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  • ISP pays $15 million to settle with two more states on hidden fees and false advertising

    State Issues

    On January 9, the Minnesota attorney general announced that an internet service provider (ISP) agreed to pay nearly $9 million in order to resolve allegations that it overcharged customers for phone, internet and cable services. In a separate action, on December 10, the Washington attorney general’s office announced that it entered into a $6.1 million consent decree with the same ISP to resolve similar claims of deceptive acts and practices. As previously covered by InfoBytes, the ISP entered into settlements over the same alleged actions with the states of Colorado on December 19, and Oregon on December 31.

    State Issues Courts Advertisement Enforcement State Attorney General Settlement Consumer Protection Fraud Fees

  • CFPB issues NAL on housing counselors

    Federal Issues

    On January 10, the CFPB issued its second no-action letter (NAL) under the agency’s revised NAL Policy that was issued last September. The new NAL Policy’s goal is to streamline the review process to “focus[ ] on the consumer benefits and risks of the product or service in question.” As previously covered by InfoBytes, the Bureau issued its first NAL under the revised policy in response to a request by HUD on behalf of more than 1,600 housing counseling agencies (HCAs) that participate in HUD’s housing counseling program.

    A national bank is the recipient of the most recent NAL regarding the bank’s funding arrangements with HCAs certified by HUD. The NAL states that the Bureau will not take supervisory or enforcement actions against the bank under RESPA or UDAAP for entering into certain arrangements with HCAs for pre-purchase housing counseling services conditioned on the consumer applying for a loan from the bank, even if that activity could be construed as a referral, as long as the level of payment for the services is no more than a level that is commensurate with the services provided and is reasonable and customary for the area. The Bureau noted that the bank submitted its application to facilitate funding arrangements with HCAs through the HUD NAL application, which was made public last year.

    Federal Issues CFPB No Action Letter HUD RESPA UDAAP

  • OCC seeks bank-specific data to inform CRA modernization

    Agency Rule-Making & Guidance

    On January 10, the OCC issued a request for public input (RFI) to aid the OCC and the FDIC in determining how their joint notice of proposed rulemaking might be revised to ensure the final rule achieves the purpose of the Community Reinvestment Act (CRA). A previously covered by a Buckley Special Alert, the NPR generally focuses on expanding and delineating the activities that qualify for CRA consideration, providing benchmarks to determine what levels of activity are necessary to obtain a particular CRA rating, establishing additional assessment areas based on the location of a bank’s deposits, and increasing clarity, consistency, and transparency in reporting. The RFI “seeks bank-specific data and information to supplement currently-available data and to inform potential revisions to modernize and strengthen the CRA regulatory framework,” and specifically requests four types of bank data covering the past three years: (i) retail domestic deposit activities; (ii) total qualifying activity data; (iii) data on qualifying retail loans originated and sold within 90 days; and (iv) other retail loan data by census tract. Comments on the RFI are due March 10.

    Agency Rule-Making & Guidance OCC CRA FDIC

  • Fed issues enforcement order for BSA/AML compliance

    Federal Issues

    On January 9, the Federal Reserve Board announced that it entered into a cease and desist order on December 30 with a Texas state-chartered bank due to “significant deficiencies” in the bank’s Bank Secrecy Act (BSA) and anti-money laundering (AML) compliance program that were discovered in its latest examination of the bank. The requirements set out for the bank in the order include:

    • Board oversight. The bank must submit a board-approved, written plan to improve oversight of BSA/AML requirements.
    • BSA/AML compliance program. The bank must submit a written BSA/AML compliance program that includes BSA/AML training; independent testing of the compliance program; management of the program by a qualified compliance officer with adequate staffing support; BSA/AML compliance internal controls; and a BSA/AML risk assessment of the bank, its products and services, and its customers.
    • Customer due diligence. The bank must submit a revised customer due diligence program that includes policies and procedures to ensure accurate client account information; a plan to bring existing accounts into compliance with due diligence requirements; a method to assign risk ratings to account holders; policies and procedures to ensure proper customer information is obtained according to the risk of the account holder; and risk-based monitoring procedures and updates to accounts.
    • Suspicious activity monitoring and reporting. The bank must submit a written suspicious activity monitoring and reporting program that includes a documented process for establishing monitoring rules; policies and procedures for review of monitoring rules; customer and transaction monitoring; and policies and procedures for the review of suspicious activity.

