NAFCU Compliance Blog

CFPB Releases Semiannual Regulatory Agenda - Spring 2012; Seminar in Seattle

Written by Steve Van Beek

CFPB Regulatory Agenda.  Yesterday, the CFPB posted its Semiannual Regulatory Agenda - for spring 2012.  The previous Semiannual Regulatory Agenda was released in February 2012.  The latest release follows the same format and includes a listing of regulations in the various rulemaking stages: prerule stage, proposed rule stage, final rule stage, long-term actions and completed actions.  

Below is a listing of the various future regulations - organized by rulemaking stage.  Keep in mind the agenda is current as of April 13, 2012 and the CFPB has taken numerous actions since putting this agenda together.    

Prerule Stage:

• Registration of Certain Nonbank Covered Persons
• Supervision of Larger Depository Institutions and Affiliates
• Home Mortgage Disclosure Act (Regulation C)
• Requirements for Prepaid Cards (Regulation E) 

Proposed Stage:

• Amendments to TILA and FIRREA Concerning Appraisals
• Disclosure Rules and Substantive Protection for Certain High Cost Mortgage Loans (Regulation Z)** (proposed on July 9th)
• Mortgage Originator Standards (Regulation Z)
• Mortgage Servicing (Regulation X; Regulation Z)
• TILA/RESPA Mortgage Disclosure Integration (Regulation X; Regulation Z)** (proposed on July 9th)
• Credit Card Pre-Opening Account Fees (Regulation Z)
• Procedural Rule To Establish Supervisory Authority Over Certain Nonbank Covered Persons Based on Risk Determination
• Supervision of Certain Nonbank Covered Persons—Defining Larger Participants in Certain Consumer Financial Product and Service Markets (LP 2) 
• Copies of Appraisals or Other Valuations To Be Furnished by Creditor (Regulation B)

Final Rule Stage:

• Supervision of Certain Nonbank Covered Persons—Defining Larger Participants in Certain Consumer Financial Product and Service Markets (LP 1)** (finalized on July 16th)
• Disclosure of Records and Information
• State Official Notification Rule
• Rules Relating to Investigations
• Rules of Practice for Adjudication Proceedings
• Restatement of Federal Consumer Financial Law Regulations
• Requirements for Escrow Accounts (Regulation Z)
• TILA Ability to Repay (Regulation Z)
• Confidential Treatment of Privileged Information
• Disclosure Rules for Remittance Transactions (Regulation E)

Long-Term Actions:

• Alternative Mortgage Transaction Parity (Regulation D)
• Business Lending Data (Regulation B)
• TILA Mortgage Amendments (Regulation Z) 

Completed Actions: 

• Disclosure Rules for Remittance Transactions (Regulation E)

***

Only 27 potential rulemakings!!  The Regulatory Agenda also includes a short summary of each rulemaking that is useful for providing a quick overview of what will be covered by the rulemaking.  However, as last Monday's proposed rules show - a short summary doesn't do much when the proposals are 1099 pages and 293 pages.  

***

NAFCU's 2012 Regulatory Compliance Seminar.  Luckily, you don't have to read and understand all 27 potential rulemakings on your own.  We'll be covering quite a few of them at our 2012 Regulatory Compliance Seminar in Seattle, Washington - October 23-26.

The program-at-a-glance is available here (and we'll be including additional sessions as the proposals continue to flow).  We already have a session on the TILA/RESPA mortgage disclosures, the upcoming mortgage servicing proposal (including the periodic statement requirement) as well as a session on the remittances final rule.  Detailed session descriptions can be found here.

Remember - you do not need to be a NAFCU member to attend.  And, Save $100 if you Register by August 31st!

Compliance Outlook; Compliance Monitor; Overdraft Suits; NAFCU Webcast

Written by Steve Van Beek

We'll keep this one short and sweet heading into the 4th.  

Consumer Compliance Outlook.  The Federal Reserve's 2nd Quarter Consumer Compliance Outlook is now available.  The full PDF is here.  We'll look at a couple of the articles in more depth in future blog posts.  If you haven't signed-up for these free publications (and occasional webinars), it might be a good idea.

I'm glad the Federal Reserve continued this publication after it lost regulatory authority to the CFPB.  Now, if only the CFPB would provide a resource that helps regulated entities - including credit unions - comply with their ever-changing regulations..............I guess we'll need to add that to our "Dear Santa CFPB" letter later this year.

