Wednesday, July 24, 2024

Legal Briefs

February 2019 OBA Legal Briefs

  • Service member complaints
  • Authorized signers
  • 2nd Amendment Auditors


By Andy Zavoina

In early February 2019 the Consumer Financial Protection Bureau (Bureau) released four Frequently Asked Questions pertaining to integrated disclosures under Truth in Lending and the Real Estate Settlement Procedures Act (TILA-RESPA or TRID). It starts with the standard disclosure that there is no substitute for reading and interpreting both the regulations, Reg Z for TILA and Reg X for RESPA as well as the official interpretations (Commentaries) that accompany each. These FAQs are clarifying the regulations and commentaries without being an official part of either. These may be considered official guidance from the owner of the regulation, the Bureau.

Question 1 addresses changes affecting the Closing Disclosure after it has already been delivered, and redisclosure with the possibility of a delay in the closing date.

“If there is a change to the disclosed terms after the creditor provides the initial Closing Disclosure, is the creditor required to ensure the consumer receives a corrected Closing Disclosure at least three business days before consummation?”

And the typical compliance answer is, “it depends.” The official answer is that there are three scenarios in which the consumer MUST receive the corrected Closing Disclosure at least three days prior to closing. In the event you have one of these three scenarios, you must be prepared to make a new disclosure and potentially to delay and reschedule the closing to ensure the redisclosure is received by the consumer at least three business days before the closing.

  1. If the change results in an inaccurate annual percentage rate.
  2. If loan product information which is required by TRID to be disclosed becomes inaccurate.
  3. If a prepayment penalty is added.

If your change is anything other than one of these three, you should redisclose to the consumer, no later than closing, but there is no need to delay the closing as the three-day advance disclosure requirement will not apply. (Review 1026.19(f)(2)(i).)

Question 2 helps provide guidance as to when the consumer’s overstated APR is going to decrease, is redisclosure necessary? This would seem to be advantageous to the borrower, but not necessarily if it means a delay in closing the loan. Some interpretations of the rule indicate redisclosure is required, even if the three-day waiting period to closing could be harmful to the consumer. The actual question is,

“Is a creditor required to ensure that a consumer receives a corrected Closing Disclosure at least three business days before consummation if the APR decreases (i.e., the previously disclosed APR is overstated)?”

And again, the Bureau tells us “it depends.” In this case it depends on whether, according to Reg Z, the APR which was previously disclosed on the consumer’s Closing Disclosure was accurate or not.

If the overstated APR is accurate under Reg Z:

  • the lender must provide a corrected Closing Disclosure,
  • the lender may, however, provide the revised disclosure at or before consummation and there is no requirement for a new three business-day waiting period. This generally means the closing need not be rescheduled.
    (Refer to 1026.19(f)(2)(i))

If the overstated APR is not accurate under Reg Z:

  • Because the APR is not accurate, the bank must ensure that a consumer receives a corrected Closing Disclosure at least three business days before consummation. Depending on how far in advance the correction was noted, the closing may have to be re-set.
    (Refer to 1026.19(f)(2)(ii))

The Reg Z rules for finance charge accuracy on mortgage loans may be found under 1026.18(d)(1): “In a transaction secured by real property or a dwelling, the disclosed finance charge and other disclosures affected by the disclosed finance charge (including the amount financed and the annual percentage rate) shall be treated as accurate if the amount disclosed as the finance charge:

(i) Is understated by no more than $100; or

(ii) Is greater than the amount required to be disclosed.

The Reg Z rules for APR accuracy on mortgage loans may be found under 1026.22(a)(4)-(5) which (of course) refer to other sections of Reg Z but I’ve condensed them in this explanation below:

“(4) If the annual percentage rate disclosed in a transaction secured by real property or a dwelling varies from the actual rate determined in accordance with paragraph (a)(1) of this section (which addresses how an APR is calculated), in addition to the tolerances applicable under paragraphs (a)(2) and (3) of this section (generally the APR for a regular loan is accurate if it is within .125 percent above or below a properly calculate APR, and an irregular loan is within .25 percent above or below the properly calculated APR), the disclosed annual percentage rate shall also be considered accurate if:

(i) The rate results from the disclosed finance charge; and
(ii)(A) The disclosed finance charge would be considered accurate under §1026.18(d)(1) (just recapped above) or § 1026.38(o)(2), as applicable; or
(B) For purposes of rescission, if the disclosed finance charge would be considered accurate under § 1026.23(g) or (h), whichever applies.

“(5) Additional tolerance for mortgage loans. In a transaction secured by real property or a dwelling, in addition to the tolerances applicable under paragraphs (a)(2) and (3) of this section, if the disclosed finance charge is calculated incorrectly but is considered accurate under § 1026.18(d)(1) or § 1026.38(o)(2), as applicable, or § 1026.23(g) or (h), the disclosed annual percentage rate shall be considered accurate:

(i) If the disclosed finance charge is understated, and the disclosed annual percentage rate is also understated but it is closer to the actual annual percentage rate than the rate that would be considered accurate under paragraph (a)(4) of this section;

(ii) If the disclosed finance charge is overstated, and the disclosed annual percentage rate is also overstated but it is closer to the actual annual percentage rate than the rate that would be considered accurate under paragraph (a)(4) of this section.”

Finance charge and APR accuracy are related but measured differently and are different for mortgages than other loans. The Bureau’s document refers to an older edition of the Consumer Compliance Outlook (CCO First Quarter 2011)  which makes understanding the rules easier with some examples. This CCO document refers to older citations of Reg Z using the Federal Reserve’s “226” reference. Simply substitute the current Bureau citation of “1026” if you want to review Reg Z directly. This means 226.23 is reviewed under 1026.23, as an example.

Question 3 asks if EGRRCPA changed the period between providing the Closing Disclosure and consummation of a mortgage loan. Specifically, “Does Section 109(a) of the Economic Growth, Regulatory Relief, and Consumer Protection Act affect the timing for consummating a transaction if a creditor is required to provide a corrected Closing Disclosure under the TRID Rule?”

Current TRID rules require a three-day waiting period between the delivery of the Closing Disclosures and the actual closing. If a redisclosure is required, the three-day period may have to be re-started (see the discussion of Questions 1 and 2). Section 109 of EGRRCPA will allow a waiver of this period if the annual percentage rate is decreasing. This could allow a timely closing and better loan terms for the borrower.

The Bureau provided an emphatic “No” and went on to clarify Section 109(a) titled, “No Wait for Lower Mortgage Rates,” amends Section 129(b) of the Truth in Lending Act (TILA). TILA Section 129(b) requires certain disclosures which must be provided for high cost mortgage loans (HCML) and the waiting periods required as a gap between disclosure and consummation of an HCML. (Refer to 15 U.S.C. § 1639 and Reg Z’s 1026.31, .32, and 34.)

If the APR is disclosed according to TRID and it becomes inaccurate, the bank must ensure that the consumer receives the corrected Closing Disclosure at least three business days before consummation of the mortgage loan. This requirement comes from 1026.19(f)(2)(ii) and is to comply with TILA Section 128, (15 U.S.C. § 1638,) and is separate and distinct from the waiting period requirement in TILA Section 129(b). This means Section 109(a) of EGRRCPA did not create an exception to the waiting period requirement under TILA Section 128. It does not affect the timing for consummating transactions after a creditor provides a corrected Closing Disclosure under the TRID Rule.

But all is not lost. Refer to question 1 again. An overstated APR is not inaccurate if it results from the disclosed finance charge being overstated, and a bank is not required to provide a new three business day waiting period. As a result, if the disclosed APR decreases due to a decrease in the disclosed interest rate, a bank is not required to provide a new three business day waiting period under the TRID Rule. So, this rule hasn’t changed, but the Bureau has reminded us of the three circumstances which do re-set the three-business day clock.

Question 4 (Model Forms). The Bureau added one question pertaining to the use of “older” model forms and a safe harbor when there are regulatory changes. “Does a creditor’s use of a model form provide a safe harbor if the model form does not reflect a TRID Rule change finalized in 2017?”

Possibly a surprise, the Bureau said “Yes.” The Bureau noted when finalizing the 2017 changes to the TRID Rule (sometimes referred to as “TRID 2.0”), that a bank is deemed to comply with the disclosure requirements associated with the Loan Estimate and Closing Disclosure if the bank uses the appropriate model form and properly completes it with accurate content.
Reg Z’s Appendix H includes model forms with headings, subheadings, and other fields required by Reg Z, at 1026.37 and 1026.38. These blank model forms for the Loan Estimate are H-24(A) and (G) and H-28(A) and (I). The Closing Disclosure model forms are H-25(A) and (H) through (J), and H-28 (F) and (J). Blank forms are also in Appendix H.

For example, the regulatory text provides that the percentage amount required to be disclosed on the Loan Estimate line labeled “Prepaid Interest (___ per day for __ days @__ %)” is disclosed by rounding the exact amount to three decimal places and then dropping any trailing zeros that occur to the right of the decimal point. (refer to 1026.37(g)(2)(iii) and (o)(4)(ii).) However, on page 2 of model form H-24(C), section F, the interest rate disclosed (4.00%) on the line for prepaid interest includes two trailing zeros that occur to the right of the decimal point. Thus, a creditor could claim the safe harbor by disclosing the interest rate on the “Prepaid Interest” line by including two trailing zeros, or otherwise could comply with § 1026.37(o)(4)(ii) by rounding the exact amount to three decimal places and dropping any trailing zeros that occur to the right of decimal point. For example, if the interest rate for the transaction being disclosed is four percent, the creditor could claim the safe harbor by disclosing “4.00%” (consistent with the model form) although it also could disclose “4%” (consistent with the regulatory text and commentary).

It is very likely that the bank has a vendor providing the software to generate both the Loan Estimate and the Closing Disclosure and that these forms can only be produced in accordance with the requirements set forth by Reg Z. But at least the Bureau has listened and possibly seen a few of these errors and dismissed them as inconsequential. There is no pass to violate Reg Z, but at least good faith efforts that meet them in part will be recognized.

Action Plan: The bank should consider developing a training session and or memo and circulating it to all loan, compliance, and audit staff who are involved in TRID loan closings. This will help ensure each person understands each of the four questions and answers. It is recommended that emphasis be placed on Closing Disclosures and their timing.

Ask yourself if amendments are needed to the bank’s loan procedures as a result of this, should this be incorporated into regular training and audit workpapers, has the bank agreed with these interpretations or could there be loans which, if reviewed today. would be in violation of Reg Z and RESPA? If so, is there any corrective action that could be taken? (In the case of most timing violations, these could not be completely corrected, but were new Closing Disclosures provided at all, and would this be an indicator that the training mentioned above is now more important?) Lastly, review the forms produced for the Loan Estimate and Closing Disclosure to determine if the forms meet Reg Z requirements with some new standards. Most banks have not been examined in detail for TRID requirements. This FAQ document may clarify issues for lenders and examiners alike, which may now increase digging into mortgage loan files.

Servicemember Complaints

By Andy Zavoina

In January, the Consumer Financial Protection Bureau (Bureau) released its “Annual Report” from the Office of Servicemembers Affairs. It covered April 2017 through August 2018 and while the Bureau logged nearly 49,000 complaints from servicemembers and the top three categories were credit reporting, debt collection, and mortgages, I want to review one item from the “Emerging issues and continuing trends in the financial marketplace for servicemembers” section. Servicemembers do not understand add-on products, which are optional, or the features and the limitations of these products they may purchase and finance, meaning they pay for them for several years.

Add-on products can easily cost hundreds and hundreds of dollars and, when financed, lower the equity in the car. But there is an add-on to help cover that event too. In particular, GAP insurance is becoming an issue. You know the sales pitch, “cars depreciate, and we are financing most of your cost, so GAP insurance fills the gap between what you owe and what the car is worth if this baby is stolen or totaled…” But one servicemember bought the GAP protection and was stationed overseas. This is very common with the military and he wanted to take his car. He had to get permission from the lender, in writing, to ship the car. It was totaled, and there was a gap. But the policy doesn’t cover a loss outside the United States. Based on this report we may anticipate more pressure on GAP insurance.

Under the Military Lending Act (MLA), a loan to purchase a vehicle is exempt from MLA restrictions when the vehicle purchased is the collateral for the loan, and there are no extra funds loaned – that is, it’s just to buy the vehicle. And that’s the rub. The Department of Defense rules include in the Military APR calculation “Any fee for a credit-related ancillary product sold in connection with the credit transaction for closed-end credit or an account for open-end credit; (Refer to 232.4(c)(ii)) If this fee is in the MAPR, it can disqualify the “no extra funds” exception and the GAP cost contributes to the 36 percent MAPR limit as well. Some banks believed GAP was excluded, and they would accept the risk of financing that. Other banks sought counsel’s opinion and believe that getting GAP insurance after the car is purchased allows the exception because the GAP isn’t a part of the original transaction.

In August 2018, the Trump administration was “testing the waters” to get a definitive clarification and allowance on the GAP insurance issue for the MLA. There was some initial resistance. One must ask, if they want a specific provision to allow GAP insurance, that is a good indicator that it is currently included. The DoD has not offered conclusive guidance. But with civil and criminal penalties in the MLA (232.9) which includes considering the loan contract void from inception, banks should carefully evaluate the risks of financing GAP and considering it a qualified exception under the MLA. The complaints servicemembers make and the lack of coverage will not help lenders.

Authorized Signers

By Pauli Loeffler

We get a lot of questions about authorized signers but for some reason, there hasn’t been a Legal Briefs article on the topic – until now.

Who is an authorized signer? An authorized signer is anyone who does not own a deposit account but has been received authorization of the owner to do so. Authorized signers include:

  1. Convenience signers on
    a) Consumer accounts
    b) Sole proprietorships
  2. Signers authorized to act for entities such as:
    a) Corporations
    b) LLCs
    c) General partnerships
    d) Limited partnerships
    e) Joint ventures
    f) Trusts
    g) Foundations
    h) Federal, state, county, and municipal government/agencies and their subdivisions
    i) Unincorporated associations such as: Churches, Little league teams, POM teams, Band parents, etc.
  3. Fiduciaries authorized to act by appointment as a/an
    a) Attorney in Fact (“AIF”)
    b) Representative Payee
    c) Federal Fiduciary
    d) Custodian (UTMA)
    e) Guardian
    f) Receiver
    g) Conservator
    h) Personal representative of an estate

This is not an exhaustive list. I also need to point out that authorized signers listed under number 2 owe fiduciary duties to the account owner just as do those listed under number 3, but other than an AIF, all those listed under number three have a duty to regularly report either to a court (Guardian, Receiver, Conservator, and Personal representative of an estate), the appointing agency (Representative Payee, Federal Fiduciary), or the account owner/parent (Custodian). For convenience signers listed under number 1, there is neither a specific duty nor any legal requirement to report to the account owner.

What can ALL authorized signers do? All authorized signers may make deposits and write checks. All authorized signers may obtain information on an account all the way back to the time that the account was opened if they remain authorized signers on the account. Once an authorized signer is removed, the only way s/he can obtain any information on an account is either by 1) obtaining consent of the owner or 2) by way of a subpoena.

An authorized signer may stop payments on a check or close the account as provided by the UCC, Tit. 12A O.S. §4-403. If the authorized signer closes the account, the check will ALWAYS be made payable to the account owner.

What things can’t an authorized signer do? With certain exceptions granted under bylaws, operating agreements, partnership agreements, trusts, etc., an authorized signer cannot add an authorized signer nor remove another authorized signer. Authorized signers, with a couple of exceptions, cannot add or change pay on death beneficiaries on an account that allows PODs (neither rep payee nor federal fiduciary accounts for VA allow PODs). I have seen a few Power of Attorney/Durable Power of Attorney documents that do permit this, but the document must specifically provide this power, and that is very, very rare. PODs named by the owner before being subject to the guardianship may remain on the account, but any change would require a specific court order. On the other hand, PODs (in Oklahoma) are allowed on all UTMAs not established by a court, and a custodian can add or change the POD. If it is a court-ordered UTMA, the court order will need to name one or more PODs for the account to have a POD.

Can authorized signer change the address for statements? The best practice is to confirm the address change with the account owner if the account is not a guardianship, rep payee, federal fiduciary, UTMA, receivership, conservatorship, estate, or custodian of a UTMA. For entities that are required to register with the Secretary of State (corporations, LLCs, and limited partnerships), a change of principal place of business will need to be filed. This can be confirmed online. Unincorporated associations are not required to file with the Secretary of State. Partnerships are not required to file anything with the SoS other than if they are operating under a fictitious name, so you need to confirm authority for the change. On the other hand, if you know the grantor of a durable power of attorney is now in the hospital or has dementia and in a nursing home, changing the address by the AIF does not require confirmation by the account owner. However, if a guardian who isn’t the AIF has been appointed, the bank should inform the guardian who must account to the court. Note the appointment of guardian does not automatically revoke a durable power of attorney, however, the guardian can choose to either leave it in place or revoke it.

If we have a joint account and one of the joint owners’ names “John Doe” as AIF, what can we do? The joint owner cannot deny the AIF access to information nor making transactions on the account. The bank can certainly inform the joint owner that an AIF has been added, but she/he cannot deny the authority granted, nor remove the AIF. The joint owner can close the account and open a new one as a sole owner. S/he cannot remove the AIF from the joint account any more than s/he could remove the owner that executed the POA.

A personal representative is asking for information on an account of a deceased owner that had a joint owner or POD. What information can the bank provide? The personal representative “stands in the shoes” of the decedent. Whatever information the deceased owner could have asked for until the time of death, the bank can provide to the personal representative.

When a new rep payee or federal fiduciary is named, can s/he have information on the former account? No. The only way the new rep payee or federal fiduciary can obtain this information is with the consent of the predecessor or through a subpoena of the records.

2nd Amendment Auditors

By Pauli Loeffler

Let’s start with a bit of background: Statutes permitting concealed carry of handguns with permits have been on the books for a long time in Oklahoma, since 1995 to be exact. “Open carry” statutes became effective November 1, 2012. Although the statutes have been amended since that time, for the most part, the rules remain the same. Title 21 O.S. §1277 covers certain places where both concealed and open carry are prohibited except for certain individuals. Title 21 O.S. § 1289.7a prohibits the property owner, tenant, employer, or business entity from maintaining, establishing, or enforcing any policy or rule prohibiting any person, except a convicted felon, from transporting and storing firearms or ammunition in a locked motor vehicle, or from and storing firearms or ammunition locked in or locked to a motor vehicle on any property set aside for any motor vehicle. Motorcycles are defined as a vehicle, but it would be impossible to lock a more than a handgun in one, and if it was a larger weapon, say a shotgun, or rifle, a thief will take both the bike and the weapon (unless he has bolt cutters).

These “2nd Amendment Auditors” have been posting videos on social media involving engagements with a variety of businesses including Bank of Oklahoma, courthouses, and a staged a rally at The Gathering Place, a privately-funded park that was assigned to Tulsa County’s River Parks Authority. Whether a bank chooses to allow handguns inside the bank by anyone who is not federal, state, or local law enforcement (“peace officers” under Sec. 1289.23 of Tit. 21) without regard to whether they are on or off duty, it is up to the bank to decide.

The bank should have policy on whether handguns permitted under the statute are allowed in the bank. If these are not permitted, the bank must post signage to that effect. Legally, the bank is free to refuse entry into the building to anyone other than as indicated previously. To avoid problems, the greeter at the bank needs to know whom to contact in the event someone disregards the notice (security, an officer of the bank) that is designated to deal with the person disregarding the notice.

Whether the bank permits handguns or not, if it becomes the target of a “2nd Amendment Audit,” it should have some protocol for dealing with the person or persons to get them out of the lobby and into a private office or conference room for the appropriate person to discuss the bank’s stance. There should be more than one knowledgeable officer of the bank that knows and understands the reasons behind the bank’s policy and, more importantly, can remain calm and composed in talking to these “auditors.”

If the bank prohibits handguns, the person dealing with the auditors will state that the bank is complying with the Oklahoma statutes and has chosen to prohibit handguns inside the bank by its policy. If asked to justify the bank’s policy (which is a question you can easily anticipate), certainly protecting bank customers and employees was part of the policy decision. You can anticipate the “auditor” retorting that law-abiding citizens with permits are there to protect these people. Rather than engaging in fruitless debate and asking for statistics to prove the “auditor’s” point, probably the strongest argument is that most law enforcement overwhelmingly hates open carry because in an incident it is very hard to tell the good guys from the bad guys. It makes containment infinitely more difficult for law enforcement (the “good guys” regardless of the “auditor’s” view of the “Right to Bear Arms.”)

Whether you are “Joe Public” or a 2nd Amendment Auditor, supporting law enforcement is inarguably a good position. I will add that while law enforcement officers and soldiers are well-trained on how to protect their weapon from someone grabbing it, this is not the case with the average permit holder. Also, while I enjoy hunting quail, pheasant and ducks, as a customer, having someone come into the bank lobby with a gun and two clips on his belt as happened in the BOK incident would make me very nervous, but that is my personal point of view.

The other and larger problem with 2nd Amendment Auditors is that they do not really seem to care what the state law is but rather jump to the U.S. Constitution and the Bill of Rights. Now you have two lay persons arguing Constitutional law for the entertainment of their followers on social media.

This brings us to the “no recording in the bank” issue in the BOK video. As far as recording conversations, it isn’t illegal to record a conversation without obtaining consent of other parties to the discussion. This is provided in 18 U.S.C. § 2511(d) which states: it “shall not be unlawful for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception[.]” So while the law places certain conditions on persons acting under color of law — that is, acting on behalf of the government — to record conversations, federal law allows private citizens to do so unless it is for the purpose of any criminal or tortious act. Showing up to ask questions is neither a criminal nor a tortious act. The Oklahoma statute mirrors the federal statute.

The bank can have a policy of not allowing audio recordings which is applied to everyone. Such policy is very unlikely to hold up in a “whistle blower” suit against the bank, but that isn’t involved here.

Banks almost universally have prohibitions against filming video (or even taking photographs) inside the bank for security reasons. A bank wants to avoid paving the way for potential robbers, kidnappers, terrorists, etc. to plan to target the bank. Criminals can study photos and video to identify the location and angles of security cameras, determine how many employees there are, figure out vantage points from which they could control hostages, doorways through which to make their escape, etc.

January 2019 OBA Legal Briefs

  • New year, new SAR
  • Required year-end housekeeping
  • FEMA NFIP snafu
  • Residential appraisal threshold unchanged (yet)

New year, new SAR

By Andy Zavoina

This time of the year many bankers are providing staff, management and their boards some annual updates and training. This may include security, Bank Secrecy Act and compliance topics. With recent events, one possible addition to what you might usually be discussing comes to mind. The Suspicious Activity Report (SAR) has been updated. SAR version 1.1 is being replaced with version 1.2. The effective date for this change was January 1, 2019. FinCEN will no longer accept older versions of the SAR form, so you cannot avoid this new requirement.

There have been numerous changes to the SAR form. Internally some banks prefer to use worksheets for employees who want to call attention to an activity which may lead to the submission of a SAR. If your bank does this, have you updated your internal worksheets and explained the changes to staff?

Perhaps the biggest change is the addition to the SAR of the new “cyber event” question. This is applicable to events happening to either the bank or a bank customer. It is the new field 42 and it may be used when there is an attempted digital denial of service (DDoS), attempt to hack the bank’s wire system or website, and for customers it may include account takeovers or fraudulent transfer instructions.

With these new requirements come new opportunities, to excel or to err. Training in advance and using controls to verify everyone understands the new form helps ensure you won’t be SAR-ry later.

Overview: Here is an overview of the form changes from version 1.1, to 1.2:

• Part I of the SAR 1.1 to 1.2 is changed in that the fields are renumbered but the content has stayed the same.

• Part II of the SAR form is the section that provides information on the suspected suspicious activity included in the report. This part includes several changes, as follows:

o Question 32 (formerly 29) is specific to structuring and has a few changes. Specifically, the phrase “or cancels” has been added to options “a” and “b.” For example, item “a” currently states that the subject “alters transaction to avoid BSA recordkeeping requirement.” The option now states “alters or cancels transaction to avoid BSA recordkeeping requirement.” The second change is that option “c,” which was about cancelled transactions, has been removed. The available options went from seven to six.

o The fraud question (was #31, now #34) has a few changes. A new option “b,” “Advanced Fee,” was added as were new options “j” and “l” which now include “Ponzi scheme” and “Securities fraud” respectively. Option “g,” “Healthcare” is now expanded to read “Healthcare/Public or private health insurance.”

o The question for casinos (was #32, now #35) also has a few changes but is of little interest to banks and we will ignore it here.

o The options on Other Suspicious Activity (was question #35, now #38) has three additions and two deletions. “Human Smuggling,” option “g” is added as is “Human Trafficking,” option “h.” The third addition was option “q,” “Transaction(s) involving foreign high-risk jurisdiction.” Deleted from SAR 1.1 were options “i,” “Misuse of ‘free look’/cooling off/right of rescission” and “q,” “Unauthorized electronic intrusion.”

o The question (was #37, now #40) on “Securities/Futures/Options” expanded from five options to six. Former option “b” on “Market manipulation/wash trading” was split adding a separate entry, option “e” for “Wash trading.”

o The “Mortgage Fraud” question (was #38, now #41) adds two new options and amends one other Added were option “a,” “Application Fraud,” and option “e,” “origination fraud.” Option “c” will add “short sale” to foreclosure fraud for a new entry, “Foreclosure/Short sale fraud.” Removed from SAR.1 was option ”d,” “Reverse mortgage fraud” and options were renumbered.

o A new category, “Cyber-event” becomes question #42. Option “a” is “Against the Financial Institution(s)” while item “b” is “Against the Financial Institutions customer(s).” Item “z” will be added to include an entry for “Other.”

o Option “n,” “Penny stocks/Microcap securities” under the question “Were any of the following product type(s) involved in the suspicious activity?” (was #39, now #45) removed the term “Penny Stocks” and “Microcap securities” is now option “m.” Also added was option “f,” “Deposit account.”

o Question #44 “IP Address” was removed.

o The question on “Types of securities and futures” (was #50, now #54) was expanded from 10 to 12 options. Added were “Execution-only broker securities” and “Self-dealing broker securities.”

