Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
On September 28, the OCC’s Committee on Bank Supervision released its bank supervision operating plan for fiscal year 2024. The plan outlines the agency’s supervision priorities and highlights several supervisory focus areas including: (i) asset and liability management; (ii) credit; (iii) allowances for credit losses; (iv) cybersecurity; (v) operations; (vi) digital ledger technology activities; (vii) change in management; (viii) payments; (ix) Bank Secrecy Act/AML compliance; (x) consumer compliance; (xi) Community Reinvestment Act; (xii) fair lending; and (xiii) climate-related financial risks.
Two of the top areas of focus are asset and liability management and credit risk. In its operating plan the OCC says that “Examiners should determine whether banks are managing interest rate and liquidity risks through use of effective asset and liability risk management policies and practices, including stress testing across a sufficient range of scenarios, sensitivity analyses of key model assumptions and liquidity sources, and appropriate contingency planning.” With respect to credit risk, the OCC says that “Examiners should evaluate banks’ stress testing of adverse economic scenarios and potential implications to capital” and “focus on concentrations risk management, including for vulnerable commercial real estate and other higher-risk portfolios, risk rating accuracy, portfolios of highest growth, and new products.”
The plan will be used by OCC staff to guide the development of supervisory strategies for individual national banks, federal savings associations, federal branches and agencies of foreign banking organizations, and certain identified third-party service providers subject to OCC examination.
The OCC will provide updates about these priorities in its Semiannual Risk Perspective, as InfoBytes has previously covered here.
DFPI recently approved the final regulation for implementing and interpreting certain sections of the California Consumer Financial Protection Law (CCFPL) related to commercial financial products and services. After considering comments and releasing three rounds of modifications to Sections 1060, 1061, and 1062, the final regulation will, among other things, bring protections to small businesses seeking loans, by (i) defining and prohibiting unfair, deceptive, and abusive acts and practices in the offering or provision of commercial financing to small businesses, nonprofits, and family farms; and (ii) establishing data collection and reporting requirements.
Previous InfoBytes coverage on the (i) initial modifications to the CCFPL proposed regulation can be found here; (ii) the second round of CCFPL modifications proposal is found here; and (iii) the third iteration of the modified CCFPL proposal is located here.
This DFPI regulation was notably finalized on the heels of the CFPB’s finalized Section 1071 rule on small business lending data, which similarly will require financial institutions to collect and provide the Bureau data on lending to small businesses (covered by InfoBytes here)
Sections 1060, 1061, and 1062 will be effective on October 1.
On July 26, the CFPB released its Summer 2023 issue of Supervisory Highlights, which covers enforcement actions in areas such as auto origination, auto servicing, consumer reporting, debt collection, deposits, fair lending, information technology, mortgage origination, mortgage servicing, payday lending and remittances from June 2022 through March 2023. The Bureau noted significant findings regarding unfair, deceptive, and abusive acts or practices and findings across many consumer financial products, as well as new examinations on nonbanks.
- Auto Origination: The CFPB examined auto finance origination practices of several institutions and found deceptive marketing of auto loans. For example, loan advertisements showcased cars larger and newer than the products for which actual loan offers were available, which misled consumers.
- Auto Servicing: The Bureau’s examiners identified unfair and abusive practices at auto servicers related to charging interest on inflated loan balances resulting from fraudulent inclusion of non-existent options. It also found that servicers collected interest on the artificially inflated amounts without refunding consumers for the excess interest paid. Examiners further reported that auto servicers engaged in unfair and abusive practices by canceling automatic payments without sufficient notice, leading to missed payments and late fee assessments. Additionally, some servicers allegedly engaged in cross-collateralization, requiring consumers to pay other unrelated debts to redeem their repossessed vehicles.
- Consumer Reporting: The Bureau’s examiners found that consumer reporting companies failed to maintain proper procedures to limit furnishing reports to individuals with permissible purposes. They also found that furnishers violated regulations by not reviewing and updating policies, neglecting reasonable investigations of direct disputes, and failing to notify consumers of frivolous disputes or provide accurate address disclosures for consumer notices.
- Debt Collection: The CFPB's examinations of debt collectors (large depository institutions, nonbanks that are larger participants in the consumer debt collection market, and nonbanks that are service providers to certain covered persons) uncovered violations of the FDCPA and CFPA, such as unlawful attempts to collect medical debt and deceptive representations about interest payments.
- Deposits: The CFPB's examinations of financial institutions revealed unfair acts or practices related to the assessment of both nonsufficient funds and line of credit transfer fees on the same transaction. The Bureau reported that this practice resulted in double fees being charged for denied transactions.