***

NAFCU's July Compliance Monitor.  Our July 2012 Compliance Monitor is available for download by NAFCU members.  This month's articles focus on NCUA's TDR regulation and making the most of compliance resources.     

***

Overdraft Suits.  Just another item to keep on your radar is the increasing number of overdraft-related lawsuits filed in recent weeks against financial institutions - including, unfortunately, suits filed against credit unions.  Additionally, keep in mind the CFPB has an inquiry into overdraft practices - including transaction ordering.  

***

NAFCU Compliance Webcast.  Don't forget that Thursday, July 5th is the deadline to save $100 on NAFCU's July 11 Regulatory Update featuring NAFCU's Carrie Hunt and I.       

We'll be back blogging on Thursday - have a great 4th of July!  

CFPB Launches Consumer Complaint Database; Final Regulation; Comment Letters

Written By JiJi Bahhur, Regulatory Compliance Counsel

Consumer Complaint Database.  The Consumer Financial Protection Bureau (CFPB) has launched a Consumer Complaint Database on credit cards.  The database is available to the public and can be accessed here. 

The idea behind the Consumer Complaint Database is to allow the public access to information such as what is being complained about, when it was complained about, why it was complained about, and the company that the complaint concerns.  Also, if action has been taken on the complaint, the database will hold information as to whether the company’s response was timely, how the company responded, and whether the consumer disputed the company’s response.  The consumer’s identity will be withheld. 

The database will include only those credit card complaints received by the CFPB on or after June 1, 2012.  The complaints will be uploaded only after the company verifies that it has been correctly identified by the complainant, but the company will only have 15 days to make the verification. 

It should be noted that the database will only contain information of credit unions directly supervised by the CFPB - those with over $10 billion in assets. 

As of now, the database’s focus is on credit cards, but this will eventually be expanded to other consumer issues as well.  As a head start, the CFPB has also released a snapshot of the complaints it has received on credit cards, mortgages, private student loans, and bank products through June 1, including six stories of success. These can be located here. 

Final Regulation.  NAFCU’s Regulatory Affairs Team has issued its Final Regulation on Loan Workouts and TDR Reporting.  It can be located here (12-EF-05) and is available to NAFCU members only.

Comment Letters.  Yesterday, NAFCU submitted two comment letters, one on Overdraft Protection Programs and the other on Information Collections.  NAFCU’s Comment Letters are available to the public. 

Overdraft Programs Under Attack; Recap of Reg Burden Hearing

Written by Steve Van Beek

As if the CFPB's Inquiry into Overdrafts wasn't enough, there are continued pushes by both consumer groups and lawmakers to drastically change overdraft protection programs.  Oh, and the New York Times stepped in as well to write an op-ed.   

Congress.  This seems like the Credit CARD Act all over again.  Remember how the Federal Reserve was working on amending and changing the credit card disclosures and rules but Congress forced the Credit CARD Act through anyway?  You know, the Credit CARD Act that is still being clarified, tweaked and amended because it was so poorly written.     

Well, even as the CFPB conducts its "inquiry" into Overdraft Protection (comment period extended to June 29th) - Congress is at it again.  

Overdraft Protection Act.  Representative Carolyn Maloney (and 46 co-sponsors) announced she would introduce legislation that would:

• Extend the opt-in requirement to paper checks, ACHs and recurring debit transactions;
• Define overdraft fees as finance charges for Truth in Lending Act disclosures (Ed: Huh??);
• Prohibit the ordering of transactions to maximize overdrafts;
• Require that fees be "reasonable and proportional" to the amount of the overdraft;
• Cap the number of fees at one per month and six per year;
• Add new disclosures prior to opt-in and whenever an overdraft fee is charged; and
• Require the CFPB to study overdraft fees on prepaid debit cards.

I guess when they say they want to "Stop Overdraft Protection" they are serious.  This bill (we haven't seen the full text yet) would pretty much do just that.  I can't imagine too many institutions continuing to provide this service if a bill along these lines would actually pass.  

But, I wonder if Congress is worried that if they prohibited overdraft protection it would force consumers to actually keep track of their spending and take some responsibility.  Now, that would be draconian.  

