InfoBytes Blog
Filter
Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
New Jersey establishes Office of the Student Loan Ombudsman, provides student loan servicer regulations
On July 30, the New Jersey governor signed S1149 to, among other things, establish the Office of the Student Loan Ombudsman within the Department of Banking and Insurance and provide licensing requirements for student loan servicers. Notably, federal or state chartered banks, savings banks, savings and loan associations, and credit unions, as well as their wholly owned subsidiaries, are exempt from the bill’s licensure requirements
The appointed ombudsman’s responsibilities will include (i) reviewing, analyzing, and resolving borrower complaints; (ii) providing information to the public, agencies, legislators, and others regarding borrower concerns; (iii) reviewing complete student loan histories for borrowers who have provided written consent; (iv) establishing and maintaining a student loan borrower education course, including providing information on “monthly payment obligations, income-based repayment options, loan forgiveness, and disclosure requirements”; and (v) providing a report 12 months following the date of appointment to the Commissioner of Banking and Insurance (Commissioner) conveying any additional steps that may be necessary to address the licensing and enforcement of student loan servicers.
Additionally, the bill establishes licensing provisions for student loan servicers, and requires all servicers and certain other exempt entities to maintain student loan records for at least two years after the final payment or assignment of the loan, whichever comes first.
The bill also gives the Commissioner authority to conduct investigations and examinations of licensed servicers, as well as impose fines of not more than $10,000 for the first violation, and $20,000 for the second and for offenses thereafter. Student loan servicers must also comply with applicable federal laws, including the Truth in Lending Act. The bill notes that “any violation of any federal law or regulation shall be deemed a violation of this section and a basis upon which the [C]ommissioner may take enforcement action.”
The bill will take effect November 27.
1st Circuit asks Massachusetts high court to resolve foreclosure question
On July 29, the U.S. Court of Appeals for the 1st Circuit certified to the Massachusetts Supreme Judicial Court the question of whether a national bank’s foreclosure notice was valid under Massachusetts law. According to the order, the appellate court granted the bank an en banc rehearing of its February decision, which concluded that the bank’s foreclosure notice was defective and therefore, it could not properly foreclose the mortgage. The court had reasoned that the notice, which stated that the homeowners “could avoid foreclosure if, but only if, the [homeowners] paid the balance due on or before the specified foreclosure date,” was defective because the mortgage required the homeowners to pay the amount at least five days before the foreclosure date. In its petition for rehearing en banc, the bank argued that a Massachusetts state banking regulation required it to use the specific language it had in the notice and that the panel erred in its reading of existing state court precedent. The appellate court noted that the position is debatable and that in a diversity jurisdiction action the court “cannot properly overturn governing state precedent.” Therefore, the appellate court withdrew its earlier opinion, vacated the judgment, and certified to the Massachusetts Supreme Judicial Court the question of whether the statement in the foreclosure notice would render the notice inaccurate or deceptive, voiding the subsequent foreclosure sale under Massachusetts law.
National bank announces data breach
On July 29, a national bank announced a data breach affecting approximately 100 million individuals in the United States and approximately six million in Canada. According to the announcement, the incident occurred on July 19 when an unauthorized individual obtained personal information of credit card customers and people who had applied for credit card products. The bank noted that no credit card account numbers or log-in credentials were compromised and over 99 percent of social security numbers were not compromised. The largest category of information accessed was consumer and small business information from applications submitted from 2005 through early 2019, including names, addresses, zip codes/postal codes, phone numbers, email addresses, dates of birth, and self-reported income.
Upon discovery of the breach, the bank fixed the vulnerability that allowed for the individual to gain access and worked with the federal authorities, resulting in the arrest of the person allegedly responsible. The bank will notify and make free credit monitoring and identity protection available to those affected.
HUD approves settlement resolving redlining allegations
On July 29, HUD announced a conciliation agreement to resolve allegations that a California-based bank engaged in redlining practices from 2014 to at least 2017 against African-American and Latino mortgage applicants in the Los Angeles region. In 2017, a California-based community advocacy organization filed a complaint with HUD asserting that the bank violated the Fair Housing Act by engaging in discriminatory acts, which allegedly resulted in a lower number of mortgages made to African-American and Latino borrowers relative to the area’s demographics and to the industry as a whole. Additionally, the complaint claimed that the bank located and maintained its branches in areas that do not serve minority neighborhoods or borrowers. While the bank denies having engaged in any discriminatory behavior, it agreed to (i) invest $5 million in a loan subsidy fund to increase credit opportunities for residents of majority-minority neighborhoods; (ii) contribute $1.3 million to advertising and community outreach; and (iii) provide $1 million in grants for various financial education, counseling, community revitalization, and homelessness programs. The bank also committed to originating “$100,000,000 in home purchase, home improvement and home refinance loans to borrowers in majority-minority areas, and to open a full-service branch serving the banking and credit needs of residents in a majority-minority and low- and moderate-income neighborhood.”
