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Financial Services Law Insights and Observations


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  • Bank and Philadelphia reach $10 million settlement in redlining suit

    State Issues

    On December 16, a national bank and the city of Philadelphia agreed to a $10 million settlement in a fair lending suit filed against a national bank in 2017 in the U.S. District Court for the Eastern District of Pennsylvania. The settlement resolves claims against the bank alleging violations of the Fair Housing Act, as previously covered in InfoBytes. Specifically, the city alleged that the bank engaged in discriminatory mortgage lending practices by placing minority borrowers in loans with less favorable terms than loans to similar non-minority borrowers. According to the complaint, these allegedly discriminatory loans increased foreclosure rates and resulted in falling property values, particularly in minority and low-income neighborhoods in Philadelphia. The empty properties and lower property values in turn reduced tax revenues and increased costs to the city to pay for municipal services including police, fire fighting, housing programs, and also maintenance for the growing number of empty properties. The court had previously denied the bank’s motion to dismiss, (prior InfoBytes coverage here), which argued, among other things, that the city had failed to show that the bank’s alleged lending practices were the proximate cause of the city’s harm.

    State Issues Courts Fair Housing Act Mortgage Origination Settlement Redlining Fair Lending

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  • SEC settles FCPA charges stemming from Malaysian development fund scheme

    Financial Crimes

    On December 16, the SEC announced a resolution with a former executive at a U.S. financial institution to settle allegations that he violated the anti-bribery, internal controls, and books and records provisions of the FCPA by using a third party intermediary to bribe government officials in Malaysia and Abu Dhabi. According to the administrative order, the bribes enabled the financial institution to obtain business from a Malaysian investment development fund, including underwriting several bond deals for which the financial institution allegedly earned roughly $600 million. The SEC further found that the former executive personally received more than $43 million in payments for his alleged role in facilitating the bribery scheme.

    The former executive consented to the order without admitting or denying the factual basis, and consented to being permanently barred from the securities industry. He also agreed to pay disgorgement of $43.7 million, which will be offset and “deemed satisfied” by a forfeiture order in a previously instituted parallel DOJ criminal action where he pleaded guilty to FCPA and money laundering conspiracies. (Previous InfoBytes coverage here.)

    Financial Crimes FCPA Of Interest to Non-US Persons SEC DOJ Bribery

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  • Fed issues new fintech compliance bulletin


    On December 17, the Federal Reserve Board (Fed) released a new issue of the Consumer Compliance Supervision Bulletin focusing on supervisory insights into consumer compliance issues related to fintech to assist financial institutions with assessing and managing risk associated with technological innovation. Among the topics covered in the bulletin, are (i) managing risk with fintech collaborations—the Fed stresses the importance of creating strong policies and procedures, as well as board and senior management oversight, comprehensive and tailored training, and risk monitoring; (ii) managing UDAP risks with online and mobile banking platforms—the Fed recommends a focus on ensuring consistency and accuracy in disclosures on the platforms and the regular monitoring of complaints; and (iii) managing possible fair lending risks resulting from targeted online marketing—the Fed suggests careful monitoring over marketing activities and vendors, as well as close review of filters used with internet advertising to prevent excluding populations with legally protected characteristics. The bulletin will be featured on the agency’s new fintech page previously covered by InfoBytes here.

    Fintech Agency Rule-Making & Guidance UDAP Federal Reserve Bank Supervision Consumer Complaints

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  • Democratic Senators question Kraninger on student loan servicer oversight

    Federal Issues

    On December 17, eight Senate Democrats wrote to CFPB Director Kathy Kraninger urging the Bureau to fulfill its statutory obligations related to the oversight of student loan servicers who collect loans guaranteed by the federal government. In the letter, the Senators express concern over what they consider the Bureau’s “unacceptable” abandonment of its supervision and enforcement activities related to federal student loan servicers, and discuss the Department of Education’s termination of two Memoranda of Understanding (MOUs) in 2017 that previously permitted the sharing of information in connection with the oversight of federal student loans. (Previously covered by InfoBytes here.) According to the Senators, Kraninger’s testimony before the Senate Banking Committee in October (covered by InfoBytes here) reaffirmed the Bureau’s responsibility and ability to examine entities engaged in federal and private student loans. In addition, the Senators claim that Kraninger testified that the Bureau and the Department were “discussing how to move forward in an effective way” to ensure they were overseeing student loan servicers. However, the Senators note that “nearly two months later, the Bureau and Department still have not reestablished MOUs, and the Bureau still has not resumed examinations of federal student loan servicers.” In addition to calling on Kraninger to “take immediate steps, including seeking a court order” requiring the Department to provide access to borrower information so the Bureau can resume examinations of student loan servicers, the Senators request information concerning the MOUs as well as a timeline from the Bureau on when it will resume its examinations.