- Fair Lending: Recent examinations through the CFPB's fair lending supervision program found violations of ECOA and Regulation B, including pricing discrimination in granting pricing exceptions based on competitive offers and discriminatory lending restrictions related to criminal history and public assistance income.
- Information Technology: Bureau examiners found that certain institutions engaged in unfair acts by lacking adequate information technology security controls, leading to cyberattacks and fraudulent withdrawals from thousands of consumer accounts, causing substantial harm to consumers.
- Mortgage Origination: Examiners found that certain institutions violated Regulation Z by differentiating loan originator compensation based on product types and failing to accurately reflect the terms of the legal obligation on loan disclosures.
- Mortgage Servicing: Examiners identified UDAAP and regulatory violations at mortgage servicers, including violations related to loss mitigation timing, misrepresenting loss mitigation application response times, continuity of contact procedures, Spanish-language acknowledgment notices, and failure to provide critical loss mitigation information. Additionally, some servicers reportedly failed to credit payments sent to prior servicers after a transfer and did not maintain policies to identify missing information after a transfer.
- Payday Lending: The CFPB identified unfair, deceptive, and abusive acts or practices, including unreasonable limitations on collection communications, false collection threats, unauthorized wage deductions, misrepresentations regarding debt payment impact, and failure to comply with the Military Lending Act. The report also highlighted that lenders reportedly failed to retain evidence of compliance with disclosure requirements under Regulation Z. In response, the Bureau directed lenders to cease deceptive practices, revise contract language, and update compliance procedures to ensure regulatory compliance.
- Remittances: The CFPB evaluated both depository and non-depository institutions for compliance with the EFTA and its Regulation E, including the Remittance Rule. Examiners found that some institutions failed to develop written policies and procedures to ensure compliance with the Remittance Rule's error resolution requirements, using inadequate substitutes or policies without proper implementation.
On July 18, NYDFS sent a letter reminding regulated auto lenders and auto loan servicers that they are responsible for ensuring certain rebates are credited to consumers whose vehicles were repossessed or were a total loss. During its examinations, NYDFS identified instances where certain institutions that finance ancillary products, such as extended warranties, vehicle service contracts, and guaranteed asset protection insurance, failed to properly calculate, obtain, and credit rebates to consumers as required. NYDFS explained that the terms of sale for such ancillary products “provide that if the vehicle is repossessed or is a total loss prior to the product’s expiration, the consumer is entitled to a rebate for the prorated, unused value of the product (a ‘Rebate’), payable first to the [i]nstitution to cover any deficiency balance, and then to the consumer.” NYDFS found that some institutions either neglected to pursue Rebates from the issuers of the ancillary products or miscalculated the owed amounts, adding that in some instances, institutions made initial requests for Rebates but did not follow through to ensure that they were received and credited to consumers.
NYDFS explained that an institution’s failure to obtain and credit Rebates from unexpired ancillary products is considered to be unfair “because it causes or is likely to cause substantial injury to consumers who are made to pay or defend themselves against deficiency balances in excess of what the consumer legally owes.” The resulting injury caused to consumers is not outweighed by any countervailing benefits to consumers or to competition, NYDFS stressed.
Additionally, NYDFS said an institution’s statements and claims of consumers’ deficiency balances that do not include correctly calculated and applied Rebates are considered to be deceptive, as they mislead consumers about the amount they owe after considering all setoffs. NYDFS said it expects institutions to fulfill their contractual obligations by ensuring Rebates are properly accounted for, either by deducting them from deficiency balances or issuing refund checks if no deficiency balance is owed.
NYDFS further noted in its announcement that recent CFPB examinations found that certain auto loan servicers engaged in deceptive practices when they notified consumers of deficiency balances that misrepresented the inclusion of credits or rebates. The Bureau’s supervisory highlights from Winter 2019, Summer 2021, and Spring 2022 also revealed that collecting or attempting to collect miscalculated deficiency balances that failed to account for a lender’s entitled pro-rata refund constituted an unfair practice.
On July 19, the CFPB announced it is suing a lease-to-own finance company that provides services that allows consumers, typically with limited access to traditional forms of credit for their financing, to finance merchandise or services over a 12-month period. According to the complaint, the Bureau claims that once a consumer falls behind on payments, the company’s purchase agreement essentially “lock[s] [consumers] into the 12-month schedule—even if they want to return or surrender their financed merchandise.” The alleged violations include:
- Misleading consumers. The company is accused of designing and implementing its financing program in a way that misleads consumers by using print advertisements featuring the phrase “100 Day Cash Payoff” without including details of the purchase agreement financing. The company is accused of misrepresenting that consumers could not terminate their agreement, that consumers could not return their merchandise, and that the “best” or “only” option for consumers who no longer want to finance their merchandise is to enter a “buy-back” agreement. The Bureau alleges that such conduct, among other things, violated the CFPA's prohibition on deceptive and abusive acts and practices.
