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Major Regional Bank Agrees to Fix Anti-Money Laundering Controls in Fed/FDIC Orders
On January 27, the Federal Reserve publicly released a cease-and-desist order against a regional bank concerning its anti-money laundering (AML) program. The order, which is dated January 25, requires the bank to address certain deficiencies identified in a review of the bank’s AML compliance program by the Federal Reserve Bank of Richmond and develop a firm-wide compliance risk management program addressing the AML requirements. The order follows a recent Stipulated Order with the FDIC against the same bank concerning similar allegations and calling for, among other things, corrective actions and enhancements to address certain internal control deficiencies.
Texas Appeals Court Holds Email From: Line to be a Valid Electronic Signature Under State's Uniform Electronic Transactions Act (UETA)
On December 22, in an unpublished decision, a Texas Court of Appeals held that an email exchange constituted an executed contract between two individuals under the state’s enactment of the Uniform Electronic Transactions Act (UETA). Khoury v. Tomlinson, No. 01-16-00006-CV (Tex. App. Dec. 22, 2016). The dispute involved an email sent from Appellant to Appellee, which outlined terms of an agreement to repay investment funds. Appellee responded to the email, stating "We are in agreement," but did not type his name or include a signature block at the end of his message. A jury found that an electronic contract was formed by this exchange, but the trial court granted the Appellee’s motion for judgment notwithstanding the verdict on the basis that the electronic contract violated the state statute of frauds. On appeal, the Appellant invoked the UETA, arguing that the email satisfied the writing requirement of the statute of frauds because it was an electronic record and that the header, which included a “From:” field bearing the Appellee’s name, constituted Appellee’s signature because that field serves the same “authenticating function” as a signature block. The appellate court agreed that the email was an electronic record sufficient to satisfy the writing requirement in the statute of frauds.
CFPB Sues Law Firms for Unlawful Debt Relief Scheme
On January 30, the CFPB announced that it was seeking a permanent injunction against a group of affiliated law firms and their managing attorneys who charged illegal fees to consumers seeking debt relief. In a complaint filed with the Central District of California, the Bureau alleges, among other things, that the firms violated the Telemarketing Sales Rule by (i) collecting improper fees in advance of providing debt relief services; (ii) misrepresenting that advance fees would not be charged; and (iii) providing substantial assistance to another company it knew or should have known was engaged in acts or practices that violated the rule, because the company had itself been the subject of a $40 million final judgment for similarly deceptive upfront fee arrangements in March 2016. The CFPB contends that the same attorneys from the earlier 2016 action—presently under appeal—took over operations of the firms now targeted.
Bank Fined $18.3 Million for Billing Rate Discrepancies
On January 26, a cease-and-desist order was announced between the SEC and the bank regarding alleged violations involving unauthorized advisor fee overcharges affecting at least 60,000 advisory client accounts. The order claims that during a 15-year period, the bank failed to confirm the accuracy of billing rates entered into its computer systems in comparison to fee rates outlined in client contracts, billing histories, and other documents. Furthermore, the order alleges that the bank cannot locate approximately 83,000 advisory contracts for accounts opened from 1990 to 2012, preventing the bank from accurately validating the fee rates billed to clients over the years against the fee rates that were negotiated when the accounts were opened. As part of the settlement, the bank agreed to enhance its fee-billing and books-and-records practices, and will pay an $18.3 million fine.
**UPDATE** PHH v. CFPB
On January 27, PHH filed a scheduled response brief to views briefed last month by the U.S. Department of Justice (DOJ) under President Obama, likely bringing to a close the parties’ briefing of the CFPB’s petition for en banc review by the full D.C. Circuit of the October 2016 three-judge panel decision in PHH Corp. v. CFPB. Also on January 27, PHH separately filed a (less significant) brief, opposing the recent-filed motion to intervene on the CFPB’s behalf submitted by 17 Attorneys General.
As previously covered on InfoBytes, late last year the Court invited briefing by President Obama’s DOJ on behalf of the United States. (Note that the DOJ does not represent the CFPB; the Bureau is legally permitted to litigate on its own behalf.) The DOJ’s brief focused on the constitutional issue (without wading into the RESPA rulings), and argued that the en banc court should either (i) review the panel’s majority holding that the CFPB’s structure was unconstitutional because the majority’s reasoning was erroneous in view of Supreme Court precedent, or (ii) review and simply adopt the dissenting panelist’s view that because the panel was in all events reversing the CFPB’s RESPA rulings and remanding to the CFPB on that basis, the panel majority should not have reached the constitutional issue.
In response to the DOJ, PHH argues that en banc review is unnecessary because the DOJ had only pointed to an error in the panel’s constitutional reasoning, without stating whether DOJ’s preferred mode of analysis would have led to a different result than the one reached by the panel, namely the severing of the “for cause” removal provision applicable to the CFPB Director under Dodd-Frank. PHH also contended that there is no precedent for an en banc court panel to review a panel decision just to determine whether the panel had properly reached a constitutional issue, and that in any event the panel’s decision to reach the issue was entirely proper (and therefore not worthy of review) because, as PHH’s framed the matter, the panel could not have remanded the case to an agency with a potentially unconstitutional structure.
In addition, on January 26, two other non-parties filed two motions to intervene on the CFPB’s side: (i) one by the Democratic Ranking Members of the Senate and House Committees with jurisdiction over the CFPB, Sen. Sherrod Brown of Ohio and Rep. Maxine Waters of California, respectively; and (ii) one by a coalition of interest groups, which included the Center for Responsible Lending, US PIRG, Americans for Financial Reform, the Leadership Conference on Civil and Human Rights, and other movants.