• Under Part IV, question #83 is now #80, “Types of securities and futures” and it has similar additions as above in Part III. Added were “Execution-only broker securities” and “Self-dealing broker securities” as the options available went from 13 to 15.

• There were no changes to Part V.

Safe Harbor: The Safe harbor rules for SARs have not changed. Federal law (31 U.S.C. 5318(g)(3)) provides financial institutions complete protection from civil liability for all reports of suspicious transactions made to appropriate authorities, including supporting documentation, regardless of whether such reports are filed pursuant to a regulatory requirement or on a voluntary basis. Specifically, the law provides that a financial institution, and its directors, officers, employees, and agents, that make a disclosure of any possible violation of law or regulation, including in connection with the preparation of suspicious activity reports, “shall not be liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, or under any contract or other legally enforceable agreement (including any arbitration agreement), for such disclosure or for any failure to provide notice of such disclosure to the person who is the subject of such disclosure or any other person identified in the disclosure.”

Confidentiality: SARs are also confidential. The SAR and any information that would reveal the existence of the SAR are confidential and may not be disclosed except as specified in 31 U.S.C. 5318(g)(2) and in FinCEN’s regulations (31 CFR Chapter X).

Prohibition on Disclosures by Financial Institutions: Federal law (31 U.S.C. 5318(g)(2)) provides that a financial institution, and its directors, officers, employees, and agents who, pursuant to any statutory or regulatory authority or on a voluntary basis, report suspicious transactions to the government, may not notify any person involved in the transaction that the transaction has been reported.

• Provided that no person involved in the suspicious activity is notified, 31 CFR Chapter X clarifies that the following activity does not constitute a prohibited disclosure:

• Disclosure of SAR information to certain governmental authorities or other examining authorities that are otherwise entitled by law to receive SAR information or to examine for or investigate suspicious activity, including:

o FinCEN;

o Any Federal, state, or local law enforcement agency;

o Any Federal regulatory agency that examines the depository institution for compliance with the BSA;

o Any state regulatory authority that examines the depository institution for compliance with state laws requiring compliance with the BSA.

o A U.S. bank or savings association may share a SAR with its controlling company (whether domestic or foreign). The sharing of a SAR or, more broadly, any information that would reveal the existence of a SAR, with a head office or controlling company (including overseas) promotes compliance with the applicable requirements of the BSA by enabling the head office or controlling company to discharge its oversight responsibilities with respect to enterprise-wide risk management, including oversight of a depository institution’s compliance with applicable laws and regulation.;

• Disclosure of the underlying facts, transactions, and documents upon which a FinCEN SAR is based; and

• For those institutions regulated by a Federal functional regulator (Federal bank regulatory agencies, the Securities and Exchange Commission (SEC), and the Commodity Futures Trading Commission (CFTC)), the sharing of SAR information within an institution’s corporate organizational structure, for purposes that are consistent with the Bank Secrecy Act, as determined by regulation or guidance.

What may be shared:

• the disclosure of the underlying facts, transactions, and documents upon which a SAR is based, including, but not limited to, disclosures related to filing a joint SAR and in connection with certain employment references or termination notices; and

• the sharing of a SAR, or any information that would reveal the existence of a SAR, within a depository institution’s corporate organizational structure for purposes consistent with Title II of the BSA, as determined by regulation or in guidance.

Prohibition on Disclosures by Government Authorities: Federal law (31 U.S.C. 5318(g)(2)) also provides that an officer or employee of any Federal, state, local, tribal, or territorial government within the United States who has knowledge that such report was made, may not disclose to any person involved in the transaction that the transaction has been reported, other than as necessary to fulfill the official duties of such officer of employee. FinCEN’s regulations clarify that “official duties” must be consistent with Title II of the Bank Secrecy Act and shall not include the disclosure of a SAR, or any information that would reveal the existence of a SAR, in response to a request for disclosure of non-public information or a request for use in a private legal proceeding, including a request pursuant to 31 CFR § 1.11.

The confidentiality of SARs needs some additional explanation. At the end of the day, the bank’s staff must remain in a UFO frame of mind in that “we can neither confirm nor deny anything on this matter.” This fact remains regardless of recent events. Last October the U.S. Attorney for the Southern District of New York had a FinCEN employee, Natalie Mayflower Sours Edwards, arrested. She was charged with unlawfully disclosing Suspicious Activity Reports to a member of the media, in violation of 31 U.S.C. § 5322 and 18 U.S.C. § 371. Each carries a maximum sentence of five years in prison. This appears to be the first criminal case based solely on the release of the confidential SAR information.

There have been two other prosecutions related to SAR information being released, but there were additional charges in those. In 2011, Frank Mendoza, who was a former bank employee. was convicted of an illegal SAR disclosure. Mendoza was charged with approaching the subject of a SAR filed by Mendoza’s bank from whom he solicited a bribe and to whom he offered assistance at the bank. Mendoza disclosed that a SAR was filed by the bank and he advised the subject of the SAR that a federal criminal investigation was imminent. The subject of the SAR reported the bribery solicitation to the FBI and Mendoza was arrested. Mendoza was found guilty of disclosing the existence of a SAR and accepting a bribe. He was sentenced to six months’ incarceration and assessed a civil money penalty of $25,000 by FinCEN.

In another case from the U.S. Attorney for the Southern District of New York, Robert Lustyik, a former Special Agent with the FBI, was charged in 2013 with disclosing confidential SAR information. In his case there was also an element of bribery. Lustyik allegedly sold SARs and other confidential law enforcement information in exchange for personal payments.

In this most recent case, Edwards, who is also claiming whistleblower status, disclosed SARs in encrypted email to a reporter. The SARs related to the U.S. Office of Special Counsel’s investigation of Paul Manafort, President Trump’s former campaign manager. The reporter wrote stories based in part on the SAR information.
Addressing the confidentiality requirements of a SAR is potentially an add-on to any training done on the new SAR requirements and the new form itself. Both promise to be issues which will be reviewed.

Required year-end housekeeping

By Andy Zavoina

As we enter the new year. you would think it is time to relax, say goodbye to 2018, and start off 2019 with a clean slate. But it does not quite work that way. It is time to ask yourself if all the little things are done, all the housekeeping items that could impact your 2019.

Reg E § 1005.8 – If your consumer customer has an account to or from which an electronic fund transfer can be made, an error resolution disclosure is required. There is a short version that you may have included with each periodic statement, or the longer version that is sent annually. Electronic disclosures under E-SIGN are allowed here. This may also be a good time to review §1005.7(c) and determine if any electronic fund transfer services were added, and if they were disclosed as required.

The same review advice applies if you are using E-SIGN, because some E-SIGN agreements that specify what will be disclosed electronically are very narrowly drawn. Is your agreement narrow or broad, and are you disclosing things electronically that the agreement may not allow for?

Reg P § 1016.5 – Remember the requirements for the annual privacy notice were modified in late 2015 and finalized this year. As a result, your bank’s procedure may have changed. The Fixing America’s Surface Transportation (FAST) Act, enacted on December 4, 2015, amended Title V of the Gramm-Leach-Bliley Act (GLBA). While it took two years, the Reg now provides an exception so that banks meeting certain conditions are not required to send annual privacy notices to customers. We wrote about this in the December 2018 Legal Briefs if you want more information.

When your customer’s account was initially opened, you had to accurately describe your privacy policies and practices in a clear and conspicuous manner. Ensure that your practices have not changed and that the notice you are providing accurately describes your practices.

If you still need to provide annual notices, for Reg P and the Privacy rules, annually means at least once in any period of 12 consecutive months during which that relationship exists. You may define the 12-consecutive-month period, but you must apply it to the customer on a consistent basis, so this is not necessarily a December or January issue, but it could be. And each customer does not have their own “annual date.” If a consumer opens a new account with you in February, you provide the initial privacy notice then. That is year one. You can provide the annual privacy notice for year two at any time, up until December 31 of the second year.

It is important to note that unlike most other regulatory requirements, Reg P doesn’t require E-SIGN compliance for web-based disclosures. You can use e-disclosures on your bank web site when the customer uses the web site to access financial products and services electronically and agrees to receive notices at the web site, and you post your current privacy notice continuously in a clear and conspicuous manner on the web site. So, the demonstrable consent requirements and others in E-SIGN’s 101(c) section do not apply, but there must still be acceptance to receive them on the web. Alternatively, if the customer has requested that you refrain from sending any information regarding the customer relationship and your current privacy notice remains available to the customer upon request this method is acceptable.

Although Reg P is not specific as to a requirement for training in the Reg, the FRB Exam Manual specifically lists “Adequacy and regularity of the institution’s training program” as one of the factors to consider in determining the adequacy of the financial institution’s internal controls and procedures to ensure compliance with the privacy regulation.

BSA annual certifications – Your bank is permitted to rely on another financial institution to perform some or all the elements of your CIP under certain conditions. The other financial institution must enter into a contract requiring it to certify annually to your bank that it has implemented its AML program.

OFAC reporting. Banks must report all blocked accounts to OFAC within ten days of the event and annually by September 30, concerning those assets blocked (see form TD F 90-22.50). Make sure that report is on your calendar.

IRAs, IRS Notice 2002-27 – If a minimum distribution is required from an IRA for a calendar year and the IRA owner is alive at the beginning of the year, the trustee that held the IRA on the prior year-end must provide a statement to the IRA owner by January 31 of the calendar year regarding the required minimum distribution.

Reg Z thresholds and updates – These changes are effective January 1, 2019. You should ensure they are available to staff or correctly hard coded in your systems:

• the exemption threshold increased from $55,800 to $57,200

• The CARD Act penalty fees safe harbor amount in section 1026.52(b)(1)(ii)(A) remains at $28;

• The CARD Act penalty fees safe harbor amount in section 1026.52(b)(1)(ii)(B) remains at $39;

• The HOEPA total loan amount threshold that determines whether a transaction is a high cost mortgage is changed to $21,549;

• The HOEPA total points and fees dollar trigger amount is changed to $1,077;

• As of the effective date, a covered transaction is not a qualified mortgage unless the transaction’s total points and fees do not exceed 3 percent of the total loan amount for a loan amount greater than or equal to $107,747; $3,232 for a loan amount greater than or equal to $64,648 but less than $107,747; 5 percent of the total loan amount for loans greater than or equal to $21,549 but less than $64,647; $1,077 for a loan amount greater than or equal to $13,468 but less than $21,549; and 8 percent of the total loan amount for a loan amount less than $13,468.

Annual escrow statements § 1024.17 – For each escrow account you have, you must provide the borrower(s) an annual escrow account statement. This statement must be done within 30 days of the completion of the escrow account computation year. This need not be based on a calendar year. You must also provide them with the previous year’s projection or the initial escrow account statement, so they can review any differences. If your analysis indicates there is a surplus, then within 30 days from the date of the analysis you must refund it to the borrower if the amount is greater than or equal to $50. If the surplus is less than that amount, the refund can be paid to the borrower, or credited against the next year’s escrow payments.

Fair Credit Reporting Act – Affiliate marketing opt-out § 1022.27(c) – Affiliate marketing rules in Reg V place disclosure restrictions on you and opt out requirements. Each opt-out renewal must be effective for a period of at least five years. If this procedure is one your bank is using, are there any expiration dates for the opt-outs and have these consumers been given an opportunity to renew their opt-out?

Fair Credit Reporting Act – FACTA red flags report – Section VI (b) (§ 334.90) of the Guidelines (contained in Appendix J) require a report at least annually on your Red Flags Program. This can be reported to either the board of directors, an appropriate committee of the board, or a designated employee at the senior management level.

Regulation O, Annual Resolution §§ 215.4, 215.8 – To comply with the lending restrictions and requirements of Reg O § 215.4, you must be able to identify the “insiders.” “Insider” means an executive officer, director, or principal shareholder, and includes any related interest of such a person. An “affiliate” is any company of which a member bank is a subsidiary or any other subsidiary of that company. Your insiders are defined in Reg O by title unless the Board has passed a resolution excluding certain persons. You are encouraged to check your list of who is an insider, verify that against your existing loans, and ensure there is a notification method to keep this list updated throughout the year.

Reg BB (CRA), content and availability of public file § 228.43 – Your Public File is required to be updated and current as of April 1 of each year. Many banks update it continuously, but it’s good to check. [Note: Citation is to Federal Reserve Reg BB. The OCC and FDIC have their own, identical requirements/]

HMDA and CRA notices and recordkeeping – HMDA and CRA data are gathered separately by banks subject to the requirements, and both Reg C and Reg BB have reporting requirements for the Loan Application Registers (LAR). Each must be submitted by March 1 for the prior calendar year. If you are a reporter of either LAR ,you should start verifying the data integrity now to avoid stressing over the process at the end of February.

Training – An actual requirement for training to be conducted annually is rare, but annual training has become the industry standard and may even be stated in your policies. There are six areas that require training (this doesn’t mean you don’t need other training, just that these regulations have stated requirements).

• BSA (12 CFR §§ 21.21(c)(4), 208.63(c)(4), and 326.8(c)(4) Provide training for appropriate personnel.

• Bank Protection Act (12 CFR §§21.3(a)(3), 208.61(c)(1)(iii), and 326.3(a)(3) Provide initial and periodic training

• Reg CC (12 CFR §229.19(f)) Provide each employee who performs duties subject to the requirements of this subpart with a statement of the procedures applicable to that employee

• Customer Information Security found at III(C)(2) (Pursuant to the Interagency Guidelines for Safeguarding Customer Information, training is required. Many banks allow for turnover and train as needed, imposing their own requirements on frequency.)

• FCRA Red Flag (12 CFR 222.90(e)(3) Train staff, as necessary, to effectively implement the Program

• Overdraft protection programs your bank offers. Employees must be able to explain the programs’ features, costs, and terms, and to explain other available overdraft products offered by your institution and how to qualify for them. This is one of the “best practices” listed in the Joint Guidance on Overdraft Protection Programs issued by the OCC, Fed, FDIC and NCUA in February 2005 (70 FR 9127, 2/24/2005), and reinforced by the FDIC in its FIL 81-2010 in November 2010.

• Sect 303 of EGRRCPA requires training for the bank and staff to have immunity from liability for qualified individuals at banks who, in good faith and with reasonable care, disclose the suspected exploitation of a senior citizen to a regulatory or law-enforcement agency. The content is specified in the Act and must be provided “as soon as practicable” and “not later than 1 year after the date on which the individual becomes employed” by the bank. There is no reference to refresher training.

Security, Annual Report to the Board of Directors – (12 CFR §§ 21.4, 208.61(d) and 326.4) The Bank Protection Act requires your bank’s Security Officer to report at least annually to the board of directors on the effectiveness of the security program. The substance of the report must be reflected in the minutes of the meeting. The regulations don’t specify if the report must be in writing, who must deliver it, or what information should be in the report. It is recommended that your report span three years and include last year’s historical data, this year’s current data and projections for the next year.

Information Security Program part of GLBA – Your bank must report to the board or an appropriate committee of the board at least annually. The report should describe the overall status of the information security program and the bank’s compliance with these Guidelines. The reports should discuss material matters related to the program, addressing issues such as: risk assessment; risk management and control decisions; service provider arrangements; results of testing; security breaches or violations and management’s responses; and recommendations for changes in the information security program.

Annual MLO Registration § 1007.102 – Mortgage Loan Originators must go to the online Registry and renew their registration. This is done between November 1 and December 31. Check, in particular, any MLO who took vacation during that 60-day period, and may have neglected to renew. There is a re-registration window (for an extra fee) each year. This is also a good time to plan with management and Human Resources those MLO bonus plans. Section 1026.36(d)(1)(iv)(B)(1) of Reg Z allows a 10 percent aggregate compensation limitation on total compensation which includes year-end bonuses.

Miscellaneous – Some miscellaneous items you may address internally in policies and procedures include preparation for IRS year-end reporting, vendor due diligence requirements including insurance issues and renewals, documenting ORE appraisals and sales attempts, risk management reviews, records retention requirements and destruction of expired records, and a designation by the Board of the next year’s holidays. And don’t forget to determine whether there has been a review of those not yet extending vacation or “away time” to the five consecutive business days per the Oklahoma Administrative Code 85:10-5-3 Minimum control elements for bank internal control program.


by John S. Burnett

On Thursday, December 27, the Federal Emergency Management Agency announced that the National Flood Insurance Program (NFIP) was suspended, and no new flood insurance policies could be issued during the partial government shutdown that began at midnight on December 21. The agency and the Department of Homeland Security were immediately hit with a flood (pun intended) of calls and emails reminding FEMA leaders that Congress had passed, and the president had signed – on December 21 – a bill extending authority for the NFIP through May 31, 2019. Evidently, the message about the program extension hadn’t reach FEMA management, which had to “walk back” its announcement on Friday evening, December 28.

Earlier on the 28th, the Fed, OCC and FDIC issued a statement reminding banks that they can continue making loans on properties in flood zones in periods when flood coverage isn’t available, referencing guidance issued in 2010. Since lapses in the NFIP authorization have become commonplace, we recommend keeping a copy of that guidance when the next NFIP hiatus hits. In the meantime, just chalk up the FEMA announcements of last week to a case of “READY, FIRE, AIM.”

Residential appraisal threshold unchanged (yet)

by John S. Burnett

A phone call we fielded on New Year’s Eve prompted this status reminder on the federal appraisal requirements. Of course, there was the April 9, 2018, doubling the $250,000 threshold for commercial real estate transactions to $500,000. The lower figure had been in place since 1994, and the agencies had proposed to increase it to $400,000, but later determined that doubling the threshold to $500,000 made sense given inflation and the minimal effect the increase would have on safety and soundness of financial institutions.

At the time, the agencies left the $250,000 threshold for residential appraisals in place, except for residential construction loans secured by multiple one-to-four family residential properties (which would be considered commercial transactions).

On December 7, the agencies proposed to increase the residential real estate transaction threshold from $250,000 to $400,000, and to include the hardship exemption for residential property in certain rural areas under EGRRCPA (to require evaluations for those exempt transactions). In addition, the proposal would implement the Dodd-Frank Act amendment to Title XI requiring appropriate review of appraisals for federally related transactions for USPAP compliance.

Comments on the December 7 proposal are due by February 5, 2019. Watch for a final rule no sooner than mid- to late-February.

December 2018 OBA Legal Briefs

  • IOLTA accounts
  • SCRA – What not to do
  • Privacy – Reg. P update
  • Notes on beneficial ownership

IOLTA accounts

By Pauli Loeffler

Since July 1, 2004, the Oklahoma Supreme Court has required all attorneys and law firms in Oklahoma to set up mandatory Interest on Lawyers’ Trust Accounts (IOLTAs) with interest payable to the Oklahoma Bar Foundation, with a few exceptions. In spite of the fact that these accounts have been around more than 14 years, the OBA Compliance Team still gets questions about documentation, how to set them up, etc. OBA’s former general counsel Charles Cheatham presented a seminar for both bankers and lawyers at the Oklahoma Bar Association in 2004, and but this is the first Legal Briefs article on the subject.

The Oklahoma Rules of Professional Conduct for Attorneys is found in Title 5, and the specific Rule covering IOLTAs is in Sec. 1.15 covering Safekeeping Property. It can be found at this link:

Are banks required to offer IOLTAs? No, banks are not required to offer these accounts. This is a business/marketing decision and/or a public relations decision.  It could be a charitably-motivated decision based on the charitable or non-profit activities supported by the interest on IOLTA accounts paid to the Oklahoma Bar Foundation (“OBF”). The OBF promotes “Prime Partner Banks” (banks that pay the highest interest rates and waive fees) to Oklahoma attorneys. It also has an “IOLTA Honor Roll.” You can find OBF’s IOLTA Guidelines here:

What funds go into an IOLTA? All unearned legal fees, unincurred expenses, and third‐party monies in connection with the representation should be deposited into an IOLTA. This typically means, for example, retainers (until the monies are earned), flat fees (until the monies are earned), filing fees, deposition and expert witness expenses.  Settlement proceeds to the lawyer and client or others may also go into the trust account for distribution.

An IOLTA is designed to operate as a pooled account for client balances that, if invested separately for each client, probably could not earn net income. Oklahoma lawyers and law firms are required to place client or third party funds that are nominal in amount or to be held for a short period in an interest-bearing pooled trust account when these client balances are large enough to earn some net interest for the OBF. The only funds of the attorney that may be commingled with those of the client or third party are those for the sole purpose of paying bank service charges such as a monthly maintenance fee or minimum balance required. NSF charges, stop payment charges, negative collected charges, wire transfer fees, fees for certified or cashier’s checks, electronic service fees, check and deposit slip printing costs and all other charges should be charged to the operating account rather than netted against interest earned on the IOLTA. Note: a garnishment or levy against a lawyer or law firm will NOT attach to an IOLTA.

Are IOLTAs mandatory for all lawyers/law firms? No, there are some exceptions:

  1. Only lawyers that hold client or third‐party funds regarding a representation must have trust accounts. If legal fees are received after the work is already done, i.e., the fees are already earned, the money would go into an operating account.
  2. If no financial institution offers IOLTA accounts in the community where the principal office of the lawyer or law firm is located, or the banks routinely charge more in fees than any interest generated, or it is otherwise not feasible, the lawyer is excused from establishing an IOLTA but is urged to consult with OBF first.
  3. If the funds are to be held for a long period of time or are non-nominal in amount so that the client would receive a positive net return , the lawyer or law firm should advise the client that the funds may be deposited in an account that pays interest to the client.

Note that the second and third exceptions will still require the attorney or law firm to establish some form of trust account. Under the second exception, it would not be styled as an IOLTA but rather under the SSN or EIN of the lawyer or law firm and styled like “John Doe & Associates Client Trust.”  Under the third exception, it would be titled under the client’s SSN or EIN, styled like “Jimmy Smith Settlement, Jim Bob Williams, agent” and the interest would be paid/reported to the client.

What account products can be used for an IOLTA? Originally, the only type of account available in 2004 that could be used for an IOLTA was a NOW account because an IOLTA must be an interest-bearing checking account allowing unlimited transactions. While For Profit entities aren’t eligible for NOW accounts, the Federal Reserve issued an opinion in 1984 that any IOLTA account can be set up as a NOW account provided the Attorney General of the state issue an opinion that all interest paid on an IOLTA account under that state’s program belongs to a charitable entity. The OBF meets this requirement. Since the Dodd-Frank Act in 2011 authorized interest-bearing checking accounts, these may be used as well, but ordinarily NOW accounts pay a higher rate and should still be the choice.

As far as the account styling, the OBF requires the use of its EIN: 73-0710244. This number is used because the OBF is the recipient of any interest paid on the account. This can raise another issue since the name of the attorney or law firm will be used on the account which results in a TIN/Name mismatch.  In this case, there is a special exception to the general rule:  Under Treasury Reg. Section 1.6049-4(c) (1), no Form1099-INT is required to be filed with respect to interest paid to an organization exempt from taxation such as the OBF. Therefore, if the bank has an easy way to do so, it should suppress the filing of 1099s on all IOLTA accounts, which will totally eliminate the bank’s problem with potential name/TIN mismatches on 1099s.  The styling of the account can be anything that is descriptive, such as Smith & Wesson, PLLC — IOLTA Account or Smith & Wesson, PLLC — IOLTA Client Trust Fund.

On the other hand, if the bank cannot easily suppress the 1099 reporting on such an account, it should be careful to style the account in such a manner that  the EIN reported to the I.R.S. will match the name on the first line of the account’s styling, something like Oklahoma Bar Foundation IOLTA Account (Smith & Wesson, PLLC)

Regardless of how a bank styles the accounts, it is important to get “IOLTA” or Client Trust if the second exception noted above applies and an IOLTA is not required. The reason for the special styling is for deposit insurance purposes.  If the account style indicates that funds are held in a special capacity rather than as funds of the business itself, the customer will be allowed to prove who the underlying owners of the money are, and each will be insured separately for $250,000.

What forms are involved? In order to be an “approved” bank for attorney trust accounts, whether the account is an IOLTA or not, the bank must execute the Trust Account Overdraft Reporting Agreement (“TAORA”). This agreement was mandated in 2009, and it will come from the Oklahoma Bar Association’s General Counsel. The TAORA covers both IOLTAs and lawyer/law firm escrow, trust, or client trust fund accounts that aren’t IOLTAs. Only one agreement needs to be executed by the bank and will cover for all branches.

The TAORA requires the bank to notify the attorney or law firm promptly any time there is an overdraft or dishonor for insufficient funds. It also requires the bank to notify the Oklahoma Bar Association’s General Counsel in these situations and has provisions on how this should be done.

For IOLTAs, the bank will also see the IOLTA Notice to Financial Institution & Oklahoma Bar Foundation “Compliance Statement,” which will be filled out by the attorney and/or the bank but is only signed by the attorneys or authorized signers on the account. Yes, a non-attorney may be a signer on an IOLTA. It’s a very old joke that goes back pre-IOLTA: “Can anyone be a signatory on the trust account?” “Yes, anyone you want to trust your license to.”

