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Financial Services Law Insights and Observations

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  • Washington State Department of Financial Institutions adopts amendments concerning student education loan servicers

    State Issues

    On December 3, the Washington State Department of Financial Institutions (DFI) issued a final rule adopting amendments  including student education loan servicing and servicers as activities and persons regulated under the state’s Consumer Loan Act. According to DFI, the amendments will provide consumers with student education loans a number of consumer protections and allow DFI to monitor servicers’ activities. Among other things, the amendments (i) change the definition of a “borrower” to include consumers with student education loans; (ii) specify that collection agencies and attorneys licensed in the state collecting student education loans in default do not qualify as student education loan servicers; and (iii) stipulate that businesses must either qualify for specific exemptions or possess a consumer loan license in order to lend money, extend credit, or service student education loans. In addition, the amendments provide new requirements for servicers concerning the acquisition, transfer, or sale of servicing activities, and specify borrower notification rights. Servicers who engage in these activities for federal student education loans in compliance with the Department of Education’s contractual requirements are exempt.

    The amendments take effect January 1, 2019.

    State Issues Student Lending Student Loan Servicer Consumer Finance Licensing

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  • Illinois Attorney General settles with bank over pre-crisis marketing and sale of RMBS

    State Issues

    On December 4, the Illinois Attorney General announced a $17.25 million settlement with a national bank resolving allegations of misconduct in the marketing and sale of residential mortgage backed securities (RMBS) dating back to before the 2008 mortgage crisis. According to the announcement, the bank’s $17.25 million settlement will be distributed to the Teachers Retirement System of the State of Illinois, the State Universities Retirement System of Illinois, and the Illinois State Board of Investment. Additional details on the settlement have not been made available by the state.

    State Issues State Attorney General Settlement RMBS

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  • Virginia Attorney General joins bipartisan coalition to stop or reduce robocalls

    State Issues

    On December 6, the Virginia Attorney General Mark Herring announced he is joining a bipartisan group of 40 state Attorneys General to stop or reduce “annoying and dangerous” robocalls. The multistate group is reviewing, through meetings with several major telecom companies, the technology the companies are pursuing to combat robocalls. According to the announcement, the working group’s goals are to (i) develop an understanding of the technology that is feasible to combat unwanted robocalls; (ii) encourage the major telecom companies to expedite a technological solution for consumers; and (iii) determine if the states should make further recommendations to the FCC. As previously covered by InfoBytes, in October, a group of 35 Attorneys General, including Herring, submitted reply comments to the FCC in response to a public notice seeking ways the FCC could create rules that would enable telephone service providers to block more illegal robocalls. In their comments to the FCC, the coalition encouraged the FCC to implement rules and additional reforms that go beyond the agency’s 2017 call-blocking order, which allows phone companies to proactively block illegal robocalls originating from certain types of phone numbers.

    State Issues Robocalls FCC TCPA State Attorney General

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  • California DBO requests comments on future rulemaking for commercial financing disclosures

    State Issues

    On December 4, the California Department of Business Oversight (DBO) released an invitation for comments from interested stakeholders in the development of regulations to implement the state’s new law on commercial financing disclosures. As previously covered by InfoBytes, on September 30, the California governor signed SB 1235, which requires non-bank lenders and other finance companies to provide written consumer-style disclosures for certain commercial transactions, including small business loans and merchant cash advances. Most notably, the act requires financing entities subject to the law to disclose in each commercial financing transaction —defined as an “accounts receivable purchase transaction, including factoring, asset-based lending transaction, commercial loan, commercial open-end credit plan, or lease financing transaction intended by the recipient for use primarily for other than personal, family, or household purposes”—the “total cost of the financing expressed as an annualized rate” in a form to be prescribed by the DBO.

    The act requires the DBO to first develop regulations governing the new disclosure requirements, addressing, among other things, (i) definitions, contents, and methods of calculations for each disclosure; (ii) requirements concerning the time, manner, and format of each disclosure; and (iii) the method to express the annualized rate disclosure and types of fees and charges to be included in the calculation. While the DBO has formulated specific topics and questions in the invitation for comments covering these areas, the comments may address any potential area for rulemaking. Comments must be received by January 22, 2019.

    State Issues Small Business Lending Fintech Disclosures APR Commercial Finance Agency Rule-Making & Guidance Nonbank

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  • Coalition of state Attorneys General announce settlement to resolve allegations concerning debt buyers’ collection and litigation practices

    State Issues

    On December 4, the North Carolina Attorney General, along with 41 other state Attorneys General and the District of Columbia, announced a $6 million settlement with a national group of debt buyers to resolve allegations concerning the debt buyers’ collection and litigation practices. According to the press release, the debt buyers allegedly engaged in robo-signing practices by signing and filing large quantities of affidavits in state courts without first verifying the provided information. Under the terms of the settlement, the debt buyers have agreed to (i) completely eliminate or reduce the judgment balances for affected consumers in the participating states; (ii) reform their business practices by carefully verifying the information in affidavits for the courts and present accurate documents in court proceedings; (iii) review original account documents and provide substantiating documentation to consumers free of charge when a consumer disputes a debt; (iv) “maintain proper oversight and training over its employees and the law firms that it uses”; and (v) refrain from reselling debt for two years.

