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  • FTC Files Complaint Against Debt Collection Business for Alleged Violations of FTC Act, FDCPA

    Consumer Finance

    On November 8, the FTC issued a press release announcing charges against a Georgia-based debt collection business for allegedly violating the FTC Act by making false, unsubstantiated, or misleading claims to trick consumers into paying debt they did not actually owe. In the complaint, the FTC alleged defendants threatened legal action, garnishment, and imprisonment if the purported debt was not paid, and in other instances, attempted to collect debts after consumers provided proof the debt was paid off. Additionally, the defendants allegedly violated the Fair Debt Collection Practice Act (FDCPA) by (i) making false, deceptive, or misleading representations, including withholding the true status of the debt, threatening legal action or imprisonment, and failing to disclose they were debt collectors; (ii) engaging in unlawful third-party communications without obtaining prior consumer consent; and (iii) failing to provide consumers written verification of their debt within the required time frame. According to the FTC, defendants have collected more than $3.4 million from consumers since January 2015. A federal judge in the U.S. District Court for the Northern District of Georgia has temporarily restrained and enjoined the defendants’ alleged illegal practices and frozen their assets.

    Consumer Finance FTC Debt Collection Enforcement FTC Act FDCPA

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  • OCC Updates Policies and Procedures to Clarify Impact of CRA Ratings on Licensing Applications

    Agency Rule-Making & Guidance

    On November 8, the OCC issued Bulletin 2017-51, updating guidance related to its approach when evaluating certain licensing applications from OCC-supervised banks that have “less than satisfactory” Community Reinvestment Act (CRA) ratings, either overall or in one or more particular geographic region. The revised Policies and Procedures Manual (PPM 6300-2) provides clarity on the OCC’s scrutiny of a bank’s CRA performance when an application is submitted to participate in a covered transaction such as (i) establishing or relocating a branch or main or home office; (ii) participating in a Bank Merger Act filing; (iii) converting from a state to a federal charter; and (iv) converting between federal charters. The revisions also allow applicants to document for the OCC how participating in such a transaction would “help the bank to achieve its CRA objectives” and “meet the credit needs of the community it serves, consistent with its safe and sound operation.”

    Agency Rule-Making & Guidance OCC CRA Licensing

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  • District Court Upholds $60 Million Jury Verdict for Credit Reporting Agency’s Use of OFAC Alert

    Courts

    On November 7, the Northern District Court of California upheld a $60 million jury verdict against a credit reporting agency regarding the use of its OFAC Alert (previously covered by InfoBytes). The verdict stems from a 2012 class action lawsuit in which the plaintiffs allege the defendant had failed to distinguish law-abiding citizens from drug traffickers, terrorists, and other criminals with similar names found on the Treasury Department’s OFAC database. Following the defendants motion for judgment as a matter of law or a new trial, the district court agreed with the jury’s findings that the defendants (i) “willfully fail[ed] to follow reasonable procedures to assure the maximum possible accuracy of the OFAC information it associated with members of the class’’; (ii) “willfully failed to clearly and accurately disclose OFAC information in the written disclosures it sent to members of the class”; and (iii) “failed to provide class members a summary of their FCRA rights with each written disclosure made to them.”

    Courts FCRA OFAC Credit Reporting Agency Consumer Finance

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  • Agencies Announce Changes to Threshold Amounts for Truth in Lending Act and Consumer Leasing Act

    Agency Rule-Making & Guidance

    On November 8, the CFPB and the Federal Reserve Board (Board) finalized the annual dollar threshold adjustments that govern the application of Regulation Z (Truth in Lending Act) and Regulation M (Consumer Leasing Act) to credit transactions as required by the Dodd-Frank Act. Each year the thresholds must be readjusted based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). The exemption threshold for 2018, based on the annual percentage increase in the CPI-W, is now $55,800 or less, except for private student loans and loans secured by real property, which are subject to TILA regardless of the amount.

    Additionally, on November 8, the OCC, along with the CFPB and the Board, finalized amendments to the official interpretations for the regulations implementing section 129H of TILA, which determines the threshold amount for a small loan’s exemption from the special appraisal requirements that apply to higher-priced mortgage loans. The threshold for 2018, based on the annual percentage increase in the CPI-W, is now $26,000.         

