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Financial Services Law Insights and Observations

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  • District court grants DOJ’s request for TRO against website for selling nonexistent Covid-19 vaccine

    Federal Issues

    On March 22, the U.S. District Court for the Western District of Texas granted the DOJ’s motion for a temporary restraining order against an allegedly fraudulent website. In its announcement of the court’s action, the DOJ detailed that it had filed a complaint against the operator of a website (defendant) that purported to offer Covid-19 World Health Organization vaccine kits to consumers for free, if the consumers paid $4.95 in shipping charges. In its complaint, the DOJ alleged that the defendant was engaged in a scheme to defraud consumers by charging them $4.95 for shipping for the vaccine—which does not exist—and collecting the consumers’ credit card information for purposes of “fraudulent purchases and identity theft.” The DOJ alleged that the defendant was “engaging in and facilitating a predatory wire fraud scheme exploiting the current Covid-19 pandemic.” Among other things, the Department also requested a permanent injunction against the defendant.

    Federal Issues Courts DOJ Fraud Covid-19

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  • FDIC warns of scams

    Federal Issues

    On March 18, the FDIC issued a press release reminding Americans that FDIC-insured banks “remain the safest place to keep their money.” The FDIC also warned of scams where imposters are pretending to be agency representatives to perpetrate fraudulent schemes.

    Federal Issues Covid-19 FDIC Fraud Consumer Protection

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  • FinCEN issues guidance on BSA reports

    Federal Issues

    On March 16, the Financial Crimes Enforcement Network (FinCEN) issued a release reminding financial institutions affected by Covid-19 to contact the agency and their functional regulator as soon as practicable if they anticipate delays in filing their Bank Secrecy Act reports. Financial institutions were also advised to be on alert for malicious or fraudulent transactions connected to Covid-19, particularly with respect to emerging trends such as imposter scams, investment scams, product scams, and insider trading. Financial institutions were also directed to review FinCEN advisory FIN-2017-A007—which discusses other relevant typologies, including benefits fraud, charities fraud, and cyber-related fraud—and encouraged to review guidance from their functional regulators as available.

    Federal Issues Covid-19 FinCEN Bank Secrecy Act Fraud Financial Crimes Of Interest to Non-US Persons

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  • Maryland Court of Appeals reverses trial court approval of settlement for interfering with CPD action

    Courts

    On March 3, the Maryland Court of Appeals reversed a trial court’s approval of a proposed settlement in a class action based on fraudulently induced assignments of annuity payments. The class members were recipients of structured settlement annuities from lead paint exposure claims who responded to ads by a structured settlement factoring company (company). The class members then transferred the rights to their settlement annuity contracts to the company, which paid the class members lump sums for the rights at a discount. The class filed a lawsuit against the company in 2016, alleging that it had engaged in fraud in procuring the annuity contract transfers. Around the same time, the Consumer Protection Division of the Maryland AG’s Office (CPD) had filed suit against the company alleging violations of the State Consumer Protection Act. Several months after both actions were filed, the CFPB filed a similar suit against the company based on the same alleged misconduct. All three actions sought similar kids of relief with respect to the same individuals, though the bases for seeking relief and the nature and amount of relief sought differed among the actions.

    The class and the company proceeded towards a negotiated settlement, to which the trial court signed a proposed final order, certifying the class and approving the settlement, despite CPD’s opposition to both issues. Following the court’s approval, the company moved for summary judgment in its case against the CPD, which the court granted because it held CPD’s claim for restitution for the same individuals was barred by res judicata; CPD’s claim for injunctive relief and civil penalties is still currently awaiting trial.

    Following an appeal, the Court of Appeals granted the company’s petition to consider whether “class members [may] lawfully release and assign to others their right to receive money or property sought for their benefit by [CPD] or [CFPB] through those agencies’ separate enforcement actions” under state and federal consumer protection laws, respectively.

    The Court of Appeals held that the lower court erred in approving the settlement, stating that consumers “have no authority, through a private settlement, whether or not approved by a court, to preclude CPD from pursuing its own remedies against those who violate . . . [Maryland’s] Consumer Protection Act, including a general request for disgorgement/restitution.” In particular, the Court of Appeals held that the parties cannot preclude CPD from pursuing the remedies of disgorgement and restitution, as that would directly contravene CPD’s statutory authority to sanction the company for wrongful conduct. For this reason, the Court of Appeals concluded that the trial court’s approval of the settlement must be reversed and remanded the case for further proceedings.