Consumer Groups.  If you haven't seen the recent Pew Study on Overdrafts, it is worth a read.  Also be sure to pass around your credit union.  This is what is being handed out to the CFPB and Congress in pushes to change the current overdraft rules.

***

On the Hill.  The NAFCU Today has a great recap of yesterday's hearing on Rising Regulatory Compliance Costs.  

Member Complaints; NAFCU's 2012 Regulatory Compliance Seminar

Written by Steve Van Beek

Consumer and member complaints are at the forefront of quite a few conversations right now (including quite a few news articles).  The CFPB's promotion of their complaint process is one reason for this uptick in discussion as is the centralized complaint process for financial products.  

The CFPB issued their 2011 Annual Report on Consumer Complaints and it is full of useful information to review.  Here is a snapshot of the results:

"Between July 21 and December 31, 2011 the CFPB received 13,210 consumer complaints, including 9,307 credit card complaints and 2,326 mortgage complaints.

Forty-four percent of all complaints were submitted through the CFPB's website and 14.7 percent via telephone calls.  Referrals from other regulators accounted for 34.9 percent of all complaints received.  The rest were submitted by mail, email, and fax."

Future reports will include even more details - including complaints in new areas such as private student loans, auto loans and checking accounts.  Be sure to review the full report or pass it along to the appropriate person at your credit union.   

NCUA.  The March 2012 edition of the NCUA Report also included an article on Trends in Member Complaints and Consumer Inquiries.  Of note, the article indicates that of the complaints received in 2011 less than 1 percent involved a consumer compliance violation.  Of that 1 percent, half of those were related to timing issues related to the error resolution process under Regulation E.  

***

NAFCU Regulatory Compliance Seminar.  October seems like a long way off but it will be here before you know it.  We are in the process of putting together the content and agenda - so please feel free to send in any comments, ideas or suggestions.  We love your input and this conference is really about you all so let us know what you need.

Here is what we are tentatively looking at so far (topics are subject to change, of course):

• TILA/RESPA Mortgage Disclosures
• Upcoming Mortgage Servicing Requirements
• The Latest on Overdraft Protection
• Remittance Transfers under Regulation E
• CUSOs
• Loan Participations
• Bank Secrecy Act Changes
• Social Media
• NCUA Update
• CFPB Update

I think that is a pretty good start - but let us know what you are looking for and how we can make NAFCU's 2012 Regulatory Compliance Seminar even better than the past.  

Recertification for NCCOs.  Remember, attending Regulatory Compliance Seminar is the best way to recertify your NAFCU Certified Compliance Officer (NCCO) designation.  Seminar offers 24 CEUs which is enough to fully recertify for two years.

Seattle, Washington.  Did I mention Seminar was in Seattle?  Right Downtown?  Well, now I have.  Hope to see you October 23-26, 2012!    

NCUA Listening Sessions; CFPB Files Amicus Brief in TILA Case; Reg Alert on Overdrafts

Written by Steve Van Beek

NCUA recently announced a series of listening sessions that will be conducted throughout the country.  Here is a snapshot of the dates and locations:

The full information on the upcoming listening sessions can be found here.  Registration for the first two sessions (May 2 in Boston and May 9 in Alexandria, VA) are now open. 

***

Yesterday, the CFPB announced it had filed an amicus brief (Wikipedia.org) in an ongoing case regarding the right of rescission under the Truth in Lending Act.  The CFPB's press release can be found here and the actual brief is here.

While the issues in the case are very important, equally important is the additional information about the CFPB's intent as a regulator.  The press release indicates the CFPB will continue to be an active participant in lawsuits in order to protect consumer rights:

"The CFPB is committed to filing amicus briefs in litigation involving the federal consumer financial protection laws that it oversees and in which the CFPB determines its views will assist the courts in correctly resolving the matters. Amicus briefs are an important way for the CFPB to ensure that the statutes it oversees are correctly and consistently interpreted by the courts, even in cases in which the CFPB is not itself a named party."

I hinted at this on Monday - but it does seem the only thing missing from the CFPB's regulatory toolbox is actual guidance or clarity to the entities it regulates.  Wouldn't that be something, huh? 

***

NAFCU Members:  Our Regulatory Alert on the CFPB's Overdraft Inquiry (12-EA-07) is available.  Please consider providing your feedback and comments to help NAFCU draft our comment letter to the CFPB.  Comments are due to NAFCU by April 6th.    