    Federal Issues U.S. Senate CFPB Department of Education Student Lending Student Loan Servicer

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  • CFPB releases TRID guidance for construction loans

    Agency Rule-Making & Guidance

    On December 18, the CFPB published two guides to assist with TILA-RESPA Integrated Disclosure Rule (TRID) compliance for construction-only and construction-permanent loans. The Bureau notes that under Regulation Z, “a creditor may treat a construction-permanent loan as either one, combined transaction or as two or more separate transactions.” Disclosure options are (i) one, combined loan estimate along with one, combined closing disclosure; or (ii) two or more loan estimates and two or more closing disclosures for each phase of the construction-permanent loan. Appendix D in both the Combined Guide and the Separate Guide provides methods that may be used for estimating construction phase financing disclosures. As previously covered by InfoBytes, the Bureau previously released FAQs in May concerning the application of TRID to construction loans.

    Agency Rule-Making & Guidance CFPB TRID Regulation Z TILA RESPA

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  • CFPB releases annual HMDA and TILA adjustments

    Agency Rule-Making & Guidance

    On December 18, the CFPB announced final rules adjusting the asset-size thresholds under HMDA (Regulation C) and TILA (Regulation Z). Both rules take effect on January 1, 2020.

    Under HMDA, institutions with assets below certain dollar thresholds are exempt from the collection and reporting requirements. The final rule increases the asset-size exemption threshold for banks, savings associations, and credit unions from $46 million to $47 million, thereby exempting institutions with assets of $47 million or less as of December 31, from collecting and reporting HMDA data in 2020.

    TILA exempts certain entities from the requirement to establish escrow accounts when originating higher-priced mortgage loans (HPMLs), including entities with assets below the asset-size threshold established by the CFPB. The final rule increases this asset-size exemption threshold from $2.167 billion to $2.202 billion, thereby exempting creditors with assets of $2.202 billion or less as of December 31, from the requirement to establish escrow accounts for HPMLs in 2020.

    Agency Rule-Making & Guidance CFPB HMDA TILA Mortgages Escrow Regulation C Regulation Z

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  • FTC asks Supreme Court to delay review of $1.3 billion judgment


    On December 13, the FTC filed a brief in a U.S. Supreme Court action that is currently awaiting the Court’s decision to grant certiorari. The question presented to the Court asks whether the FTC is empowered by Section 13(b) of the FTC Act to demand equitable monetary relief in civil enforcement actions. The petitioners, who include a Kansas-based operation and its owner, filed the petition for a writ of certiorari in October, appealing a December 2018 decision by the U.S. Court of Appeals for the Ninth Circuit (covered by InfoBytes here), which upheld a $1.3 billion judgment against the petitioners for allegedly operating a deceptive payday lending scheme. Among other things, the 9th Circuit rejected the petitioners’ argument that the FTC Act only allows the court to issue injunctions, concluding that a district court may grant any ancillary relief under the FTC Act, including restitution. The 9th Circuit also rejected the petitioners’ request to revisit those precedents in light of the Court’s 2017 holding in Kokesh v. SEC—which limited the SEC’s disgorgement power to a five-year statute of limitations period applicable to penalties and fines under 28 U.S.C. § 2462 (previously covered by InfoBytes here)—concluding that the district court did not abuse its discretion in calculating the award. Additionally, the 9th Circuit referenced the Court’s statement in Kokesh that noted “[n]othing in [its] opinion should be interpreted as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings.”

    In response to the petition, the FTC asked the Court to delay reviewing the appeal, stating that the Court should hold the petition pending the disposition in a matter that was recently granted cert “to decide whether district courts may award disgorgement to the [SEC] under analogous provisions of the securities laws.” The FTC acknowledged that while the “relevant statutory schemes are not identical, and the FTC’s and the SEC’s authority to seek monetary relief will not necessarily rise and fall together,” the questions presented in both cases overlap.