Beneficial ownership. IOLTAs are not statutory trusts. Start by understanding who your customer is. The attorney’s clients do not own the account even though they may beneficially own (some of) the funds in the account. And the bar association doesn’t own the account, either. The account is owned by the attorney (in the case of a sole practitioner) or law firm. If your customer is a sole practitioner, there is no legal entity involved and the rule can’t apply. But if the customer is a law firm, a partnership, limited liability partnership (LLP), limited liability company (LLC), professional corporation (PC), etc., it is a legal entity, and you will apply the Beneficial Ownership regulation just as you would for any other legal entity customer.

CTRs. Let’s say an attorney brings in funds from one or more clients and is depositing cash over $10,000 into the IOLTA, so a CTR is required. Would we be required to ask for the client name(s) in this case? Yes, you need to request the names of the client name(s). See FIN-1989-R005. If you get any push back, we suggest that the bank cite the regulatory requirement for the CTR and the provision for penalties for anyone causing the filing of a CTR with incomplete information, along with a suggestion that the information requested does not fall under attorney-client privilege in the first place.

SCRA – What not to do

By Andy Zavoina

Here is what the headline in said, “Credit Union to Pay for Seizing Vehicles of Service Members” and many newpapers near the credit union carried similar headlines after the Department of Justice (DOJ) took the CU to task in United States v. Hudson Valley Federal Credit Union. The decision in the case was filed November 2, 2018. The headlines were dated November 3, but you know they had been working on what happened and why for some time. The lawsuit was filed in the U.S. District Court for the Southern District of New York in December 2016. It started when two servicemembers filed private lawsuits over the repossession of their vehicles. When it comes to drawn-out court actions such as this, time is money. Researching files is money. Writing new policies and procedures and training is money. These headlines mean reputation risk and potentially lost customers. There is no “win-win” as the institution seems to lose on all accounts.

The complaint alleged the Hudson Valley Credit Union violated the Servicemembers Civil Relief Act (50 U.S.C. 3901 et seq.) by repossessing vehicles of servicemembers without first obtaining a court order. Sections 3931 and 3932 of the SCRA impose certain requirements.

Section 3931 applies when you have a civil proceeding against a servicemember and that person cannot appear in the court.

Default judgments you may obtain require a certification/affidavit from you that the customer is or is not in the military service. Facts to support your position should be provided. The requirement for an affidavit may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury.

If your customer is in the service, the court will appoint an attorney to represent them. They will attempt to locate the customer and cannot waive any defense they have if they cannot locate them.

If the court is not able to determine if your customer is in the service, it can specify the amount of a bond that you will need to obtain before a judgment will be entered.  If the customer is later found to be in the service, the bond will be available to indemnify the customer against any loss or damage suffered by reason of the judgment in the event it is set aside in whole or in part.

Upon a motion of the customer’s attorney, or upon the court’s own motion, a stay of proceedings of 90 days will be granted if there may be a defense and it can’t be presented without the defendant, or the customer’s attorney can’t reach them to determine if there is a good defense.

Under Section 3932, when your customer is in the military or is within 90 days after discharge/release, but you are able to serve notice upon them and have done so, the court may stay the proceedings for not less than 90 days when a letter or other communication from the customer outlines how their military duty materially affects their ability to appear before the court and states a date when they will be available. Alternatively, the customer’s commanding officer may indicate that their military duty prevents their appearance and leave is not currently authorized.

An additional stay may be granted when the customer cannot appear. No time limit is specified for this. If the court refuses to grant the stay, an attorney will be appointed by the court to represent the customer.

Past actions indicate that when the 90-day stay expires the court will evaluate the servicemember’s needs and responsibilities and could allow the repossession or could require reimbursement of some or all of the payments already made. It could renew the stay (a distinct probability if the servicemember is currently unable to attend court), or may order an equity payment. This means the bank would be required to compensate the servicemember for the difference between the value of the car and the balance of the debt before repossessing the car. Paying back a past due borrower can be a hard pill to swallow but the SCRA is intended to protect the servicemember and will typically not favor the bank.

Staying out of SCRA problems is the easiest way to avoid swallowing that pill. Having a sound policy and procedures is the start, along with effective training. It was noted that Hudson Valley Credit Union did not have a policy prior to 2014. Not having a policy is a common thread in the DOJ enforcement actions. If your bank does not have one, it should. Customers indicating they are potentially covered by the SCRA should be reviewed. In the Hudson Valley case, the DOJ noted that two requests for SCRA protections were denied. One servicemember was serving in South Korea but his girlfriend contacted Hudson Valley “multiple times” and while the bank, or credit union in this case, can require a copy of the orders, being aware of SCRA protections should have caused precautions. Another servicemember claimed to have contacted the CU to request relief from his monthly payments before starting a six-month deployment. He claimed his car was then repossessed without any court order and sold at auction. He was billed $16,700 for the repossession costs.

Does your bank required orders from the servicemember to categorize them as “covered?” Alternatively, many banks verify the status of a customer by comparing that customer’s information (individually or by batching the Central Information File) to the database maintained by the Department of Defense. The banking agencies expect banks to use the Defense Manpower Data Center (DMDC) database. The DMDC database has improved and recent changes to the SCRA provide a safe harbor when using this, so keep your records of the search.

In the Hudson Valley case the DOJ initially found nine accounts from July 2008 until February 2014 that violated the SCRA prohibitions on repossession without court order, but proceeded on only seven cases. Six of the seven servicemembers will receive $10,000 and compensation with interest. The remaining servicemember had the car returned within a day of the repossession and will receive $5,000. Hudson Valley Credit Union is also paying a $30,000 civil money penalty as a part of the DOJ settlement agreement and will provide SCRA training to its employees. Additionally, it will report to the DOJ any SCRA complaints received, which you can imagine will be scrutinized extensively.

Reconsider the above and focus on the fact that the case was filed in 2016, and the DOJ went back through files to at least 2008. The SCRA policy did not exist at that time and that was a consideration in the enforcement action. Being proactive helps mitigate risks. All banks should implement consistent procedures for determining when someone is eligible for benefits under the SCRA. Some benefits apply to pre-service obligations, some to pre- and post-service.  Remember that commercial accounts are included in SCRA protections, but not under the Military Lending Act so separate the two or draw a distinction when needed. Be aware of rules applicable to reservists getting orders who do have some protections, but not all.

Design your foreclosure and repossession procedures to ensure counsel and bank employees are following all requirements, to include completion of all background research and proper notice as required.

If your SCRA policy, procedures or training are weak, you can only change the present and future.

Privacy – Reg. P update

By Andy Zavoina

The Bureau of Consumer Financial Protection issued its final rule to adopt changes to Regulation P. This was issued in August 2018 and was finalized in September (link is below). Reg P has the requirements under which banks issue privacy notices to its customers. This final rule implements new timing requirements for sending annual privacy notices regarding banks who no longer qualify for the exception and eliminates the “alternative delivery” option for annual privacy notices.

The new rule creates an exception permitting banks to not send an annual privacy notice under limited circumstances. Banks sharing only non-public personal information with nonaffiliated third parties and have no obligation to provide an opt-out will benefit from the final rule.

The changes are intended to align Reg P with the 2015 changes to the Gramm Leach Bliley Act (GLBA). Under this Act, banks were required to send a privacy notice to all customers every 12 months without exception. The law changed, and many banks changed at that time, but now Reg P has been updated as well. The final rule created an exception so that banks meeting two conditions will be exempted.

(1) The bank only shares nonpublic personal information with nonaffiliated third parties where there is no obligation to offer an opt-out.

(2) The bank must not have changed its “policies and procedures with regard to disclosing nonpublic personal information” from the policies and procedures outlined in the most recent privacy notice sent to the consumer.

Under the GLBA, there is no requirement to provide an opt-out notice to customers where personal information is shared with:

  • service providers performing functions on the company’s behalf,
  • non-affiliated third parties who perform joint marketing on the bank’s behalf; or
  • if the disclosure is necessary to “effect, administer, or enforce a transaction.”

This exception only applies to annual privacy notices and does not impact the requirements for providing the initial privacy notices or amended notices when a change is made.

The final rule also adopted new timing requirements for issuing annual privacy notices. If your bank has made changes to its privacy policies and procedures and no longer qualifies for the exception, the timing requirements are to issue an annual privacy notice either before implementing those changes or within 100 days after adopting a policy or practice that eliminates the notice, when the changes did not trigger a required delivery of a revised privacy notice.

Lastly, the Bureau eliminated the “alternative delivery” method for annual privacy notices. Under the “alternative delivery” method, banks were permitted to meet the annual privacy notice requirement in certain circumstances by posting a copy of the annual notice on their websites. The Bureau recognized that many of the requirements permitting the “alternative delivery” method were the same as the requirements to qualify for the new annual privacy notice exception and, therefore, the method was now considered moot.

We have recommended following the revised GLBA since it was enacted, and we have not heard of regulators conflicting with that. But the Reg P final rule now makes it official and clear.

Notes on beneficial ownership

By John S. Burnett

When we last visited this topic in August, FinCEN’s second temporary exceptive relief was about to be issued. Then, on September 7, 2018, just as a 30-day temporary administrative ruling was ending, FinCEN issued Ruling FIN-2018-R004, “Exceptive Relief from Beneficial Ownership Requirements for Legal Entity Customers of Rollovers, Renewals, Modifications, and Extensions of Certain Accounts” indicating it is permanent (at least until it changes).

BSA and compliance officers jumped all over the newest ruling, hoping it answered their concerns about renewals and rollovers. And they quickly realized that FinCEN’s “exceptive relief” wasn’t the panacea they had hoped for. And, as is always the case, the definitions are where the keys to FinCEN’s ruling are found.

In the opening paragraph of the ruling, FinCEN gave us fair warning that there is a “catch” involved. In fact, it would be fair to say that FinCEN carved out exceptions from its exceptive relief.

Certificates of deposit

The first item to receive exceptive relief is listed as a “rollover of a certificate of deposit (as defined below).” That sent readers of the ruling to the page 3, where FinCEN tucked away its definition (I’ve included in brackets a footnote that’s part of the definition):

“For purposes of this Ruling, a certificate of deposit (CD) is a deposit account that has a specified maturity date, but cannot be withdrawn before that date without incurring a penalty. [The definition of “CD” for the purposes of this Ruling differs from the definition of “time deposit” in Regulation D of the Board of Governors of the Federal Reserve System (Reserve Requirements of Depository Institutions, 12 CFR Part 204); see 12 CFR 204.2(c)(i).] During the term of the CD, a customer cannot add additional funds to the CD. The term of a CD may vary from a week to several years. At the end of the term, when the CD matures, the customer is entitled to the amount deposited and any interest that has accrued; the customer may also have the ability to elect to either renew or close the account. Typically, the account will automatically renew absent affirmative action by the customer to close the account.”

The sentence in bold italics excludes any CD account that a bank allows the depositor to add to during its term. That’s probably not a crippling exception, but it does mean that banks need to be careful they aren’t applying the FinCEN exceptive relief to a CD that doesn’t qualify for it.

Loans and lines of credit

The next two types of accounts receiving exceptive relief are renewals, modifications or extensions of a loan or commercial line of credit or credit card account. For starters, most bankers had felt that loan modifications or extensions weren’t new accounts at all, so it was a bit of a surprise seeing them itemized as something getting exceptive relief. But it’s the limitations placed on the exceptions that warrant careful attention. In these cases, the description of these credit accounts on the very first page of the ruling create some very broad exclusions from the types of “renewals, modifications and extensions” that get exceptive relief:

  • “A renewal, modification, or extension of a loan (e.g., setting a later payoff date) that does not require underwriting review and approval;
  • A renewal, modification, or extension of a commercial line of credit or credit card account (e.g., a later payoff date is set) that does not require underwriting review and approval

How many business loans does your bank make that can be renewed without additional underwriting or approval? They would have to be loans written with an understanding up front that they would be renewed, perhaps as seasonal inventory is liquidated. But an extension or modification? Either would almost always require underwriting, approval or both.

Safe deposit box rentals

I was in the camp that never thought that safe deposit rental renewals were new accounts. But apparently FinCEN felt they were, but they gave exceptive relief on them anyhow. No strings on this item (not that it comes up often).

So, the industry got exceptive relief, but not everything it hoped for. There is apparently some discussion at FinCEN about taking another look at the subject to see if there is anything else it can include in the exceptions, but we’ll just have to keep our eyes peeled and hope for the best. In the meantime, banks need to make sure they don’t overstep in their adoption of the exceptive relief in their policies and procedures.

Estate accounts

The question of whether decedent estates are legal entity customers subject to the Beneficial Ownership rules has come up a few times in the last several months. Apparently, there is a belief that estates register with the state and obtain EINs, so they must therefore be legal entity customers. That’s simply not the case.

While it is true that an estate is a different legal “person” from the individual who died, an estate is not an entity like a corporation or LLC. Estates don’t register with the Secretary of State (or similar public state office) to be created; they are “created,” if you will, by the death of an individual. If they are to be probated, they file with the Probate Court. The Probate Court is part of a state’s court system, but it is not part of, or related to, the Secretary of State’s office. So, no, a decedent’s estate is not a legal entity customer under the Beneficial Ownership rules.

Single-member LLCs

The IRS, on its website, says that it treats a single-member LLC as a sole proprietor if it elects “disregarded entity” status for taxation purposes. So, if the IRS says it’s a sole proprietorship and sole proprietors are excluded from the Beneficial Ownership rule, then banks can exclude single-member LLCs, right?

WRONG! First, because not all single-member LLCs elect “disregarded entity” status. Next, the IRS treating an LLC as a sole proprietor for tax purposes doesn’t make it a sole proprietor under the law, and certainly not under FinCEN’s Beneficial Ownership rules. This is like the old flawed suggestion that a single-member LLC can have a NOW account because the IRS lets it use the single member’s SSN.

Depending on IRS rules to determine whether a customer is a legal entity customer under the Beneficial Ownership rules is like consulting a physics professor about brain surgery. You could live to regret it!

November 2018 OBA Legal Briefs

  • Revocable trusts deposit insurance
  • Complaints update
  • The loan estimate and “no cost” loans

Revocable trusts deposit insurance

By Pauli Loeffler

A bit over a decade ago, the FDIC made changes to its deposit insurance coverage for trusts. Charles Cheatham wrote about the changes for the October 2008 OBA Legal Briefs, and there have really been no changes since then. However, bankers often have difficulty in knowing whether a particular trust is fully covered, so this article will revisit the topic.

The general rule. So what is the formula for calculating the deposit insurance coverage for trusts? The general rule is that the amount of FDIC insurance is: number of grantors (or owners for informal trusts) times the number of beneficiaries times $250,000 (the Standard Maximum Deposit Insurance Amount or SMDIA). NOTE: NEVER use the number of trustees in determining deposit insurance. For instance, Georgia Brown is the grantor of the George Brown Revocable Trust, but both she and her husband are trustees. The trust has three beneficiaries, so the amount is 1 (grantor) x 3 (beneficiaries) x $250,000 = $750,000 deposit insurance.

Formal and informal trusts. A formal trust is one is evidenced by a written document generally prepared by an attorney for estate planning.  A formal trust, such as the one used in the example above, does not require that the beneficiaries be named in the bank’s records but must be made available by the trustee if the bank fails. The rule is different for informal trusts (POD, ITF, and Totten Trusts) where there is no actual written trust. With informal trusts, the PODs must be in the bank’s records.

Aggregation. Formal and informal trusts are subject to aggregation. Jim and Margaret Anderson are the grantors of the Anderson Family Trust, and their three children, Betty, Bud, and Kathy a/k/a Princess are the beneficiaries of the trust account at your bank. Jim and Margaret also are joint owners of an account and the three children are PODs on that account. The funds in the two accounts will be aggregated in determining deposit insurance coverage. The maximum amount would be 2 x 3 x $250,000 = $1,500,000, as provided under the general rule.

Exception to the general rule. An exception to the general rule comes into play with regard to how the coverage limit is determined when the aggregate amount in revocable trusts exceed five times the SMDIA ($1,250,00) and there are more than five beneficiaries. If there are multiple grantors, the five times SMDIA will be multiplied by the number of grantors/owners. For instance, If there are two grantors/owners the exception will apply when: the aggregate amount in revocable trusts exceeds 10 times the SMDIA ($2.5 million) and there are more than five beneficiaries. Note that both criteria must be met for the exception. For instance, if Fred Flintstone is the grantor of the Fred Flintstone Family Trust which has six beneficiaries, and the amount in the trust is $1,000,000, the exception does not apply since the aggregate amount does not exceed $1,250,000 (five times the SMDIA), so you follow the general rule. Or Jackie, Tito, Jermaine, Marlon and Michael Jackson are the owners of an account with a single POD beneficiary. The exception would not apply since the number of beneficiaries does not exceed five, so again, the account would be subject to the general rule. When the exception does come into play, then you must know the amount each beneficiary is to receive in order to determine whether the entire deposit is covered by FDIC insurance.

Who can be a beneficiary. There is an additional problem in calculating deposit insurance coverage, since who qualifies as a beneficiary for FDIC insurance purposes is different from who can be named as a POD beneficiary under Sec. 901 of the Oklahoma Banking Code. For FDIC insurance, a beneficiary must be a natural person or a charitable or other non-profit entity (tax exempt) under the Internal Revenue Code. On the other hand, Oklahoma allows not only natural persons and charitable/non-profits, but also trusts, to be PODs. If John Smith names his revocable trust as POD, this is fine under Oklahoma POD provisions, but the account will not be considered an informal trust account for purposes of FDIC coverage. If John Smith names Jimmy Jones, Roger Simms, and his revocable trust as POD beneficiaries, it will be an informal trust under state law, but only insured for a maximum of $500,000 rather than $750,000 since the trust is not counted for coverage purposes.

The situation gets even more complicated if the exception to the general rule comes into play because the bank will need to know how much each beneficiary will receive in order to calculate deposit insurance coverage. When there are multiple POD beneficiaries named, Sec. 901 of the Banking Code requires that all beneficiaries receive equal shares, e.g., if there are four beneficiaries, each will receive 25%, so this is simple. However, a formal trust is not subject to the same constraints, and beneficiaries may receive different amounts or percentages.

EDIE. FDIC’s Electronic Deposit Insurance Estimator can be accessed here. In most cases, EDIE will do the math for you and provide the answer, but if the exception discussed above applies, it isn’t designed to calculate coverage. You will have to work it out on paper.

Finally, if one of multiple grantors die, and the trust becomes irrevocable, it remains subject to this section rather than the one covering FDIC insurance for irrevocable trusts. However, the amount of deposit insurance will decrease as a result of the death of a grantor. This will also be true if one of the beneficiaries dies. Sec. 330.3 provides:

(j)  Continuation of insurance coverage following the death of a deposit owner. The death of a deposit owner shall not affect the insurance coverage of the deposit for a period of six months following the owner’s death unless the deposit account is restructured. The operation of this grace period, however, shall not result in a reduction of coverage. If an account is not restructured within six months after the owner’s death, the insurance shall be provided on the basis of actual ownership in accordance with the provisions of § 330.5(a)(1).

The FDIC rule for deposit insurance coverage for trusts as well as other account categories can be found in 12 CFR 330. You should be aware that the FDIC has the final word on coverage. For very complex situations, we recommend the customers contact the FDIC for a determination.

Complaints update

By Andy Zavoina

Complaints from your customers can act as a barometer for their satisfaction with your products and services, as well as the fees you charge for them. Complaints can be an early warning to poor or illegal practices within your bank and this is especially critical when the bank has a third-party vendor selling to the bank’s customers. For these reasons, you have to implement a procedure to recognize and respond to complaints and inquiries as well as keep certain records of them as well as supporting documentation.

Just as the bank keeps records of the complaints it receives, so does your regulator. The Bureau of Consumer Financial Protection (Bureau), which regulates the larger banks and others in our industry is the only one regularly preparing an analysis of these complaints and distributing them to the public. This is important, because it not only allows your bank to compare itself to other banks in the country, but it allows you to compare yourself to other banks in your state. You have the capability to access the Bureau’s database and extract tons of data that you can filter in many, many ways.

Then there are times when the Bureau produces a recap and saves you all that trouble of filtering data. The Bureau recently released its latest update, the October 2018 “Complaint snapshot: 50 state report.” As is typical of the Bureau, it is less focused on a specific and recent period such as 12 or six months of history and instead starts off with the period of January 1, 2015 through June 30, 2018.

This is a high-level overview, but it is an excellent recap of complaints the Compliance Department can use both for information and as a model to present your data and comparisons to the bank’s management and the board. Remember, these are excellent benchmarks for comparison in addition to your own statistics from the prior year or years, and a prior period within the last year. In case you are already wondering, for the period of this Bureau report Oklahoma saw 7,663 complaints. Those of you with banks to the north may be interested in the 5,776 complaints for Kansas or the whopping 92,530 complaints in Texas. Yes, if you have expanded to the Lone Star state you may need more than an Excel spreadsheet. Texas, California and Florida and the three states with more than 100,000 complaints. If you want to handle the fewest complaints, Wyoming is the place to be with only 978 complaints on record. That is just over 23 complaints per month for Wyoming, 2,199 for Texas and a manageable 182 for Oklahoma. Of course, you already see a pattern – the greater a state’s population, the greater its share of the complaints lodged with the Bureau.

Nationwide there were 495,000 complaints in this 42-month period. That is an average of more than 27,000 per month and the same issue is still leading the most popular category, debt collection. Even though the 2016 to 2017 trend shows this declining 4 percent, it still has the largest volume with more than 302,000 complaints.

The biggest issue with debt collections is not the frequency of calls or the rude person demanding money, but about debts not owed. For those collecting debts of third parties, the Fair Debt Collections Practices Act requires a confirmation of the debt or the consumer’s ability to at least contest it. That appears to not be happening as much as it should.

Earlier reports from the Bureau indicate several concerns pertaining to debt collections. In the May 2018 spotlight on debt collections it was noted that 39 percent of the complaints were on debts the consumer said were not owed. There may be some crossover to the second issue below on credit reporting, as many consumer complaints involved debts showing on a credit report that the consumer was not aware of. They often indicated that neither the creditor nor the amount owed were familiar to them. Some consumers said the credit reports were generated before there was any debt confirmation and others said they asked for confirmation but received no response. And then there were those complaints about the communication tactics used. Frequent and repeated calls before 8 a.m. and after 9 p.m. were not uncommon, even after requests were made to not use the telephone for contact any longer.

Even if the bank is not directly subject to the Fair Debt Collections Practices Act, there are many parts of the Act that can be followed as a best practice. It may not be necessary to confirm every debt when the bank knows its borrower, but if the collector is not familiar with the person and the lender cannot provide verification, in this age of identity theft a confirmation is a good foundation for collecting money owed the bank. If a consumer requests that they not be called at a particular place or time, when can they be contacted by phone? If they refuse telephone contact, how else can the bank contact them? In the “olden days” a collector may have been hesitant to give up telephone contact without a fight, but with number blocking a click away for the consumer, this may be a demand the bank yields to quickly today. Sometimes it’s best to get back to the basics, contact the consumer, figure out the cause of the delinquency, determine if those conditions still exist, get a collection application to negotiate repayment terms, and from there see if those terms can be met or if collateral repossession is an option.

Fair Credit Reporting Act issues are now involved in a larger number of complaints per year than debt collections (31 percent as compared to 26 percent) at the Bureau. They have not only overtaken debt collection issues; from 2016 to 2017 they increased by 12 percent. Almost 274,000 complaints filed with the Bureau since 2015 involve incorrect information on a credit report.

Some consumers believed the inaccurate credit reports are a result if identity theft. There were many reports in the 2017 recap alleging consumers contacted the credit bureau and/or the creditor before contacting the Bureau to complain about mis-information on a credit report. In some instances, the proper reports were filed including police reports, but the issues remained. After that, the consumer went to the Bureau, which indicated a good success rate with the credit bureau following standard procedures and correcting errors. There were also complaints about credit scores, as it seems many consumers believe there is one credit score for them. When what they hear from a creditor differs from what they thought they had based on a credit report or an app on their phone, they tend to occasionally complain as well. This category also rose after the Equifax data breach. These related not only to the breach itself, but the confusion over credit freezes, the cost of those credit freezes (these pre-dated the now mandatory procedures we detailed in last month’s Legal Briefs) and the lack of customer support from Equifax.

The third major complaint category includes mortgages. There were 155,000 martgage complaints made since 2015, and 12 percent of the 2017 complaints involved mortgage loans (down from 18 percent the year prior). Making the mortgage payment was the issue 40 percent of the time so this partially relates to the Collections discussion above in addition to servicing issues.

Contacting mortgage servicers was difficult for consumers. They claimed they could not reach a point of contact they were directed to, and that servicers simply do not respond to them, or when they do, inaccurate or incomplete information is provided. Sometimes the servicer simply cannot answer the consumer’s question. Modifying loans through a servicer is problematic and draws complaints, especially when the account is handed from one point of contact to another and there is unclear guidance and documentation concerning requirements for loss mitigation programs.

Loss mitigation programs and collections are typically departments apart from lending. They should have clear policies, procedures and trained personnel. These are typically issues at bigger banks, but similar problems on workout loans can be seen in smaller banks. Training and centralized guidance will help any bank or servicer in this area.

As for credit card accounts, from 2015 through 2017 there were 90,000 complaints and in 2017, they represented 8 percent of total complaints handled by the Bureau. The major problem (22 percent of the time) was with the purchases shown on the periodic statement.

