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OCC fines national bank $25 million for violating Fair Housing Act
On March 19, the OCC announced that a national bank has agreed to pay a $25 million civil money penalty to resolve alleged violations of the Fair Housing Act. According to the OCC’s consent order, (i) from August 2011 to April 2015, the bank did not properly train loan officers about available mortgage discounts under its Relationship Loan Program (RLP); (ii) from August 2011 to November 2014, the bank failed to provide explicit instructions within their written guidelines that employees should offer those discounts to all eligible customers; and (iii) from August 2011 to November 2014, the bank did not require loan officers to document the reason for a customer’s rejection. Moreover, according to the OCC, the bank did not require loan officers to inform customers about potential mortgage discounts from August 2011 to January 2015. As a result, the OCC stated that certain borrowers allegedly did not receive RLP benefits for which they were eligible and were adversely affected on the basis of their race, color, national origin, and/or sex. The bank—which did not admit nor deny the allegations and self-reported the problems in 2015—initiated and has nearly completed a reimbursement plan, which will deliver roughly $24 million in restitution to the approximately 24,000 borrowers who may have missed out on the appropriate RLP benefit.
CFPB seeks to extend ECOA and credit card plan information collections
On March 20, the CFPB published in the Federal Register two requests to renew information collections, one on the “Report of Terms of Credit Card Plan,” which collects data from at least 150 financial institutions on credit card pricing and availability, and the other on ECOA and Regulation B. For both information collections, the Bureau is seeking comments on (i) whether the information collections are necessary for the proper function of the Bureau; (ii) if the Bureau accurately estimates the burden of the collection and how to minimize that burden; and (iii) how the Bureau can “enhance the quality, utility, and, clarity of the information” collected. Comments on both requests must be received by May 20.
OCC proposes partial assessment fee refunds
On March 20, the OCC published in the Federal Register proposed revisions to its assessment rules to provide partial assessment refunds to banks under OCC jurisdiction that exit OCC jurisdiction within the prescribed timeframe by the rule. In addition to technical and conforming changes, the proposed rule would maintain semiannual assessment fee payments, but would provide refunds equal to the prospective half of the assessment to banks that leave the OCC’s jurisdiction between the date of the applicable Call Report and the date of collection. Comments on the proposal are due by April 19, 2019.
CFPB enhances advisory committees
On March 21, the CFPB announced the Bureau’s advisory committee programs will be enhanced as a result of Director Kraninger’s engagement with current and former committee members during her three-month listening tour. Effective 2020, the committees—Consumer Advisory Board (CAB), Community Bank Advisory Council (CBAC), and Credit Union Advisory Council (CUAC)—will expand their focus to “broad policy matters” and will meet in-person three times a year, instead of two. Additionally, the Academic Research Council (ARC) will be a “Director-level” advisory committee and will meet separately, in-person and twice a year. Memberships to all committees will now be two-year terms, and the terms will be staggered. The Bureau is now accepting applications for 2020 committee membership. Applications must be submitted within 45 days of the notice being published in the Federal Register.
CFPB and FTC release 2018 FDCPA report
On March 20, the CFPB and the FTC released (here and here) their annual report to Congress on the administration of the FDCPA, which highlights the 2018 efforts of the agencies. The agencies coordinate in enforcement; share supervisory and consumer complaint information; and collaborate on education under a memorandum of understanding that was reauthorized in February. (Covered by InfoBytes here.) In the report, the Bureau acknowledges its intent to release a Notice of Proposed Rulemaking on debt collection covering issues such as “communication practices and consumer disclosures” in spring 2019. In addition to highlighting the Bureau’s debt collection education efforts, the report also states that in 2018 the Bureau (i) received approximately 81,500 debt collection complaints related to first-party and third-party collections; (ii) initiated six public enforcement actions alleging violations of the FDCPA, one resulting in an $800,000 civil money penalty; and (iii) identified one or more violations of the FDCPA through supervisory examinations.
As for the FTC, in addition to education efforts, the report states that in 2018 the agency (i) initiated or resolved seven enforcement actions, three of which were related to phantom debt collection, obtaining more than $58.9 million in judgments; (ii) returned money to thousands of consumers who were targeted by phantom debt collection operations; and (iii) banned 32 companies and individuals from working in the debt collection market.
