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Fannie Mae Updates Selling Guide
On October 31, Fannie Mae issued Announcement SEL-2017-09, highlighting recent updates to its Selling Guide, that generally affirm the ability to conduct activity using electronic records. Among other things, the update (i) confirms that sellers and servicers are authorized to originate, service, and modify loans using electronic records; (ii) requires that validation and security measures be put in place for systems generating electronic records; (iii) specifies that recorded mortgages and deeds of trust are not required to be maintained in paper form; and (iv) clarifies that all electronic signatures must comply with ESIGN, the Uniform Electronic Transactions Act (UETA), and other applicable laws. The updates are effective immediately.
Additional changes address the (i) introduction of Fannie Mae’s Servicing Execution Tool and Servicing Marketplace, which are designed to improve transfers of servicing; (ii) clarification that property owned by inter vivos revocable trusts qualify as eligible collateral; and (iii) updates to policies related to mortgage debts paid by parties other than the borrower.
Trump Signs Legislation to End Arbitration Rule
On November 1, President Trump signed a resolution repealing the CFPB’s embattled arbitration rule (Rule). The resolution, which passed the Senate two weeks ago, was issued under the Congressional Review Act (previously covered by InfoBytes here). Trump’s signature came two days after Richard Cordray, the Director of the CFPB, wrote to the President requesting he veto the resolution. In his letter, Cordray sought to appeal to the President’s business experience in an attempt to explain the necessity of going to court when “treated unfairly.” With Trump’s signing of the resolution, the Rule is now unenforceable. The Rule has previously come under scrutiny from federal regulators (see previous InfoBytes coverage here and here), as well as from industry trade groups (see previous InfoBytes coverage here). After the President’s signing, Keith A. Noreika, Acting Comptroller of the OCC, praised Congress and the President for vacating the rule, touting it as a “victory for consumers” because upholding the Rule would have “significantly increased the cost of credit.”
District Court Denies Summary Judgement to Both Parties, Cites Issue of Material Fact Concerning Prepopulated Electronic Signature
On October 18, a federal judge in the U.S. District Court for the District of South Carolina denied summary judgment to both parties because there was a genuine issue of material fact regarding whether a “meaningful offer” of underinsured motorist coverage (UIM) was made. The insured’s electronic signature on the UIM form would indicate that the defendant made a “meaningful offer” of UIM coverage, as required under South Carolina law, and such coverage was rejected. The dispute however, in this case was about whether the electronic signature was prepopulated by the defendant.
Plaintiff purchased an auto insurance policy from the defendant online, and the coverage did not include UIM coverage. Plaintiff argued that he never signed the UIM coverage provision and that instead, his signature was prepopulated by the defendant’s website. The plaintiff argued that his prepopulated signature did not satisfy the requirements for a meaningful offer of UIM coverage. The defendant rebutted by stating that prepopulating portions of the UIM form is compatible with providing a meaningful offer of UIM coverage. The court was “disinclined to agree” with the defendant’s argument that a “prepopulated signature that appears on an insurance policy before the insured reads through and signals affirmative consent. . .fulfills” the UIM requirements. After reviewing the record, which was limited to screenshots produced by the plaintiff (as the defendant’s attempt to proffer additional system-based evidence was refused by the court because the defendant previously objected to producing it during discovery), the court concluded that it could not grant summary judgment to either party because of the factual dispute regarding whether the plaintiff signed the UIM provision.
Federal Reserve Board Issues Consent Order for the Alleged Deceptive Marketing of Balance Transfer Credit Cards
On October 26, the Federal Reserve Board (Fed) announced it had entered into a consent order with Mid America Bank & Trust Company (Mid America) over allegations that the bank engaged in deceptive practices in violation of the FTC Act involving balance transfer credit cards issued to consumers through third party independent service organizations. On the same day, the Fed announced its approval of an application by Reliable Community Bankshares, Inc. to acquire Mid America’s holding company, Mid America Banking Corporation. The allegations pertain to the adequacy of marketing materials, disclosures and other customer communications that described certain terms of the balance transfer cards such as credit reporting, available credit, and application of the statute of limitations to transferred balances. The Fed’s order requires the bank to refund certain fees, account balances and payments to its cardholders and other non-monetary actions, including compliance program enhancements. The order did not impose a civil money penalty.
CFPB Launches Beta Version of HMDA Platform
On November 3, the CFPB announced the beta release of the new HMDA Platform. The beta version enables financial institutions to become familiar with the platform and permits entities to establish test log-in credentials, upload sample files and validate data, receive edit reports, and confirm test their test submissions. Entities can test and retest throughout the beta period, and any test data will be removed from the system when the 2017 filing period opens on January 1, 2018.