    Agency Rule-Making & Guidance CFPB Federal Reserve OCC TILA CLA

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  • CFPB Takes Action Against Largest Debt Settlement Provider

    Consumer Finance

    On November 9, the CFPB announced the filing of a complaint against the largest debt settlement provider in the country and its co-CEO for allegedly deceiving consumers about its debt settlement services. According to the complaint, the defendants engaged in deceptive acts and practices in violation of the Telemarketing Sales Rule and the Consumer Financial Protection Act by:

    • misleading consumers about the settlement provider’s ability to negotiate with creditors that the settlement provider knew maintained policies against working with settlement companies;
    • instructing consumers to mislead creditors when asked about their participation in a debt settlement program;
    • leading consumers to believe the defendants would negotiate on their behalf when, in fact, some consumers were only “coached” on how to negotiate settlements on their own;
    • misleading consumers by charging them the full fee when creditors stop collection efforts without the defendants taking any action despite advertising that the fee is only charged if settlement is negotiated by the settlement provider and payments begin under the terms of a settlement; and
    • failing to clearly and conspicuously disclose consumers’ rights to refunds from their deposit accounts if they leave the settlement program.

    The CFPB is seeking monetary relief, civil money penalties, and injunctive relief against the defendants.

    Consumer Finance CFPB Debt Collection Enforcement Debt Settlement Telemarketing Sales Rule CFPA

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  • DOJ Charges Five Individuals With FCPA Violations Involving a British Luxury Car Company

    Financial Crimes

    On November 7, the DOJ unsealed FCPA charges against five individuals for their alleged participation in a foreign bribery scheme involving a British luxury car company and its U.S. subsidiary. Of the five individuals, one was indicted while the remaining four pleaded guilty for their roles in an alleged scheme to pay bribes to a Kazakhstan official in order to secure a supply contract for a gas pipeline from Kazakhstan to China. The charges and guilty pleas were unsealed in Ohio federal district court. 

    These charges follow on the heels of the company’s January 2017 settlement with DOJ in which the company agreed to a three-year deferred prosecution agreement and agreed to pay $170 million to resolve charges that it conspired to violate the anti-bribery provisions of the FCPA around the world. As part of the DOJ settlement, the company agreed to continue to cooperate fully with the DOJ’s investigation, including its investigation of individuals. The DOJ settlement comprised just a fraction of the $800 million total penalty the company agreed to pay as part of a global resolution related to the corrupt conduct. 

    Of the four guilty pleas, three individuals (a former executive of the company, a former employee of the company, and an executive at an international engineering consulting firm) pleaded guilty to one count of conspiracy to violate the FCPA. The fourth individual (a former senior executive of the company) also pleaded guilty to one count of violating the FCPA in addition to conspiracy. The indicted individual, a former CEO of the company's intermediary, was charged with one count of conspiracy to violate the FCPA and seven counts of violating the FCPA, along with various money laundering charges. 

    The DOJ’s announcement noted the “significant cooperation and assistance” from the UK SFO and Brazil law enforcement. This continues the increased trend of DOJ receiving and then highlighting cooperation efforts by its international counterparts.

    Financial Crimes DOJ FCPA UK Serious Fraud Office

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  • SEC Chairman Discusses Corporate Governance, States Enhanced Transparency Can Help Prevent Fraud, and Reveals First-Ever National Database of Barred Brokers and Advisors

    Securities

    On November 8, the Chairman of the SEC, Jay Clayton, spoke before the Practising Law Institute’s annual institute on securities regulation to discuss the role of corporate governance and how enhanced transparency can help prevent fraud. Clayton stated that the SEC would be streamlining and shortening its near-term agenda in an effort to increase transparency and accountability, and that the SEC also would apply this approach to its longer-term strategic plans as well.

    Clayton also commented on approaches to mitigate “misconduct” before an enforcement action would be required. Specifically, Clayton noted, “[l]ooking back at enforcement actions, a common theme emerges – where opacity exists, bad behavior tends to follow.” Clayton highlighted the following areas in which opacity may exist: (i) disclosures involving “hidden or inappropriate fees”; (ii) poor recordkeeping and lack of reliable information related to penny stocks; (iii) transaction processing related to unregistered securities; (iv) online platforms that manage initial coin offerings (ICOs); and (v) investor education.

