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Financial Services Law Insights and Observations

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  • SEC Action Targets Unregistered Cross-Border Brokerage, Investment Advisory Services

    Securities

    On February 21, the SEC released an administrative order against a foreign financial institution that provided cross-border securities services to thousands of U.S. clients. The SEC asserted that the institution’s employees traveled to the U.S. to solicit clients, provide investment advice, and induce securities transactions despite not being registered to provide brokerage or advisory services. The order states that over a period of at least seven years, the institution served as many as 8,500 U.S. client accounts that contained an average total of $5.6 billion in securities assets. The institution admitted it was aware of federal broker-dealer and investment adviser registration requirements related to the provision of certain cross-border broker-dealer and investment adviser services to U.S. clients. After another foreign institution became subject to a federal investigation for similar activities, the institution began to exit the business, though the SEC order states it took years to do so. The order requires the company to disgorge more than $82 million, pay more than $64 million in prejudgment interest, and pay a $50 million civil penalty. In addition, the institution must retain an independent consultant to, among other things, confirm the institution has completed the termination of the business, and evaluate policies and procedures that could detect and prevent similar activity in the future.

    SEC Investment Adviser Enforcement Broker-Dealer

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  • NMLS Announces New Ombudsman

    Consumer Finance

    On February 27, the Nationwide Mortgage Licensing System & Registry (NMLS) announced that Robert S. Niemi, Deputy Superintendent for Consumer Finance at the Ohio Division of Financial Institutions, will serve as NMLS Ombudsman. The NMLS states that the Ombudsman “provide[s] the non-depository financial services industries, and other interested parties, with a neutral venue to discuss issues or concerns regarding NMLS and state licensing” with the objective of fostering “constructive dialogue between NMLS industry users and participating state regulators.”

    NMLS

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  • SCOTUS Holds State-Law Securities Class Actions Not Precluded By Federal Law

    Securities

    On February 26, the Supreme Court held that the Securities Litigation Uniform Standards Act of 1998 (Securities Litigation Act) does not preclude four state-law based class actions against firms and individuals who allegedly helped Allen Stanford conceal a multi-billion dollar Ponzi scheme because Stanford’s alleged misrepresentations were not material to the plaintiffs’ decisions to buy or sell a covered security and thus were not made “in connection with” the purchase or sale of a covered security. Chadbourne & Parke LLP v. Troice, No. 12-79, 2014 WL 714697 (2014). The Court explained that the Securities Litigation Act specifically forbids plaintiffs from bringing state-law based class actions if the plaintiffs allege “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security.” In this case, the plaintiffs were investors who purchased uncovered securities (certificates of deposit in Stanford International Bank) with the expectation that Stanford would use the proceeds to purchase covered securities (securities traded on a national exchange). Stanford instead used the proceeds to finance his Ponzi scheme and invest in speculative real estate ventures. The Court, by a 7-2 margin, concluded that Stanford’s misrepresentations were not made “in connection with” the purchase or sale of a covered security because the misrepresentations did not lead anyone to buy, sell, or maintain positions in covered securities. Rather, Stanford’s misrepresentations induced the plaintiffs to take positions in uncovered securities (the certificates of deposit). The court reasoned that the “in connection with” phrase suggests a connection that matters, and a connection only matters “where the misrepresentation makes a significant difference to someone’s decision to purchase or to sell a covered security, not to purchase or sell an uncovered security.” Thus, the Court determined that the Securities Litigation Act’s prohibition on state law-based class actions did not apply to the plaintiffs in this case, and affirmed the Fifth Circuit’s order reversing the district court’s dismissal of the plaintiffs’ claims.

    U.S. Supreme Court Class Action

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  • SDNY Holds Whistleblowers Not Entitled To Retroactive Application Of Dodd-Frank Protections

    Consumer Finance

    On February 21, the U.S. District Court for the Southern District of New York held that the Dodd-Frank Act’s whistleblower protection provisions could not be applied retroactively to an alleged retaliation that occurred before the effective date of the statute. Ahmad v. Morgan Stanley & Co., Inc., No. 13-6394, 2014 WL 700339 (S.D.N.Y. Feb. 21, 2014). A former employee of a financial institution filed suit against his former employer under Dodd-Frank, alleging that he had been harassed and intimidated for his attempts to raise concerns during audits of loans made by the institution. Although the alleged retaliation occurred before the effective date of Dodd-Frank, the employee argued that the statute’s whistleblower provisions—which broadly prohibit employers from discriminating, harassing, terminating or otherwise punishing employee whistleblowers for their lawful conduct—were merely technical revisions to whistleblower protections that already existed under the Sarbanes-Oxley Act of 2002, and therefore the Dodd-Frank act protections apply retroactively. The court disagreed and held that the Dodd-Frank created an “entirely new whistleblower cause of action,” distinct from that provided by Sarbanes-Oxley. In particular, the court pointed to the plain text of Dodd-Frank, which identifies the relevant provisions as a “cause of action,” and allows plaintiffs to seek double back-pay for retaliation, a remedy not available under Sarbanes-Oxley. The court dismissed the former employee’s suit with prejudice.

