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Financial Services Law Insights and Observations

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  • Fourth Circuit Reverses Dismissal of TILA Claim

    Lending

    On February 4, 2016, the SEC settled FCPA allegations with California-based SciClone Pharmaceuticals with a cease and desist order finding that SciClone violated the FCPA’s anti-bribery, books and records, and internal controls provisions related to activities in China.  The SEC found that from at least 2007 to 2012, employees of SciClone subsidiaries gave money and gifts to Chinese officials (including employees of state-owned hospitals) in order to boost sales.  The SEC further found that SciClone failed to devise and implement a sufficient system of internal accounting controls and lacked an effective anti-corruption compliance program.

    SciClone consented to the SEC’s order without admitting or denying the charges and agreed to pay $12.8 million to resolve the charges, including a $2.5 million penalty, the disgorgement of $9.426 million in profits, and $900,000 in prejudgment interest.  SciClone will also provide status reports to the SEC for the next three years regarding remediation efforts and new anti-corruption compliance measures.  SciClone simultaneously announced that the DOJ had declined to pursue any additional action.

    CFPB TILA Mortgage Servicing

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  • State Courts Requiring More Proof to Obtain Affidavit Judgments in Debt Collection Cases

    State Issues

    On February 1, 2016, the SEC agreed to a $3.7 million settlement with software company SAP SE regarding allegations that it violated the FCPA regarding the payment and offer of bribes to senior Panamanian government officials.  The settlement, stemming from the actions of former SAP executive Vincente Garcia who pleaded guilty last August to one count of conspiracy to violate the FCPA, found that SAP lacked appropriate internal controls to detect the illegal activity.  According to the SEC, Garcia arranged the sale of heavily discounted software licenses and used the savings to create a “slush fund.”  The money in this fund was then used to pay bribes and kickbacks.

    The SEC order also found that SAP lacked sufficient internal controls to prevent the violations.  While SAP did not admit or deny the findings, it consented to the cease-and-desist order and agreed to disgorge $3.7 million in profits plus prejudgment interest of $188,896.

    Debt Collection

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  • FTC Settles Privacy Claims Against Myspace

    Fintech

    On January 22, 2016, the Ministerio Publico Federal (MPF), Brazil’s Public Prosecutor’s Office, reportedly entered into a settlement with Dutch drilling company SBM Offshore’s CEO and a member of its supervisory board, resolving misdemeanor allegations apparently tied to the ongoing Petrobras probe in Brazil.  If the settlement is approved by the Brazilian judge handling the case, both individuals will be fined approximately $60,000 each, with no admission of guilt.

    SBM Offshore stated in response that while it “believes that accepting the settlement offers a pragmatic opportunity to expeditiously resolve this matter that avoids long and costly legal proceedings,” it remains of the opinion that the accusations are without merit and that it stands behind both individuals.  While SBM Offshore declined to comment on the specific accusations of misconduct in this case, the settlement comes a little over a year after SBM Offshore resolved an enforcement action in the Netherlands involving alleged bribes in Angola, Brazil, and Equatorial Guinea between 2007 and 2011.

    Click here to view previous FCPA Scorecard coverage of SBM Offshore and Brazil’s Petrobras investigation.

    FTC Privacy/Cyber Risk & Data Security

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  • FinCEN Extends Proposed Customer Due Diligence Program Comment Period, Issues Electronic Filing Reminder

    Consumer Finance

    On May 4, FinCEN extended the comment period for its proposal to establish a customer due diligence regulation that would require covered financial institutions to institute defined programs to identify the real or beneficial owners of customer accounts. The proposed regulation is designed to enhance federal anti-money laundering and counterterrorism efforts. Interested parties will have an additional thirty days to comment from the time the extension is published in the Federal Register.  On May 7, FinCEN reminded financial institutions subject to the Bank Secrecy Act that certain BSA-required filings must be filed electronically beginning July 1, 2012.

    FinCEN Bank Secrecy Act

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  • HUD Announces Another Mortgage False Claims Act Settlement

    Lending

    On May 10, HUD and the U.S. Attorney for the Southern District of New York announced the settlement of a lawsuit alleging violation of the False Claims Act by a mortgage originator and affiliated entities. The government alleged that, for nearly a decade, MortgageIT, Inc. certified falsely that the mortgages it originated complied with HUD rules. MortgageIT and its affiliates agreed to pay $202.3 million to resolve the suit. After the Bank of America and Countrywide FCA claims settled in February, this marks the third mortgage-FCA lawsuit settled to date. A fourth case remains pending in the Southern District of New York.

    Mortgage Origination HUD False Claims Act / FIRREA

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  • Freddie Mac Appoints New CEO, OCC Names Senior Deputy Comptroller

    Lending

    On May 10, Freddie Mac announced that Donald Layton will serve as the organization’s Chief Executive Officer. Mr. Layton will join the firm on May 21, 2012. Mr. Layton has served as chairman & CEO of E*TRADE Financial and worked for nearly 30 years at JP Morgan Chase and its predecessors.

    On May 7, the Office of Comptroller of the Currency announced the hiring of Paul Nash to succeed John Walsh as Senior Deputy Comptroller and Chief of Staff. Mr. Nash comes from the FDIC, where he served for two years as the Deputy to the Chairman for External Affairs.