    Courts Appellate Ninth Circuit U.S. Supreme Court FTC SEC Disgorgement FTC Act

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  • Lawsuit says Prepaid Accounts Rule is “arbitrary and capricious”


    On December 11, a payments company filed a lawsuit against the CFPB in the U.S. District Court for the District of Columbia alleging that the Bureau’s Prepaid Account Rule (Rule), which took effect April 1 and provides protections for prepaid account consumers, exceeds the agency’s statutory authority and is “arbitrary and capricious” under the Administrative Procedures Act (APA). The company further asserts that the Rule violates its First Amendment rights by requiring it to make confusing disclosures that contain categories not relevant to the company’s products. According to the complaint, the Rule mandates that the company send “short form” fee disclosures to customers that include references to fees for ATM balance inquiries, customer service, electronic withdrawal, international transactions, and other categories, and “prohibits [the company] from including explanatory phrases within the disclosure box to describe the nature of these fee categories.” These disclosures, the company asserts, have confused many customers who mistakenly believe the company charges fees to access funds stored as a balance with the company, to make a purchase with a merchant, or to send money to friends or family in the U.S. The company also claims that the Bureau erroneously lumped it into the same category as providers of general purpose reloadable cards (GPR cards), and argues that the Rule ignores how prepaid cards fundamentally differ from digital wallets, which has resulted in several unintended consequences.

    The company asserts that the Rule is unlawful and invalid under the APA and the Constitution for three principal reasons:

    • The Rule contravenes the Bureau’s statutory authority by (i) establishing a mandatory and misleading disclosure regime that is not authorized by federal law; and (ii) “impos[ing] a 30-day ban on consumers linking certain credit cards to their prepaid account—a prohibition the law nowhere authorizes the Bureau to impose.”
    • Even if the Bureau possesses the statutory authority it claims to have, the rulemaking process was “fundamentally flawed” due to its one-size-fits-all Rule that misunderstands the different characteristics of digital wallets compared to GPR cards. By treating digital wallets as if they are GPR cards, the Rule violates the APA’s reasoned decision-making requirement. Additionally, the Rule is marked by “an insufficient cost-benefit analysis that failed to properly weigh the limited benefits consumers might derive from the Rule against the costs” stemming from the Rule’s changes.
    • The Rule violates the First Amendment by failing to satisfy the heightened standard that a law or regulation “directly advances a substantial government interest” because it requires the company to makes certain disclosures that are irrelevant to its digital wallet product. Moreover, the Rule’s disclosure obligations “functionally impair the speech in which [the company] might otherwise engage” by mandating that it provide confusing and misleading disclosures about the nature of its offerings.

    The complaint asks that the Rule be vacated and declared arbitrary, an abuse of discretion, not in accordance with the law, and unconstitutional, and additionally seeks injunctive relief, attorneys’ fees and costs.

    Courts CFPB Digital Commerce Prepaid Rule Fees Disclosures Prepaid Cards

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  • Written request for HAMP assistance resets foreclosures limitations


    On December 13, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s grant of summary judgement in favor of a bank and mortgage servicer defendants in an action brought by a consumer to prevent foreclosure of his property. According to the unpublished opinion, in 2016, the consumer, who was struggling with his mortgage payments, submitted loan modification requests on three occasions. In each request, the consumer provided written acknowledgment of the original debt and expressed his desire to pay in order to keep his property. The consumer asserted that Washington state law and the FDCPA prohibited the defendants from instituting foreclosure proceedings on his mortgage because the six-year statute of limitations for filing for foreclosure had expired. On appeal, the three judge panel rejected the consumer’s argument, determining that the limitation on filing for foreclosure had not run, explaining that because the consumer had not communicated to defendants “an intent not to pay,” and each of the modification requests acknowledged the debt in writing, the foreclosure statute of limitations period was restarted each of the three times he submitted his loan modification requests.

    Courts Appellate Ninth Circuit HAMP Mortgages Foreclosure Mortgage Modification Mortgage Servicing

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  • Pennsylvania reaches settlement with travel websites over data breach

    State Issues

    On December 13, the Pennsylvania attorney general announced a settlement with two travel websites resolving allegations that a 2018 data breach may have exposed consumer data for more than 20,000 state customers, including 880,000 affected payment cards globally. According to the state’s investigation, a hacker bypassed security detection and built malware that targeted payment cards on one of the company’s platforms. The company was also notified by a business partner of potentially fraudulent point of purchase transactions related to the data breach. Under the terms of the Assurance of Voluntary Compliance—which alleges the company violated the state’s Unfair Trade Practices and Consumer Protection Law by misrepresenting safeguards for customer data in its privacy policy and failing to fully implement data security policies—the companies have agreed to pay $110,000, including a $80,000 civil penalty and $30,000 towards future public protection and education purposes. The company must also implement a number of security requirements, such as (i) implementing a comprehensive information security program on their travel website; (ii) conducting annual risk assessments; (iii) developing a program for implementing and operating safeguards; and (iv) complying with Payment Card Industry Data Security Standards.

    State Issues State Attorney General Settlement Data Breach Privacy/Cyber Risk & Data Security

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