The last major category deals with deposit accounts. Account management was the primary issue 71 percent of the time. Although limited to 88,000 in the three-year period, 8 percent of the 2017 complaints involved deposit products, down from 10 percent in 2016. These problems included unauthorized fund transfers, provisional crediting of accounts, stop payment of preauthorized electronic fund transfers, and resolving errors. Another issue with deposit accounts was the incentive programs often used to capture and retain deposit accounts. When the rules are more detailed and clouded with “if this, then that” decisions than the simple ads made them out to be, consumers are not happy.

A strong Reg E policy and procedures will go a long way to mitigate these complaints. Turnover of bank staff sometimes makes this hard, but training is a key issue followed by easy to follow procedures. As to incentives, following the Keep It Simple method and losing the red tape will help avoid complaints as well as potential Unfair or Deceptive Acts or Practices (UDAP) claims.

Oklahoma followed the national trends with the same five areas of complaints. The following are those areas, the number of complaints from 2015 to 2017, and the percentage of complaints during the last two years:

  • debt collection, 2,760 complaints, 33% in 2017, 37% in 2016
  • credit reporting, 1,673 complaints, 26% in 2017, 16% in 2016
  • mortgages, 930 complaints, 10% in 2017, 14% in 2016
  • credit cards, 538 complaints, 7% in 2017, 7% in 2016
  • checking/savings, 5 complaints, 33% in 2017, 6% in 2016

Credit reporting was the only area to increase from 2016 to 2017 and that was a 10 percent increase. Part of your internal analysis should be to compare how your bank’s complaints compare to these numbers. That is a question you should be able to answer for management, the board and your examiners.

What can you do with all this complaint data? You analyze it, you discuss it with management, with the board, with different branch locations, business lines and marketing. The bank has within its grasp the ability to read the perceptions customers have of the bank (which may have been shared with the public – your potential customers) in its own complaints data, the Bureau’s database and quite likely on social media. When the bank is aware of these perceived shortcomings, it can counter them with changes when products, services and fees can be improved, or with proactive marketing which counter these perceptions, especially if they are incorrect or incomplete. Lessening the reasons for customer to complain is good customer service and this translates to retention of those customers and a stable income stream, which also allows the bank to sell more accounts and grow. It’s also good for your Community Reinvestment Act program.

The loan estimate and ‘no-cost’ loans

By John S. Burnett

It’s been just over three years since lenders first had to use a loan estimate and closing disclosure to comply with the TILA/RESPA Integrated Disclosure (TRID) rule. Before the October 3, 2015, effective date and since, there’s been a debate over how best (read: compliantly) to prepare the loan estimate for a mortgage loan when the lender is promoting “no-cost” or “low-cost” loans.

Pricing for such loans vary from lender to lender, but the common thread is that the lender waives some or all its own fees and/or pays for common third-party costs, such as the costs of credit reports or appraisals.

Surely, there should be one right way to disclose such a loan! The debate  over whose way is the right way continues. Here are the two approaches that have been advocated:

The minimalist approach. Using the words from § 1026.37(f) and (g) as justification, (e.g., § 1026.37(f)(1):“ …an itemization of each amount…that the consumer will pay to each creditor and loan originator …”), this approach omits from the loan estimate any cost that the lender will not directly impose on the borrower. So, for example, if the lender intends not to charge the borrower for an appraisal, there will be no entry for an appraisal on the loan estimate, although the actual cost of the appraisal will appear on the closing disclosure, either as a specific lender credit or charged to the borrower and offset with a general lender credit.

The ‘costs and credits’ approach. Other lenders are of the opinion that even the costs that the lender will absorb as part of its “no-cost loan” promotions should appear on the loan estimate, so that applicants get the full picture and see costs that are likely buried in pricing for the loan. These lenders also find support for their position in the regulation. The first mention of “no-cost” loans in § 1026.37 or its commentary is in comment 37(g)(6)(ii)-2 (referring to the “Lender Credits” line in Section J of the loan estimate):

  1. Credits or rebates from the creditor to offset a portion or all of the closing costs. For loans where a portion or all of the closing costs are offset by a credit or rebate provided by the creditor (sometimes referred to as “no-cost” loans), whether all or a defined portion of the closing costs disclosed under § 1026.37(f) or (g) will be paid by a credit or rebate from the creditor, the creditor discloses such credit or rebate as a lender credit under § 1026.37(g)(6)(ii). The creditor should ensure that the lender credit disclosed under § 1026.37(g)(6)(ii) is sufficient to cover the estimated costs the creditor represented to the consumer as not being required to be paid by the consumer at consummation, regardless of whether such representations pertained to specific items.

When TRID 1.0 was published in 2013, the Bureau offered the following in its discussion on lender credits under section 1026.37(g)(6). You’ll find it in the paragraph starting here.

To merely ignore services that are most likely going to be obtained if a creditor intends to pay for the service would be an unreliable standard for a consumer. Information regarding the services for which the consumer will be likely to pay, either directly or through a higher interest rate, may be useful to consumers when comparison shopping or understanding the nature of the mortgage loan transaction.

Pros and cons of the minimalist approach. Omitting from the loan estimate the costs that the lender intends to pay for the consumer has some positive aspects:

  • It’s certainly easier
  • It produces a simpler loan estimate
  • There’s no concern about providing a larger-than-needed lender credit that can cause problems at closing if costs were overestimated

On the other hand, there is the risk that an examiner will refer to comment 37(g)(6)(ii)-2 and the Bureau’s TRID 1.0 discussion of section 1026.37(g)(6)(ii) and cite the lender for failing to disclose information “regarding the services for which the consumer will be likely to pay, either directly or through a higher interest rate.”

Pros and cons of the “costs and credits” approach. Including on the loan estimate the costs that the lender intends to pay or waive for the consumer avoids the one significant concern about the “minimalist” approach. It may also provide more useful information since the consumer can see how much the lender credits may cost in terms of rate and APR (which may tend to be higher than at competing lenders if costs are “buried” in the loan’s pricing) and may be a more informed shopper for the mortgage loan (to the extent that consumers actually shop).

The challenge when using this approach is to pin down as accurately as possible the costs that will apply to the loan (this is supposed to happen for all loan estimates, anyhow) and to disclose lender credits offsetting the costs to be waived or absorbed without making the credits too high. Some lenders have been known to over-estimate some closing costs to avoid tolerance violations at closing, and when they disclose lender credits to offset those closing costs, have found themselves “hoist on their own petards,” having to honor the estimated lender credit amount, while avoiding tolerance cures on the services themselves. That makes it all the more important to fine-tune the cost estimates and lender credit to avoid cures required from either direction.

Of the two approaches, the “costs and credits” approach is the one supported by the regulation and commentary and is the least vulnerable to being cited by examiners.

Avoiding the lender credits ‘lock-in’

Using the “costs and credits” approach can result in having to honor a high estimate of lender credits if the lender isn’t careful. But lenders don’t have to be “locked in” to their estimated lender credits if they understand that a lender credit estimate can be reduced under certain circumstances. Lenders already know about reducing lender credits in connection with pricing changes, such as the execution of a rate lock, because there is a discussion of those adjustments in comment 19(e)(3)(iv)(D)-1.

Contrary to rumor, a change in interest rate-dependent charges is not the only reason that a revised loan estimate (or closing disclosure) can be used to change the estimated lender credits that will be compared with total actual lender credits at closing to determine good faith tolerance. It happens to be the only example provided in the commentary, but there are other possibilities.

In the prefatory text that accompanied “TRID 1.0” at publication, the Bureau said in its analysis of comment 19(e)(3)(i)-5:

With respect to whether a changed circumstance or borrower-requested change can apply to the revision of lender credits, the Bureau believes that a changed circumstance or borrower-requested change can decrease such credits, provided that all of the requirements of § 1026.19(e)(3)(iv) … are satisfied.

Changed circumstances are enumerated in § 1026.19(e)(3)(iv)(A) and (B), and include:

  1. An extraordinary event beyond the control of any interested party or other unexpected event specific to the consumer or transaction;
  2. Information specific to the consumer or transaction that the creditor relied upon when providing the original [loan estimate] and that was inaccurate or changed after the disclosures were provided;
  3. New information specific to the consumer or transaction that the creditor did not relay on when providing the original [loan estimate]; or
  4. The consumer is ineligible for an estimated charge previously disclosed because a changed circumstance described in items 1, 2 or 3 affected the consumer’s creditworthiness or the value of the security for the loan.

A borrower-requested change that revises the credit terms or the settlement can cause an estimated charge to increase.

Because lender credits are treated as negative charges to the consumer, a reduction in lender credits is therefore an increase in charges to the consumer. Therefore, if a changed circumstance or consumer-requested change results in a reduced charge for a service that the lender has agreed to pay for with a lender credit, the lender credit can be reduced dollar-for dollar with the cost of the service if the lender provides a revised loan estimate showing the updated costs and reduced lender credit within three business days of learning of the changed circumstance or consumer-requested change.

Here’s an example: The creditor has agreed to pay for the credit reports and appraisal fee in connection with a loan subject to TRID rules. It issues a loan estimate showing a credit report charge of $30 and an appraisal fee of $500, both disclosed costs based on the best information available to the creditor at the time of the loan estimate. A lender credit of $530 was also disclosed. Several days later, the creditor learns that the appraisal will be completed by a new appraiser trying to break into the market at a cost of $400. The creditor provides a revised loan estimate within three business days reflecting the credit report charge of $30 and an appraisal fee of $400, and lender credits of $430. The revised loan estimate successfully adjusts the lender credits amount (which increased the costs to the borrower by $100, to offset the $100 reduction in appraisal costs).

In order to successfully use this method to adjust the estimated lender credits for good faith comparison purposes, the creditor must carefully document that the lender credits on the loan estimate are specific credits for specified costs, document when the creditor learned of the changed circumstance or borrower-requested change that resulted in the reduced specified cost(s), and document when the revised loan estimate was provided.

October 2018 OBA Legal Briefs

  • UTMA accounts
  • Loans to minors
  • SCRA update
  • FCRA credit freeze update

UTMA accounts

By Pauli Loeffler

In the September 2018 OBA Legal Briefs, I wrote about deposit accounts that can be opened for a minor as owner or co-owner. This month, we look at the other important account offering for minors, accounts opened under the Oklahoma Uniform Transfer to Minors Act (UTMA).

The UTMA statutes are located in Title 58 (the Probate Code), §§ 1201 – 1224. A UTMA will have language stating the funds are held by “_________________ (name of custodian) as custodian for __________________ (name of minor) under the Oklahoma Uniform Transfers to Minors Act.”  Unlike the minor accounts described last month, the minor has no transactional authority. Further, the minor, at least during the term of the UTMA, cannot receive information about the account without the consent of the custodian or an order of a court.

Here are some pertinent points regarding UTMAs:

  • Once funds are transferred to a UTMA, the transfer is irrevocable. If Grandma gets mad at Johnny, or he doesn’t live up to her expectations, she cannot take the funds back.
  • The custodian is a fiduciary and must use the funds solely for the benefit of the minor. S/he cannot pledge the UTMA account for security to make improvements to the house s/he owns even if the minor resides there, or to purchase a car titled in the custodian’s name used to take the minor to school, football practice, etc. On the other hand, the UTMA account could be pledged to buy a car titled in the minor’s name provided s/he has a driver’s license.
  • There can be only one custodian and one minor and one UTMA created. Court-ordered UTMAs do not necessarily follow this rule.
  • The UTMA account can be a CD, MMDA, savings account, NOW account, or DDA. Court ordered accounts generally must be interest-bearing.
  • There is no prohibition on allowing the custodian to have a debit card. This is up to bank policy. Since the minor does not have transactional authority on the account, if the custodian requests a debit card for the minor, it is problematic. However, since the funds will be used by and for the benefit of the beneficiary, this is also up to the bank.
  • PODs are allowed on UTMAs. If it is a court-ordered UTMA, the court will have to specifically name a POD beneficiary, which is rarely done.
  • The transferor of the funds creating the UTMA or the custodian may designate successor custodians. If s/he does not, the custodian may name a successor other than the transferor. If neither the transferor nor the custodian names a successor and the beneficiary is at least 14 years of age, s/he may name a successor who is an adult member of the minor’s family, a guardian of the minor, or a trust company. But, if this is not done within 60 days of the ineligibility, death, or incapacity of the custodian, a guardian (a person appointed by a court) becomes the successor. If there is no guardian or the guardian declines, the transferor, the legal representative (e., the personal representative of the estate, guardian, or conservator) of the transferor or custodian, an adult member of the minor’s family or any other interested person (e.g., the bank) can petition the court to designate a guardian.
  • The custodian shall pay the funds to the minor when the minor reaches the age of 18 unless at the time of transfer of funds a time is specified after the minor reaches the age of 18 but not later than when the minor reaches age 21. In other words, if no age is mentioned, the custodian is required to disburse to the minor at age 18.

Courts routinely order the establishment of a UTMA for minors when the minor is entitled to money under a settlement for injuries in an accident, when entitled to death benefits under a worker’s compensation death claim or as beneficiary of a life insurance policy, and similar situations.  The court order will establish who is the custodian and will control the transactions allowed. Most such court orders will require a further order of the court for the custodian to make any withdrawals during minority, and the bank needs to lock down the account to prevent withdrawals without such an order.

On the other hand, most if not all these court-ordered UTMAs specifically give the bank the power to pay the minor directly as soon as s/he attains the age of 18 which avoids “the custodian who just won’t let go” problem. This comes up quite frequently. Grandma who established and is the custodian of the UTMA isn’t pleased with how the grandson has turned out and won’t disburse the funds. We know of instances where the “minor” is now in his mid- or late twenties and even one who was 35 years old, and the funds were still in the UTMA.

So, the age for disbursement arrives and the custodian does not disburse. The bank reminds the custodian that the time has come, and the custodian has the duty to pay the funds, but the custodian balks and says the kid is irresponsible, and s/he is going to hold on to the funds. I have no problem with the bank notifying the aged-out minor of the UTMA and informing him of § 1221 procedures that allow the bank to release the funds directly to him. Here’s the statutory language:

C. To the extent the custodial property consists of deposit accounts held at a financial institution, if the minor reaches the age for release and the custodian does not make a timely transfer of the property to the minor, the minor may make a request for the account-holding financial institution to intervene. The request from the minor shall be signed, dated and in writing, and shall state that the minor has reached the age for release and the custodian has refused to distribute the remaining funds to the minor after being asked to do so by the minor after the minor was entitled to them. Upon receiving the minor’s request, the financial institution may send a written demand to the custodian to transfer to the minor the funds in any Oklahoma Uniform Transfers to Minors Act deposit account. If the custodian does not make the distribution within thirty (30) days from the date of the financial institution’s demand, the financial institution shall have the authority to close the account and pay out the funds directly to the minor without any liability or recourse from any parties.

The minor starts the ball rolling, by giving the bank a signed, dated, written request stating that the minor (or former minor) has reached the age for release and the custodian has refused to distribute the funds to the minor after being asked to do so.

Then the bank sends a written demand to the custodian to transfer the funds to the minor, giving the custodian 30 days to do so. A template for the letter is accessible on the OBA Legal Links webpage here.

If the custodian comes in to close the account at some point before the 30 days have past, the custodian cannot do a cash withdrawal, and the check must be payable to the named minor ONLY. If the minor is present and wants to open a joint account with the custodian, that’s fine.

Loans to minors

By Pauli Loeffler

I have “borrowed” some of the following from Charles Cheatham, former OBA General Counsel who wrote on this subject for the OBA Legal Briefs nearly two decades ago, but that article is no longer accessible online.

As I indicated in the 2018 September Legal Briefs, Title 15 covers contracts and Sections 11 and 12 contain the provisions about a minor’s capacity to enter into them. Sec. 11 states: “All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights…”  § 12 provides: “Minors and persons of unsound mind have only such capacity as is defined by the statutes of this State.” Further, § 19 of Title 15 allows the guardian of a minor to disaffirm a contract during his minority, and allows the minor to disaffirm a contract for one year after reaching majority UNLESS (per §21) a statute has relieved him of the disability of minority to enter into the contract.

The question of loans to minors most often comes up when Dad wants to buy a car for the minor and wants to jump start junior’s credit history by having the child as a co-borrower. The problem is that such a loan is not legally enforceable against the child, and the bank can report neither good nor bad payment history to the credit bureaus. A debt that the minor can disaffirm such that it is void from the beginning is a debt that the minor never owed; and therefore, the minor’s payment, nonpayment or late payment of such a debt cannot be counted against his credit history.

So when can a minor enter into a loan and be legally bound?

Educational loans.

15 O.S. § 33 allows a minor to obtain an educational loan and to be bound by the contract (disaffirmation will not apply) provided he is:

  • At least sixteen years of age, and either
    • has written approval of his parent or guardian, or
    • is not residing with a parent or guardian.

The educational loan must be for the purpose of directly furthering the minor’s education at an educational institution.  Any college, high school, technical, vocational, or professional school meets the definition of “educational institution.”  Before making the loan, the bank must obtain certification in writing that the minor is enrolled, or accepted for enrollment, at the educational institution. If the requirements are met, an educational loan is binding upon both the minor and any guarantor or co-maker.

Let’s consider an example: A 17-year-old high school student applies for a loan to buy a calf for an FFA project.  The student’s vo-ag teacher, who is the FFA sponsor, offers to be either a co-maker or a guarantor on the loan. The minor lives at home under the care of his parents. The loan to buy the calf is “for the purpose of furthering the minor’s education” if his vo-ag class requires he have a livestock project as part of his grade. Provided that the student gets a) written approval from his parents to apply for the loan, b) a letter from his high school verifying his enrollment, and c) a letter stating that raising the calf is a requirement for his vo-ag class, then the bank can make the loan and fall within the parameters of § 33., and the loan would be binding on both the minor and the vo-ag teacher whether s/he is a co-maker or a guarantor.

An example with the opposite result occurs if the bank fails to obtain written verifications from the high school or parental permission since the minor lives with the parents. There is another problem if the minor is the only direct debtor and the vo-ag teacher is a guarantor. The minor would not be legally bound, nor would the teacher be. An early Oklahoma court case states that disaffirmance of a contract by a minor nullifies the contract and renders it void from the beginning; and after the minor has disaffirmed the contract, anyone can take advantage of such disaffirmance. The promissory note signed by the minor is deemed void from the beginning if it is disaffirmed, and so the vo-ag teacher’s guaranty agreement will be treated as void from the beginning.  He has guaranteed a note that is no longer binding, and it is if neither the note nor the vo-ag teacher’s guaranty ever existed.

On the other hand, if the vo-ag teacher or another adult is a co-maker/cosigner on the note the result is different. S/he will be liable on the note regardless of whether it is an educational loan with proper certifications or a loan to buy a car, a motorcycle, a PS-4, etc. because s/he has direct liability on the note not extinguished by the minor’s disaffirmance.

Contracts for necessities.

Under 15 O.S. §20, a minor can enter into a binding loan not subject to disaffirmance when it is “…to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them.” There is very little case law under this statute other than minors’ contracts to pay attorney’s fees to obtain or preserve assets of the minor AREN’T necessary for the minor’s support, but if the contract is to pay an attorney to defend the minor in a criminal prosecution, they are.

Let’s say the minor has a job, is not living with his parent or guardian, and the parents/guardian cannot support him. He needs a loan to pay for utilities or rent or medical care. Presumably, such a loan is binding. Or a loan to a young married couple, both 17, not living with their parents would be an “enforceable loan” if made for the specific purpose of buying “necessaries.”


10 O.S. § 91 gives the district courts the authority to confer the “right of majority” upon a minor to enter into binding contracts as if he had already reached the age of 18.  Emancipation makes the minor an “adult” for purposes of making contracts, but s/he is not an “adult” for all purposes. For instance, s/he is still required to attend school if s/he has not graduated. Note that marriage of a minor does not in and of itself emancipate a minor in Oklahoma although this is the case in other states.

SCRA update

By Andy Zavoina

Here is an SCRA update most of us almost missed. H.R. 5515, the John McCain National Defense Authorization Act for Fiscal Year 2019 became Public Law No. 115-232 on August 13, 2018. Of key importance to us is section 600 which amended the proof of military service in order to qualify for the interest rate reduction afforded in section 207 of the Servicemembers Civil Relief Act (50 U.S.C 3937). This article will explain the changes, as well as provide a refresher for certain SCRA requirements.

Here is how SCRA § 207(b)(1) now reads, after the Sec. 600 amendment:


(A) IN GENERAL.—Not later than 180 days after the date of a servicemember’s termination or release from military service, in order for an obligation or liability of the servicemember to be subject to the interest rate limitation in subsection (a), the servicemember shall provide to the creditor written notice and a copy of—

(i) the military orders calling the servicemember to military service and any orders further extending military service; or

(ii) any other appropriate indicator of military service, including a certified letter from a commanding officer.


(i) IN GENERAL.—A creditor may use, in lieu of notice and documentation under subparagraph (A), information retrieved from the Defense Manpower Data Center through the creditor’s normal business reviews of such Center for purposes of obtaining information indicating that the servicemember is on active duty.

(ii) SAFE HARBOR.—A creditor that uses the information retrieved from the Defense Manpower Data Center under clause (i) with respect to a servicemember has not failed to treat the debt of the servicemember in accordance with subsection (a) if—

(I) such information indicates that, on the date the creditor retrieves such information, the servicemember is not on active duty; and

(II) the creditor has not, by the end of the 180-day period under subparagraph (A), received the written notice and documentation required under that subparagraph with respect to the servicemember.

What Section (1)(A) is telling us is that a servicemember now has 180 days from the date they are released from the service to make a claim for the reduced interest rate of 6 percent. It also states the request must be in writing, must include a copy of the servicemembers orders calling them to active duty and if applicable, orders extending the original so the creditor will have a better understanding of the time served. The servicemember should also have a final set which will define the date they were released. These dates often vary from the prior set because the servicemember has to out-process from their duty station and possibly travel to a final location for out-processing from the service itself. Those arrangements could not be controlled perhaps years earlier when a prior set of orders was issued. The Defense Manpower Data Center (DMDC) database is an excellent control mechanism for verification of military service dates.

A substitute for copies of the servicemember’s orders (Sec. (1)(A)(ii)) is a certified letter from the servicemember’s commanding officer. This term “certified letter” is not defined but in its purest United States Postal Service form would be “a special USPS service that provides proof of mailing via a receipt to the sender.

In the SCRA context, “certified letter” could also mean a letter certifying the servicemember’s status.

The prior SCRA language in § 3937(b)(1) already included the 180-day period, but the certified letter from a commanding officer is a new alternative for invoking the rate reduction.

As a refresher, the application of the cap becomes retroactive to the date the servicemember was placed on active duty.  Even if the debt was paid in full before the servicemember invoked their rights, a re-amortization and refund could be owed based on the date they were under protection of the Act until their release.

These requirements apply to an obligation or liability bearing interest at a rate in excess of 6 percent per year that is incurred by a servicemember, or the servicemember and the servicemember’s spouse jointly, before the servicemember enters military service shall not bear interest at a rate in excess of 6 percent —

(A)       during the period of military service and one year thereafter, in the case of an obligation or liability consisting of a mortgage, trust deed, or other security in the nature of a mortgage; or

(B)       during the period of military service, in the case of any other obligation or liability.

The “obligation” is most commonly a loan but can also be an overdraft. Overdraft fees generally exceed 6 percent but are not expressed in that manner. It is more cost effective to waive those fees than to compute and collect 6 percent interest on them.

A pre-service credit card balance today of a servicemember must be reduced if it exceeds 6 percent. Charges made tomorrow (or at any time during or after military service) are not pre-service and thus not subject to the cap. Once the borrower is in military service, the borrower knows what their debt service capacity is, and they are not expected to overextend themselves.

Interest also includes fees under the SCRA, including late fees. If a valid request is made and the bank has to re-amortize a debt, if the rate is reduced to 6 percent, there is no room for any fee, so all should be waived. The fees should also be waived going forward. If the bank opts to reduce the interest rate lower than 6 percent, there may be room for fees but verify your effective rate.

Section 3937(b)(1)(B) is new. It now authorizes what many banks adopted as a best practice after so many enforcement actions against other banks. In the last few years when a bank was cited for violations of the SCRA, the corrective actions put in place were intended to do more than was required by the law. This included not waiting for a servicemember to make a claim for the interest rate reduction and proactively looking for signs that they may qualify. One way to accomplish this is verification through the DMDC database mentioned above. It has been fine-tuned more and more for accuracy and to reduce update latency. Banks can verify servicemembers individually or in batches. Many banks adopted the batch processing method and check the banks CIF records against the database on a monthly basis. New hits could be shown active duty immediately on bank records or contact and verifications would be initiated with the customer.

Section (B) reinforces the confidence in the DMDC database and says officially that these records may be used in place of military orders or the commanding officer’s certified letter. A bank using this will have a safe harbor so long as the database record shows the date the bank inquired and that the customer is not shown on active duty, and the bank has not received a copy of the orders or certified letter by the end of the 180 day period.

The biggest takeaway in this revision to the law is the safe harbor and confidence in the DMDC database. This is essentially a variation of the database used for Military Lending Act verifications your bank does or the credit bureau you use for such verifications. The credit bureaus update files once daily against the database, but those records are updated by the DMDC more often than that. The MLA database has more information on dependents than the SCRA database. Once, when speaking with the DMDC I inquired as to why a bank could not use just the MLA database and keep it simple. I was cautioned that the two are different and SCRA inquiries should go to that database, and MLA inquiries to that specific database. Regardless of which database you are using for its intended purpose, you must retain your records so that you always have proof of verification in the event there is ever any doubt. And ensure that when a positive match is found, it is noted on a central file as the SCRA status can affect loans, overdrafts and safe deposit boxes. Always check the database prior to a foreclosure or repossession.