Overdrafts: Linked Accounts and Regulation D - Part 3; Reg D Statement Insert

Written by Steve Van Beek

Happy Friday everyone!  I wanted to continue our exploration of linked accounts and Regulation D.  You can find Part 1 here and Part 2 here.

I'm sure there are a few folks wondering what has gotten Van Beek so worked up over this linked account and Regulation D issue.  Is he really that adamant about the CFPB informing consumers about potential transaction limitations from Regulation D?  Yes - but there is more.  

Existing Exception to Regulation D.  There is an exception in Regulation D which indicates a transaction to repay a loan at the same institution is not considered a Regulation D transaction.  Thus, if your member makes an automatic monthly payment to their car loan from their savings account - this is not a Reg D transaction.

So why doesn't the Federal Reserve treat transfers from savings to cover an overdraft in the same manner?  This is what I'm trying to find out.  This is what I want the CFPB to ask the Federal Reserve.  This is what would help consumers and credit unions (not to mention the benefits from the reduced headaches to compliance officers).  

***

Shall we take a look at the lovely language of Regulation D?  [Now is the time for a coffee refill]

Here is from 12 CFR 204.2(d)(2) - the definition of "savings deposit":

"(2) The term “savings deposit” also means: A deposit or account, such as an account commonly known as a passbook savings account, a statement savings account, or as a money market deposit account (MMDA), that otherwise meets the requirements of §204.2(d)(1) and from which, under the terms of the deposit contract or by practice of the depository institution, the depositor is permitted or authorized to make no more than six transfers and withdrawals, or a combination of such transfers and withdrawals, per calendar month or statement cycle (or similar period) of at least four weeks, to another account (including a transaction account) of the depositor at the same institution or to a third party by means of a preauthorized or automatic transfer, or telephonic (including data transmission) agreement, order or instruction, or by check, draft, debit card, or similar order made by the depositor and payable to third parties. A preauthorized transfer includes any arrangement by the depository institution to pay a third party from the account of a depositor upon written or oral instruction (including an order received through an automated clearing house (ACH)) or any arrangement by a depository institution to pay a third party from the account of the depositor at a predetermined time or on a fixed schedule. Such an account is not a transaction account by virtue of an arrangement that permits transfers for the purpose of repaying loans and associated expenses at the same depository institution (as originator or servicer) or that permits transfers of funds from this account to another account of the same depositor at the same institution or permits withdrawals (payments directly to the depositor) from the account when such transfers or withdrawals are made by mail, messenger, automated teller machine, or in person or when such withdrawals are made by telephone (via check mailed to the depositor) regardless of the number of such transfers or withdrawals."  (emphasis added).

Why is Reg D so confusing?  Perhaps a discussion for another blog post.  

Existing Exception for Repaying Loans.  It's right there buried in the middle of the definition of savings deposit.  Note the key - it must be a transfer to repay a loan at the same depository institution.  A member's transfer, from savings, to repay a mortgage loan at your credit union is not a Reg D transaction.  A member's transfer, from savings, to repay a mortgage loan at a bank across the street would be a Reg D transaction.

***

Back to the heartburn issue - why doesn't the Federal Reserve provide clarification that transfers from savings accounts to cover overdrafts from accounts at the same depository institution are not Reg D transactions?

I'm not sure there is good answer to this question.  Perhaps they haven't thought of it.  Perhaps there hasn't been another Federal regulator asking them to consider making this clarification to help consumers understand and manage their account activity.

One thing is clear - the current version of Regulation D is not doing consumers or credit unions any favors.  The CFPB has the power to pick up the phone, call the Fed and ask them to get on board and make life easier for all involved.  

***

NAFCU Members:  We have a free Regulation D statement insert that is available as a NAFCU member benefit.  You can see the PDF here.  Additional free statement inserts for NAFCU members are here.  

This statement insert might be useful to provide to members who consistently bump up against the Reg D transaction limitations.  Providing this as a statement insert (or dropping it in the mail after a member calls with a concern) might be a good way to improve member understanding of Reg D.  

Overdrafts: Linked Accounts and Regulation D - Part 2

Written by Steve Van Beek

We received some great feedback on Part 1 of Linked Accounts and Regulation D - including some great questions.  Let's delve into this area a bit more - including a preliminary question.   