- Unlawful conditioning of credit extension. The company is accused of violating the EFTA and its implementing Regulation E by allegedly improperly requiring consumers to repay credit through preauthorized automated clearing house debits.
- Failing to establish reasonable policies concerning consumer information. The Bureau alleges that the company violated the FCRA and its implementing Regulation V by not having adequate written policies and procedures to ensure the accuracy and integrity of consumer information that it furnished, considering the company’s “size, complexity, and scope.”
The Bureau seeks, among other things, injunctions to prevent future violations, rescission or reformation of the company's financing agreements, redress to consumers, and civil money penalties.
On July 13, the CFPB joined state attorneys general from Washington, Oregon, Delaware, Minnesota, Illinois, Wisconsin, Massachusetts, North Carolina, South Carolina, and Virginia in taking action against an education firm accused of engaging in deceptive marketing and unfair debt collection practices. California’s Department of Financial Protection and Innovation is participating in the action as well. Prior to filing for bankruptcy, the Delaware-based defendant operated a private, for-profit vocational training program for software sales representatives. The joint complaint, filed as an adversary proceeding in the firm’s bankruptcy case, alleges that the defendant charged consumers up to $30,000 for its programs. The complaint further alleges that the defendant encouraged consumers who could not pay upfront to enter into income share agreements, which required minimum payments equal to between 12.5 and 16 percent of their gross income for 4 to 8 years or until they had paid a total of $30,000, whichever came first.
The complaint asserts that the defendant engaged in deceptive practices by misrepresenting its income share agreement as not a loan and not debt, and mislead borrowers into believing that no payments would need to be made until they received a job offer from a technology company with a minimum annual income of $60,000. The defendant is also accused of failing to disclose important financing terms, such as the amount financed, finance charges, and annual percentage rates, as required by TILA and Regulation Z. The complaint also claims that the defendant hired two debt collection companies to pursue collection activities on defaulted income share loans. One of the defendant debt collectors is accused of engaging in unfair practices by filing debt collection lawsuits in remote jurisdictions where consumers neither resided nor were physically present when the financing agreements were executed. The complaint further alleges the two defendant debt collectors violated the FDCPA and the CFPA by deceptively inducing consumers into settlement agreements and falsely claiming they owed more than they did.
According to the Bureau and the states, after the Delaware Department of Justice and Delaware courts began scrutinizing the debt collection lawsuits, the defendant unilaterally changed the terms of its contracts with consumers to force them into arbitration even though none of them had agreed to arbitrate their claims. Additionally, the complaint contends that settlement agreements marketed as being “beneficial” to consumers actually released consumers’ claims against the defendant and converted income share loans into revised “settlement agreements” that obligated them to make recurring monthly payments for several years and contained burdensome dispute resolution and collection terms.
The complaint seeks permanent injunctive relief, monetary relief, consumer redress, and civil money penalties. The CFPB and states are also seeking to void the income share loans.
On July 6, the California attorney announced that he had joined a coalition of state attorneys general in submitting a comment letter endorsing the CFPB’s recently issued policy statement on abusive conduct in consumer financial markets. The multi-state coalition comprises Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Wisconsin. In April, the Bureau issued a policy statement containing an “analytical framework” for identifying abusive conduct prohibited under the Consumer Financial Protection Act, in which it broadly defined abusive conduct as anything that obscures, withholds, de-emphasizes, renders confusing, or hides information about the key features of a product or service. (Covered by InfoBytes here.)
In their letter, the state attorneys general emphasized the importance of preventing abusive conduct in consumer financial markets and highlighted the partnership between states and the Bureau in achieving this goal. The states also commended the Bureau for providing a clear, analytical framework for what constitutes abusive acts or practices and expressed appreciation for the agency’s use of real enforcement actions as examples of illegal abusive conduct. The multi-state coalition applauded the flexibility and guidance provided by the policy statement and complimented the Bureau for acknowledging the realities of modern consumer markets by clarifying that both acts and omissions can hinder consumers’ understanding of terms and conditions, including the use of fine print or complex language that limits comprehension.