    Freddie Mac OCC

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  • State Law Update: Oklahoma, Georgia, New York

    Consumer Finance

    Oklahoma Updates Uniform Consumer Credit Code. On May 1, Oklahoma enacted House Bill 2742, which amends the state’s Uniform Consumer Credit Code. The bill increases the dollar threshold for transactions exempt from the Code from $45,000 to $50,000 and requires that the threshold be adjusted annually henceforth. With regard to mortgages particularly, the bill (i) expands the language required to be included in the disclosure statement, (ii) requires that the creditor mail the disclosure statement at least seven business days before the transaction, and (iii) requires the creditor to send a new statement at least three days before closing if the interest rate changes. It further requires that (i) a consumer cannot be charged any fee prior to receipt of the statement, except for a fee to obtain a credit report; and (ii) a consumer can waive the disclosure statement timing requirements. The law also increases the penalties for violations of the mortgage disclosure statement or right to rescind rules and requires that, within 30 days of the sale or transfer of a mortgage loan, the new creditor must notify the borrower that the loan has been transferred and provide contact and other relevant information.

    Georgia Enacts Mortgage-Related Bills. On May 1, Georgia enacted two mortgage-related bills. House Bill 110 permits local jurisdictions to create vacant and foreclosed property registries and establishes uniform requirements for such registries. The law takes effect July 1, 2012. House Bill 237 expands the state’s mortgage fraud law to cover the foreclosure process.

    New York Extends Temporary Mortgage Servicer Rules. On May 2, the New York Department of Financial Services published an extension of its emergency rules to implement the 2008 Mortgage Lending Reform Law. The rules will remain in effect through July 11, 2012, unless further extended or permanently adopted.

    Fraud Foreclosure Mortgage Origination Mortgage Servicing

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  • Tennessee Supreme Court Relies on UETA to Uphold Contract Formed by E-Mail Signatures

    Fintech

    On April 24, the Supreme Court of Tennessee upheld an appellate court decision enforcing a settlement agreed upon by an e-mail exchange between the parties’ attorneys. Waddle v. Elrod, No. M2009-02142-SC-R11CV, 2012 WL 1406451 (Tenn. Apr. 24, 2012). The case involved a family dispute over an interest in real property. After counsel exchanged email setting forth terms of the settlement (which included agreement to transfer a property interest), one party recanted and refused to sign the written settlement documents. In the ensuing litigation, the trial court enforced the settlement agreement, but failed to address arguments that Tennessee’s Statute of Frauds (the Statute) precluded enforcement or that the state’s Uniform Electronic Transactions Act (UETA) satisfied the Statute. In addressing both questions, the Tennessee Supreme Court rejected a lower appellate court’s reasoning that the Statute only applied to land sale contracts, and held that the Statute also applied to agreements to transfer land. The court nonetheless opined that that the exchanged e-mails were sufficiently definite writings for purposes of the Statute, and were validated as such by UETA; the court also found that the parties “through their counsel evidenced an intent to finalize the settlement by electronic means,” that UETA “obviate[d] the need for a handwritten signature[,]” and that counsel’s “typed name at the end of the e-mail constitute[d] an ‘electronic signature[,]’” thereby satisfying the signature requirement of the Statute.

    Electronic Signatures

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  • Spotlight on Auto Finance (Part One of Three): A New Road for Auto Finance Companies

    Consumer Finance

    Auto Finance Attorney John Redding

    Traditionally, non-bank lenders looked to the states and the FTC for industry regulations. But, this has changed with the introduction of the CFPB. Recent reports show that the federal government is stepping up efforts to regulate and review auto finance companies, many of whom have never been subject to bank-style examinations.

    “The CFPB has created a new layer of regulation,” according to John Redding, Counsel in the Southern California office of BuckleySandler. “Auto lenders have to be alert and aware of their fair and responsible lending risks.”

    Redding says one of the ways to minimize these risks is to be proactive when reviewing a company’s policies, procedures, discretionary underwriting and pricing practices.  The CFPB is likely to conduct statistical reviews for loans that the company has made or purchased to ensure there is no unexplained or improper disparity between protected and non-protected classes , so companies should consider performing such analyses in advance of the regulator conducting such an analysis.

    “This will help mitigate risks for the companies by identifying areas that may present risk and allowing them to proactively take steps to modify policies and practices. When the regulators are conducting an exam, companies will have to explain why the business is conducted as it is, including steps taken to ensure fair and responsible lending to all consumers, regardless of status, and address any issues that may arise,” says Redding.

    The bottom line: Recognize that there are new regulators and more scrutiny on the industry and begin taking steps to perform these important reviews now.

    Redding suggests the following steps auto finance companies can take to prepare for the CFPB:

    • Evaluate the institution’s risk profile and prepare an operations and compliance strategy
    • Update policies and procedures (review CFPB exam guidelines)
    • Monitor, address, and retain records regarding consumer complaints
    • Monitor third-party sources of complaints
    • Appoint an ombudsman
    • Conduct internal audits
    • Consider patterns and practices that emerge regarding operations
    • Focus on areas that may lead to consumer harm, as well as technical violations
    • Include the compliance team to monitor, analyze and advise on specific proposals

    CFPB Auto Finance John Redding

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  • Fannie Mae Announces Changes to Pricing Terms

    Lending

    On May 1, Fannie Mae updated terms pertaining to its ability to change the pricing applicable to lenders’ deliveries of mortgage loans under the standard Selling Guide provisions, as well as under existing Master Agreements and related MBS contracts. In Announcement SEL-2012-03, Fannie Mae stated that it may change the base guarantee fee, loan-level pricing adjustments, and/or guaranty fee adjustments for MBS Express or rapid payment method remittance cycles applicable to mortgages delivered under MBS contracts or as whole loans. Under the change (i) Fannie Mae reserves the right to change the pricing one or more times during the term of a Master Agreement or related MBS contract, (ii) Fannie Mae will provide the lender with written notice of the pricing change prior to it taking effect, and (iii) either party can cancel the affected contract or agreement if the parties are unable to come to terms on the new pricing. The effective date of the changes will be no later than October 1, 2012.

    Fannie Mae RMBS

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