    Federal Issues Federal Reserve Bank Regulatory Bank Supervision Bank Secrecy Act Anti-Money Laundering Enforcement Compliance Customer Due Diligence SARs

  • Representatives urge financial regulators to strengthen cyber infrastructures

    Federal Issues

    On January 7, Representatives Emanuel Cleaver II (D-MO) and Gregory Meeks D-NY) sent a letter to nine federal financial regulators urging them to strengthen their financial infrastructures against possible cyber-attacks in the wake of recent threats against the U.S. from Iran and its allies following the killing of Iranian official Qasem Soleimani. The letter also requests that the regulators coordinate with law enforcement and regulated entities to increase information sharing surrounding cyber threats, and “communicate a strategy to further mitigate existing cyber vulnerabilities within [the U.S.] financial infrastructure by March.” The letter was sent to the Federal Reserve Board, Treasury Department, SEC, FDIC, CFPB, Federal Housing Finance Agency, Commodity Futures Trading Commission, National Credit Union Administration, and the OCC.

    As previously covered by InfoBytes, NYDFS separately issued an Industry Letter on January 4 warning regulated entities about the “heightened risk” of cyber-attacks by hackers affiliated with the Iranian government. The letter provides recommendations for ensuring quick responses to any suspected cyber incidents, and reminds entities they must inform NYDFS “as promptly as possible but in no event later than 72 hours’ after a material cybersecurity event.”

    Federal Issues U.S. House Federal Reserve Department of Treasury SEC FDIC CFPB FHFA CFTC NCUA OCC Privacy/Cyber Risk & Data Security

  • New York proposes state-level increase in consumer finance oversight

    State Issues

    On January 8, the New York governor released a proposal that would, among other things, expand the entities subject to NYDFS’ enforcement authority and harmonize state regulator authority to bring actions against entities engaging in unfair, deceptive, or abusive acts or practices with federal authority. Proposed within the 2020 State of the State agenda are several initiatives designed to increase the state’s oversight and enforcement of the financial services industry. Key measures include:

    • Abusiveness claims. The proposal would make New York consumer protection law consistent with federal law by aligning the state’s UDAAP powers with those of the CFPB, thereby empowering state authorities to bring abusiveness claims under state law.
    • Eliminate certain exemptions. The proposal would end exemptions from state oversight for certain, unspecified consumer financial products and services. “With the current federal administration reducing the number and breadth of enforcement actions brought by the CFPB, it is crucial that state consumer protection laws apply to all the same consumer products and services subject to Dodd-Frank,” the proposal states.
    • Closing loopholes and creating a level playing field. Under the proposal, state-licensed cryptocurrency companies would be required to pay assessment fees similar to other financial services companies. Currently, only supervised entities licensed under the state’s insurance law or banking law are required to pay assessments to NYDFS to cover examination and oversight costs.
    • Fines. In order to effectively deter illegal conduct, the proposal would amend the state’s insurance law to increase fines. Additionally, instead of the current Financial Services Law (FSL) penalty of $5,000 per violation, the governor proposes “capping penalties at the greater of $5,000, or two times the damages, or the economic gain attributed to the violation,” while also updating the FSL to provide “explicit authority for [NYDFS] to collect restitution and damages.”
    • Debt collection. Debt collectors under the proposal would be required to be licensed by NYDFS, thus allowing the department to examine and investigate suspected abuses. Additionally, NYDFS’ new oversight authority would allow it to bring punitive administrative actions against debt collectors, which may result in significant fines or the loss of a license. The proposal would also codify the FTC’s rule prohibiting confessions of judgment in consumer loans.