Recent SCRA enforcement action

Last November, the U.S. Department of Justice (DOJ) filed a lawsuit in U.S. District Court for the Western District of Washington. The DOJ alleged that Northwest Trustee Services, Inc. violated the SCRA in its foreclosure processes.  The complaint alleges that since 2010, Northwest completed foreclosures on at least 28 homes owned by servicemembers without obtaining the required court orders in advance.

(Northwest is now a defunct company which had described itself as a full-service trustee company providing foreclosure services to mortgage lenders in the Western United States. Last December it closed and is in the process of liquidation in a state court.)

Section 303 of the SCRA (50 U.S.C. 3953) affects pre-service obligations only and states that a court may stay proceedings involving mortgages and trust deeds if the action is filed while the person is in military service or within one year after such service.  Sale, foreclosure or seizure of property isn’t valid except with a court order if made during military service or one year thereafter.

Marine veteran Jacob McGreevey of Vancouver, Washington, submitted a complaint to the DOJ’s Servicemembers and Veterans Initiative in May 2016.  Northwest had foreclosed on McGreevey’s home in August 2010. That was than two months after he was released from active duty in Operation Iraqi Freedom.  McGreevey sued his mortgage servicer, PHH Mortgage, and Northwest in 2016 but a U.S. District Court Judge accepted PHH and Northwest’s argument that McGreevy had waited too long to file his case. McGreevey had been unaware of his SCRA protections until shortly before filing his suit. It was dismissed because of that six-year gap.  The DOJ’s investigation indicated McGreevy was not the only SCRA foreclosure without a court order and the investigation went as far back as 2010.

In addition to monetary damages for affected servicemembers, the SCRA provides for civil monetary penalties of up to $60,788 for the first offense and $121,577 for each subsequent offense of this section.

On September 27, 2018, the DOJ announced it has finally reached a settlement in this case. Under the terms of the settlement, service members who had their homes illegally foreclosed may get compensation of up to $125,000. The company’s total required payout to service members is $750,000, according to DOJ. 

FCRA Credit Freeze Update

By Andy Zavoina

The Economic Growth, Regulatory Relief, and Consumer Protection Act’s (EGRRCPA) Section 301 required consumer reporting agencies to provide consumers with free credit freezes and to notify them of this availability. It established provisions for placement and removal of freezes.

This new rule was effective September 21, 2018, and added a new paragraph to the FCRA, § 605A(i). (The updated FCRA is available at

A “security freeze” on a credit report prevents new creditors from accessing the credit file and others from opening accounts in the consumer’s name until the consumer lifts the freeze. Because most businesses will not open credit accounts without checking an applicant’s credit report, a freeze can stop identity thieves from opening new accounts in that consumer’s name. Note that this applies to new creditors, so if a consumer has an existing credit relationship with your bank. Your bank will have access to the file. If you have a new customer applying for credit, asking if they have placed a freeze for any reason would be a good practice, because it must be lifted for you to check that credit file. That lift could slow down the application processing time. Now that this is a free service, expect more freezes from consumers who are proactively preventing identity theft.

After the Equifax data breach many consumers wanted to put a freeze on their credit files. There were reports that the consumer may have been charged for this, when placing it was necessitated by the credit bureau’s lax security. Then placing it initially became free but lifting and reinstating the freeze may have triggered a fee. Amendments to the FCRA have changed this.

The EGRRCPA requires that whenever the FCRA requires a consumer to receive either the “Summary of Consumer Rights” or the “Summary of Consumer Identity Theft Rights,” a notice regarding the new security freeze right must be included. The “Summary of Consumer Rights” is a summary of rights to obtain and to dispute information contained in the consumer’s report and to obtain credit scores. The “Summary of Consumer Identity Theft Rights” is a summary of rights of identity theft victims. Both are available at in English and Spanish.

EGRRCPA also extended the duration of fraud alerts on a consumer’s credit report from 90 days to one year. The fraud alert requires your bank to get the consumer’s approval before opening a new account.

This section of EGRRCPA was effective September 21 Most of the burdens here are on the credit reporting agencies, but the effects may be felt in your bank, and not only when a consumer who has frozen his credit file applies to you for credit. Your bank’s Human Resources department is required to provide a copy of the “Summary of Consumer Rights” when they turn down an application for employment based on information in a consumer report from a credit reporting agency. Those notices need to be updated to the most current version.

September 2018 OBA Legal Briefs

  • Deposit accounts for minors
  • HMDA filing update for small reporters

Deposit accounts for minors

By Pauli D. Loeffler

We get a lot of emails and calls regarding minors as owners on accounts and UTMAs. There are various OBA Legal Briefs articles covering aspects of these accounts in piecemeal fashion, but some of them are not easy to locate, and there are some that pre-date those accessible on the OBA’s Legal Briefs webpage. For your convenience, spawned by my laziness or efficiency depending on your point of view, I decided to cover all aspects of contracting with minors for deposit accounts in this article, and to cover UTMAs in an article in next month’s Legal Update.

Minor’s legal capacity to contract

The Oklahoma statutes governing contracts is found in Title 15, The first thing you need to know is how do you determine when a person ceases to be a minor. This is covered by § 13, which determines who is considered a minor and when the period of minority ends:

  • Minors, except as otherwise provided by law, are persons under eighteen (18) years of age.
  • The period thus specified must be calculated from the first minute of the day on which a person is born to the same minute of the corresponding day completing the period of minority.

Sections 11 and 12 contain the provisions about capacity to enter into contracts.

15 O.S. § 11

All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights

However, § 12 provides: “Minors and persons of unsound mind have only such capacity as is defined by the statutes of this State.” Deposit account agreements, loans, leases, operating agreements, partnership agreements, POD designations, operating agreements for LLCs, and a myriad of other agreements are all contracts. Unless there is a statutory exception granting the minor the legal capacity to enter into the contract, the contract may be unenforceable.

Minor as sole owner

Since July 1, 1997, the Oklahoma Banking Code in Title 6, § 903.1 has provided an exception to the general rules set out above and allows a minor who is the sole owner of a deposit account to have the legal capacity to enter into an account agreement. Note that there is an identical statute in Title 18 that covers Savings Associations (S&Ls). This is what the statute says:

A. Except as otherwise provided by this section, a bank or credit union lawfully doing business in this state may enter into a deposit account with a minor as the sole and absolute owner of the account and may pay checks and withdrawals and otherwise act with respect to the account on the order of the minor. A payment or delivery of rights to a minor who holds a deposit account evidenced by a receipt or other acquittance signed by the minor discharges the bank or credit union to the extent of the payment made or rights delivered.

B. If the minor is the sole and absolute owner of the deposit account, the disabilities of minority are removed for the limited purposes of enabling:

1. The minor to enter into a depository contract with a bank or credit union; and

2. The bank or credit union to enforce the contract against the minor, including collection of overdrafts and account fees and submission of account history to account reporting agencies and credit reporting bureaus.

C. A parent or legal guardian of a minor may deny the minor’s authority to control, transfer, draft on, or make withdrawals from the minor’s deposit account by notifying the bank or credit union in writing. On receipt of the notice by the bank or credit union, the minor may not control, transfer, draft on, or make withdrawals from the account during minority except with the joinder of a parent or legal guardian of the minor.

D. If a minor with a deposit account dies, the receipt or other acquittance of the minor’s parent or legal guardian discharges the liability of the bank or credit union to the extent of the receipt or other acquittance, except that the aggregate discharges under this subsection may not exceed Three Thousand Dollars ($3,000.00).

E. Subsection A of this section does not authorize a loan to the minor by the bank or credit union, whether on pledge of the minor’s savings account or otherwise, or bind the minor to repay a loan made except as provided by subsection B of this section or other law or unless the depository institution has obtained the express consent and joinder of a parent or legal guardian of the minor. This subsection does not apply to an inadvertent extension of credit because of an overdraft from insufficient funds, returned checks or deposits, or other shortages in a depository account resulting from normal banking or credit union operations.

Subsection B above. grants the minor the legal capacity to contract and be bound by the terms of the agreement. It also permits the bank to take legal action to enforce the account agreement contract for overdrafts and charge-offs and report the minor to credit reporting agencies, ChexSystems, etc.  Deposit accounts subject to the statute include DDAs, saving accounts, MMDAs, NOW accounts, and CDs. [Going off topic a bit, but related: A minor CAN have an IRA only if s/he has legitimate earned income in at least the amount of the contribution made to the IRA.]

Note that there is no minimum age for a minor as sole owner of such an account. Most minors are capable of signing the account agreement and signature card by the age of 8, perhaps earlier (but note that a minor who can’t sign the agreement cannot open an account). The bank can determine its own policy on types of deposit accounts a minor as sole owner may have based on the age of the minor.

Subsection C.  gives the parent or legal (“court-appointed”) guardian the ability to restrict transactions by the minor by notifying the bank in writing to require the parent or guardian’s approval of the transaction.  However, this does not mean the parent/guardian is a joint owner or authorized signer on the account who can make transactions. The minor is still the sole owner, and the parent/guardian has no direct access to make transactions on the account.

The relief from the disability to contract due to minority for a deposit account is not all encompassing. The minor cannot designate a POD based on language in subsection D. This restriction makes sense since an unemancipated minor (“emancipation” will be discussed in a subsequent article covering loans to minors) does not have the legal capacity to execute a will to dispose of real and personal property in the event s/he dies. If the minor dies, the bank may pay the parent or legal guardian of the minor an amount not exceeding $3,000 without obtaining an Affidavit of Heirs, and just by obtaining a receipt, the bank is relieved of any liability. If the account(s) held by the minor in sole ownership exceed $3,000, then the Affidavit of Heirs under § 906 of the Banking Code could be used unless the amount exceeds $50,000 or the minor died a resident of a state other than Oklahoma.

The first sentence of subsection E. states that the statute does not cover loans. Since the statute was last amended in 2000 prior to the 2005 Joint Guidance on Overdraft Protection Programs, and because I believe the statute would be narrowly construed by a court, I would not offer a minor as sole owner overdraft protection and certainly not the option to “opt-in” to ODP. I also don’t believe the statute permits the minor to add an authorized signer either. The owner of the account is liable for overdrafts and returned items, but not the signer even if the signer caused the overdraft. We recommend that the bank obtain a guaranty and indemnity agreement from the parent or legal guardian of the minor regarding the account

Another issue with minors, whether the minor is sole owner or not, is issuing a debit card since 1) the statute is silent on whether the minor is relieved of the disability of minority to enter into the debit card agreement, and 2) the statute does not have any effect on Visa/MC age requirements (review your contract).  I suggest that the parent/legal guardian sign the Visa/MC agreement, and guaranty and indemnity agreement of the parent or legal guardian should also specifically cover any debit card issued.

Joint with minor 

I know that most if not all banks offer adult joint with minor accounts, but I really hate them. I regret that a question regarding these accounts instantly makes me ballistic and launch into my standard rant “Why I hate joint with minor accounts: let me count the ways.” Truthfully, there are a lot of issues, but no, they don’t happen frequently. However, the risks and possible liability are real and do happen.

Joint with minor accounts are permitted in Oklahoma under Sec. 901 subsection A. of the Banking Code. Unlike minor as sole owner accounts, there is no statutory provision relieving the minor from the disability of minority allowing the minor to enter into the account agreement nor add authorized signers, PODs, opting into OPD, etc. Further, § 19 of Title 15 provides:

In all cases other than those specified herein, the contract of a minor may be disaffirmed by the minor himself, either before his majority or within one (1) year’s time afterwards; or, in case of his death within that period, by his heirs or personal representatives. Provided, that any minor between the ages of sixteen (16) and eighteen (18) who has paid for any repairing, supplying or equipping on any type of a motor vehicle may disaffirm said contract in like manner only by restoring the consideration to the party from whom it was received.

So, the bank has a contract that is 1) not binding on the minor AND 2) can be voided by a guardian during the child’s minority or disaffirmed by the minor for a year after the minor reaches age 18. For this reason, we recommend the bank always have an indemnity agreement to cover both the period of minority and the one-year period during which the contract may be disaffirmed.

There are also other concerns with this type of account. Let’s say we have a minor who has a job, or is depositing birthday, Christmas, or allowance money into the account. It’s a joint account, and the adult spent the money. Or same situation, but there is garnishment, levy, or attachment against the adult (it is highly unlikely the minor would have creditors issuing these). Poof! The minor’s money is gone. Since the minor lacked legal capacity to enter into a joint account agreement, he could sue the bank if funds he has earned or received as presents are taken by the adult or a creditor of the adult, AND he will have a year after reaching majority to disaffirm the contract and sue the adult and the bank.  Or let’s say the account is overdrawn, and the minor turns 18. Rather than be liable for the overdrafts, he disaffirms the contract. Keep in mind, that because the minor lacked capacity to enter into the joint account agreement, the bank cannot report him to credit bureaus, ChexSystems, etc., or pursue collection of the overdraft.

Now, let’s look at joint with minor accounts from the adult owner’s perspective. The minor as joint owner can withdraw any or all the funds or close the account just as any joint owner can.  The adult has no way to control this other than to close the account before the minor spends all the funds or closes the account. If the account is overdrawn by the minor, the adult’s credit or ability to pass ChexSystems or similar systems will be affected.

But wait there’s more… There are other issues with these joint accounts. Often the adult will request that the minor be the primary on the account, but I recommend the bank’s policy prohibit doing this to prevent the adult, who is the actual source of the funds, from evading taxes. I fully understand that the majority of joint with minor accounts are non-interest bearing and even those that are interest-bearing do not generate much, if any, reportable interest. Usually, the adult is not making the request for an illegal purpose, but I have encountered several instances when the reason for the request is to evade taxes. It is simpler to say, “No, our policy requires the adult be the primary on the account,” rather than discover the MMDA which was opened with a deposit $500 dollars now has a balance of $225,000, or the $5000 CD has over the years been increased at maturity to $400,000, and then having to file a SAR because the bank realizes a crime is being committed.

One question regarding joint with minor accounts that comes up with some frequency is: What should the bank do when the adult dies leaving the minor as sole owner of the account? If the bank offers minor as sole owner of the account, the answer is simple: contact the parent or legal guardian of the minor to get the recommended guaranty and indemnity agreement signed, have the minor sign a new account agreement and signature card, and let the parent or guardian choose whether to restrict the minor’s transactions or not.

On the other hand, if your bank does not offer minor as sole owner accounts, things aren’t quite so simple.  The funds belong to the minor. The same statute that permits joint with minor accounts authorizes the bank to pay the minor. Section 901 provides:

A. When a deposit has been made or shall hereafter be made in any bank in the names of two or more persons, payable to any of them or payable to any of them or the survivor, such deposit, or any part thereof, or any interest thereon, may be paid to either of the persons, whether one of such persons shall be a minor or not, and whether the other be living or not; and the receipt or acquittance of the person so paid shall be valid and sufficient release and discharge to the bank for any payment so made.

The statue says “may be paid…” which indicates that the act is “permitted” rather than “required.” However, the word “shall” is used in the next clause regarding the bank’s liability. In other words, if the bank chooses to pay the minor and minor signs a receipt that s/he has received the funds, the bank IS discharged from any liability for the payment.

Let’s say the surviving minor on the account is old enough to be able to sign his name and the amount in the account is $200. In this situation, I don’t have a problem closing the account and paying the minor in cash or by check. That’s a simple and easy solution for the bank that does not offer minor as sole owner accounts, and the bank is protected by the minor signing the receipt.

On the other hand, let’s say the amount in the account is $25,000, and Jimmy Smith, the minor. is a year or more shy of his 18th birthday.  Mom shows up at the bank without Jimmy wanting a check. The funds belong to Jimmy, not to Mom. The check will have to be made payable to “Jimmy Smith, a minor,” and Jimmy isn’t there to sign a receipt to protect the bank. You can suggest that rather than having to make Jimmy come in, the bank will be happy to open a UTMA for Jimmy with Mom as the custodian. But let’s say the bank knows Mom has a gambling problem, creditors after her, or has had one or more charged off accounts or loans with your bank, and Mom isn’t likely to comply as a fiduciary and use the funds solely for Jimmy’s benefit. If Jimmy is an older teen and Mom brings Jimmy in to sign the receipt, at least you can advise him that the money is his, not his Mom’s or anyone else’s. In an extreme case, the bank could interplead the funds, and the court would order a UTMA that would restrict any withdrawals without a further order of the court until the minor reached age 18, at which point most such court-ordered UTMAs direct the bank to pay the aged-out minor directly.

I will note this problem also presents itself when a minor is named as POD. One way to avoid this situation is to suggest the account owner include language like the following in the POD designation: “Jane Doe, as custodian for Jimmy Smith under the Oklahoma Uniform Transfers to Minors Act.” It is a good idea to add a successor or alternate custodian using the following language: “If Jane Doe dies, is incapacitated, declines the appointment, or resigns, then William Brown shall be the successor custodian.” In the event, Jimmy is already age 18 when the owner dies, the bank will pay Jimmy directly since a UTMA cannot be created if the person is over the age of 18.

Next month, I’ll address the other major type of account for minors, the UTMA (Uniform Transfers to Minors Act) account.

HMDA filing update for small reporters

By Andy Zavoina

A lot has happened to HMDA filing for small reporters under Section 104 of EGRRCPA, the Economic Growth, Regulatory Relief and Consumer Protection Act (f/k/a S.2155) since June. Section 104 modifies the Home Mortgage Disclosure Act so that a bank originating fewer than 500 closed-end mortgages and fewer than 500 open-end mortgages in each of the last two years with a Satisfactory or better CRA rating won’t need to report the new data fields added for loans and applications with final action dates in 2018. This allows small reporter banks to avoid the in-depth reporting requirements.

Since June the agencies first issued guidance (OCC Bulletin 2018-19) that began to address the Loan Application Register (LAR). The agencies devised an obvious “fix” that many in the industry had overlooked. Instead of two separate LAR formats – one for regular reporters and one for small reporters, new entry codes will be used by the partially exempt filers to indicate the bank is exempt from reporting a field’s data. This was an excellent solution for software vendors and banks alike as the only updates required are field codes.

Two resources all HMDA banks should have are the Guide to HMDA Reporting 2018 edition ( and the latest HMDA Filing Instruction Guide (FIG) which was updated last month, August 2018 (

Another key document which should be read and saved is the August 31, 2018, final rule ( issued by the Bureau of Consumer Financial Protection. This 31-page document will clarify the requirements of HMDA revisions made by Section 104(a) of the EGRRCPA.

Bankers have asked about optionally reporting data. While this is permissible, we need to ask “why?” From the final rule, “Accordingly, the HMDA platform will continue to accept submissions of a data field that is covered by a partial exemption under the Act for a specific loan or application as long as those insured depository institutions and insured credit unions that choose to voluntarily report the data include all other data fields that the data point comprises. For example, if a partially exempt institution reports a data field that is part of the property address data point (such as street address) for a partially exempt loan or application, it will report all other data fields that are part of the property address data point (including zip code, city, and State) for that transaction in accordance with the 2018 FIG.”

If a bank has the option to enter the code for being exempted, why take any unnecessary risk that an error will be made when voluntarily reporting data? There is the requirement that more than perhaps just one field must be completed, and this increases the risks of there being an error.

In fact, the final rule clarifies several points in section IV. Permissible Optional Reporting. The Bureau believes some banks may opt to complete the LAR as though it was not exempt as a precaution. Whether a partial exemption applies to a bank’s lending activity for the current calendar year depends on its origination activity in each of the preceding two years and, in some cases, this cannot be determined until just before data collection must begin for the current calendar year. For example, whether a partial exemption applies to closed-end loans for which final action is taken in 2019 depends on the number of closed-end loans originated by the bank in 2017 and 2018. So, the bank might not know until the end of 2018 what information needs to be collected in 2019 for reporting in 2020. Compliance officers will need to work closely with Loan Administration on the current counts of applicable loans and with management as it projects loan volumes for these products in the coming year as well. Before the year end, based on real numbers and projections it may be necessary to train staff proactively for any new reporting requirements through a loss of exemption, unless the bank opts to report voluntarily. So, the choice is yours to accept the risk of errors when reporting voluntarily, or to rush staff into year-end training in preparation for anticipated reporting requirements in the next calendar year.

It should be pointed out here that none of the data points covered by the partial exemption call for information that is normally not available in a mortgage loan file. The real difference in procedures between full filing HMDA reporters and partially exempt small reporters is the extraction of the information for the data points covered by the partial exemption and inserting the information in the HMDA data file.

V. Loans Counted Toward Partial Exemptions’ Thresholds clarifies that only loans and lines of credit which are otherwise HMDA reportable contribute to the threshold exemption count.

Section 104(a) does not define a “closed-end mortgage loan” or an “open-end line of credit.” It does not specify whether these terms include loans or lines of credit that would otherwise not be subject to HMDA reporting. The Bureau believes that the terms “closed-end mortgage loan” and “open-end line of credit” as used in the Act are best interpreted to include only those closed-end mortgage loans and open-end lines of credit that would otherwise be reportable under HMDA. This is information Loan Administration needs in providing Compliance with the contributing loan count mentioned earlier.

VI. Data Points Covered by the Partial Exemptions defines the data points exempted banks will not have to report. There is a table on page 18 of the final rule, linked above, that depicts the applicable and exempt data points. There are 26 data points listed in the first column of the table which fall under the exemption:

  • Universal Loan Identifier (ULI)
  • Property Address
  • Rate Spread
  • Credit Score
  • Reasons for Denial (except for OCC-regulated banks – see below)
  • Total Loan Costs or Total Points and Fees
  • Origination Charges
  • Discount Points
  • Lender Credits
  • Interest Rate
  • Prepayment Penalty Term
  • Debt-to-Income Ratio
  • Combined Loan-to-Value Ratio
  • Loan Term
  • Introductory Rate Period
  • Non-Amortizing Features
  • Property Value
  • Manufactured Home Secured Property Type
  • Manufactured Home Land Property Interest
  • Multifamily Affordable Units
  • Application Channel
  • Mortgage Loan Originator Identifier
  • Automated Underwriting System
  • Reverse Mortgage Flag
  • Open-End Line of Credit Flag
  • Business or Commercial Purpose Flag

Those data points will still be in the filing format (small reporters will use the same HMDA filing format used by all other HMDA filers), but each of those data points will have a new valid input value – either “Exempt” for alphanumeric fields or  “1111” for numeric-only fields –-  to signify that the reporter qualifies for the partial exemption and is not reporting the data point.

OCC-regulated institutions will be required to complete the data points for Reasons for Denial, even if they qualify for the partial exemption, because the OCC requires that information to be included under its own separate rule.

The 22 data points shown in the second column on page 18 of the final rule are those that are still required to be reported by all reporting banks:

  • Application Date
  • Loan Type
  • Loan Purpose
  • Preapproval
  • Construction Method
  • Occupancy Type
  • Loan Amount
  • Action Taken
  • Action Taken Date
  • State
  • County
  • Census Tract
  • Ethnicity
  • Race
  • Sex
  • Age
  • Income
  • Type of Purchaser
  • HOEPA Status
  • Lien Status
  • Number of Units
  • Legal Entity Identifier

The Bureau will still require that each loan be assigned a unique ID number (a Non-Universal Loan Identifier, or NULI) that can’t be reused for any purpose. It isn’t a Universal Loan Identifier and doesn’t have to include the bank’s Legal Entity Identifier or check digits. It can be up to 22 characters long (including any check digit), using letters, numerals or a combination of letters and numerals, but must be unique within the reporting institution, and must not include any information that could be used to directly identify that applicant or borrower (such as name, date of birth, SSN, official government-issued driver’s license or identification number, alien registration number, passport number, or employer or taxpayer identification number). Use of a check digit as part of the NULI is optional.

Partially exempt filers can use the NULI to complete the ULI data point for each loan reported. As noted in the second list above, all reporters, including those with the partial exemption, will still need to use their Legal Entity Identifier to identify themselves (it replaces the Respondent ID in pre-2018 filings).

Disqualification for exemption by CRA ratings

A bank is not eligible for the partial exemption if it has received a rating of “needs to improve” for each of its two most recent CRA evaluations, or a rating of “substantial noncompliance” on its most recent evaluation. Under the Bureau’s interpretive and procedural rule, each institution must check its two most recent CRA ratings as of December 31 of the preceding year to determine whether it can use the partial exemption.

For example, in 2020, the preceding December 31 is December 31, 2019. If the bank received a rating of “needs to improve” during each of its two most recent CRA evaluations that occurred on or before December 31, 2019, the bank is not eligible for the special exemption during 2020.

Similarly, if the bank received a “substantial noncompliance” rating in its most recent CRA evaluation on or before December 31, 2019, it will not be eligible for the partial exemption in 2020.

Effective Dates

The amendments to HMDA made by section 104 of EGRRCPA became effective on enactment, May 24, 2018. The Interpretive and Procedural Rule was effective on publication in the Federal Register, on September 7, 2018.  Despite the May 24 and September 7 effective dates, section 104 of EGRRCPA relieves banks and credit unions that are eligible for a partial exemption under the Act of the obligation to report certain data in 2019 that may have been collected before May 24, 2018. So, a partial exemption covers all applications and loans with final action dates on or after January 1, 2018, for eligible reporters.

August 2018 OBA Legal Briefs

  • FinCEN exemptive relief ending
  • UDAAP – The long-term risk
  • Speaking of UDAAP: TCF overdrafts update
  • Voicemail, phone call, and email etiquette
  • Loans to candidate campaigns

FinCEN exemptive relief ending

By John S. Burnett

On May 16, FinCEN issued a ruling (FIN-2018-R002) providing a “90-day limited exemptive relief” from the obligations of the Beneficial Ownership Requirements for Legal Entity Customers. The relief postponed application of the beneficial ownership requirements only with respect to “certain financial products and services that automatically rollover [sic] or renew,” namely, certificates of deposit [CDs or time deposits] or loan accounts.