As previously covered by InfoBytes, in November 2016 the Federal Financial Institutions Examination Council (FFIEC) announced that it was discontinuing its HMDA Data Entry Software and instead requiring that financial institutions file HMDA data through a new web-based interface. In August, the CFPB issued the final rule amending the 2015 HMDA Rule, with most of the revisions taking effect January 1, 2018 (see InfoBytes coverage here).
The CFPB is requesting feedback on the platform and test experiences during the beta period time.
FinCEN Assesses Penalties Against Texas Bank for AML Violations
On November 1, the Financial Crimes Enforcement Network (FinCEN) announced that it had assessed a $2 million civil money penalty against a Texas bank for “willfully violating” the Bank Secrecy Act (BSA). According to FinCEN, the bank failed to comply with the specific due diligence requirements for correspondent banking relationships as required by section 312 of the USA PATRIOT ACT. In particular, FinCEN found that the bank failed to ask appropriate due diligence questions in connection with the foreign bank account relationship and did not verify the accuracy of responses to questions it did pose. FinCEN further found that the bank did not appropriately establish specific customer risk profiles and assign proper risk ratings, resulting in a failure to identify, review, and escalate potential anti-money laundering (AML) violations.
In 2015, the bank previously resolved alleged BSA/AML deficiencies identified by the OCC and agreed to pay a $1 million civil money penalty. The bank’s payment of the $1 million OCC penalty is credited to the FinCEN penalty. FinCEN also acknowledged the considerable resources the bank invested in its BSA compliance operations and customer due diligence processes.
House Energy and Commerce Subcommittee Examines Consumer Data Security
On November 1, the House Subcommittee on Digital Commerce and Consumer Protection (Subcommittee) held a hearing entitled “Securing Consumers’ Credit Data in the Age of Digital Commerce” to examine: (i) the legal and regulatory framework for consumer reporting agencies, including the Gramm-Leach-Bliley Act and Fair Credit Reporting Act; (ii) current cybersecurity standards, best practices, threats, and vulnerabilities; and (iii) how data breaches relate to incidences of identity theft and fraud. In introductory remarks, Subcommittee Chairman, Bob Latta (R-Ohio), acknowledged the need to understand ways to protect against data breaches and secure consumer data. This sentiment was echoed by Full Committee Chairman, Greg Walden (R-Or.), who noted in his opening statement that recent data breaches “demonstrate the challenges of protecting consumer information in the digital age.” The full list of witnesses, testimony, and committee background memo is available here.
Charles Cain Named New SEC FCPA Chief
After serving as Acting Chief of the SEC’s Enforcement Division’s Foreign Corrupt Practices Act Unit for more than six months, SEC veteran Charles Cain will now officially take on the position of head of the FCPA Unit. According to an SEC press release, Cain intends “to build[] upon the important work the unit has done to combat corruption and level the playing field globally.” The SEC named Cain to the Acting Chief role in April 2017 after his predecessor, Kara Brockmeyer, left the agency.
After graduating with honors from The George Washington University Law School, Cain spent two years in the private sector before joining the SEC in 1999. In addition to serving as Deputy Chief of the FCPA Unit since 2011, Cain co-authored A Resource Guide to the U.S. Foreign Corrupt Practices Act, an effort for which he received the Irving M. Pollack Award.
New York Enters Second Stage in Use of Nationwide Licensing System
On November 1, the New York Department of Financial Services (NYDFS) announced that it will transition licensed lenders and sales finance companies to the Nationwide Multistate Licensing System (NMLS). NMLS allows companies to apply for, update, and renew licenses in one or more states online. According to the announcement, transitioning to NMLS will allow NYDFS to link with other states and thus provide enhanced supervision of nondepository institutions. As previously covered by InfoBytes, in July, NYDFS began its initiative to manage the licensing and regulation of all nondepository financial institutions operating in the state by transitioning money transmitters to the web-based system.
Illinois AG and FTC Reach $9 Million Settlement With Phantom Debt Collector
On October 31, Illinois Attorney General Lisa Madigan and the Federal Trade Commission (FTC) announced settlements with three operators of a fake debt collection scheme in Chicago. According to the Attorney General’s office, the three individuals and associated companies identified people who had recently applied for or received a short-term loan and then posed as a law firm to collect on the debt. The companies also sold fictitious loan debt portfolios to other debt buyers, who then attempted to collect on the fake debts. The settlements require the operators to surrender at least $9 million in assets (which will be used to refund impacted consumers) and, among other things, ban them from the debt collection business and from selling debt portfolios.