Treating Savings Accounts as Transaction Accounts.  A couple of commenters asked if their credit unions could treat their savings accounts as transaction accounts - and reserve accordingly.  Yes, credit unions do have the ability to treat their savings accounts as transactions accounts and allow unlimited transactions from those accounts.  

The trade-off is unlimited transactions from savings accounts so long as the CU reserves for those accounts as well.

***

Back to the CFPB's discussion of "linked accounts."  Remember, here is Part 1 from yesterday.  Here is how the CFPB described linked accounts in their blog post:

"Link your checking account to a savings account. If you overdraw your checking account, money will be taken from your linked savings account to cover the difference. You may be charged a transfer fee when this happens, but it is usually much lower than the fee for an overdraft."

This is just a casual mention of the ability to link accounts so I'm not too worried about the lack of any information regarding potential transaction limitations under Regulation D.

Penalty Fee Box.  Let's move on to the CFPB's prototype "Penalty Fee Box" disclosure.  The first page of this document has been getting all the press - but take a look at Page 2 (scroll down or click here).  The second page includes "Three Ways to Lower these Fees" and a brief description of each method.  Here is the section on "linked accounts":

"Link a savings account to your checking account. 

When you overdraft your checking account, any available money will be automatically transferred first from your savings account to avoid overdrawing your account.  A $5 transaction charge applies for each automatic transfer." 

There is also a notation which would indicate whether or not the member currently has their accounts linked.  

Again - no mention of any potential transaction limitations from Regulation D.  

***

Why is this such a big deal?  In the grand scheme of things, this isn't the biggest issue.  But let's follow an example of how this could play out in the future (followed by my commentary).

• The CFPB continues to encourage members to link their accounts (no problems here);
• There is no mention of any potential transaction limitations (potential issue);
• Member A links his accounts (no worries here);
• Over the next few months, Member A occasionally overdraws his checking account and funds are transferred from his savings account each time (no worries here - this is how the set-up is supposed to work);
• In August, Member A goes on a two-week vacation and overdraws his checking account 6 times during the vacation (uh-oh, Member A is up against the Reg D limit);
• Later in August, Member A tries to make an online transfer from his savings account to his checking account (a Reg D transaction) which is blocked because he is at his transaction limitation for the month (big problem here).

Who does Member A call when he is furious over the inability to conduct an online transfer of funds from his savings account to his checking account?  Your credit union.  Member A isn't placing a call to the CFPB, yet.  Depending on how frustrated Member A is, he may decide to file a complaint against your credit union to the CFPB or NCUA.  

What's worse?  Member A's inability to transfer these funds could actually result in additional issues with his checking account.  If Member A is unable to transfer these funds - his checks might start to bounce or ACH transactions get returned.

***

I'm not trying to present a dooms-day scenario or indicate that linked accounts are bad.  Linked accounts are great options for consumers and I know quite a few credit unions offer them as the first option in the case of an overdrawn account.

But - look how this situation played out.  The CFPB's discussions haven't mentioned Regulation D.  Consumers don't know very much about Regulation D and are consistently flummoxed by explanations about why they cannot access their funds in certain ways (i.e., "explain to me again why I can't transfer my own money from one of my accounts to the other"). 

The short version:  To help ensure everyone – especially consumers – are aware of the potential transaction limitations for savings account, the CFPB should take a hard look at providing information about these transaction limitations to consumers when discussing linked accounts

***

I've gone and done it again.  I promise you this is not some master plan to keep you on the edge of your seats for the next installment of "Linked Accounts and Regulation D."  However, this post is already very long so we'll address a couple of other issues in an upcoming Part 3.  

Overdrafts: Linked Accounts and Regulation D - Part 1

Written by Steve Van Beek

I must confess - I haven't made it through all of the CFPB's Overdraft information from last week.  I did want to discuss one issue that jumped out at me when I first glanced at the material and heard the CFPB roundtable on overdrafts.  

Linked Accounts.  One of the alternatives the CFPB (and others at the roundtable) mentioned was the option of members being able to "link" their checking and savings accounts.  By doing this, if a member overdrew their checking account the funds would automatically transfer from the member's savings account.  