The 90-day postponement was back-dated to start May 11 (the “applicability date” of the rule for covered financial institutions and expires August 9, 2018. Although FinCEN said in the ruling that during the period of exemptive relief, it would determine whether and to what extend additional exemptive relief may be appropriate for the automatic rollovers or renewals of these accounts established before May 11 but expected to roll over or renew after that date, we have heard nothing from FinCEN as of August 2, one week before the expiration date.

Affected accounts

Despite hopes that FinCEN had intended to provide the exemptive relief for loan renewals and automatic rollovers of CD accounts, FinCEN made it clear to several bankers who questioned the wording of the ruling that its wording was intentional: “automatically” was intended to apply to both CD rollovers and loan renewals. Most bank loans to legal entities don’t renew automatically (there may be exceptions for some open-end lines), so the exemptive relief applied essentially to auto-rolling CDs.

What banks should be doing now

With only a day or two before the scheduled end of exemptive relief, banks should not be betting on FinCEN to extend the August 9 deadline. If it happens, fine, but the only responsible way to proceed in the absence of any word from FinCEN is to assume that compliance with the beneficial ownership requirements will be required beginning Friday, August 10. Certificates of beneficial ownership should be obtained for each new account (including rollovers of CDs and renewal of loans) for legal entity customers covered by the requirements. When the new account, rollover or renewal is of an automatic rollover CD or of a loan, the financial institution should include a statement in the certification of beneficial ownership that the legal entity agrees to notify the financial institution of any change in the information in the certification. To the extent that the financial institution has no knowledge of facts that would reasonably call into question the continued reliability of the ownership information, the financial institution can consider that agreement to notify the institution the equivalent of the certification or confirmation from the customer for future rollovers or renewals of the CD or loan.

More about that statement

Financial institutions are reporting that some vendors have included the “agreement to notify” statement as part of the boilerplate language of the certification of beneficial ownership signed for all legal entity customers for all types of accounts. You should be aware, however, that you cannot rely on such a statement for renewals or rollovers of any accounts other than loans and auto-rolling CDs. And even for those accounts, the “agreement to notify” only applies to the certification it’s included in; you can’t use an “agreement to notify” given in connection with an auto-rolling CD to cover the requirement for a certification of beneficial ownership when the legal entity customer opens another account (e.g., a new payroll checking account or a safe deposit box lease).

Keep alert for developments

FinCEN can and is likely to (eventually) change some or all the advice in this article. Be alert for notices from the OBA Compliance Team or others that announce any movement from FinCEN on its exemptive relief or any other aspect of the Beneficial Ownership Requirements for Legal Entity Customers rule.

UDAAP – The long-term risk

By Andy Zavoina

Those who have worked in compliance for some time may remember a rule that examiners would not cite you for a violation found today, which existed at the last exam, when it was not found. There was some controversy, which may be what led to that rule changing, because the rule was “last exam” and not “last compliance exam,” so even an Information Technology exam reset the penalty clock for a Reg Z violation.

Those days are gone as penalties can easily be levied against a bank for many reasons and when the violation is found, not necessarily when it happened. The pendulum has definitely swung to the other side and Unfair, Deceptive, or Abusive Acts or Practices (UDAAP, from the Bureau and UDAP, without “Abusive” from the Federal Trade Commission) is an arrow the examiners have in their quivers that can be used under many conditions. This article reviews some samples of UDA(A)P-centered enforcement actions. But before we look at those cases, it’s helpful to understand what acts or practices might be considered unfair, deceptive or abusive.

The UDAP terms (under section 5 of the Federal Trade Commission Act) unfair and deceptive have largely been defined in enforcement actions and court cases. Most past enforcement actions involving banks have centered around marketing and advertising of products and services but in the last eight years or so, we’ve seen increased use of this enforcement arrow by both the FTC and federal financial institution regulators. Also, section 1031 of the Dodd-Frank Act gave the Bureau and state attorneys general enforcement authority for unfair, deceptive or abusive acts or practices of persons or entities under their regulatory purview.

An unfair act or practice is one that:

a) causes or is likely to cause substantial injury to consumers;

Substantial injury usually involves monetary harm. Monetary harm includes, for example, costs or fees paid by consumers as a result of an unfair practice. An act or practice that causes a small amount of harm to a large number of people may be deemed to cause substantial injury.

b) the injury is not reasonably avoidable by consumers; and

An act or practice is not considered unfair if consumers may reasonably avoid injury. Consumers cannot reasonably avoid injury if the act or practice interferes with their ability to effectively make decisions or to take action to avoid injury. If material information about a product, such as pricing, is modified after, or withheld until after, the consumer has committed to purchasing the product, the consumer cannot reasonably avoid the injury. Moreover, consumers cannot avoid injury if they are coerced into purchasing unwanted products or services or if a transaction occurs without their knowledge or consent.

A key question is whether an act or practice hinders a consumer’s decision-making. Not having access to important information could prevent consumers from comparing available alternatives, choosing those that are most desirable to them, and avoiding those that are inadequate or unsatisfactory. And, if almost all market participants engage in a practice, a consumer’s incentive to search for better terms is reduced, and the practice may not be reasonably avoidable.

c) The injury is not outweighed by countervailing benefits to consumers or to competition.

To be unfair, the act or practice must be injurious in its net effects — that is, the injury must not be outweighed by any offsetting consumer or competitive benefits that also are produced by the act or practice. Offsetting consumer or competitive benefits of an act or practice may include lower prices to the consumer or a wider availability of products and services resulting from competition.

A representation, omission, act or practice is deceptive when-

  1. The representation, omission, act, or practice misleads or is likely to mislead the consumer;
  2. The consumer’s interpretation of the representation, omission, act, or practice is reasonable under the circumstances; and
  3. The misleading representation, omission, act, or practice is material. This applies when it misleads or is likely to mislead the consumer.

Written disclosures may be insufficient to correct a misleading statement or representation, particularly where the consumer is directed away from qualifying limitations in the text or is counseled that reading the disclosures is unnecessary. Likewise, oral or fine print disclosures or contract disclosures may be insufficient to cure a misleading headline or a prominent written representation. Similarly, a deceptive act or practice may not be cured by subsequent truthful disclosures.

Acts or practices that may be deceptive include: making misleading cost or price claims; offering to provide a product or service that is not in fact available; using bait-and-switch techniques; omitting material limitations or conditions from an offer; or failing to provide the promised services.

An abusive act or practice:

a) Materially interferes with the ability of a consumer to understand a term or condition of a consumer financial product or service or

b) Takes unreasonable advantage of:

  • A lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service;
  • The inability of the consumer to protect its interests in selecting or using a consumer financial product or service; or
  • The reasonable reliance by the consumer on a covered person to act in the interests of the consumer.

Combined, this definition of abusive indicates terms, disclosures and advertisements for products need to be clear and easily understood without reliance on micro-font footnotes or other disclosures that may be “legalese” or have “hidden” terms. It also tells us that the more complex a product or service is, the more it may need to be explained and this will also depend on the market it is provided for. Lastly, it says the bank must act in the best interest of the consumer. It will not be enough to say, “we made the full disclosure, so we are covered for liability.”


In September 2011 the Marklebank in Markle, Indiana, received a civil money penalty of $82,500 from the FDIC. Marklebank established and followed procedures for the resolution of EFT errors that were contrary to the bank’s disclosures concerning error resolution for these products and in violation of Reg E. The bank appears to have used model disclosures and to have had approved policies and procedures that conformed to the requirements of Reg E, but in practice they did something different.

From The Journal Gazette – “Mike Marhenke, president and CEO of Independent Alliance Banks Inc. [a two-bank holding company that owns Grabill Bank and MarkleBank], said the issue revolved around whether bankers could require customers to file a police report before giving temporary credit for unauthorized withdrawals from their accounts.

Staff at both banks under his watch required police reports because they simply missed that provision in the detailed regulations banks are required to follow, Marhenke said.

“The last compliance exam, we were doing the same thing, and (inspectors) didn’t say a thing,” Marhenke said.”

Under Reg E there is a very short list of specific requirements a consumer needs to satisfy to file a claim. Filing a police report is not one of them. A bank cannot add to requirements specified in the law. And just because a violation wasn’t caught in a prior exam, doesn’t mean it will not be caught on any exam after that. When the bank states it will follow Reg E, and it then requires more than is allowed, the examiners classify that as a UDAP problem.

It could have been filed as a Reg E penalty. While there are criminal penalties under Reg E (15 USC 1693 Sect. 917), I’ve never heard of that being imposed on anyone. Civil penalties (15 USC 1693, Sect. 916) include actual damages, individual actions of $100 to $1,000 and class action penalties of $500,000 or 1% of the banks net worth plus court and attorney fees. A penalty from a regulatory agency for Reg E would be under 15 USC 1693 sections 910, 915, 916, 917. Under UDAP (FTC Act Sec. 5) the penalty can be $41,484 per violation (adjusted for inflation annually). As arrows in a quiver go, a UDAP arrow can do more damage than a Reg E arrow and with an $82,500 fine under UDAP, this bank learned a lesson.

While there should not be an acceptable penalty amount to justify a noncompliant product or service, some people will include the cost of a violation as a factor. Suffice it to say that if what is being done could qualify as unfair, deceptive, or abusive, the penalty for UDAP or UDAAP must also be considered, as that may be the arrow shot at the bank.

Community Trust Bank

UDAP/UDAAP has no real statute of limitations. The Bureau asserts that, while a three-year statute of limitations applies when it brings cases in federal court, no period of limitations applies in its own administrative tribunal. Community Trust Bank, Inc. of Pikesville, Kentucky was hit with a UDAP penalty on July 25, 2018. Key points in this Federal Reserve enforcement action are that the bank will pay at least $4.75 million in penalties and restitution. The penalty arises from add-on products of a minimal cost, but reaches back to 1994. That was 24 years ago (some reading this article were not yet born).

What Community Trust Bank was doing was offering deposit account add-on products to consumers. These products were bundled which included benefits such as payment card protection, lost key protection, and medical emergency data cards and the costs ranged between $2 and $10 per month. In its marketing accountholders were lead to believe  that the full bundle of benefits would be effective when they enrollment. In fact, the accountholders had to take certain steps after they enrolled to receive some of the benefits. The bank did not adequately disclose this two-step enrollment process to the accountholders and the accountholders would billed regardless of benefit activation. Approximately 4,270 accounts were involved. Compare these actions to the definitions above and it is easy to see consumers were not informed and were misled. While the fees paid were not large, they were paid by a large group and over a very long period.


Speaking of UDAAP: TCF overdrafts update

By John S. Burnett

TCF National Bank, Wayzata, SD, is a $23 billion-asset bank with 335 branches in Arizona, Colorado, Illinois, Michigan, Minnesota, South Dakota and Wisconsin. In January 2017, the CFPB sued the bank for tricking consumers into costly overdraft services. The Bureau alleged that TCF designed its application process to obscure the fees and make overdraft service seem mandatory for new customers to open an account. The CFPB also believes that TCF adopted a loose definition of consent for existing customers to opt them into the service, and pushed back on any customer who questioned the process. The lawsuit sought redress for consumers, an injunction to prevent future violations, and a civil money penalty.

The Bureau’s complaint alleged that TCF violated the Electronic Fund Transfer Act and Regulation E and the Consumer Protection Act (part of the Dodd-Frank Act), claiming that TCF was engaged in unfair, deceptive or abusive acts or practices (UDAAP).

In 2009, TCF’s management is alleged to have estimated that about $182 million in annual income was “at risk” because of the Regulation E opt-in rule. In its complaint, the Bureau said the bank’s CEO had named his boat “Overdraft.”

In September 2017, a U.S. district judge narrowed the scope of the case, dismissing counts regarding disclosures around electronic fund transfers (stating that neither the EFT Act nor Regulation E mentions deceptive practices relating to the Regulation E opt-in procedures). The judge also limited the Bureau’s ability to “reach back” to earlier that July 21, 2011 (the creation date of the Bureau) for TCF actions that might constitute UDAAP.

In July 2018, the Bureau announced the filing of a proposed settlement with TCF over the allegations that the bank’s actions were unfair, deceptive or abusive.  The bank has agreed to pay $25 million in restitution to affected customers, and a $5 million civil money penalty ($3 million of it satisfied by payment of a $3 million penalty imposed by the OCC under the settlement).

Voicemail, phone call, and email etiquette

By Pauli D. Loeffler

We on the OBA Compliance Team get hundreds of voicemails, phone calls, and emails every month, and this article is really a rant about things that drive us crazy, and why.

Voicemail.  When we are on a call from another banker, grabbing lunch or a cup of coffee, or answering the call of nature, your call will go to voicemail.  While there are quite a few of you whose voices I recognize immediately (I have been doing this for more than 14 years, and you call regularly or have reached “frequent flyer” status), more than 90% of you don’t fall into that category. Recently, one of the OBA Compliance Team spent 15 minutes tracking down “Kerri” at a member bank who left a voicemail, and the name sounded like Terri on the voicemail. The banker left no last name, no department, no branch, no extension number. We know you want your question addressed as quickly as possible, and you can help us do that: 1) leave your full name and the name of your bank, 2) Your phone number and extension (if you have one), the branch or department name, and 3) your question. Please speak slowly and clearly. A message is worthless if we can’t understand it.

The description of your question is important. We realize that you may not have time to go into all the details when leaving a voicemail (you will have 3 to 5 minutes for your message when you reach voicemail). Frankly, I generally only make it through a couple of minutes of a long message, since I generally get to hear it a second time when I call back. To save both you and us time, if you give us the topic, such as account without POD or deceased POD, CTR, perfection of security interest, right of rescission, HMDA, flood, etc., we know what area of compliance or law we will need to address. If you give us the salient details, such as whether the POD died before the owner, when a check was deposited and/or returned, whether the drawer’s signature or the indorsement was forged, whether the check was a counterfeit or not, etc., we are better prepared to answer your question when we return your call.

Phone calls. My main complaint in this area is when the banker has not pulled together all the information needed to address the question before making the call (or leaving the voicemail). For instance, some banks have designated a point person to answer questions, and if s/he doesn’t know the answer, s/he is the one to make the call. Often the information has been provided by another employee at a branch who has the document or has met with the customer, and the point person does not have the document or the information needed for us to answer the question when s/he calls. For instance, the customer has presented a power of attorney naming two individuals as attorneys-in-fact, and the question is: “Do they both have to act together?” The point person does not have the POA, and I need to know whether there is an “and” or an “or” between the names, or perhaps the POA is naming one to be the successor if the first declines, dies, becomes incompetent, etc. We now get to spend several minutes while the point person contacts the branch to get the POA while other calls are rolling to voicemail, or a call back will be needed after the POA comes through. The point here is: please have all information including documents available before making the call or get the branch employee with direct knowledge on the line with us to save time.

Certain introductory phrases give me pause, such as: “I have a quick question.” This causes me to take a deep breath, cross my fingers, and hope that 1) it is a quick question meaning uncomplicated facts and/or circumstances, and 2) I have a quick answer. Another one is: “I’m sure you’ll know the answer off the top of your head.” There is about a decent chance I will, but sometimes the question will require research. “We have a situation…” is a common opening statement. Sometimes the “situation” is easily fixed, other times it is a SNAFU or FUBAR. The ultimate “situation” is SNAFUBAR (no one should have to deal with more than one of those in a lifetime). [Note: I realize that later in this article I rant about the use of acronyms. I needed to keep the article to a PG rating, so I leave it you to ask someone or use the internet to look these up. The third term I personally coined.]

A recurring challenge is the caller (or emailer) who has to be cross-examined like an adverse witness to get information needed for a correct response. Let’s say the customer is deceased, the bank knows it, and a check has been presented for payment. The banker wants to know whether to pay the check. This is one everyone on the OBA Compliance Team knows the answer to off the top of his or her head, however, the banker does not provide the facts we need. We then have to ask a series of questions. 1) What date was the check written? 2) What was the customer’s date of death?  3) On what date was the check presented for payment? 4) Did a joint owner or POD request a stop payment?

UCC Sec. 4-405 answers the question: the bank may, but is not required to, pay or certify a check written on or before the date of death, presented within 10 days of date of death, unless ordered to stop payment by a person claiming an interest in the account.

Emails. We on the OBA Compliance Team can be a picky lot, but there are some complaints that are justified. First, please do not use all caps! This indicates you are shouting (even if you aren’t), and it reminds us of telegrams. More importantly, the use of all caps makes for difficulty in reading.

Another problem we encounter is the use of certain fonts, such as script fonts, which are lovely to look at but very hard to read. Certain fonts such as Arial, Times New Roman, and Calibri are much easier to read than Garamond, Cambria, or Comic Sans (the Nickelback of fonts).  And yes, you can choose to have “stationery,” but it can make your email more difficult to read. Some are worse than others, but patterns, dark colors, and left side bleeds or patterns are the worst, at least in my personal opinion.  I am all for personalization, but if you choose Evergreen, Industrial, Deep Blue, Marble Desk, Currency (which sounds perfect for a banker) or the like, please restrict them to your personal emails rather than for business use.

Speaking of personalization, some bankers seem to be going incognito or hiding in the witness protection program. We need to know who you are and who you represent. We get some emails that do not contain a bank or business name, an address, or a phone number and extension for the bank or sender (see voice mail, above), just the name of the banker (sometimes just a first name!) Sure, we can Google the email address, but this should never be necessary. Your signature block should give us the information, especially a phone number, since sometimes a question is easier to answer that way, particularly if we need more information than you’ve included in the email.

As bankers, we are used to acronyms and abbreviations such as DTI, FIRREA, TISA, ETIL, LTV etc. However, we often get emails using acronyms or abbreviations that leave us scratching our heads, and we have no clue what they mean. If a Google search doesn’t enlighten us, we are forced to ask the banker to give us the definition before we can provide a response. Other times we can figure it out by the context in which it is used. For instance, the abbreviation “EX-WD” apparently meant “expressly withdrawn” in the context of a loan application.

Banks are creative in assigning names to deposit accounts. For instance, a bank will name an account Super NOW Account. I know what a NOW account is per Reg D, but it turns out the attributes of the account are really those of an MMDA. This isn’t a problem, but the name doesn’t give me the information I need.

Subject lines serve a useful purpose. I personally hate it when the subject line is “Question” without more. I have an overwhelming desire to change it when I respond to “Answer.” “HELP!” as the subject line is just as bad.  A blank subject line is also annoying.  I had a coworker who refused to put anything in the subject line, and you never knew if the email was about a significant problem or just a reminder to turn the light off in the bathroom if you are the last to leave the building. Helpful hint: Emails without a subject are often victims of spam filters in some email systems.

Sometimes the subject line used is ambiguous. For instance, “CRA” in a subject line can mean either “Community Reinvestment Act” or “Credit Reporting Agency.” Each member of our team has certain areas of expertise; Andy Zavoina is fluent in Community Reinvestment Act-speak while with minor exceptions, I will have to spend time doing research.

Something that bothers all of us on the team is when a banker replies to a prior email, changes topics, but does not change the subject line. For instance, the subject line is HMDA, the question has been answered, and instead of sending a new email with the appropriate topic in the subject line, the banker hits “reply” rather than starting a new email, leaves the subject line “as is,” but the new question is about right of rescission.  Preferably, you should start from scratch and with a new email rather than just change the subject line.

I hope my little rant has proven to be both entertaining and helpful.

Loans to candidate campaigns

By Pauli D. Loeffler

  1. Are there any regulations relating to loaning money to candidates for campaigning? We have not had this occur before and we want to make sure we aren’t missing anything.
  2. Sec. 808 of the Oklahoma Banking Code provides:
  3. Prohibition against political expenditures. It is unlawful for any bank to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any candidate, political committee, or for any other person to accept or receive any contribution prohibited by this section (Section 808A)…

While contributions are prohibited, loans are not. From the State Office Candidate Guide 2017-2018, starting on page 26, similar provisions apply to county and municipal candidates).

Permissible Loans

Candidates may receive loans from three sources:

  1. A commercial financial institution
  2. A non-commercial financial institution
  3. The candidate

Loans by Commercial Financial Institutions

A candidate committee may receive a loan from a commercial financial institution. A loan from this entity is not considered a contribution if (1) the entity normally engages in the business of making loans, (2) the loan is made in the regular course of business, and (3) the loan is made on the same terms as are ordinarily made available to the public. Rule 2.65.



July 2018 OBA Legal Briefs

  • Reefer madness
  • Update: campaign committee, PAC and political party accounts
  • More on the Beneficial Ownership Rule
  • Policies – Part 2
  • AML/BSA Q&As

Reefer madness

By Pauli Loeffler

Even before State Question 788 passed, we received a lot of questions about banking marijuana related businesses (“MRBs”) mostly dealing with businesses selling CBD (short for “cannabidiol”) oil, and medical marijuana (“MMJ”) will shortly be available by prescription.

CBD Oil. Many banks are dealing with customers selling THC-free (no THC detectable) CBD for which no prescription is needed. The customer who markets THC-free CBD needs to ensure that the product sold has been independently tested, and the test results to show it is THC-free, to be legal.

What makes all this so complicated is that the cannabis sativa plant produces numerous compounds including THC (“tetrahydrocannabinol” – the psychoactive compound) which causes the high as well as CBD (non-psychoactive). In other words, the plant used to produce hemp (used for rope, cloth, etc.) is the same plant used to produce medical marijuana. Plants whether grown for hemp or marijuana contain both THC and CDB, but the difference is hemp legally grown by a licensed grower can only have a very low concentration of THC when tested (.3% in Colorado – in fact one hemp grower’s entire crop had to be destroyed when it exceeded the limit). On the other hand, medical (and recreational) marijuana is cultivated for high THC of 12% or higher. The sticky part is whether THC-free CBD is “marijuana related,” and if so whether this is marijuana related business. This is something the bank needs to ask its examiner.

Other issues concern the FDA and the FTC. The FDA’s interest is that CBD is not marketed as a drug without preapproval, that is, not offered and intended to diagnosis, cure, mitigate, treat, or prevent disease. The FTC is interested in truthfulness of claims regarding health benefits made without competent and reliable scientific testing as well as deceptive advertising. Both the FDA and the FTC can freeze and take assets of the marketers.

An additional complication which applies not only to CBD oil retailers (if such customers are MRBs) but also to MMJ growers and dispensaries is the fact that, although FinCEN issued guidance regarding MRBs, the guidance was based on the Department of Justice’s Cole Memo which was rescinded in January this year, so there is some question whether the guidance is still valid. You will want to read these two articles:

I would also add that I’ve seen a display of CBD oil at the WalMart checkout counter and elsewhere. It is quite possible that several of your current customers are also selling it.

There is one more consideration:  If the customer is selling the product online, there may be the additional problem of charge-backs. I am aware of a consumer’s ACH to purchase CDB oil being denied for risk by the processor.

MMJ. Mary Beth is in the planning stage to present some sessions for the OBA on what may be done and under what conditions, as well as what cannot be done. Hopefully, these plans will be solidified soon and on the OBA calendar.

At this point, the bank has to make a policy decision on whether or not to bank MRBs. At the end of the day, the federal laws prohibit banking an illegal business. There are proposed rules for licensing growers, processors, dispensaries, transporters, and patients. All growers, processors, and dispensaries must register with the Oklahoma Bureau of Narcotics and Dangerous Drugs. The Final Draft of the Rules can be found here. The Rules are 76 pages long and are slated for a vote by the board of the Oklahoma State Department of Health (“OSDH”) on July 10, 2018, which will be live-streamed. Once the Rules are approved, applications will be available July 26, 2018 (see FAQs). OSDH will not accept or process applications until August 25, 2018. The OSDH will respond to all applicants within 14 days on the denial or approval of the completed application packets.

One thing to keep in mind is dispensaries are cash intensive and will generally have ATMs on the premises.


Update: campaign committee, PAC and political party accounts

By Pauli Loeffler

Although I covered this topic in the May 2016 OBA Legal Briefs, since we are getting numerous calls and emails, I am taking this opportunity to reiterate a couple of points and provide an update on a rule change that has occurred.

All accounts need an EIN.  A recurring question we receive is whether the candidate’s social security number can be used as the tax identification number on the account. The answer is:  No! An EIN is required.  If a candidate shows up saying otherwise or directs the banker setting up the account to the Q&A  on the Oklahoma Ethics Commission’s (OEC’s) webpage, the customer and the banker might believe otherwise.

While it is true that the OEC does not require an EIN, the IRS has the final word:

Political parties; campaign committees for candidates for federal, state or local office; and political action committees are all political organizations subject to tax under IRC section 527…

A political organization must have its own employer identification number (EIN), even if it does not have any employees.

Authorized signers/debit cards. There was a change in Rule 2.95 Campaign Depository Account Requirements, effective May 26, 2017. 

Rule 2.95. Campaign Depository Account Requirements.

Every candidate committee, political action committee and political party committee shall maintain a campaign account in each campaign depository in the name of the committee as it is registered with the Commission. All contributions to a committee except in-kind contributions, including contributions by a candidate to his or her candidate committee, shall be deposited in a campaign account. All expenditures made by a committee shall be made on a check or by debit card, signed by the candidate, Treasurer or Deputy Treasurer of a candidate committee and by the Treasurer or Deputy Treasurer of a political action committee. Provided, however, a candidate may authorize other individuals to sign checks or debit cards for the candidate’s committee; however, the candidate, the Treasurer and Deputy Treasurer shall remain responsible for the lawful expenditure of committee funds. Checks for a political action committee shall include the identification number of the committee assigned by the Commission. A campaign account may earn interest paid by the financial institution in which the account is maintained, but campaign funds shall not be invested in any other way. Contributions from corporations, labor unions, a limited liability company that has one or more corporate members or a partnership that has one or more corporate partners shall not be commingled with other contributions made to a candidate committee, a limited committee or a political party committee.