Federal Reserve seeks comments on capital assessments and stress testing reporting for U.S. subsidiaries of foreign banking organizations
On July 31, the Federal Reserve Board published two notices and requests for comments in the Federal Register seeking input on information collections that would affect reporting requirements for bank holding companies with total consolidated assets of $100 billion or more as well as U.S. intermediate holding companies with $50 billion or more in total consolidated assets that are subsidiaries of foreign banking organizations. The Fed uses the information in the Capital Assessments and Stress Testing Reports (FR Y-14A/Q/M) to help ensure that these firms implement “strong, firm-wide risk measurement and management processes [that support] their internal assessments of capital adequacy and that their capital resources are sufficient given their business focus, activities, and resulting risk exposures.” These reports are also used to support the Fed’s annual Comprehensive Capital Analysis and Review exercise.
The first notice announces several proposed schedule changes, as well as the Fed’s intent to modify and clarify instructions for existing data items in the FR Y-14A/Q/M reports. These changes, the Fed notes, are designed to reduce reporting burdens, clarify reporting requirements, address inconsistencies between FR Y-14 reports and other regulatory reports, and account for revised rules and accounting principles. The Fed proposes to implement these revisions as of September 30.
The second notice addresses, among other things, the revised accounting for credit losses under the Financial Accounting Standards Board’s Accounting Standards Update No. 2016-13 and will implement the current expected credit loss accounting methodology across all of the FR Y-14 reports. According to the Fed, these revisions will “address the broadening of the scope of financial assets for which an allowance for credit losses assessment must be established and maintained, along with the elimination of the existing model for [purchased credit-impaired] assets.”
Comments on both notices must be received by September 30.
House Fintech Task Force holds hearing on alternative data
On July 25, the House Financial Services Committee’s Task Force on Financial Technology held a hearing, entitled “Examining the Use of Alternative Data in Underwriting and Credit Scoring to Expand Access to Credit.” As noted by the hearing committee memorandum, credit reporting agencies (CRAs) have started using alternative data to make lending decisions and determine credit scores, in order to expand consumer access to credit. The memorandum points to some commonly used alternative data factors, including (i) utility bill payments; (ii) online behavioral data, such as shopping habits; (iii) educational or occupational attainment; and (iv) social network connections. The memorandum notes that while there are potential benefits to using this data, “its use in financial services can also pose risks to protected classes and consumer data privacy.” The committee also presented two draft bills from its members that address relevant issues, including a draft bill from Representative Green (D-TX) that would establish a process for providing additional credit rating information in mortgage lending through a five-year pilot program with the FHA, and a draft bill from Representative Gottheimer (D-N.J.) that would amend the FCRA to authorize telecom, utility, or residential lease companies to furnish payment information to CRAs.
During the hearing, a range of witnesses commented on financial institutions’ concerns with using alternative data in credit decisions without clear, coordinated guidance from federal financial regulators. Additionally, witnesses discussed the concerns that using alternative data could produce outcomes that result in disparate impacts or violations of fair lending laws, noting that there should be high standards for validation of credit models in order to prevent discrimination resulting from neutral algorithms. One witness argued that while the concern of whether using alternative data and “algorithmic decisioning” can replicate human bias is well founded, the artificial intelligence model their company created “doesn’t result in unlawful disparate impact against protected classes of consumers” and noted that the traditional use of a consumer’s FICO score is “extremely limited in its ability to predict credit performance because its narrow in scope and inherently backward looking.” The key to controlling algorithmic decision making is transparency, another witness argued, stating that if the machine is deciding what credit factors are more important or not, the lender has “got to be able to put it on a piece of paper and explain to the consumer what was more important,” as legally required for “transparency in lending.”
DOJ announces settlements to resolve predatory loan modification allegations
On July 30, the DOJ announced several settlements with a group of California-based mortgage loan modification service providers to resolve allegations that the defendants violated the Fair Housing Act by targeting Hispanic homeowners for predatory mortgage loan modification services and interfering with the homeowners’ ability to keep their homes. According to the DOJ, the defendants persuaded as many as 400 Hispanic homeowners to pay approximately $5,000 for audits advertised as essential for loan modifications, but in actuality had no impact on the modification process and provided no financial benefit. Additionally, the DOJ claimed that the defendants “encouraged their clients to stop making mortgage payments and instructed them to cease contact with their lenders,” which led to many homeowners losing their homes due to defaulted mortgages. The lawsuit stemmed from complaints filed with HUD by two of the defendants’ former clients, who intervened in the lawsuit, along with their attorney, Housing and Economic Rights Advocates (HERA), and members of one of the former client’s family.
