Top Story Compliance Related

The FDIC Board of Directors approved yesterday a notice of proposed rulemaking that would strengthen recordkeeping for bank deposits received from third party, non-bank companies accepting those deposits on behalf of consumers and businesses. The proposal seeks to address risks related to these third-party arrangements, protect depositors, and promote public confidence in insured deposits.

Non-banks may deposit funds together into a single custodial account at a bank. These custodial accounts may hold funds of many thousands of consumers and businesses, and the bank may not readily know or be able to determine the individual owners of funds in the custodial account. Under the proposed rule, FDIC-insured banks holding certain custodial accounts, as defined in the proposal, would be required to take certain steps to ensure accurate account records are maintained in order to determine the individual owner of the funds, including a requirement to reconcile the account for each individual owner on a daily basis. These requirements, as well as others, apply if the bank uses a third party to maintain records.

The proposal’s provisions also provide for oversight by the banks’ primary federal supervisor to review for compliance with this rule and enforcement authority to compel compliance if the bank fails to meet these requirements.

The FDIC invites public comments on all aspects of the proposal. Public comments on the proposal are due 60 days after publication in the Federal Register.

The CFPB has announced it has published Consumer Financial Protection Circular 2024-05 on "Improper Overdraft Opt-In Practices" to address whether a financial institution can violate the law if there is no proof that it has obtained consumers' affirmative consent before levying overdraft fees for ATM and one-time debit card transactions.

According to CFPB Director Rohit Chopra, “The CFPB has found instances where banks have no evidence that they obtained consent for overdraft. No Americans should be hit with bank account fees that they never agreed to.”

The CFPB reports it has observed that in many circumstances, financial institutions have created serious obstacles to consumers taking steps to anticipate and avoid overdraft fees, and cites several enforcement actions the Bureau has taken against banks that failed to properly adhere to the requirements of section 1005.17 of Regulation E.

The Bureau's press release suggests that consumer protection law enforcers "should assume consumers have not opted into overdraft [service for ATM and one-time debit card transactions] unless the banks can prove otherwise," and that "some banks have been unable to provide such evidence." The Circular lists three examples of forms of records that banks might use to document consumer consent, depending on the channel through which the consumer opts in. The examples are not all-inclusive or exhaustive:

• For consumers who opt into covered overdraft services in person or by postal mail, a copy of a form signed or initialed by the consumer indicating the consumer’s affirmative consent to opting into covered overdraft services would constitute evidence of consumer consent to enrollment.
• For consumers who opt into covered overdraft services over the phone, a recording of the phone call in which the consumer elected to opt into covered overdraft services would constitute evidence of consumer consent to enrollment.
• For consumers who opt into covered overdraft services online or through a mobile app, a securely stored and unalterable “electronic signature” as defined in the E-Sign Act (15 U.S.C. 7006(5)) conclusively demonstrating the specific consumer’s action to affirmatively opt in and the date that the consumer opted in would constitute evidence of consumer consent to enrollment.

The OCC has reported it has approved a final rule updating its regulations for business combinations involving national banks and federal savings associations and a policy statement clarifying its review of applications under the Bank Merger Act (BMA).

The final rulemaking is part of the OCC’s effort to enhance transparency around its process of reviewing transactions under the BMA. It also provides additional guidance to stakeholders around the OCC’s review of applications. The policy statement specifically discusses:

• general principles for the OCC’s review of applications under the BMA, including:
  • indicators for applications that are more likely to withstand scrutiny and be approved expeditiously; and
  • indicators for applications that raise supervisory or regulatory concerns which most likely need to be resolved prior to OCC approval;
• the OCC’s consideration of the financial stability; managerial and financial resources and future prospects; and convenience and needs statutory factors under the BMA; and
• the OCC’s decision process for extending the public comment period or holding a public meeting.

Publication and effective date information: Published [89 FR 78207] on 9/25/2024, with an effective date of 1/1/2025.

FinCEN has published [89 FR 76187] in this morning's Federal Register a notice and request for comments on its proposed renewal, without change, of existing information collection requirements found in Bank Secrecy Act regulations [31 CFR § 1010.415] that require financial institutions to maintain records related to the issuance or sale of bank checks and drafts, cashier’s checks, money orders, and traveler’s checks when the issuance or sale involves the use of currency in an amount between $3,000 and $10,000, inclusive.

Comments will be accepted through November 18, 2024.

OFAC has published [89 FR 75955] in this morning’s Federal Register a final rule updating provisions related to blocking and other actions related to specific property or interests in property.

The rule is meant to clarify OFAC’s process for issuing certain orders that block or identify as blocked specific property or interests in property, or that impose other prohibitions less than full blocking with respect to specific property or interests in property. OFAC is adding information about these orders in regulatory notes in 35 of OFAC’s sanctions regulations — 31 CFR Parts 510, 525, 526, 536, 542, 544, 546, 547, 548, 549, 550, 551, 552, 553, 555, 558, 560, 562, 569, 570, 576, 578, 579, 582, 583, 584, 585, 587, 588, 589, 590, 591, 594, 598, and 599. The rule is effective upon publication.

The Treasury Department has issued announcements of designations under OFAC's Global Magnitsky and Cyber-related sanctions programs.