    As previously covered by InfoBytes, the proposal would also, among other things, expand access to safe and affordable financial services through a collaborative initiative between the state’s Community Development Financial Institutions, NYDFS, and other state agencies designed to improve outreach and financial literacy education to the unbanked and underserved communities.

    State Issues Consumer Finance NYDFS CFPB Abusive Debt Collection Enforcement Licensing State Regulators State Legislation

  • 6th Circuit affirms dismissal of FDCPA action for lack of standing

    Courts

    On January 3, the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal for lack of standing of an FDCPA suit brought by a consumer who claimed that because collection letters sent to him by a law firm caused him anxiety, the firm had violated the FDCPA. According to the opinion, the consumer had two delinquent accounts with a bank, which the law firm attempted to recover by sending collection letters to the consumer. The consumer asserted that the letters the law firm sent caused him “an undue sense of anxiety” that he would be sued by the firm, and he subsequently filed a lawsuit against the firm for violating the FDCPA. The court held that the consumer did not have standing to sue under Article III of the U.S. Constitution, for three main reasons: (i) the debtor’s anxiety about a potential lawsuit amounted to a fear of future harm that was not “certainly impending” because the consumer had not alleged that the law firm had threatened to sue him or that he refused to pay, and, therefore, his anxiety did not satisfy the injury-in-fact element for Article III standing; (ii) the consumer was “anxious about the consequences of his decision to not pay the debts that he does not dispute he owes,” and such a “self-inflicted injury” is not a basis for standing because it was not “fairly traceable” to the law firm’s conduct, but instead reflected the consumer’s own behavior; and (iii) “even assuming [the law firm” violated the statute by misrepresenting that an attorney had reviewed [the consumer’s] debts,” that violation did not cause any injury to the consumer because the consumer gave the court “no reason to believe he did not owe the debts,” and, therefore, he could not show that the law firm’s alleged procedural violation of the FDCPA, by itself, was an “injury in fact.” Because the court held that the consumer did not have standing, it affirmed the lower court’s dismissal of the action.

    Courts Appellate FDCPA Debt Collection Credit Reporting Agency Sixth Circuit Standing

  • Federal Reserve governor proposes alternative approach to CRA modernization

    Agency Rule-Making & Guidance

    On January 8, Federal Reserve Governor Lael Brainard discussed the Fed’s approach to the Community Reinvestment Act (CRA) modernization process, explaining why the agency chose not to join the notice of proposed rulemaking (NPR) issued in December by the OCC and the FDIC. As previously covered by a Buckley Special Alert, the NPR generally focuses on expanding and delineating the activities that qualify for CRA consideration, providing benchmarks to determine what levels of activity are necessary to obtain a particular CRA rating, establishing additional assessment areas based on the location of a bank’s deposits, and increasing clarity, consistency, and transparency in reporting. The NPR was published in the Federal Register on January 9, with comments due March 9.

    According to Brainard, “it is more important to get the reforms done right than to do them quickly.” This includes, Brainard emphasized, “giving external stakeholders sufficient time and analysis to provide meaningful feedback on a range of options for modernizing the regulations.” Specifically, the Fed’s proposed approach for measuring banks’ CRA compliance uses “a set of tailored thresholds that are calibrated for local conditions” through the creation of two tests: (i) a retail test, applicable to all retail banks, that “would assess a bank’s record of providing retail loans and retail banking services in its assessment areas”; and (ii) a community development test, applicable to large banks, wholesale banks, and limited-purpose banks, “that would evaluate a bank’s record of providing community development loans, qualified investments, and services.” Banks would then be provided a dashboard related to its retail lending activity, as well as metrics concerning its community development performance.