    Courts State Issues Structured Settlement Fraud Disgorgement Class Action Restitution CFPB Federal Issues Appellate Damages

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  • FTC files “piggybacking” charges against credit repair operation

    Federal Issues

    On March 9, the FTC filed a complaint against a Colorado-based credit repair company and its owner for allegedly making false representations to consumers regarding their ability to improve credit scores and increase access to mortgages, personal loans, and other credit products in violation of the Credit Repair Organizations Act, the FTC Act, and the Telemarketing Sales Rule. In its complaint, the FTC alleged that the defendants charged consumers illegal, upfront fees ranging from $325 to $4,000 per tradeline with the deceptive promise that they could “piggyback” on a stranger’s good credit, thereby artificially inflating their own credit score in the process. As the FTC explained, “piggybacking” occurs when a consumer pays to be registered as an “additional authorized user” on a credit card held by an unrelated account holder with positive payment histories. The FTC alleged that the defendants’ practices did not, in fact, significantly improve consumers’ credit scores as promised, and that while the defendants claimed on their website that their piggybacking services were legal, the FTC “has never determined that credit piggybacking is legal” and the practice does not fall within the protections of the Equal Credit Opportunity Act. Under the terms of the proposed settlement, the defendants will be banned from selling access to another consumer’s credit as an authorized user and from collecting advance fees for credit repair services. The defendants will also be required to pay a $6.6 million monetary judgment, which be partially suspended due to the defendants’ inability to pay.

    Federal Issues FTC Enforcement Credit Repair Credit Scores FTC Act ECOA Fraud Unfair Deceptive

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  • FDIC seeks input on modernization

    Agency Rule-Making & Guidance

    On February 19, the FDIC issued a notice and request for comment regarding modernizing “its signage and advertising requirements to better reflect how banks and savings associations currently operate and how consumers use banking services.” The Request for Information (RFI) solicits input on how the agency “can revise and clarify its sign and advertising rules related to FDIC deposit insurance.” Major changes to these rules have not been made since 2006, and the agency states that “the rules do not reflect evolving banking channels and operation.” Accordingly, the RFI also requests suggestions about how the FDIC can use technology or other solutions to help consumers distinguish FDIC-insured entities from nonbanks, and to prevent consumers from being harmed by non-insured entities’ potentially misleading or fraudulent representations. The RFI lists 21 questions to focus the public input. Comments must be received by March 19.

    Agency Rule-Making & Guidance Federal Issues FDIC Supervision Fintech Advertisement Marketing Fraud Nonbank

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  • District court voids debt collectors’ $2.5 million jury award

    Courts

    On February 6, the U.S. District Court for the Northern District of Texas vacated a jury award of $2.5 million in favor of two nationwide debt collection agencies (plaintiffs), in an action alleging fraud by a law firm and vendor (defendants) in their provision of credit repair services. According to the opinion, the plaintiffs claimed that the defendants ran “a fraudulent credit repair scheme” in which the defendants “prey[ed] on financially troubled consumers by drafting, signing, and mailing frivolous dispute correspondences—all using [the defendant’s] patented software that generates context-based unique letters—in the name of consumers, without the consumer’s specific knowledge or consent, and without identifying that the letters are from a law firm, rather than a consumer,” in violation of the FDCPA and the FCRA. The defendant law firm responded that all of its credit repair clients provided consent for the law firm to send the letters on their behalf in an effort to improve their credit. After a six day trial, the defendants filed an amended motion for judgment as a matter of law, claiming the plaintiffs had not met their burden of proof on several elements of their fraud claims. The court “reserved ruling on the motion and stated that it would consider the arguments raised in the motion post-verdict, as necessary.” After the jury found in favor of the plaintiffs and awarded them $2.5 million in damages, the defendants filed a renewed motion for judgment as a matter of law, arguing that the plaintiffs had not shown any “material misrepresentation” or “material false statement” by the defendants, and further, that the plaintiffs did not show a “reasonable reliance” on such statements, or that the defendants had any duty to disclose facts to the plaintiffs.