Of course, this is by no means a silver bullet.  In order for this to work, the member would need to have enough funds in their savings account to cover the overdrawn amount.  While this is sometimes the case, it isn't always the case.  

Assuming a member has enough funds in their savings account to cover the overdrawn transactions from the checking account, there is another issue that seems to float under the radar whenever overdrafts and linked accounts are discussed.

Regulation D.  I guess I spoiled the surprise in the title of the blog post, but this is something the CFPB - and everyone involved with looking at overdraft issues - needs to be aware of.

Regulation D limits the number of withdrawals from a savings account to six per month.  This includes any withdrawals/transfers to cover overdrafts in a checking account.  And, this is a combined six per month.  So, if a member were to make two other "Reg D" withdrawals in a given month, the member would only have four left for transfers to the checking account to cover overdrafts.

A Question for the CFPB:  What happens when a member has linked accounts and overdraws 8 times in a month?

***

The Quandary.  Regulation D did not transfer to the CFPB as it is not a consumer regulation.  The Federal Reserve retained authority over Regulation D and has been resistant to numerous calls to expand the six-transaction limitation on savings accounts (although they did remove the antiquated 3/6 distinction a few years ago).  Sidenote: A portion of NAFCU's latest letter to the Fed on Reg D can be found in this January 17 blog post.  

Here are a couple of questions that I have for the CFPB:

• Will you be talking to the Federal Reserve about the Regulation D transaction limitations?
• Assuming you are unsuccessful in your discussions with the Fed, will the CFPB work to inform consumers of the Regulation D limitation when it promotes overdraft coverage via "linked accounts"?

To me, these are incredibly important questions to ask.  First, credit unions and other financial institutions do not operate in a "one regulation" environment.  It seems that every potential action a credit union makes is impacted by one regulation or another (or multiple).  

This overdraft issue is a perfect example - the CFPB wants consumers to link their accounts but have they thought about Regulation D?  I sure hope so but I'm afraid that sometimes regulators get "tunnel vision" and only focus on their regulations.  

***

I wanted to add a bit more but this post has gotten a bit lengthy so we'll have Part 2 tomorrow.  Stay tuned.  

CFPB to Inquire About Overdraft and Courtesy Pay Programs

Written by Steve Van Beek

There was no shortage of information yesterday regarding the CFPB's first steps toward reviewing overdraft programs.  I was just mentioning a few weeks ago how the CFPB has the ability "to drop" a new issue without advanced notice to the industry.  This could be labeled as Exhibit A.  

I'm sure quite a few other folks where enjoying a quiet Wednesday (yeah right) until they saw the news "CFPB to Review Overdraft Programs" come across their email inboxes.  And, while we are at it - what do the regulators have against February 22nd?  I know a lot of folks still get heartburn thinking about the February 22, 2010 deadlines from the Credit CARD Act.    

***

A couple of quick points on the CFPB's inquiry:

• There is currently no proposed rule.
• The "Penalty Fee Box" information would require a large change to periodic statements.  Don't forget to scroll down to the second page for additional potential changes.
• The CFPB will be looking at more than just ATM and one-time debit card transactions.
• The CFPB has no trouble getting its message out to thousands of news sources.
• The $25 Big Mac is an endangered species.  I wouldn't be surprised to see a "reasonable and proportional" discussion take place which would limit the fee to the amount of the overdraft.  
• Credit unions can expect numerous calls and comments from their members.  Your members will be reading the news stories mentioned above.  Now might be a good time for additional training on your credit union's current policies.

This is just the first stages of the CFPB's inquiry as the CFPB is collecting data, comments and input from all interested parties.  This information will be the basis for the CFPB's decisions on which steps to take next - including future rule changes.

***

Here is the information released yesterday from the CFPB:

• CFPB's Press Release
• Director Cordray's Prepared Remarks
• CFPB's Blog Post asking Consumers "What's Your Status?"
• CFPB's Notice and Request for Information
• The "Penalty Fee Box" Model
• Video: Cordray's Remarks and a Panel Discussion with Consumer Groups and Financial Institutions

Note: There was also a Town Hall Meeting in New York City.  If the recorded video is posted by the CFPB, I'll add a link to that as well.

***

As you can see, the CFPB is not dipping a toe in the water.  They are climbing the diving board and preparing to make a cannonball.