    Dodd-Frank Whistleblower

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  • Class Action Alleging Servicers Engaged in Loan Modification Fraud Dismissed With Prejudice

    Lending

    On February 20, the U.S. District Court for Central District of California dismissed with prejudice a putative class action against several large mortgage servicers because the named borrowers failed to properly plead their allegations that the servicers stonewalled loan modification applications in order to continue earning servicing fees. Casault v. Federal National Mortgage Association, No. 11-10520, 2014 WL 689884 (C.D. Cal. Feb. 20, 2014). In their third amended complaint, the borrowers alleged three causes of action against the servicers: (i) fraud; (ii) violation of California’s Unfair Competition Law (UCL); and (iii) violation of the Rosenthal Act, California’s version of the FDCPA. The court granted the servicers’ motion to dismiss the fraud allegation because they failed to allege any causal connection between the scheme and the borrowers’ foreclosure. The borrowers alleged only that the foreclosures were the result of their inability to make their mortgage payments, even after receiving loan modifications. The court dismissed the UCL claim because the borrowers could not demonstrate a right to a loan modification—through contract, promissory estoppel, or some other theory—and, as a result, could not prove injury in fact. Finally, the court dismissed the borrowers’ claims under the Rosenthal Act because they failed to allege facts demonstrating that their loans defaulted prior to the debt being assigned to the servicers.

    Mortgage Servicing Class Action Mortgage Modification

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  • Massachusetts Consumer Affairs Regulator Publishes Prepaid Cards Fees Survey

    Consumer Finance

    On February 25, the Massachusetts Office of Consumer Affairs and Business Regulation (OCABR) published the results of its survey of prepaid cards. The OCBAR examined 16 different purchasing and use-related fees for 11 randomly-selected prepaid cards, using the fee schedule from each card’s website, which the OCABR stated “were not always easy to find and were quite confusing at times.” The survey identified as the most common fees charged by the prepaid cards surveyed as (i) monthly fees, (ii) ATM withdrawal fees, and (iii) balance inquiry fees, which were each charged by nine of the 11 cards surveyed. The OCABR researchers claim to have discovered “additional types of fees associated with the products”, including fees associated with alternative card payment plans. The OCABR believes such alternative options make it more difficult for consumers to anticipate the cost of having and using a prepaid card.

    Prepaid Cards Service Fees

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  • CFPB Supplements Consumer Reporting Guidance, Holds Consumer Advisory Board Meeting, Issues Consumer Reporting Complaints Report

    Consumer Finance

    On February 27, the CFPB issued supplemental guidance related to consumer reporting and held a public meeting focused on consumer reporting issues. The CFPB also released a report on consumer reporting complaints it has received.

    Supervisory Guidance

    The CFPB issued a supervision bulletin (2014-01) that restates the general obligations under the Fair Credit Reporting Act for furnishers of information to credit reporting agencies and “warn[s] companies that provide information to credit reporting agencies not to avoid investigating consumer disputes.” It follows and supplements guidance issued last year detailing the CFPB’s expectations for furnishers.

    The latest guidance is predicated on the CFPB’s concern that when a furnisher responds to a consumer’s dispute, it may, without conducting an investigation, simply direct the consumer reporting agency (CRA) to delete the item it has furnished. The guidance states that a furnisher should not assume that it ceases to be a furnisher with respect to an item that a consumer disputes simply because it directs the CRA to delete that item. In addition, the guidance explains that whether an investigation is reasonable depends on the circumstances, but states that furnishers should not assume that simply deleting an item will generally constitute a reasonable investigation.

    The CFPB promises to continue to monitor furnishers’ compliance with FCRA regarding consumer disputes of information they have furnished to CRAs. Furnishers should take immediate steps to ensure they are fulfilling their obligations under the law.

    Consumer Advisory Board Meeting

    The public session of this week’s two-day Consumer Advisory Board (CAB) Meeting featured remarks from Director Cordray, and a discussion among CAB members, industry representatives, and consumer advocates on several major topics: (i) use of credit history in employment decisions; (ii) consumer access to credit information; and (iii) the credit dispute process.