    Concerning ICOs, Clayton commented that because “[t]here is a distinct lack of information about many online platforms that list and trade virtual coins or tokens offered and sold in . . . ICOs . . ., [t]rading of tokens on these platforms is susceptible to price manipulation and other fraudulent trading practices.” The SEC proposed enhanced clarity when listing tokens on these types of platforms, assigning value to tokens, and examining measures designed to protect investors and market integrity.

    Clayton further revealed that the SEC was creating a website that would publish, among other things, a searchable database of those individuals who have been barred or suspended as a result of federal securities law violations.  Clayton noted that this database would be “intended to make the prior actions of repeat offenders and fraudsters more visible to investors” and could be “particularly valuable when bad actors have shifted from the registered space for investment advisers and broker-dealers to the unregistered space.”

    Securities Initial Coin Offerings SEC Fraud

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  • OFAC Announces Cuban Assets Control Regulations Updates; Releases New FAQs

    Financial Crimes

    On November 8, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced amendments to the Cuban Assets Control Regulations to implement changes related to certain financial transaction restrictions and economic activities. In accordance with the National Security Presidential Memorandum issued by President Trump on June 16, the amendments will, among other things, prohibit “persons subject to U.S. jurisdictions” from engaging in financial transactions with entities and subentities identified on the State Department’s Cuba Restricted List. This effort is intended to “channel economic activities away from the Cuban military, intelligence, and security services, while maintaining opportunities for Americans to engage in authorized travel to Cuba and support the private, small business sector in Cuba.” The amendments will take effect November 9. OFAC also released updated FAQs and a fact sheet to answer questions related to the amended regulations.

    Refer here, here, and here for InfoBytes coverage on OFAC settlements of alleged violations of the Cuban Assets Control Regulations.

    Financial Crimes OFAC Department of State Settlement International

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  • Acting Comptroller Argues for Removing Separation Between Banking and Commerce

    Federal Issues

    On November 8, Acting Comptroller of the Currency Keith A. Noreika addressed The Clearing House Annual Conference in New York, New York and called for an end to the separation between banking and commerce. Noreika noted that the topic may be considered “taboo” to banking regulators but nonetheless offered “an alternative to the popular narrative.” In his speech, Noreika acknowledged that the premise of the separation is to avoid the risks associated with entangling federally insured deposits with unreliable commercial enterprises. However, he argued, “the recent financial crisis actually demonstrated that there is nothing inherently safer about separating banking and commerce or traditional banking and investment banking,” and further noted that allowing for commingling could generate efficiencies and improve banking economic performance.

    Federal Issues OCC Banking

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  • Federal Reserve Releases Survey on Bank Lending Practices

    Lending

    On November 6, the Federal Reserve Board (Fed) released its October 2017 Senior Loan Officer Opinion Survey on Bank Lending Practices. Responses came from both domestic banks and U.S. branches and agencies of foreign banks, and focused on bank loans made to businesses and households over the past three months. The October survey results indicated that over the third quarter of 2017, on balance, lenders eased their standards on commercial and industrial loans with demand for such loans decreasing. However, lenders left their standards on commercial real estate (CRE) loans unchanged and reported that demand for CRE loans weakened. As to loans to households, banks reported that standards for all categories of residential real estate (RRE) lending “either eased or remained basically unchanged,” and that the demand for RRE loans also weakened.

    The survey also included two sets of special questions addressing changes in household lending conditions.

    The first set of these special questions asked banks to specify the reasons for changing this year their credit policies on credit card and auto loans to prime and subprime borrowers. Respondents’ most reported reasons for tightening standards or terms on these types of loans were (i) “a less favorable or more uncertain economic outlook”; (ii) “a deterioration or expected deterioration in the quality of their existing loan portfolio”; and (iii) “a reduced tolerance for risk.” Auto loan reasons also focused on “less favorable or more uncertain expectations regarding collateral values.”

    The second set of these special questions asked banks for their views as to why they have experienced stronger or weaker demand for credit card and auto loans over this year. Respondents’ reported that a strengthening of demand for credit card and auto loans from prime borrowers could be attributed to customers’ confidence as well as their improved ability to manage debt service burdens. The most reported reasons for weakened demand for credit card and auto loans from prime borrowers were an increase in interest rates and a shift in customers’ borrowing “from their bank to other bank or nonbank sources.”

    For additional details see:

    Lending Federal Reserve Consumer Lending Auto Finance Credit Cards Consumer Finance

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