OCC Supplements Exam Procedures Covering Third-Party Relationships: Risk Management Guidance
On January 24, the OCC released Bulletin 2017-7 advising national banks, federal savings associations and technology service providers of examination procedures issued to supplement Bulletin 2013-29, “Third-Party Relationships: Risk Management Guidance,” issued October 30, 2013. As previously summarized in BuckleySandler’s Special Alert, Bulletin 2013-29 requires banks and federal savings associations (collectively “banks”) to provide comprehensive oversight of third parties, and warns that failure to have in place an effective risk management process commensurate with the risk and complexity of a bank’s third-party relationships “may be an unsafe and unsound banking practice.” Bulletin 2013-29 outlined a “life cycle” approach and provided detailed descriptions of steps that a bank should consider taking at five important stages of third-party relationships: (i) planning; (ii) due diligence and third party selection; (iii) contract negotiation; (iv) ongoing monitoring; and (v) termination. Following the OCC's issuance of Bulletin 2013-29, the Federal Reserve Board, on December 5, 2013, issued Supervision and Regulation Letter 13-19, which details and attaches the Fed’s Guidance on Managing Outsourcing Risk (SR 13-19). The FRB Guidance is substantially similar to Bulletin 2013-29.
Bulletin 2017-7 outlines procedures designed to help prudential bank examiners: (i) tailor supervisory examinations of each bank commensurate with the level of risk and complexity of the bank’s third-party relationships; (ii) assess the quantity of the bank’s risk associated with its third-party relationships; (iii) assess the quality of the bank’s risk management of third-party relationships involving critical activities; and (iv) determine whether there is an effective risk management process throughout the life cycle of the third-party relationship. Consistent with the life cycle approach established in Bulletin 2013-29, the examination procedures identify steps examiners should take in requesting information relevant to assessing the banks’ third-party relationship risk management relative to each phase of the life cycle.
For additional background, please see our Spotlight Series: Vendor Management in 2015 and Beyond.
Nevada Supreme Court Holds that HOA "Superpriority" Statute Does Not Violate Due Process, Declines to Follow 9th Circuit
On January 26, in Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, No 68630, (Nev. Jan 26, 2017), the Nevada Supreme Court reaffirmed its interpretation of the state statute granting priority lien status to unpaid condo assessments (Nev. Rev. Stat. § 116.3116 et seq.); specifically that foreclosure of such liens extinguishes prior-recorded mortgages. The Nevada Supreme Court declined to follow a 2016 ruling by the Ninth Circuit holding that the statute violates the Due Process Clause of the 14th Amendment. Rather, the Nevada Supreme Court stated that the Due Process Clause protects individuals from state actions, and a foreclosing HOA cannot be deemed to be a state actor. In doing so, the court specifically notes that “[w]e acknowledge that the Ninth Circuit has recently held that the Legislature's enactment of NRS 116.3116 et seq. does constitute state action. . . . However, for the aforementioned reasons, we decline to follow its holding.”
Supreme Court Holds that Sue-and Be-Sued Clause Does Not Create Automatic Federal Jurisdiction in Suits Involving Fannie Mae
On January 18, in Lightfoot v. Cendant Mortgage Corp., No. 14-1055, the Supreme Court of the United States unanimously held that Fannie Mae’s sue-and-be sued clause does not grant federal courts jurisdiction over all cases involving Fannie Mae. In reaching its conclusion, the Court found that the clause, which authorizes Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal,” was distinct from other sue-and-be-sued clauses previously considered to confer jurisdiction. Unlike other clauses, which referred to suit in federal court without qualification, the Fannie Mae clause authorized suit in “any court of competent jurisdiction.” Accordingly, the Court concluded that “[i]n authorizing Fannie Mae to sue-and-be-sued ‘in any court of competent jurisdiction, State or Federal’ it permits suit in any state or federal court already endowed with subject-matter jurisdiction over the suit” and thus a suit involving Fannie Mae does not automatically create federal jurisdiction.
FHA Price Cut Officially Halted by New Administration
On January 20, the newly-installed Trump Administration issued Mortgagee Letter 2017-07, which indefinitely suspended the reduction in Federal Housing Administration (FHA) premiums that had been scheduled to go into effect January 27 under a policy approved by outgoing HUD Secretary Julian Castro. In suspending the rate change, FHA explained that it remains “committed to ensuring its mortgage insurance programs [remain] viable and effective in the long term for all parties involved, especially our taxpayers,” and that, “more analysis and research are deemed necessary to assess future adjustments while also considering potential market conditions in an ever-changing global economy that could impact our efforts.” FHA also confirmed that it “will issue a subsequent Mortgagee Letter at a later date should this policy change.”
Midnight Rules Relief Act of 2017
On January 4, the U.S. House of Representatives approved the Midnight Rule Relief Act—legislation that would allow Congress to repeal in a single vote any rule finalized in the last 60 legislative days of the Obama administration. The GOP-backed measure, was approved largely along party lines by a vote of 238-184 on the second day of the new Congress. If passed by the Senate and signed into law by the new President, the legislation would amend the Congressional Review Act (CRA) to allow lawmakers to bundle together multiple rules and overturn them “en bloc” with a joint resolution of disapproval. While the CRA only requires a simple majority to pass, current law requires Congress to review regulatory resolutions of disapproval one at a time. The legislation is presently pending before the Senate Homeland Security and Governmental Affairs Committee.