    Mr. Cordray focused on steps the CFPB has taken related to the credit reporting market, including: (i) launching a complaint portal through which consumers have submitted 31,000 consumer reporting complaints, nearly 75% of which have related to the accuracy and completeness of credit reports; (ii) beginning to supervise large credit reporting companies and many large furnishers; (iii) identifying process changes, including upgrades to the e-Oscar consumer dispute system to allow consumers to file disputes online and to provide furnishers direct access to dispute materials; and (iv) issuing guidance to furnishers on resolving consumer disputes.

    Mr. Cordray also expressed support for a “major initiative” in the credit card industry to make credit scoring information more easily and regularly available to card holders. Mr. Cordray stated that he sent letters to the CEOs of the major card companies “strongly encouraging them to consider making credit scores and educational content freely available to their customers on a regular basis.” He added that he sees “no reason why this approach should not be replicated with customers across other product lines as well.”

    In his CAB remarks, Mr. Cordray also identified some persistent concerns that resulted in the additional furnisher guidance issued today, discussed above.  He stated that “[s]ome furnishers are taking short-cuts to avoid undertaking appropriate investigations of consumer disputes. For example, a consumer may find an error on the credit report and file a dispute about an incorrect debt or a credit card that was never opened. In response, the furnisher may simply delete that account from the information it passes along to the credit reporting company.” He stated that such practices deprive consumers of important protections.

    During the discussion session, consumer advocates complained that credit reports provided to consumers are not the same as the reports provided to creditors. They claimed that consumers receive “sterilized” versions and do not, for example, get to see if their file is mixed with some else’s file. They also complained that the reports do not provide credit scores.

    With regard to the CFPB’s support for creditors disclosing credit scores on a regular basis, several participants, including a representative for CRAs, stated that creditors should be free to provide the credit score of their choice, and not only FICO.  Mr. Cordray and the CFPB’s Corey Stone responded that the CFPB is encouraging voluntary participation in score disclosure programs, but stated the Bureau does not believe that any one score needs to be disclosed. Instead, Mr. Stone explained that creditors should provide the score that is most relevant and useful for its customers.  Mr. Cordray stressed the importance of providing educational information with the score, regardless of what score is provided.

    The consumer advocates also were sharply critical of the CRAs and certain creditors’ dispute resolution processes. One participant raised specific concerns about the lack of human interaction in online dispute processes and the sale of certain add-on products offered during the dispute process.

    The industry’s representative defended recent enhancements to the dispute process and highlighted the efficiency benefits of online disputes, including quicker resolution.  He added that many furnishers prefer to hear directly from their customers, and that the real issue is how creditors respond.

    Report on Consumer Reporting Complaints

    The “credit reporting complaint snapshot” states that of the nearly 300,000 complaints the CFPB has received on a range of consumer financial products and services, approximately 31,000 or 11 percent have been about credit reporting. The CFPB accepts consumer credit reporting complaints in five categories: (i) incorrect credit report information; (ii) credit reporting company’s investigation; (iii) improper use of a credit report; (iv) inability to obtain credit report or score; and (v) credit monitoring or identity protection services. The CFPB reports that the most common complaints related to incorrect information on a credit report, while very few complaints related to identity protection or credit monitoring services. The report reviews the complaint handling process, and indicates that companies have resolved approximately 91 percent of the complaints submitted to them.

    CFPB Nonbank Supervision Debt Collection Consumer Reporting Bank Supervision Agency Rule-Making & Guidance

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  • CFPB Sues For-Profit Educational Institution Over Private Student Loan Origination Practices

    Consumer Finance

    On February 26, the CFPB filed its first enforcement action against a for-profit higher-education company, alleging that the company engaged in unfair and abusive private student loan origination practices.

    In a civil complaint filed in the U.S. District Court for the Southern District of Indiana, the CFPB asserts that the company offered first-year students no-interest short-term loans to cover the difference between the costs of attendance and federal loans obtained by students. The CFPB claims that when the short-term loans came due at the end of the first academic year and borrowers were unable to pay them off, the company forced borrowers into “high-rate, high-fee” private student loans without providing borrowers an adequate opportunity to understand their loan obligations. Moreover, the CFPB claims that the company’s business model is dependent on coercing students into “high-rate, high-fee” private loans, despite the low average incomes and credit profiles of the students, and a 64 percent default rate on such loans.

    The company issued a statement denying the charges, criticizing the CFPB’s decision to file suit, and challenging the CFPB’s jurisdiction. The statement describes the suit as an “aggressive attempt by the Bureau . . . to extend its jurisdiction into matters well beyond consumer finance” and expresses the company's intent to “ vigorously contest the Bureau's theories in court.”

    The complaint details a number of alleged “high-pressure” origination tactics the CFPB claims resulted in part from the compensation structure the company established for its financial aid staff, which included commissions based on loan origination volume. The complaint also details the loan programs at issue, asserting that the programs were ostensibly run by third parties, but were controlled and guaranteed by the company, which allowed it to establish lenient lending criteria to maximize student participation. The company also is alleged to have misrepresented to prospective students the company’s accreditation and the placement rates and salaries of its graduates.