    Brainard also commented that separating evaluations into two different tests is important because “an approach that combines all activity together runs the risk of encouraging some institutions to meet expectations primarily through a few large community development loans or investments rather than meeting local needs.” She explained that having separate tests would ensure that performance metrics are tailored for banks of different sizes and business models, and would “provide greater scope to calibrate the evaluation metrics to the opportunities available in the market, which can differ for retail lending and community development financing.” Further, Brainard stated that using metrics based on a bank’s retail output on the number of loans rather than the dollar volume would help to measure how well a bank is serving the needs of both low- to moderate-income communities and “avoid inadvertent biases in favor of fewer, higher-dollar value loans.”

    Agency Rule-Making & Guidance CRA Federal Reserve FDIC OCC

  • California governor proposes strengthening state consumer protection authority and increasing financial innovation

    State Issues

    On January 10, the California governor submitted his proposal for California’s 2020-2021 state budget, which would, among other things, include the creation and administration of the California Consumer Protection Law (Law). The governor’s budget summary indicates that “[t]he federal government’s rollback of the CFPB leaves Californians vulnerable to predatory businesses and leaves companies without the clarity they need to innovate.”  The proposed Law is intended to provide “consumers with more protection against unfair and deceptive practices when accessing financial services and products.” To create and administer the Law, the proposed budget contemplates the expansion of the Department of Business of Oversight’s (DBO) authority to “protect consumers” and “foster the responsible development of new financial products.” In light of the expanded role, the governor also proposed renaming the DBO to the Department of Financial Protection and Innovation. The governor’s budget includes an allocation to the DBO of a $10.2 million Financial Protection Fund and 44 positions in 2020-2021, which would increase to $19.3 million and 90 positions in 2022-2023 for creating and implementing the Law.

    According to the DBO’s website, the DBO currently “provides protection to consumers and services to businesses engaged in financial transactions” and “oversees the operations of state-licensed financial institutions, including banks, credit unions, money transmitters, issuers of payment instruments and travelers checks, and premium finance companies.” Under the governor’s budget proposal summary, in addition to the DBO’s current functions, the DBO will have greater authority to “pursue unlicensed financial service providers not currently subject to regulatory oversight such as debt collectors, credit reporting agencies, and financial technology (fintech) companies, among others.”

    The budget proposal summary provides that the DBO’s new activities will include:

    • Offering services to educate consumers (e.g., older Americans, students, military service members, and recent immigrants).
    • Licensing and examining industries that are currently under-regulated.
    • Analyzing market patterns and developments for evidence-based policies and enforcement.
    • Enforcing against unfair, deceptive, and abusive practices.
    • Establishing a new Financial Technology Innovation Office, which will be tasked with proactively promoting “responsible development of new consumer financial products.”
    • Providing legal support for the administration of the Law.
    • Expanding administrative and IT staff to support the DBO’s increased authority.

     The details of the Governor’s budget proposal have not yet been published.

    State Issues Consumer Finance CFPB CDBO State Regulators State Legislation Debt Collection Fintech Licensing

  • OFAC issues Ukraine-/Russia-related FAQs

    Financial Crimes

    On December 20, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC), published a new Ukraine-/Russia-related FAQ. FAQ 815 explains that Section 7503 of the National Defense Authorization Act for Fiscal Year 2020, or the Protecting Europe’s Energy Security Act of 2019 became effective immediately upon the President signing it on December 20. This section—entitled “Imposition of sanctions with respect to provision of certain vessels for the construction of certain Russian energy export pipelines”—specifies that parties who have knowingly provided vessels engaged in deep sea pipe laying for the Nord Stream 2 or Turkstream pipelines must ensure that such vessels cease such activity as soon as safely possible in order to protect human life and “avoid any environmental or other significant damage.”

    Financial Crimes OFAC Department of Treasury Sanctions Ukraine Russia Of Interest to Non-US Persons

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