    State Issues State Attorney General Debt Collection Settlement Robo-signing

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  • New York Attorney General reaches largest ever COPPA settlement to resolve violations of children’s privacy

    State Issues

    On December 4, the New York Attorney General announced the largest Children’s Online Privacy Protection Act (COPPA) settlement in U.S. history—totaling approximately $6 million —to resolve allegations with a subsidiary of a telecommunications company that allegedly conducted billions of auctions for ad space on hundreds of websites it knew were directed to children under the age of 13. According to the Attorney General’s office, the subsidiary collected and disclosed personal data on children through auctions for ad space, allowing advertisers to track and serve targeted ads to children without parental consent. Under COPPA, operators of websites and other online services are prohibited from collecting or sharing the information of children under the age of 13 unless they give notice and have express parental consent. Among other things, the subsidiary also allegedly placed ads on other exchanges that possessed the capability to auction ad space on child-directed websites, but that when it won ad space on COPPA-covered websites, the subsidiary treated the space as it would any other and collected user information to serve targeted ads.

    Under the terms of the settlement, the subsidiary must (i) create a comprehensive COPPA compliance program, which requires annual COPPA training for staff, regular compliance monitoring, and the retention of service providers that can comply with COPPA, as well as a third party who will assess the privacy controls; (ii) enable website operators that sell ad inventory to indicate what portion of a website is subject to COPPA; and (iii) destroy the personal data it collected on children.

    State Issues COPPA Privacy/Cyber Risk & Data Security State Attorney General Settlement Enforcement

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  • NYDFS and international bank enter into second supplemental consent order over BSA/AML compliance deficiencies

    State Issues

    On November 21, NYDFS and an international bank entered into a second supplemental consent order covering its settlement over alleged deficiencies in the bank’s Bank Secrecy Act/anti-money laundering and Office of Foreign Assets Control (OFAC) compliance program controls. As previously covered by Infobytes, in 2012, the bank agreed to engage an independent on-site monitor for 24 months to evaluate the New York branch’s BSA/AML and OFAC compliance programs and operations and was issued a $340 million civil money penalty. In 2014 NYDFS issued a subsequent consent order outlining the monitor’s findings, including reports of significant failures in the bank’s transaction monitoring. The 2014 order extended the engagement of the monitor for another two years, outlined remedial measures to address continued deficiencies, and required the bank to pay an additional $300 million civil money penalty. In April 2017, NYDFS and the bank entered into the first supplemental consent order to modify the 2012 and 2014 orders, acknowledging the bank made significant improvements in its BSA/AML compliance program but extended the monitor through December 2018 with all the other terms and conditions of the 2012 and 2014 consent orders remaining in full effect.

    Now, beginning January 1, 2019, the second supplemental order issued by NYDFS requires the bank to engage an independent consultant, selected by the regulator, for a period of up to one year, with a possible extension of one additional year, to provide guidance for completing remediation called for in the 2012 and 2014 consent orders. In response to the second supplemental order, the bank stated it remained “committed to completing the remaining tasks necessary for that remediation.”

    State Issues NYDFS Financial Crimes Bank Secrecy Act Anti-Money Laundering Compliance Consent Order

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  • Pension advance company settles with Virginia Attorney General over high-interest loans targeting veterans and retirees

    State Issues

    On November 15, the Virginia Attorney General announced a $51.7 million settlement with a pension advance company, its owner, and related entities (defendants) to resolve allegations concerning allegedly illegal, high-interest loans made to more than 1,000 Virginia veterans and retirees in violation of the Virginia Consumer Protection Act (VCPA). According to the Attorney General’s complaint, the defendants allegedly “disguised [the] illegal, high interest loans as ‘pension sales’ that could provide Virginia pension holders with a quick lump sum of cash,” and seemingly concentrated the sales in two Virginia areas where a large number of retired veterans and civil servants reside. Following the lawsuit, the defendants shut down lending operations in Virginia and around the country. Under a permanent injunction and final judgment, the court—which declared the defendants’ agreements to be “usurious and illegal”—ordered the defendants to: (i) provide over $20 million in borrower debt forgiveness; (ii) pay a $31.7 million civil money penalty; (iii) pay $414,473 in restitution; (iv) pay $198,000 for costs and attorneys’ fees; and (v) agree to injunctive relief to prevent further violations of the VCPA.

    State Issues State Attorney General Predatory Lending Debt Relief

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  • Pennsylvania amends state Check Casher Licensing Act

    State Issues

    On October 24, the Pennsylvania governor signed HB 2453, which amends the state’s Check Casher Licensing Act to make several changes in the licensing process for check-cashing entities. Specifically, the amendments (i) allow for check-cashing licenses to be issued for up to 14 months; (ii) require a licensee to demonstrate that it is conducting business in accordance with the law for annual renewal; and (iii) allow for the suspension or revocation of licenses for certain activities, including material misstatements in the application and engaging in dishonest, fraudulent, or illegal practices or conduct in connection with the check casher business. The amendments also, among other things, clarify that a licensee may not cash or advance any money on post-dated personal checks, but allow for the cashing of post-dated government checks if the check is dated no more than five days after it is presented to the licensee and the fee does not exceed the maximum permitted under the Act. Additionally, the amendments authorize fines of up to $10,000 for violations of the act. The amendments are effective on December 23, 2018.

    State Issues State Legislation Check Cashing Licensing

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  • Colorado voters pass initiative capping interest on payday loans at 36 percent

    State Issues

    On November 6, Colorado voters approved a ballot initiative (officially referred to as Proposition 111) to reduce the maximum annual percentage rate that may be charged on deferred deposits or payday loans to 36 percent.  In addition, Proposition 111 eliminates an alternative APR formula based on loan amount, prohibits lenders from charging origination and monthly maintenance fees, and amends the definition of an unfair or deceptive practice. The measure takes effect February 1, 2019.

    State Issues Payday Lending Consumer Finance Interest Rate Usury

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