While three of the companies identified as defendants in the complaint ceased operations, the settlement agreements resolve allegations against the individuals responsible for owning and operating the now-defunct companies. Under the terms of the agreements, the individual defendants have agreed to, among other things, (i) refrain from engaging in the discriminatory conduct; and (ii) contribute more than $148,000 towards a restitution fund to reimburse fees paid to the defendants by former clients. Additionally, five of the individual defendants have agreed to pay an additional $405,699 in suspended judgments should it be determined the defendants misrepresented their current financial situations. The DOJ noted that the individual defendants have also agreed to an additional $91,650 in compensation in separate settlements reached with their former clients and HERA.
OFAC sanctions corruption network linked to Venezuela’s food subsidy program; DOJ charges two of same individuals for money laundering related to bribery
On July 25, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against two Colombian nationals responsible for “orchestrating a vast corruption network,” which has enabled former President Maduro and his regime “to significantly profit from food imports and distribution in Venezuela.” According to OFAC, the Colombian nationals created a network comprised of shell companies, business partners, and family members—all of whom have also been designated for their involvement in the network—that illicitly profited from their involvement in Venezuela’s food subsidy program as well as other contracts with the Venezuelan government. The sanctioned network—which also included Maduro’s three stepsons—allegedly “laundered hundreds of millions of dollars in corruption proceeds around the world.” As a result of the sanctions, “all property and interests in property of the individuals and entities designated today, and of any entities that are owned, directly or indirectly, 50 percent or more by those individuals or entities, that are in the United States or in the possession or control of U.S. persons are blocked and must be reported to OFAC.” OFAC noted that its regulations “generally prohibit” U.S. persons from participating in transactions with the designated entities and individuals. OFAC also referred financial institutions to Financial Crimes Enforcement Network advisories FIN-2019-A002, FIN-2017-A006, and FIN-2018-A003 for further information concerning the efforts of Venezuelan government agencies and individuals to use the U.S. financial system and real estate market to launder corrupt proceeds, as well as human rights abuses connected to corrupt foreign political figures and their financial facilitators.
The same day, the DOJ announced charges, pursuant to an indictment filed in the U.S. District Court for the Southern District of Florida, against two of the same sanctioned Colombian nationals for money laundering and conspiracy to commit money laundering. The charges relate to the Colombian nationals’ alleged roles in laundering the proceeds of an illegal bribery scheme from bank accounts located in Venezuela to and through bank accounts located in the United States. The bribery scheme resulted in the transfer of approximately $350 million, and allegedly involved contracts to build low-income housing units and efforts to take advantage of Venezuela’s government-controlled exchange rates through the use of “false and fraudulent import documents for goods and materials.”
OFAC designates North Korean operative working in Vietnam
On July 29, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) announced the addition of a North Korean individual operating in Vietnam to the Specially Designated Nationals List pursuant to Executive Order 13687. According to OFAC, the individual works on behalf of the Munitions Industry Department (MID), a Workers’ Party of Korea subordinate, and was responsible for trade activity that earned currency for the North Korean regime, which violates the United Nations Security Council resolutions (UNSCRs) and supports North Korea’s weapons program. OFAC notes that its regulations “generally prohibit all dealings by U.S. persons or within the United States that involve” transactions with the designated entities and individuals. Moreover, OFAC warned foreign financial institutions that if they knowingly facilitate significant transactions for any of the designated entities or individuals, they may be subject to U.S. correspondent account or payable-through account sanctions which, if imposed, could restrict their access to the U.S. financial system.
North Carolina enacts state SCRA, expands protections
On July 25, the North Carolina governor signed SB 420, the “NC Servicemembers Civil Relief Act” (NCSCRA), which, among other things, incorporates into state law the rights, benefits and protections of the federal Servicemembers Civil Relief Act (SCRA) and extends those provisions to members of the North Carolina National Guard serving on state active duty and to members of the National Guard of other states serving on state active duty who reside in North Carolina. In addition to the rights afforded to servicemembers in the SCRA, the NCSCRA (i) expands certain protections for dependents of servicemembers, including protections against default judgments and an interest rate cap of six percent; (ii) authorizes the termination of certain service contracts, allowing servicemembers and their dependents to terminate telephone, internet, cable TV, satellite radio, and prepaid entertainments contracts upon relocation orders for 90 days or more to a location that does not support such services; and (iii) allows for the extension of residential lease agreements until 10 days after a member of the North Carolina National Guard or a member of another state’s National Guard who is residing in North Carolina’s active duty terminates. The NCSCRA provides for action by the attorney general for any violation, with a civil penalty up to $5,000 per violation and also allows for a private right of action by an aggrieved servicemember.