and the AG reached settlements in 2019 with the debt collection operation to resolve allegations that the defendants established and operated a network of companies that harassed and/or deceived consumers into paying inflated debts or amounts they may not have owed. The terms of the settlements imposed civil money penalties and consumer redress and permanently banned the defendants from acting as debt collectors. According to the complaint, the owner defendant has paid nothing toward satisfying the 2019 settlement, nor has he cooperated with the Bureau and the AG’s efforts to obtain relevant financial information. The complaint further claims that the transfer of the property was a fraudulent transfer under the Federal Debt Collection Procedures Act and made with the intent to defraud (a violation of the New York Debtor and Creditor Law), and alleges that the owner defendant “removed and concealed assets in an effort to render the Judgment obtained by the Government Plaintiffs uncollectable.” Moreover, because the property was allegedly “transferred with intent to hinder, delay, or defraud a creditor,” the complaint contends that the owner defendant is “not entitled to claim any homestead exemption.” The complaint asks the court to void the property transfer and to allow seizure of the property. Additionally, the Bureau and the AG request that the house be sold with all proceeds going towards the owner defendant’s 2019 settlement, and seek a monetary judgment against the owner defendant’s wife and daughter for the value of the property as transferees of the fraudulent conveyance of the property.
House Financial Services Committee reauthorizes fintech, AI task forces
On April 30, the House Financial Services Committee announced the reauthorization of the Task Forces on Financial Technology and Artificial Intelligence. According to Chairwoman Maxine Waters (D-CA), the “Task Forces will investigate whether these technologies are serving the needs of consumers, investors, small businesses, and the American public, which is needed especially as we recover from the COVID-19 pandemic.” Representative Stephen Lynch (D-MA) will chair the Task Force on Financial Technology, which will continue to monitor the opportunities and challenges posed by fintech applications for lending, payments, and money management and offer insight on how Congress can ensure Americans’ data and privacy is protected. Representative Bill Foster (D-IL) will chair the Task Force on Artificial Intelligence, which will examine how AI is impacting the way Americans operate in the marketplace, how to think about identity security, and how to interact with financial institutions. The task forces will also examine issues related to algorithms, digital identities, and combatting fraud. As previously covered by InfoBytes, these task forces were set to expire in December 2019.
House GOP members also released a report that highlights efforts of the Task Forces on Financial Technology and on Artificial Intelligence and includes recommendations on how to utilize innovation. According to the report, the two “key takeaways” are that “Congress must (1) promote greater financial inclusion and expanded access to financial services, and (2) ensure that the federal government does not hinder the United States’ role as a global leader in financial services innovation.” The report also includes recommendations for policy regulators and Congress to: (i) decide how to assist innovation, especially in the private sector; (ii) use the power of data and machine learning to fight fraud, streamline compliance, and make better underwriting decisions; and (iii) “keep up with technology to better protect consumers.”
Treasury announces climate policy strategy
On April 19, the U.S. Treasury Department announced a new coordinated climate policy strategy focusing on domestic and international policymaking to “leverag[e] finance and financial risk mitigation to confront the threat of climate change.” Efforts will focus on issues related to climate transition finance, climate-related economic and tax policy, and climate-related financial risks, and will support engagement with other stakeholders, agencies, and regulators. Additionally, Treasury plans to create a new Climate Hub to coordinate existing climate-related efforts.
FTC provides AI guidance
On April 19, the FTC’s Bureau of Consumer Protection wrote a blog post identifying lessons learned to manage the consumer protection risks of artificial intelligence (AI) technology and algorithms. According to the FTC, over the years the Commission has addressed the challenges presented by the use of AI and algorithms to make decisions about consumers, and has taken many enforcement actions against companies for allegedly violating laws such as the FTC Act, FCRA, and ECOA when using AI and machine learning technology. The FTC stated that it has used its expertise with these laws to: (i) report on big data analytics and machine learning; (ii) conduct a hearing on algorithms, AI, and predictive analytics; and (iii) issue business guidance on AI and algorithms. To assist companies navigating AI, the FTC has provided the following guidance:
- Start with the right foundation. From the beginning, companies should consider ways to enhance data sets, design models to account for data gaps, and confine where or how models are used. The FTC advised that if a “data set is missing information from particular populations, using that data to build an AI model may yield results that are unfair or inequitable to legally protected groups.”
- Watch out for discriminatory outcomes. It is vital for companies to test algorithms—both prior to use and periodically after that—to prevent discrimination based on race, gender, or other protected classes.
- Embrace transparency and independence. Companies should consider how to embrace transparency and independence, such as “by using transparency frameworks and independent standards, by conducting and publishing the results of independent audits, and by opening. . . data or source code to outside inspection.”
- Don’t exaggerate what your algorithm can do or whether it can deliver fair or unbiased results. Under the FTC Act, company “statements to business customers and consumers alike must be truthful, non-deceptive, and backed up by evidence.”
- Data transparency. In the FTC guidance on AI last year, as previously covered by InfoBytes, an advisory warned companies to be careful about how they get the data that powers their models.
- Do more good than harm. Companies are warned that if their models cause “more harm than good—that is, in Section 5 parlance, if it causes or is likely to cause substantial injury to consumers that is not reasonably avoidable by consumers and not outweighed by countervailing benefits to consumers or to competition—the FTC can challenge the use of that model as unfair.”
- Importance of accountability. The FTC warns of the importance of being transparent and independent and cautions companies to hold themselves accountable or the FTC may do it for them.
SBA announces $5 billion in Covid-19 aid for small businesses
On April 23, the Small Business Administration (SBA) announced a new round of Economic Injury Disaster Loan (EIDL) assistance to provide $5 billion in additional assistance to small businesses and nonprofit organizations with 10 employees or fewer that have been severely affected by the Covid-19 pandemic. The Supplemental Targeted Advance program is the latest SBA relief program and follows recent SBA actions taken to increase EIDL assistance. As previously covered by InfoBytes, last month SBA raised the loan limit for Covid-19 disaster loans “from 6-months of economic injury with a maximum loan amount of $150,000 to up to 24-months of economic injury with a maximum loan amount of $500,000,” and extended the deferment period for all disaster loans, including Covid-19 EIDLs, until 2022 (covered by InfoBytes here).