    According to the opinion, the defendants’ motion for judgment as a matter of law called into question the “legal sufficiency” of the plaintiffs’ evidence in support of the jury’s verdict. In granting the motion and vacating the jury award in favor of the plaintiffs, the court held that the plaintiffs failed to show a material false statement by the defendants, and therefore the evidence could not support the jury’s fraud verdict.

    Courts Credit Repair FCRA Debt Collection FDCPA Credit Report Fraud

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  • Washington AG sues timeshare exit defendants for unfair and deceptive practices

    State Issues

    On February 4, the Washington state attorney general filed a complaint in King County Superior Court against a group of defendants who market services claiming they can release consumers from timeshare contracts. The AG alleges that since 2012, the defendants have unfairly and deceptively contracted with over 32,000 consumers seeking to release timeshare contracts, collecting millions in upfront fees. According to the complaint, the defendants, among other things, advertise their timeshare exit services as being “risk-free” with a 100 percent money-back guarantee; however, the defendants allegedly refuse to issue refunds to clients who face foreclosure, damaged credit ratings, and other negative financial consequences claiming that such outcomes are successful because the clients “technically” no longer own the timeshares. In addition, the AG alleges that the defendants charge clients upfront fees for each timeshare to be exited, and then outsource more than 95 percent of their clients’ files to third-party vendors for significantly discounted rates. These vendors are allegedly left to accomplish the timeshare exits without input or supervision from the defendants and often without a contract governing their work. The complaint alleges violations of the Consumer Protection Act, the Debt Adjusting Act, and the Credit Services Organization Act. The AG seeks numerous remedies including injunctive relief prohibiting the defendants from selling their services and $2,000 in civil penalties per violation of the Consumer Protection Act.

    State Issues State Attorney General Fraud Courts Unfair Deceptive

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  • Iranian company employee charged in $115 million international bank fraud scheme

    Financial Crimes

    On January 31, the U.S. Attorney’s Office for the Southern District of New York announced charges against an employee (defendant) of an Iranian company for bank fraud, conspiracy to commit bank fraud, and for making false statements to federal agents regarding financial transactions made through U.S. banks to benefit Iranian entities and individuals. According to the indictment, an agreement between the Iranian government and the Venezuelan government resulted in a construction contract for housing units in Venezuela where an Iranian company would construct the units and be paid with money funneled through U.S. banks by a Venezuelan state-owned company subsidiary. The defendant was purportedly part of a committee formed to guide the project. In coordination with other individuals, the defendant allegedly directed money from the Venezuelan company to the Iranian company through bank accounts—set up to hide the transactions from U.S. banks—in Switzerland. The indictment charges that, among other things, the defendant “knowingly and willfully” conspired with others to commit bank fraud against an FDIC-insured institution by directing the Venezuelan company to route $115 million in payments for the Iranian company to the Swiss bank account through correspondent U.S. banks in New York. Additionally, when the defendant was interviewed by federal agents, he “knowingly and willfully” concealed the scheme and made materially false statements about his knowledge of the applicability of sanctions against Iran. The indictment seeks forfeiture of any proceeds or property obtained by the defendant in the course of the alleged offenses.

    Financial Crimes DOJ Iran Venezuela Combating the Financing of Terrorism Of Interest to Non-US Persons OFAC Sanctions Fraud FDIC

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  • Fannie Mae adds new entities to fake-employer list

    Federal Issues

    On January 29, Fannie Mae issued a new fraud alert to mortgage lenders warning them of 15 new potentially fictitious employers that have recently been appearing on mortgage applications. As previously covered in InfoBytes, Fannie Mae’s mortgage fraud program has issued several prior alert bulletins to the mortgage industry regarding active and potentially fraudulent schemes, all of which have identified fake employers in California. This new alert adds 15 additional California companies to that list, which now includes 65 potentially fake companies. The GSE alert offers “red flags” for lenders to be aware of when processing loan applications, including high starting salaries and paystubs that lack common withholdings for such things as health insurance and 401(k). Additionally, the alert bulletin suggests that lenders verify the existence of employers listed on borrower applications, and practice careful due diligence in the entire application process.

    Federal Issues GSE Fannie Mae Mortgages Mortgage Fraud Fraud Risk Management State Issues

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