The Global Magnitsky sanctions designations included individuals who have undermined fundamental freedoms, including freedom of expression, in the country of Georgia. Specifically, the Department of the Treasury sanctioned two Georgian government officials associated with brutal crackdowns on peaceful protestors and political opponents, and two private Georgian citizens that are responsible for or complicit in, or have directly or indirectly engaged in violently suppressing the exercise of the freedom of peaceful assembly of Georgians engaged in the democratic process and peaceful expression.

OFAC also designated five individuals and one entity associated with the Intellexa Consortium under its Cyber-related sanctions for their role in developing, operating, and distributing commercial spyware technology that presents a significant threat to the national security of the United States.

For the names and identification information of the designated parties covered by both announcements, see the September 16, 2024, BankersOnline OFAC Update.

The CFPB has announced it has sued Horizon Card Services and its CEO Robert Kane for tricking consumers into signing up for its expensive membership credit card. Horizon’s credit card, which could come with almost $300 in annual fees on a card with a $500 credit limit, could only be used to purchase goods from the company’s overpriced online store and nowhere else. The CFPB alleges Horizon and Kane lured consumers into the membership program through deceptive marketing. Horizon charged consumers illegal and excessive fees, and also made it unreasonably difficult for consumers to cancel memberships and obtain refunds. The CFPB is asking the court to end Horizon and Kane’s illegal conduct, and to order them to pay a fine and redress to consumers.

The Horizon Card Services membership came with periodic fees, and was targeted toward financially vulnerable, subprime consumers. Between 2017 and 2021, Horizon enrolled nearly 900,000 consumers in its membership program who collectively paid more than $51 million in fees. 93% of those consumers never used any Horizon product yet paid over $45 million in fees.

Although marketed as a regular credit card, the line of credit from Horizon could be used only to purchase goods from an online store called Horizon Outlet. The outlet has a limited selection of overpriced or off-brand goods. Between 2017 and 2021, only 6% of consumers ever used their cards at the outlet.

According to the CFPB's Complaint, from 2017 to 2021, Horizon required customers to pay up to $24.99 a month, or about $300 a year, in “membership fees” for the credit line. These fees amounted to 60% of the $500 credit limit provided by Horizon for the first year of membership, which far exceeds the 25% cap set by the Truth in Lending Act and its implementing regulation, Regulation Z.

Yesterday, the CFPB announced it has filed a proposed stipulated final judgment and order against the student loan servicer Navient for years of failures and lawbreaking. If entered by the court, the proposed order would permanently ban the company from servicing federal Direct Loans and would forbid the company from directly servicing or acquiring most loans under the Federal Family Education Loan Program . These bans would largely remove Navient from a market where it, among other illegal actions, steered numerous student loan borrowers into costly repayment options. Navient also illegally deprived student borrowers of opportunities to enroll in more affordable income-driven repayment plans and forced them to pay much more than they should have. Under the terms of the order, Navient would have to pay a $20 million penalty and provide $100 million in redress for harmed borrowers.

The CFPB’s investigation of Navient kicked off a series of efforts by state and federal agencies to examine forbearance steering and other breakdowns in the income-driven repayment program. Those efforts have resulted in more than $50 billion in debt relief for more than 1 million borrowers who were wrongly steered into forbearance, as well as those who had payments miscounted. Yesterday’s order complements actions already taken by the Department of Education and state attorneys general to provide redress to borrowers harmed by Navient.

According to the CFPB’s press release, Navient is a repeat offender with a long history of regulatory violations. After a referral from the CFPB, in 2014, the Department of Justice and the Federal Deposit Insurance Corporation ordered Navient and its predecessor, Sallie Mae, to pay almost $100 million for illegally overcharging nearly 78,000 servicemembers. In 2021, the Department of Education ordered Navient to return more than $22 million in overcharges. In 2022, 39 state attorneys general announced a $1.85 billion settlement with Navient for originating predatory student loans in addition to its forbearance steering practices.

In 2021, Navient’s contract with the Department of Education to service Direct Loans finally ended. Navient announced in early 2024 that it intended to transfer the servicing of its remaining loans to another servicer.

The OCC has announced it has entered into a Formal Agreement with Wells Fargo Bank, N.A.

The Formal Agreement identifies deficiencies relating to the bank’s financial crimes risk management practices and anti-money laundering internal controls in several areas including suspicious activity and currency transaction reporting, customer due diligence, and the bank’s customer identification and beneficial ownership programs.

The agreement requires the bank to take comprehensive corrective actions to enhance its Bank Secrecy Act/anti-money laundering and U.S. sanctions compliance programs.

The Treasury Department has reported that OFAC has sanctioned Cambodian businessman Ly Yong Phat, his conglomerate L.Y.P. Group Co., and O‑Smach Resort for their role in serious human rights abuse related to the treatment of trafficked workers subjected to forced labor in online scam centers. OFAC also designated Cambodia-based Garden City Hotel, Koh Kong Resort, and Phnom Penh Hotel for being owned or controlled by Ly.

Treasury also announced that OFAC has designated 16 Maduro-aligned officials who obstructed a competitive and inclusive presidential election process in Venezuela and violated the civil and human rights of the people. The individuals sanctioned under the authority of Executive Order 13692 include leaders of the Maduro-aligned National Electoral Council and the Supreme Tribunal of Justice who impeded a transparent electoral process and the release of accurate election results, as well as the military, intelligence, and government officials responsible for intensifying repression through intimidation, indiscriminate detentions, and censorship.

For a link to the names and identification information of the designated parties, see yesterday's BankersOnline OFAC Update, which also includes information on a new Global Magnitsky General License and new and amended FAQs.