More on the Beneficial Ownership Rule

By John S. Burnett

To follow up on May’s Legal Briefs, here is some additional important information on FinCEN’s Beneficial Ownership requirements.

FinCEN’s temporary ‘exceptive’ relief

Bankers across the country must have grabbed FinCEN’s attention, somehow, about automatic rollover CD and loan renewals, because just days after the May 11 “applicability” date for FinCEN’s Beneficial Ownership Requirements rules, the agency issued “temporary limited exceptive relief” in the form of a 90-day delay (from May 11 until August 9. 2018) in the applicability date for certificate of deposit and loan accounts that automatically roll over or renew, established before May 11. In its Ruling FIN-2018-R002 (}, FinCEN said that, during the delay, it would determine “whether and to what extent additional exceptive relief may be appropriate” for such accounts.

I am not aware of any loan services or products that automatically renew. As a practical matter, then, FinCEN’s exceptive relief really only applies to auto-rollover CD accounts. You should be obtaining certifications of beneficial ownership in connection with loan renewals. Those certifications should include the statement by the legal entity that it will notify the bank in the event of any change in the ownership information they are certifying. That will allow future renewals of that loan only without recertification.

You should assume that there will be no extension of the exceptive relief, or additional relief forthcoming, and continue to press legal entities with CD accounts to provide you with certifications of beneficial ownership in advance of their next maturity date that falls on or after August 9. You also should obtain with each of those certifications the legal entity’s statement that it will notify the bank if any of the information in the certification changes.

Most importantly, remember that the agreement to notify the bank in the event of a change in beneficial ownership information only applies to the specific CD or loan in connection with which you obtained it. It does not apply to other CDs or loans of that entity customer. It also does not apply to any new CDs opened by, or extensions of credit made to, those entity customers. You still must obtain a certificate (with the agreement to notify the bank) for each new CD account (new money) or new extension of credit (non-renewal).

Entity as trustee of owner

In May’s discussion, you saw that, when a trust is the beneficial owner of the legal entity customer, the individual trustee is to be identified as the beneficial owner (his/her name (labeled as “trustee” if possible), address, DOB and SSN or other identifying number), and if there are co-trustees or multiple trustees, identify only one of them. But what if the trustee is an entity, such as a bank trust department or a law firm? Question 20 in the April 3, 2018, FAQs informs us that when a trust owns 25% or more of the legal entity customer, “the beneficial owner for purposes of the ownership prong is the trustee, regardless of whether the trustee is a natural person or a legal entity,” but … “where a natural person does not exist for purposes of the ownership prong, a natural person would not be identified.” Since only natural persons are to be identified as beneficial owners, no individual should be identified as the owner of the trust’s “piece” of the legal entity customer. You do, however, have to obtain the name of a control-prong individual for the legal entity customer.

Estates as customers

Do you need to obtain beneficial ownership information for a decedent’s estate? What happens if 25% or more of a legal entity customer is owned by the estate of a deceased individual? Is the personal representative of the estate identified as the beneficial owner? Are the heirs in the will also beneficial owners? Those are all questions we’ve received concerning the Beneficial Ownership rule.

Those questions are great examples of a need to go back to the definitions in the regulation. In these questions, there is an evident misunderstanding of what a “legal entity customer” is. Apparently, there is confusion between a need to probate an estate via the state’s court system and the filing of documents with the Secretary of State (or similar office) to form a legal entity. Those are two entirely different and separate processes. One is a beginning; the other, an ending.

A decedent’s estate is not a legal entity customer under the Beneficial Ownership rule. So, if you are opening an account for an estate, rule simply won’t apply.

Estate as owner of a legal entity customer

If John Jones is the 100% beneficial owner of Jones & Sons, Inc., on June 10, and dies on June 15, on June 16 John Jones’s estate will be the beneficial owner (for the ownership prong) if your bank has to renew a loan to Jones & Sons, Inc., pending settlement of the estate. Following the example of a trust as owner previously discussed, the estate’s personal representative should be listed as the beneficial owner. There will also be a control prong individual, who may or may not be the personal representative, depending on whether the company continues to operate.

If ownership of Jones & Sons, Inc., is transferred from the estate to James Jones and John Jones Jr. when the estate is settled, they then become the beneficial owners of the business, but not until they actually have ownership of the company (when the corporate stock is transferred from the estate to them).


Policies – Part 2

By Andy Zavoina

In Part 1 of this article (May 2018 Legal Briefs), I discussed how important policies and procedures can be by using the pending Department of Justice suit against a southern California auto dealer to illustrate what can happen when you fail to have a key policy and procedures to implement it.

In Part 2, I’ll discuss a list of key bank policies and some basics on writing and maintaining them.

Policies lists

A policies list should include those technically required, and those that the bank has determined it needs based on the business it does. There is no “one size fits all” listing of policies because policies should be based on the products and services offered, the volume of each and the clientele of the bank.

Banking agencies do not have detailed lists of the policies actually required to operate a bank. I do have a list of policies the Office of the Comptroller of the Currency (OCC) requires of a de novo bank plus new additions created by new and revised laws. This should be an excellent starter document to compare against a list of policies your bank has.

  1. Lending
  2. Funds Management, Investment Securities, & Interest Rate Risk
  3. Fiduciary (Trust banks)
  4. Capital
  5. Internal/External audits
  6. Insider Activities (Reg O) *
  7. Compliance Program *
  8. Branch Closing *
  9. BSA (AML/CDD/EDD/CIP, including beneficial ownership) *
  10. Securities Transactions (for Broker-Dealers)
  11. Board Supervision
  12. Disaster Recovery *
  13. Privacy and Security *
  14. SAFE policy (see 12 CFR 1007.104) *
  15. FCRA (see 12 CFR 1022.42(a)-(c) and App E integrity of info) *
  16. FCRA (see 12 CFR 1022.82(c) (address discrepancies) *
  17. RESPA (see 12 CFR 1024.38(a) – requires reasonable policies and procedures) *

An “*” indicates a policy Compliance is often involved in. Newer requirements include a citation.

Writing and maintaining policies

Policies are often written by bank staff, reviewed by management and approved by the bank’s board. A policy should be succinct as it is broad and provides general guidance on the bank’s requirements. A procedural document on the other hand is very detailed, describes finite steps the bank requires to comply with the policy and is approved by management because it may change more frequently than a policy. In the end both documents must be employed throughout the bank and each improves decision making and answers common questions.

A common question on policies is how to keep them current and how often they need to be updated and approved. I recommend coordinating with the entire bank, Lending, Operations, Finance, Marketing, Compliance, etc. One person should be a Point of Contact (POC) for all of these policies but that does not make this person responsible for each. Create a list and include information such as the policy name, responsible department, the senior manager over the department and therefore the policy, and the date it was last updated. Break the list down so that at the board’s request, these are presented annually, semiannually, quarterly or monthly by dividing the policy count by the periods available for review.

If there is a new policy requirement or a revision such as the beneficial ownership rules added to the Bank Secrecy Act, those must be approved to implement the policy revisions as soon as possible. All others should be reviewed annually, even if the implementing rule or regulation has not changed. This is because the board needs an opportunity to revisit them and ensure that each is still guiding the bank in the direction the board wants to go.

The POC with the master list should be able to schedule the policies for review and inform the responsible areas a few months in advance that a policy they are responsible for will be reaffirmed at board meeting on a scheduled date. They should be updated as needed so that at least a month in advance the board can be advised which polices they will see at their next meeting, specified by date. If the bank has an intranet or other media to provide copies electronically, use that or indicate where and when copies will be available for review in advance of the meeting. In either case, contact information for a person knowledgeable about the policy should be listed in case the director has any questions. Then on the meeting date, the vote on the policy is fast and simple although it is advised that the knowledgeable persons on the policies being reaffirmed be available for last minute questions from board members.



By John Burnett

With enactment (as Public Law 215-174) of the Economic Growth, Regulatory Relief, and Consumer Protection Act, formerly known as S. 2155, we received the expected flurry of questions about what section 104 of the Act (Home Mortgage Disclosure Act Adjustment and Study) means for smaller-volume HMDA filers.

The Bureau, FDIC and OCC have issued some preliminary guidance information on the impact of section 104 on HMDA filing. If your bank is a HMDA reporter and you think it meets the criteria for the partial filing exemption in Section 104 for small reporters (originated fewer than 500 closed-end loans or fewer than 500 open-end loans in each of the two preceding calendar years, and didn’t receive a rating of “needs to improve” in its two most recent CRA evaluations or a rating of “substantial noncompliance” in its more recent CRA evaluation), don’t change what you’ve been doing, yet.

Section 104 provides a partial exemption to qualified financial institutions (see previous paragraph), allowing them to omit from their filings SOME of the data fields that were added to HMDA filing requirements under Regulation C beginning with 2018 data filed in 2019. Exactly what that means for HMDA filers isn’t crystal clear yet, but here’s what we do know, based on the guidance from the Bureau, FDIC and OCC:

  1. There will be no change in the LAR format for data collected in 2018. The same data fields will be filled by filers who are not affected by section 104 and those who receive the partial exemption.
  2. Filers with the partial exemption will enter an “exemption code” for the affected fields.
  3. The exemption code and the affected fields will be specified in a revised Filing Instructions Guide (FIG) that the Bureau expects to release later this summer.
  4. All LARs use the same HMDA platform. A beta version of the HMDA platform for submission of 2018 data will be available later this year for filers to test.
  5. Banking agencies have said they will not require resubmission of 2018 data reported in 2019 unless there are material errors, and that they don’t anticipate penalties for errors on 2018 data as long as there is a good faith effort to comply.

What you should be doing now

First, go back to the start of this article to find the criteria that qualify a “small reporter.” Check your origination numbers for closed-end and open-end HMDA-subject loans and dig out your two most recent CRA evaluation ratings. If you qualify as a small reporter, start talking with your vendor for the software you use to create your LARs for submission to find out what plans it has, if any, to make the change-over as easy as possible (even positive changes take effort). And keep your eyes peeled for the promised updated Filing Instructions Guide, due later this summer.


By Paul Loeffler

We get a lot of emails on a variety of topics at This month, we are going to share some touching on the Anti-Money Laundering/Bank Secrecy Act.


Q. We received cash from a law firm that deposited $12,500; $10,000 went into the operating account and $2,500 into the IOLTA account. Do we need to ask the law firm for information on who the $2,500 benefited, or are we ok since it is under $10,000?

A. You report both deposits because they are conducted by the same individual (and because they are both conducted on behalf of the law firm). Because you have to report the IOLTA deposit, you must report the person on whose behalf it was completed. There are two such persons: the law firm and the law firm’s client.

Q. We have a new DBA account that has filed for a fictitious registration in Oklahoma with an Oklahoma address. The parent entity is organized in Texas. Do we use the Texas information and address for the parent, the Oklahoma address and the Oklahoma Secretary of State filing number for the fictitious name?

A. If you are asking about item 20 (source used to verify identity), use the Texas documents because you are reporting on a Texas entity.

Q. How do you complete CTR in the following scenario?

Customer withdraws 10,000 at teller, $140 at bank owned ATM, and  $140+$3 fee at foreign ATM.

Do you include the Foreign ATM amount? If so, do you add a second location page with the $143 on the cash out in item #42?

A. Since you know about it, you file on it. Add a second location page with the foreign ATM, showing a withdrawal of $140 (the $3 was a fee, and s/he didn’t get it in cash).

Q. Do we need to list the beneficiary as the name of the revocable trust (the account name) with the trustee as the conductor? Both have the conductor and the trust use the same Tax Identification Number. The bank’s processor will not allow us to use both.

A. If the trustee is the grantor, the transaction really only benefited the trustee as an individual. I would ignore the trust altogether.

Q. We have a County Inmate Trust account (the County deputies bring in the cash, and we had a cash transaction that triggered the teller to do a CTR. The Tax Identification Number for the account is for the County Treasurer. We think this would be exempt from CTR reporting but just wanting to make sure.

A. The account is held by an exempt “person,” a unit of local government. However, the title of the account suggests that the cash was being deposited on behalf of individuals (inmates). If more than $10,000 in cash was deposited on behalf of any one or more individuals, you would file and include information on those individuals.

Q. With the new CTR form, it is required to show the amount of cash transacted at each branch. I have a situation that cash transactions at foreign ATMs done on the same day which require a CTR. My question is how and where should I show the cash on the locations since they were not done at our bank owned ATMs?  I included it in the bottom section as cash out but received an error saying branch totals had to equal total amount of cash out.  I hope this makes since.

A. Completing the Part III (Transaction Location) portion of a CTR involving a foreign ATM (I assume you refer to an ATM not owned by your bank, not an ATM outside the U.S.) is something that FinCEN is decidedly unhelpful with. A good friend who sent FinCEN an email with detailed questions about such an ATM transaction got a voice mail that didn’t offer much guidance other than “you should be able to get this information.”

Here’s what I suggest:

Item 38 – If the ATM is a bank ATM, select depository institution. If it’s not a bank ATM or if you don’t know who owns/operates it, select “Other” and insert “Non-bank ATM” in the “Other (specify): field

Item 29 – If it’s a bank and you know who its regulator is, select it. Otherwise, use “Unknown”

Item 38 – No entry

Item 30 – Insert what you know about the name of the ATM owner/operator, whether it’s a bank or not

Item 32 – Check the unknown box

Items 32 – 35 – Address of the ATM from your transaction info

Item 36 – Look up the ZIP Code on the USPS website. Use only five digits.

Item 37 – Select the USA or territory name. There is no instruction for completing this field if the ATM is outside the US and territories.

Item 40 – No entry

If you can’t complete the CTR with that information, contact FinCEN for guidance.


Q. We received a multi-county Grand Jury Subpoena with a list of documents including any Suspicious Activity Reports filed. I know we must comply with the Right to Financial Privacy Act both Federal and State. However, our legal counsel found the following information, which I’ve never seen before, below. There are no SARs for this particular customer, but would you recommend I notify the FDIC about the request?

12 CFR §353.  Reports and Records.

(g)  Confidentiality of suspicious activity reports. Suspicious activity reports are confidential. Any bank subpoenaed or otherwise          requested to disclose a suspicious activity report or the information contained in a suspicious activity report shall decline to produce the suspicious activity report or to provide any information that would disclose that a suspicious activity report has been prepared or filed citing this part, applicable law (e.g., 31 U.S.C. 5318(g)), or both, and notify the appropriate FDIC regional office (Division of Supervision and Consumer Protection (DSC)).

A. I do suggest that you notify the FDIC. They may want to remind the issuing district attorney of 31 U.S.C. 5318(g). In your answer to the subpoena, you can simply answer that the bank has not filed any SARs on the target of the subpoena.

If, as you research for the subpoena, you identify activity in your customer’s accounts that you believe to be suspicious, you may decide to file a SAR after responding to the subpoena. Make certain that you do not mention the subpoena in the SAR.

Q. I have a customer that is bringing in checks written on the same date and in consecutive number order all written under $8,000.00 from a local business. This structuring is avoiding CTRs. The question is should I file the report on both the business and the customer together in one SAR or should it be two separate SARs?

A. The pattern of this activity certainly looks like structuring. If your customer is cashing the checks, you would, of course, be filing CTRs when appropriate. But if your customer is scheduling the cashing of the checks so that no more than one check is cashed each business day, it really looks suspect.

This is all part of one pattern of activity, regardless of the “players.” It would be more helpful to law enforcement — should they choose to follow up — if you pack this into a single report so that both parties are identified, even if one isn’t mentioned until the narrative.

June 2018 OBA Legal Briefs

• Deregulation is a reality
• Consumer loan dollar amounts adjust July 1

Deregulation is a reality

By Andy Zavoina

On May 24, 2018, President Trump signed into law, the “Economic Growth, Regulatory Relief and Consumer Protection Act” (the “Regulatory Relief Act,” P. Law 115-174, formerly S. 2155). It eases some of the regulatory restrictions imposed since the financial crisis and by the Dodd-Frank Act. It was written to assist small and medium sized banks, but it’s not all news of deregulation as it also brings back and makes permanent some other requirements. This article will provide an overview of what the Regulatory Relief Act will do for compliance and why it should be reviewed for your compliance management planning.

The Act is broken into six sections, or Titles, dedicated to separate topics — mortgage credit, access to credit, protections for veterans, consumers and homeowners, holding companies, capital, and student borrowers. This article will highlight changes important to compliance and generally discuss other areas so that for change management it can more easily be determined who in the bank needs to provide attention to them. Several sections not relating to banks are omitted in this overview.

Different sections will have different implementation dates. Some changes were effective upon enactment while others have scheduled dates and still others will require action from regulatory agencies and new rules. Of the sections with effective dates, the delays range from 30 days to 18 months or more. It’s important to note that just because a change is effective now, it may not be necessary (or even possible) to change a policy or procedure until the regulatory agencies publish new rules or modify existing ones.

Title I comprises nine sections designed to amend laws that are believed to have hampered mortgage loan production and reduced the availability of mortgages to consumers.

Section 101 effectively creates a new qualified mortgage option for banks with assets of less than $10 billion that originate and hold the mortgage in its portfolio, and consider and document the borrower’s qualifications including income, debts, and other financial resources available. The Ability to Repay analysis need not include Reg Z’s Appendix Q. Terms of the mortgage must comply with requirements pertaining to prepayment penalties and fees, and there could be no negative amortization or interest-only terms.  Such a mortgage, if later sold, must be transferred to a similarly qualified lender or it will lose its status under this qualified mortgage option.

Section 102 — [Omitted]

Section 103 amends FIRREA to exempt loans under $400,000 from general requirements for independent home appraisals in rural areas where the bank has contacted three state-licensed or -certified appraisers who could not complete an appraisal in a reasonable amount of time. Without an appraisal, the ability to sell a loan would be restricted.

Section 104 amends HMDA so that banks originating fewer than 500 closed-end mortgages and fewer than 500 open-end mortgages in each of the last two years and Satisfactory or better CRA ratings will submit data under something similar to pre-2018 rules. This section is effective immediately but will still require CFPB action because we don’t know if the reporting change is retroactive to the first of the year, or how the change will be implemented.

Section 105 –allows a credit union to extend a member business loan with respect to a one- to four-family dwelling, regardless of whether the dwelling is the member’s primary residence. The NCUA has already amended its rules to implement this change.

Section 106 amends the SAFE Act to allow certain state-licensed mortgage loan originators licensed in one state to temporarily work in another state while waiting for approval in that new state.  MLOs who move from a bank where licensing was not required to a nondepository institution (where they do need to be state licensed) get a grace period to complete the necessary licensing. This section is effective in November 2019, 18 months after enactment.

Section 107 — [Omitted]

Section 108 – Banks with assets of less than $10 billion and which made 1,000 or fewer first lien mortgages annually on principal dwellings will be exempt from TILAs escrow requirements. This change requires a Bureau Regulation Z amendment before it’s effective.

Section 109 – Current TRID rules require a three-day waiting period between the delivery of the Closing Disclosures and the actual closing. If a redisclosure is required, the three-day period may have to restart. Reg Z will be amended to  allow a waiver of this period if the APR is decreasing due to a second offer of credit from the lender.

Title II has 17 sections and focuses on regulatory relief for community banks and increasing access to credit for their customers. Many of these provisions are based on reducing or creating thresholds that are favorable to smaller banks.

Section 201 will provide community banks a less complex capital and leverage regime.

Section 202 amends the Federal Deposit Insurance Act to exclude reciprocal deposits of an insured depository institution from certain limitations on prohibited broker deposits within specified limits. This change will allow smaller banks previously hampered by FDIC premiums to compete with larger banks for larger deposit accounts.

Section 203 amends the Bank Holding Company Act to exempt community banks from the “Volcker Rule,” which prohibits banking agencies from engaging in proprietary trading or entering into certain relationships with hedge funds and private-equity funds. The exemption is for banks with less than $10 billion in assets, and trading assets and liabilities of not more than 5% of total assets.

Section 204 eases Volcker Rule restrictions on entity name sharing in specified circumstances.

Section 205 will allow depository institutions with less than $5 billion in assets to satisfy reporting requirements with a shorter or simplified Call Report for the first and third quarters of each year.

Section 206 will permit federal savings associations with assets under $20 billion to operate under the OCC with the same rights and duties as national banks, without requiring a change in charter. OCC regulations will be required to complete this change.

Section 207 Increases the threshold separating small bank and savings and loan holding companies for supervisory purposes from $1 billion to $3 billion in the Fed’s “Small Bank Holding Company and Savings and Loan Holding Company Policy Statement.”

Section 208 will include American Samoa, the Commonwealth of the Northern Mariana Islands, and Guam in the definition of “State” in the Expedited Funds Availability Act. Reg CC’s one-day extension for certain deposits in noncontiguous states or territories will also apply to these territories. Effective 30 days after enactment, or June 23, 2018.

Section 209 — [Omitted]

Section 210 raises the asset threshold from $1 billion to $3 billion allowing more banks to be eligible for an 18-month examination cycle. Regulators will have to determine if qualified banks already scheduled for an exam under the 12-month cycle will be rescheduled for the longer 18 months.

Section 211 — [Omitted]

Section 212 — [Omitted]

Section 213 permits banks to use a scan of, make a copy of, or receive the image of a driver’s license or identification card in connection with new accounts established via the Internet. (It is not immediately clear if this authority allows a military identification card to be copied.)

Section 214 allows a bank to classify certain commercial credit facilities that finance the acquisition, development, or construction of commercial properties as regular commercial real estate exposures instead of high volatility commercial real estate (HVCRE) exposures for risk-weighted capital requirement calculations, and limits the federal banking agencies’ ability to impose higher capital standards with respect to HVCRE exposure.

Section 215 requires the Social Security Administration (SSA) to develop a database for verification of consumer information upon request by a certified financial institution.  Verifications will be provided only with the consumer’s consent (electronic signatures permitted) and in connection with a credit transaction or other circumstance under FCRA § 604. Users of the database shall pay system costs as determined by the SSA.

Section 216 – Treasury will report on the risks of cyber threats to banks and capital markets.

Section 217 – The Federal Reserve Act will be amended to lower the maximum allowable amount of surplus funds of the Federal Reserve banks.

Title III will impact the credit reporting industry and access to credit especially by servicemembers, veterans, students and those borrowing for energy efficiency projects.

Section 301 will increase the length of time a consumer reporting agency must (under FCRA) include a fraud alert in a credit file from the current 90 days to at least one year.

It will also require consumer reporting agencies to provide a consumer with free credit freezes and to notify them of this availability. Also creates requirements related to the protection of the credit records of minors.  This section is effective 120 days after enactment, or September 21, 2018.

Section 302 will require that medical debt may not be included in a veteran’s credit report until one year has passed from when the medical service was provided. It also provides enhanced abilities for veterans to dispute medical debts to be covered by VA. It also requires credit reporting agencies to provide free credit monitoring to active duty military members that would alert them to material changes in their credit scores. This section is effective one year after enactment, or May 24, 2019.

Section 303 will provide immunity from liability to appropriately trained individuals at banks who, in good faith and with reasonable care, disclose suspected financial exploitation of a senior citizen to a regulatory or law-enforcement agency. The bank will not be liable with respect to the disclosures made. Training is required before immunity is provided; the bank may provide that training.

Section 304 repeals the sunset provision of the Protecting Tenants at Foreclosure Act (which expired 12/31/2014), restoring notification requirements and other protections related to the eviction of renters in certain foreclosed properties. Effective 30 days after enactment, or June 23, 2018.

Section 305 — [Omitted]

Section 306 – [Omitted]

Section 307 – The CFPB must extend ability-to-repay regulations to Property Assessed Clean Energy (PACE) loans, which retrofit homes for energy efficiency but are often financed at high interest rates.

Section 308 – [Omitted]

Section 309 is intended to enhance consumer protections for veterans. The VA may not guarantee a refinanced home loan, unless a specified minimum time period has passed (210 days after the existing loan’s first payment, and the date the sixth payment is made) between the original loan and the refinancing. The borrower must to be able to “recoup” upfront fees in the form of lower monthly payments within 36 months. The new interest rate must be a certain minimum level below the rate of the original loan and the lender would have to provide the borrower with a net tangible benefit test showing how that the borrower would benefit from the refinancing. This section is effective as of enactment although the VA has 180 days to write implementing regulations.

Section 310 affects the use by FNMA and Freddie Mac of credit scores as a condition for purchase of a mortgage. This section is effective 180 days after enactment, or November 20, 2018.

Section 311 – The GAO is directed to report on foreclosures, homeownership, and mortgage defaults in Puerto Rico before and after Hurricane Maria.

Section 312 – [Omitted].

Section 313 – The one-year grace period during which a servicemember is protected from foreclosure after leaving military service is made permanent in the Servicemembers Civil Relief Act (SCRA).

Title IV is targeted at large banks and addresses changes in Bank Holding Company (BHC) rules.

Section 401 – The Financial Stability Act of 2010, is amended with respect to nonbank financial companies supervised by the FRB and certain bank holding companies, to:

  • increase the asset threshold at which certain enhanced prudential standards shall apply, from $50 billion to $250 billion, while allowing the FRB discretion in determining whether a financial institution with assets equal or greater than $100 billion must be subject to such standards;
  • increase the asset threshold at which company-run stress tests are required, from $10 billion to $250 billion;
  • and increase the asset threshold for mandatory risk committees, from $10 billion to $50 billion.