On June 27, the CFPB entered a consent order against a Nebraska-based payment processor and its Delaware-based subsidiary for alleged violations of the EFTA (Regulation E), and the Consumer Financial Protection Act’s prohibition against unfair acts and practices. According to the Bureau, in 2021 the respondent’s employees allegedly used sensitive consumer financial information while conducting internal testing, without employing the proper information safety protocols. The internal tests allegedly created payment processing files that were treated as containing legitimate consumer bill payment orders. According to the Bureau, the erroneous bill payment orders were allegedly sent to consumers’ banks for processing, which resulted in approximately $2.3 billion in mortgage payments being debited from nearly 500,000 borrower bank accounts without their knowledge or authorization. The Bureau alleged in its order that some consumers accounts were depleted, “depriving Affected Consumers of the use of their funds, including by being prevented from making purchases or completing other legitimate transactions, and many were charged fees, including fees for insufficient funds or overdrawn accounts.” While neither admitting nor denying any of the allegations, the respondent has agreed to pay a $25 million penalty, stop activities the Bureau deemed unlawful, and adopt and enforce reasonable information security practices.
On May 10, the CFPB released Circular 2023-02 to opine that unilaterally reopening a closed account without a customer’s permission in order to process a transaction is a likely violation of federal law, particularly if a bank collects fees on the account. “When a bank unilaterally chooses to open an account in someone’s name after they have already closed it, this is a fake account,” CFPB Director Rohit Chopra said in the announcement. “The CFPB is acting on all fronts to halt the harvesting of illegal junk fees.”
The Bureau described receiving complaints from consumers about banks reopening closed accounts and then assessing overdraft/nonsufficient funds fees and monthly maintenance fees. Such practices, the Bureau warned, may violate the Consumer Financial Protection Act’s prohibition on unfair acts or practices. Consumers may experience substantial injury including monetary harm by paying fees due to the unfair practice, the Bureau said, explaining that because consumers likely cannot reasonably avoid the injury, “[a]ctual injury is not required; significant risk of concrete harm is sufficient.” Aside from subjecting consumers to fees, when a bank processes a credit through a reopened account, the consumers’ funds may become available to third parties, including those that do not have permission to access such funds, the Bureau warned, adding that there is also a risk that banks may furnish negative information to consumer reporting agencies if reopening the account overdraws the account and the consumer does not quickly repay the amount owed. The Bureau further noted that deposit account agreements typically indicate that a financial institution “may return any debits or deposits to the account that the financial institution receives after closure and faces no liability for failing to honor any debits or deposits received after closure.”
The Circular explained that rather than reopening an account when a third party attempts to deposit or withdraw money from it, banks should decline the transactions. This allows customers the opportunity to update their information with the entity attempting to access a closed account while avoiding potential fees. “Reopening a closed account does not appear to provide any meaningful benefits to consumers or competition,” the Bureau said in the Circular. “While consumers might potentially benefit in some instances where their accounts are reopened to receive deposits, which then become available to them, that benefit does not outweigh the injuries that can be caused by unilateral account reopening.”
On April 26, the OCC and FDIC issued supervisory guidance addressing consumer compliance risks associated with bank overdraft practices. (See OCC Bulletin 2023-12 and FDIC FIL-19-2023.) The guidance highlighted certain practices that may result in increased risk exposure, including assessing overdraft fees on “authorize positive, settle negative” (APSN) transactions and assessing representment fees each time a third party resubmits the same item for payment after being returned by a bank for non-sufficient funds. The agencies provided guidance for banks that may help control risks associated with overdraft protection programs and achieve compliance with Dodd-Frank’s UDAAP prohibitions and section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices.
The FDIC’s supervisory guidance expanded on the 2019 Consumer Compliance Supervisory Highlights (covered by InfoBytes here), and warned that APSN overdraft fees present risks of unfairness under both statutes as consumers “cannot reasonably avoid” receiving these fees because they lack “the ability to effectively control payment systems and overdraft processing systems practices.” The FDIC cited the “complicated nature of overdraft processing systems” as another impediment to a consumer’s ability to avoid injury. The FDIC also emphasized that risks of unfairness exist both in “available balance” or “ledger balance” methods of assessing overdraft fees, but cautioned that risks may be “more pronounced” when a bank uses an available balance method. Furthermore, the FDIC warned that disclosures describing how transactions are processed may not mitigate UDAAP and UDAP risk. Banks are encouraged to “ensure customers are not charged overdraft fees for transactions consumers may not anticipate or avoid,” and should take measures to ensure overdraft programs provided by third parties comply with all applicable laws and regulations, as such arrangements may present additional risks if not properly managed, the FDIC explained.
The OCC’s guidance also warned that disclosures may be deceptive under section 5 if they fail to clearly explain that multiple or additional fees may result from multiple presentments of the same transaction. Recognizing that some banks have already implemented changes to their overdraft protection programs, the OCC also acknowledged that “[w]hen supported by appropriate risk management practices, overdraft protection programs may assist some consumers in meeting short-term liquidity and cash-flow needs.” The OCC encouraged banks to explore other options, such as offering low-cost accounts and low-cost alternatives for covering overdrafts, such as overdraft lines of credit and linked accounts.