Virginia requires breach of personal information notification
On March 18, the Virginia governor signed HB 2396, which amends the Code of Virginia and requires an individual or entity owning or licensing computerized data that includes personal information to disclose all data breaches without “unreasonable delay” to the Virginia Attorney General and any affected Commonwealth residents. Under HB 2396, “personal information” is defined as “the first name or first initial and last name in combination with and linked to any one or more of the following data elements that relate to a resident of the Commonwealth, when the data elements are neither encrypted nor redacted.” The list of data elements was amended to add passport numbers and military identification numbers to the previous list, which included social security numbers, driver’s license numbers, and financial account numbers or credit/debit card numbers combined with codes or passwords that would grant access to a consumer’s financial account. The amendment is effective July 1.
Virginia provides certain debt management plan licensing exemptions
On March 8, the Virginia governor signed HB 2284, which amends Title 6.2 Chapter 20 of the Code of Virginia to exempt banks, savings institutions, credit unions, and individuals licensed to practice law in the state from the licensing requirements applicable to persons that provide debt management plans. Additionally, persons licensed under the amended chapter are not required to obtain a money transmitter license under Chapter 19, provided the “money transmission activities are limited to providing debt pooling and distribution services in accordance with [Chapter 20].” The amendment is effective July 1.
Virginia law allows financial institutions to share documents related to elder exploitation
On March 12, the Virginia governor signed HB 2225, which amends the state’s law relating to financial exploitation of adults, to provide that any financial institution staff who “suspects that an adult has been exploited financially” may now provide supporting information and records to the local department of social services, in addition to simply reporting the suspected exploitation as provided for under current law. The amendment is effective July 1.
CFPB and NYAG defend Bureau’s constitutionality in 2nd Circuit
On March 15, the CFPB and the New York Attorney General (NYAG) filed opening briefs in the U.S. Court of Appeals for the 2nd Circuit in their appeal of the Southern District of New York’s (i) June 2018 ruling that the CFPB’s organizational structure, as defined by Title X of the Dodd-Frank Act, is unconstitutional; and (ii) the September 2018 order dismissing the NYAG’s claims under the Consumer Financial Protection Act (CFPA). As previously covered by InfoBytes, the Bureau and the NYAG filed a lawsuit in February 2017, alleging that a New Jersey-based finance company and its affiliates (defendants) engaged in deceptive and abusive acts by misleading first responders to the World Trade Center attack and NFL retirees with high-cost loans by mischaracterizing loans as assignments of future payment rights, thereby causing the consumers to repay far more than they received. After the defendants moved to dismiss the actions, the district court allowed the NYAG’s claims to proceed under the CFPA, even though it had dismissed the Bureau’s claims, but then reversed course. Specifically, in September 2018, the court concluded that the remedy for Title X’s constitutional defect (referring to the Bureau’s single-director structure, with a for-cause removal provision) is to invalidate Title X in its entirety, which therefore invalidates the NYAG’s statutory basis for bringing claims under the CFPA. (Covered by InfoBytes here.)
In its opening brief to the 2nd Circuit, the Bureau argues that the district court erred when it held that the for-cause removal provision of the single-director structure is unconstitutional. According to the Bureau, the single director “does not undermine the President’s oversight. If anything, the Bureau’s single-director structure enhances the President’s ‘ability to execute the laws…’” because the President can still remove the director for cause, which allows the director to be held responsible for her conduct. In the alternative, the CFPB argued that should the court find the for-cause removal provision unconstitutional, the proper remedy is to sever the provision from Title X in accordance with the statute’s severability clause and not hold the entire CFPA invalid.
In a separate brief, the NYAG makes similar constitutional and severability arguments as the Bureau, but also argues that even if the entirety of Title X were to be held invalid, the state law claims should survive under the federal Anti-Assignment Act.
FDIC rescinds disclosure requirements for insured state nonmember banks
On March 18, the FDIC published a final rule to rescind and remove 12 CFR Part 350, Disclosure of Financial and Other Information By FDIC-Insured State Nonmember Banks. Effective April 17, all insured state nonmember banks and insured state-licensed branches of foreign banks will no longer be subject to the annual disclosure statement requirement set out in the existing regulations. The FDIC’s rescission and removal is an attempt by the FDIC to simplify its regulations and “remov[e] unnecessary or redundant regulations.” The FDIC concluded that Part 350 is “outdated and no longer necessary” because information technology advancements now provide the public with direct access to information on the condition and performance of individual banks.