    For certain students who did not obtain private student loans to pay-off the short-term company product and instead carried balances on the short-term credit through graduation, the CFPB asserts the company offered a “graduation discount” if the borrowers agreed to pay off some or all of the balance in a lump sum rather than through an installment plan. The CFPB reasons that to the extent the lump sum discounts were not applied to the installment plans, such discounts constituted finance charges subject to TILA’s disclosure requirements. The CFPB asserts that the company failed to clearly and conspicuously disclose those charges in writing to borrowers who opted not to pay a lump sum and instead entered into installment plans.

    The CFPB brings claims for violations of the Consumer Financial Protection Act’s prohibitions on unfair and abusive practices, as well as for violations of TILA. In addition to injunctive relief, the CFPB is seeking unspecified monetary relief, including restitution for harmed borrowers, disgorgement, rescission, and civil money penalties.

    CFPB TILA UDAAP Student Lending Enforcement

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  • CFPB Continues RESPA Enforcement With Action Against Nonbank Lender

    Lending

    On February 24, the CFPB announced that a nonbank mortgage lender agreed to pay an $83,000 penalty to resolve violations of RESPA’s Section 8. The lender primarily offers loss-mitigation refinance mortgage loans to distressed borrowers. According to the consent order, after the lender ceased obtaining funding for its loans from two subsidiaries of a hedge fund, the lender continued to split loss-mitigation and origination fees with the subsidiaries on 83 additional loans originated over an eight-month period, even though neither subsidiary provided financing or any other service in any of those transactions.

    The lender self-reported the violation, admitted liability, and provided information related to the conduct of others, which the CFPB stated has facilitated other enforcement investigations. In addition, the consent order requires the lender make its “officers, employees, representatives, and agents” available for interviews and testimony, and to produce all non-privileged documents requested by the CFPB, “in connection with this action and any related judicial or administrative proceeding or investigation commenced by the Bureau or to which the Bureau is a party.” The company also cannot apply for a tax deduction or credit for the penalty, and cannot seek indemnification from any source. The CFPB indicated that the lender’s self-reporting and cooperation, which were consistent with the Bureau’s Responsible Business Conduct bulletin, played a part in mitigating the penalty.

    This consent order is another public action the CFPB has taken under RESPA’s Section 8, although this action appears to be the first under Section 8(b) of RESPA, which prohibits fee-splitting and the payment and receipt of unearned fees. The CFPB has previously enforced Section 8(a), which prohibits referral fees and kickbacks, most recently in the case of a mortgage company that allegedly made inflated rental payments in exchange for mortgage referrals. The Bureau’s Section 8(b) action emphasizes the CFPB’s commitment to enforcing all of the aspects of Section 8, particularly against nonbank lenders.

    CFPB Director Richard Cordray summed up the CFPB’s RESPA enforcement stance, stating: “These types of illegal payments can harm consumers by driving up the costs of mortgage settlements. The Bureau will use its enforcement authority to ensure that these types of practices are halted. We will, however, also continue to take into account the self-reporting and cooperation of companies in determining how to resolve such matters.”

    CFPB Mortgage Origination RESPA Enforcement

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  • FinCEN Director Discusses 2014 Priorities

    Financial Crimes

    On February 20, in remarks to the Florida International Bankers Association Anti-Money Laundering Conference, FinCEN Director Jennifer Shasky Calvery reviewed FinCEN’s key initiatives over the past year and outlined priorities going forward. She discussed FinCEN’s efforts with regard to virtual currency risks and stated that it is important for financial institutions that deal in virtual currency to put effective AML/CFT controls in place. She noted that it is also important for all stakeholders to keep virtual currency concerns in perspective given the relatively small size of the market. FinCEN is growing increasingly concerned with third party money launderers who layer transactions, create or use shell or shelf corporations, use political influence to facilitate financial activity, or engage in other schemes to infiltrate financial institutions and circumvent AML controls. FinCEN intends to pursue such actors regardless of where they are located. Director Shasky Calvery also reiterated concerns about securities firms that offer services similar to banks, and promised continued focus on threats posed by trade-based money laundering. With regard to its policy initiatives, FinCEN intends to engage stakeholders in a discussion of “balancing the policy motivations behind data privacy and secrecy laws in different jurisdictions with the need for an appropriate level of transparency to combat money laundering and terrorist financing.” The Director noted that this issue is particularly critical in the area of correspondent banking.

    Anti-Money Laundering FinCEN Bank Secrecy Act Enforcement Virtual Currency Correspondent Banking Combating the Financing of Terrorism

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