This section is effective 18 months after enactment, or November 2019.

Section 402 requires the appropriate federal banking agencies to exclude, for purposes of calculating a custodial bank’s supplementary leverage ratio, funds of a custodial bank that are deposited with a central bank. The amount of such funds may not exceed the total value of deposits of the custodial bank linked to fiduciary or custodial and safekeeping accounts.

Section 403 – The Federal Deposit Insurance Act will now require certain municipal obligations to be treated as level 2B liquid assets if they are investment grade, liquid, and readily marketable. Under current law, corporate debt securities and publicly traded common-equity shares, but not municipal obligations, may be treated as level 2B liquid assets (which are considered to be high-quality assets).

Title V addresses capital formation. It is omitted from this overview.

Title VI provides protections for student borrowers.

Section 601 amends TILA (and Reg Z) to revise provisions relating to cosigners of private student loans. Specifically, this prohibits a creditor from declaring a default or accelerating the debt of a private student loan on the sole basis of the death or bankruptcy of a cosigner to such a loan and directs loan holders to release cosigners from any obligation upon the death of the student borrower. (This makes private student loans more like federal student loans.) Affects loan agreements entered into on or after November 20, 2018.

Section 602 – The FCRA will allow a person to request the removal of a previously reported default regarding a private education loan from a consumer report if the lender chooses to offer a loan-rehabilitation program that requires a number of consecutive on-time monthly payments demonstrating renewed ability and willingness to repay the loan, and the consumer meets those requirements. A consumer may obtain such rehabilitation benefits only once per loan.

Section 603 – The Financial Literacy and Education Commission will establish best practices for teaching financial literacy skills at institutions of higher education.

Consumer loan dollar amounts adjust July 1

By Pauli D. Loeffler

Sec. 1-106 of the Oklahoma Uniform Consumer Credit Code  in Title 14A (the “U3C”) makes certain dollar limits subject to change when there are changes in the U.S. Consumer Price Index for Urban Wage Earners and Clerical Workers.   You can download and print the notification from the Oklahoma Department of Consumer Credit by clicking here.  You will also be able to access it on the OBA’s Legal Links page under Resources once you create an account with the OBA. In fact, you can access the Oklahoma Consumer Credit Code as well as the changes in dollar amounts for prior years from that webpage.

Increased Late Fee

The maximum late fee that may be assessed on a consumer loan is the greater of (a) five percent of the unpaid amount of the installment or (b) the dollar amount provided by rule of the Administrator for this section pursuant to § 1-106. As of July 1, 2018, the amount provided under (b) will increase by $.50 to $25.50.

Late fees for consumer loans must be disclosed under both the UC3 and Reg Z. In order for a bank to be able to impose any late fee, the consumer must agree to it in writing. Any time a loan is originated, deferred or renewed, the bank is given the opportunity to obtain the borrower’s consent in writing to the new $25.50 portion of the late-fee formula.  However, if a loan is already outstanding and is not being modified or renewed, a bank has no way to increase the amount of late fee that the consumer has previously agreed to pay a set amount in the loan agreement.

On the other hand, the bank may take advantage of an increase in the dollar amount for late fees if the late-fee disclosure is worded properly, such as:

“If any installment is not paid in full within ten (10) days after its scheduled due date, a late fee in an amount which is the greater of five percent (5%) of the unpaid amount of the payment or the maximum dollar amount established by rule of the Consumer Credit Administrator from time to time may be imposed.”

3-508B Loans

Some banks make small consumer loans based on a special finance-charge method that combines an initial “acquisition charge” with monthly “installment account handling charges,” rather than using the provisions of § 3-508A with regard to maximum annual percentage rate. Section 3-508A contains provisions for a “blended” rate by tier amounts under (1)(a) as well as the alternative of using a flat 25% APR under (1)(b). § 3-508A is NOT subject to annual adjustment without statutory amendment.

The permitted principal amounts for § 3-508B was $1,500.00 but is adjusting to $1,530.00 for loans consummated on and after July 1, 2018.

Section 3-508B provides an alternative method of imposing a finance charge to that provided for § 3-508A loans. NOTE: The section prohibits the imposition of additional fees. No insurance charges, application fees, documentation fees, processing fees, returned check fees, credit bureau fees, or any other kind of fee is allowed  other than late or deferral fees. Further, no credit insurance can be sold in connection with in § 3-508B loans.  If a lender wants or needs to sell credit insurance or to impose other normal loan charges in connection with a loan, it will have to use § 3-508A instead.  The bank must also take into consideration that existing loans made under § 3-508B cannot be refinanced as or consolidated with § 3-508A loans, or vice versa.

As indicated above, § 3-508B can be utilized only for loans not exceeding a certain dollar amount which will be $1,530.00 on July 1. Further, substantially equal monthly payments are required. § 3-508B is a difficult statute to parse and understand, and I hope to make it understandable, but I have to re-educate myself annually.

The first scheduled payment cannot be due less than one calendar month after the loan is made, and subsequent installments due at not less than 30 day intervals thereafter. The minimum term for loans is 60 days (so far, so good). The maximum number of installments allowed is 18 months calculated based on the loan amount as 1 month for each $10.00 for loan amounts between $152.64 and $357.00 and $20 for loan amounts $357.01 – $1,530.00. Here is a slightly modified version of the statute that you may enable a better understanding of these math intensive loans:

(1) On loans having a principal of $1,530.00 or less, a supervised lender (banks and licensed lenders) may charge in lieu of the loan finance charges specified in Section 3-508A, the following amounts:

(a) on any amount up to and including 152.95, a charge may be added at the ratio of $5.10 for each $25.50 of principal;

(b) on any loan in an amount in excess of $152.96 up to and including the amount of $178.50, there shall be allowed an acquisition charge for making the loan not in excess of one-tenth (1/10) of the amount of the principal. In addition thereto, an installment account handling charge shall be allowed not to exceed $15.30 per month;

(c) on any loan of an amount in excess of $178.51 but not more than $375.00, there shall be allowed an acquisition charge for making the loan not in excess of one-tenth (1/10) of the amount of the principal. In addition thereto, an installment account handling charge shall be allowed not to exceed $17.85 per month;

(d) on any loan of an amount in excess of $375.01 but not in excess of $510.00, there shall be allowed an acquisition charge for making the loan, not in excess of one-tenth (1/10) of the amount of the principal. In addition thereto, an installment account handling charge shall be allowed not to exceed $20.40 per month.

(e) on any loan in an amount in excess $510.01 of up to and including the amount of $765.00, there shall be allowed an acquisition charge for making the loan not in excess of one-tenth (1/10) of the amount of the principal. In addition thereto, an installment account handling charge shall be allowed not to exceed $22.95 per month;

(f) on any loan of an amount in excess of $750.01 but not more than $1,530.00, there shall be allowed an acquisition charge for making the loan not in excess of one-tenth (1/10) of the amount of the principal. In addition thereto, an installment account handling charge shall be allowed not to exceed $25.50;

(2) The maximum term of any loan made under the terms of this section shall be one (1) month for each Ten Dollars ($10.00) of principal up to a maximum term of eighteen (18) months. Provided, however, that under subsections (e) and (f) the maximum terms shall be one (1) month for each Twenty Dollars ($20.00) of principal up to a maximum term of eighteen (18) months.

(3) The minimum term of any loan made under the terms of subsections (b) through (f) of this section shall be no less than sixty (60) days. Any loan made under the terms of this section shall be scheduled to be payable in substantially equal installments at not less than thirty-day intervals, with the first installment to be scheduled to be due not less than one (1) calendar month after the date such loan is made.

(4) Loans made under this section may be refinanced or consolidated according to the provisions of this section, notwithstanding anything in this act to the contrary. When a loan made under this section is refinanced or consolidated, installment account handling charges on the loans being refinanced or consolidated must be rebated pursuant to the provisions regarding rebate on prepayment (Section 3-210 of this title) as of the date of refinancing or consolidation. For the purpose of determining the amount of acquisition and installment account handling charges permitted in relation to the refinancing or the consolidation of loans made under this section, the principal resulting from the refinancing or consolidation is the total of the unpaid balances of the principal of the loans being refinanced or consolidated, plus any new money advanced, and any delinquency or deferral charges if due and unpaid, less any unearned acquisition and installment account handling charges imposed in connection with loans being refinanced or consolidated.

(5) On such loans under this section, no insurance charges or any other charges of any nature whatsoever shall be permitted.

(6) Except as otherwise provided, the acquisition charge authorized herein shall be deemed to be earned at the time a loan is made and shall not be subject to refund. Provided, however, in a loan made under this section which is prepaid in full, refinanced or consolidated within the first sixty (60) days, the acquisition charge under this section will not be fully earned at the time the loan is made, but must be refunded pro rata at the rate of one-sixtieth (1/60) of the acquisition charge for each day from the date of the prepayment, refinancing or consolidation to the sixtieth day of the loan. On the prepayment of any loan under this section, the installment account handling charge shall be subject to the provisions of Section 3-210 of this title as it relates to refunds. Provisions of Section 3-203 of this title as it relates to delinquency charges and Section 3-204 of this title as it relates to deferral charges shall apply to loans made under the section.

Lenders making “508B” loans should be careful and promptly change to the new dollar amount brackets, and the new permissible fees within each bracket on July 1st. Because of peculiarities in how the bracket amounts are adjusted, using a chart with the old rates after June 30 (without shifting to a revised chart) might result in excess charges for certain small loans and violations of the U3C provisions. The Department of Consumer Credit has provided a 3-508B Loan Chart including Refunds in prior years, and there will be a link on the OBA’s “Oklahoma law-related links” page when it is provided.

American Bank Systems (“ABS”) used to annually update its § 3-508B pricing calculator but hasn’t done so since 2015, but since there were no changes in dollar amounts for 2016, it was accurate until July 1, 2017. However, ABS did provide a § 3-508B “Loan Pricing Matrix” for 2017, (link on OBA Legal Link webpage) and hopefully will do so again for 2018. ABS also has provided a § 3-508A “Maximum Annual Percentage Rate Chart” for many years including 2017, and once it is out for 2018, a link will be provided on the OBA Legal Links page for this handy Matrix.

3-511 Loans

I get calls when lenders get a warning from their loan origination systems that a loan may exceed the maximum interest rate, but invariably the banker says the interest rate does not exceed the alternative non-blended 25% rate allowed under 3-508A according to their calculations. Usually, the cause for the red flag on the system is § 3-511, for which loan amounts also adjust annually. Here is the section with the amounts as effective for loans made on and after July 1, 2018, in bold type. The italicized portion of the statute is nearly always the reason for the notification:

Supervised loans, not made pursuant to a revolving loan account, in which the principal loan amount is $5,100.00 or less and the rate of the loan finance charge calculated according to the actuarial method exceeds eighteen percent (18%) on the unpaid balances of the principal, shall be scheduled to be payable in substantially equal installments at equal periodic intervals except to the extent that the schedule of payments is adjusted to the seasonal or irregular income of the debtor; and

(a) over a period of not more than forty-nine (49) months if the principal is more $1,530.00, or

(b) over a period of not more than thirty-seven (37) months if the principal is $1530.00 or less.

Dealer Paper “No Deficiency” Amount

If dealer paper is consumer-purpose and is secured by goods having an original cash price less than a certain dollar amount, and those goods are later repossessed or surrendered, the creditor cannot obtain a deficiency judgment if the collateral sells for less than the balance outstanding. This is covered in Section 5-103(2) of the U3C. This dollar amount was previously $5,000.00 and increases to $5,100.00 on July 1.

May 2018 OBA Legal Briefs

  • Beneficial ownership rules update
  • Policies
  • Appraisals

Beneficial ownership rules update

By John S. Burnett

By the time you read this, the May 11, 2018, compliance date for FinCEN’s Beneficial Ownership requirements will be only a couple of days away or already have past. As you know by now, FinCEN issued a second set of FAQs on the Beneficial Ownership requirements and the rest of its Customer Due Diligence rule on April 3. And, as the compliance date looms closer and closer, the number of questions that we have fielded on the rule has grown ever larger.

In this article, I will address some of the questions we have handled most often, from Oklahoma bankers and others.

Under the rule, when a legal entity customer opens a new account on or after May 11, 2018, the bank must obtain from the legal entity customer the names and identity information of up to four beneficial owners of the legal entity and of an individual in control of the entity. The bank then has to verify the identities of those individuals and maintain records of the information supplied by the customer and of the bank’s verification.

To understand the rule, you have to know what types of customer relationships are covered, what constitutes a new account and what the terms “legal entity customer” and “beneficial owner” mean.

Accounts covered

What is an account under the Beneficial Ownership requirements? The list is exactly the same as the list of accounts covered by the Customer Identification Program (CIP) requirements. In fact, rather than provide a separate definition, the Beneficial Ownership rule says to use the definition in § 1020.100(a) of FinCEN’s regulations, which is the definition of account for purposes of the CIP rules.

A formal banking relationship established to provide or engage in services, dealings, or other financial transactions including a deposit account, a transaction or asset account, a credit account, or other extension of credit. Account also includes a relationship established to provide a safety [Sic; should be “safe”] deposit box or other safekeeping services, or cash management, custodian, and trust services.”

There are some exceptions to the definition. If there is no formal banking relationship established, there is no account. So, check cashing, wire transfers and sales of checks or money order aren’t “accounts.” Also excluded are accounts that the bank “acquires through an acquisition, merger, purchase of assets, or assumption of liabilities,” and accounts opened for the purpose of participating in an employee benefit plan under ERISA.

Related question: If your bank purchases a loan to a legal entity customer from an auto dealer, do you need to obtain beneficial ownership information on the legal entity customer?

Answer: It depends. If the dealer is the creditor and you purchased the loan, the transaction qualifies as a “purchase of assets” for exclusion from the definition of “account,” and won’t be subject to the beneficial ownership rules. But if the dealer extends the credit as your agent, the bank is the creditor, the loan transaction is an account under the CIP and beneficial ownership rules, and you will have to obtain a beneficial ownership certification from the legal entity customer.

New account

The beneficial ownership rule doesn’t apply to accounts opened before May 11, 2018 (you may need to obtain beneficial ownership information on some of these pre-existing accounts later). It applies to new accounts on or after May 11. It’s important to understand that FinCEN’s definition of “new account” doesn’t agree with a banker’s perspective. That’s because FinCEN considers loan renewals and renewal of auto-rollover certificates of deposit to be new accounts, too. On the other hand, bankers often refer to an extension of a safe deposit box lease as a renewal, but FinCEN has not said that a lease extension is a new account. That’s because there isn’t really a renewal involved. There is only a periodic payment on an “at will” lease.

If loan renewals and rollovers of CDs are new account events, does your bank need to obtain a new certification of beneficial ownership for each renewal or rollover if the account relationship is with a legal entity customer? Not necessarily! FinCEN created an optional “workaround” that you can use to avoid having to get a new certification with each rollover or renewal. You can have the legal entity customer sign a statement on or with the next certification (or a later certification if you don’t add it to the first certification after May 11) that the legal entity customer agrees to notify your institution if any of the information on the certification changes. That statement will allow that certification to cover the current and all future rollovers/renewals of the CD/loan until the legal entity customer notifies you the information has changed or until your bank has reason to believe that it’s no longer correct.

Without the statement, you will need a new certification of beneficial ownership at each rollover/renewal of the account.

Legal entity customer

The beneficial ownership requirements only apply to a “legal entity customer” as that term is defined in the regulation. A legal entity customer is a—

  • Corporation
  • Limited liability company (LLC)
  • Other entity created by the filing of a public document with a Secretary of State or similar state office, including a business trust, or any similar entity formed under the laws of a foreign jurisdiction
  • General partnership
  • Limited partnership

“Legal entity customer” does not include a sole proprietorship (including a sole proprietorship of spouses, when allowed under state law, who have not formed a partnership), an unincorporated association, or natural persons opening accounts on their own behalf. A trust (other than a statutory or business trust created by a public filing with a Secretary of State or similar office) is also not a legal entity customer.

Excluded entities. There is also a lengthy list of specific exclusions from the definition of legal entity customer in § 1010.230(e)(2) of the regulation. The list includes businesses that are legal entities that are subject to federal or state regulation and information on their beneficial ownership and management is available from federal or state agencies. You should review that section of the regulation for the complete list, but I’m highlighting here three groups in that list, because of the numbers of questions we have received about them.

The first group of excluded entities includes financial institutions regulated by a federal functional regulator (Federal Reserve Board, OCC, FDIC, NCUA, etc.), banks regulated by a state banking regulator, bank holding companies, and savings and loan holding companies.

The second group includes state-regulated insurance companies. These are companies that issue insurance policies, not insurance agencies that sell those policies.

And the third group are “persons” that are exempt from CTR filing requirements under § 1020.315(b)(2) through (5) of FinCEN’s regulations. These are commonly referred to as “phase one” CTR exemptions, which include:

  • Any department or agency of the United States, of any State, or of any political subdivision of any State. This includes federal agencies, a state, the District of Columbia, a tribal government, state agencies, county, city or local government bodies, public school districts, etc.
  • An entity established under federal, state or local law or under an interstate compact between two or more states, that exercises governmental authority
  • Any entity other than a bank whose common stock or other equity interests are listed on the New York Stock Exchange, American Stock Exchange or whose common stock or equity interests have been designated as a Nasdaq National Market Security (with exceptions noted in the rule) and subsidiaries of such entities at least 51% owned by such entities.

If any of the excluded entities opens a new account with your institution, you are not required to obtain beneficial ownership information from them.

Beneficial owner

There are two “prongs” in the regulation’s definition of “beneficial owner,” the ownership prong and the control prong.

Ownership: An individual who owns, directly or indirectly, 25% or more of the equity interest in the legal entity customer. Direct ownership means the individual’s equity interest in the legal entity is not through another entity such as a trust, corporation, LLC, etc. Indirect ownership means that the individual is an owner of an entity that is an owner of the legal entity customer.

Example 1: John Jones, Mary Smith and Harry Comick each own 1/3 of ABC Inc. John, Mary and Harry are direct owners, each with a 33-1/3% interest, and each would be a beneficial owner of ABC Inc.

Example 2: DEF LLC is 50% owned by DEF Inc. and 50% owned by Jones & Smith, Inc. There are no individuals with direct ownership of DEF LLC. The sole owner of DEF Inc. is Harry Comick; Mary Smith and John Jones each own half of Jones & Smith, Inc. Therefore, Comick, Smith and Jones are (indirect) beneficial owners of DEF LLC. Harry Comick owns all of DEF Inc. and its 50% ownership of DEF LLC, so he is a 50% beneficial owner of DEF LLC. Mary Smith and John Jones each own half of Jones & Smith, Inc., and its 50% ownership of DEF LLC, so they are each 25% beneficial owners (50% of 50%) of DEF LLC.

There may be so many individual owners (directly or indirectly) that none of them owns 25% of your legal entity customer. In such cases, there would be no individuals identified as a beneficial owner under the ownership prong. And, because 25% ownership is the threshold for listing a beneficial owner, there won’t be more than four such individuals under the ownership prong.

Some banks may have adopted a risk-based policy of identifying individuals with less than 25% ownership (for example, they may use an ownership percentage threshold of 20% or 10%), and they may list more than four beneficial owners under the ownership prong. Such banks are exceptions. The regulation requires that the threshold can’t be greater than 25%, and most banks will use the 25% threshold.

If a trust owns directly or indirectly 25% or more of a legal entity customer, the regulation requires that the trustee (one trustee if there is more than one) of the trust be listed as the beneficial owner (labeled as trustee), and you don’t need to get any other information on owners of the trust.

If an excluded entity (one listed in § 1010.230(e)(2), discussed earlier) is a direct or indirect owner of 25% or more of the legal entity customer, no individual needs to be identified as a beneficial owner with respect to the excluded entity’s ownership.

Beneficial owners may be, but do not have to be, signers on the account being opened or other accounts of the legal entity customer.

There are two “special cases” in the regulation for which you aren’t required to obtain ownership prong information from a legal entity customer:

  • A pooled investment vehicle operated or advised by a financial institution that’s not an excluded entity under § 1010.230(e)(2), because ownership of these vehicles is so fluid and frequently changing that it’s impractical to track.
  • Any legal entity that is established as a nonprofit corporation (or similar entity) and has filed organizational documents with the appropriate state authority, since such entities don’t have owners. Approval as a charity under IRS rules is not a requirement.

Legal entity customers fitting either of those “special case” descriptions must, however, provide the name of a control-prong individual (see below).

Control: The rule also defines as a beneficial owner under the control prong a single individual with significant responsibility to control, manage, or direct the legal entity customer. Examples in the regulation include an executive officer or senior manager (chief executive officer, chief financial officer, chief operating officer, managing member, general partner, president, vice president, treasurer) or other individual who regularly performs similar functions.

The title of the individual is not important (although it is one of the pieces of information to be collected); the individual’s duties or responsibilities for the legal entity customer are what matters. In the case of a local office, store or branch (not a franchisee) of a larger company, the control prong individual won’t be a local manager. He or she should be someone at the corporate level with control, management or direction responsibilities.

The individual identified under the control prong may be, but does not have to be, a signer on the account, and may or may not be an owner of the entity.

Two-part process

The legal entity customer (the individual opening the account) is to provide the names and identity information for the individuals identified under the ownership and control prongs of the rule. The information to be supplied includes the same information you are to collect on an individual open a new account under the CIP rules:

  • Name (and title for control-prong individual)
  • The individual’s residential or business street address (the same rules applicable to the CIP address requirement apply here)
  • Date of birth
  • Identifying number (SSN for U.S. persons; SSN, passport number and issuing country, or other similar number, including an alien ID card number or the number and issuing country of any other government-issued document evidencing nationality or residence and bearing a photograph or similar safeguard).

The representative of the legal entity customer must certify, to the best of his/her knowledge, the completeness and accuracy of the information provided.

The bank is required to verify the identity of the individuals listed in the certification. The bank is not required to make its own inquiry into the beneficial ownership of the entity unless it has information leading the bank to doubt the completeness or accuracy of the information provided.

The bank’s verification of the identity of the individuals should use methods similar to those used in the bank’s CIP (the same rules describing the resources to be used apply to both CIP and Beneficial Ownership). They don’t have to be identical processes. For example, you are permitted under the Beneficial Ownership rules to accept a copy of an ID document, and you cannot use a consumer report (as defined under the Fair Credit Reporting Act), because you don’t have a permissible purpose to pull such a report under these rules. You may use identity-verification services that provide information that isn’t a consumer report.


You are required to obtain a certification of beneficial ownership at or prior to the time the new account is opened. This includes renewal or rollovers of loans and auto-rollover CDs (but see the “workaround” discussion under “New accounts” earlier in this article).

If the legal entity customer does not provide a certification of beneficial ownership at or prior to opening the account, the account should not be opened. There is no grace period. If you aren’t able to get a certification of beneficial ownership at or before a loan renewal or CD rollover, you should not complete the loan renewal or CD rollover unless an earlier certification included the statement described in the “workaround” discussion and you don’t have information calling the earlier certification into question.

Ideally, the bank’s verification of identities will also be completed before the new account is opened. However, you can permit it to be completed within a reasonable time after the new account is opened. You should keep that reasonable time as short as possible.

If you are unable to verify the identity of an individual listed as a beneficial owner (ownership or control prong), you must take steps to check the information supplied by the legal entity and other reasonable extra steps (including, perhaps, contacting the individual owner(s)) to complete the verification. If the extra steps still don’t complete the verification of identity, your bank should have a procedure in its program for closing the account, when possible. At minimum, no renewal or rollover of the account should be permitted until verification of identity of the owner(s) can be completed.

Form, format and content of certification

You do not have to use the form in Appendix A to § 1010.230. The Appendix A form is not a “safe harbor” form. Its principal purpose is to indicate the information that is to be supplied by the legal entity and to indicate the need for a certification of that information. It also includes instructions to the legal entity’s representative that you should consider including in whatever form and format your bank uses.

You can collect the beneficial ownership information from the legal entity in any way you wish as long as you are able to document the certification and comply with the recordkeeping requirements of the rule, which are virtually identical to those applicable to CIP records.


By Andy Zavoina

Before your eyes begin to glaze over I need to explain to you why I am writing about policies your bank must have (and those it should have). There are few “required” policies and many, many more policies your bank should have based on what your bank does in the marketplace. Policies provide direction to staff, typically from senior management and the board of directors. They are based on the goals of the bank, its strategic plan for where it wants to be in the future and how it wants to get there. Policies answer questions.

An examiner or consultant may suggest the bank have a policy on a topic for one of three reasons:

  1. It is a requirement in a law or regulation.
  2. It would be good to have this guidance because this issue comes up frequently.
  3. It would be good to have this guidance because this issue comes up infrequently, but the risks due to non-compliance are high.

Here is the impetus for this article, and it is IMPORTANT. The Department of Justice (DOJ) has sued an auto dealer because it repossessed one vehicle without a court order. It was aware of the borrower’s military status, but it had no Servicemembers Civil Relief Act (SCRA) policy. The DOJ maintained that, absent a policy and procedures, the lender does not know if it has violated the law other times. Although there has been only one complaint, DOJ is proceeding as though there is a pattern or practice of violations.

For years bankers have heard that examiners want banks to have a policy addressing the SCRA. National banks have been told to expect exams on the SCRA each time examiners are in the bank. Many banks have told me they have very few or no SCRA designated loans. This puts the need for a policy pertaining to the SCRA in category three above.

I must ask those banks: Without a policy or procedures, how does a bank employee know when a customer calls and mentions “active duty” or “joining the service” or anything similar, whether the whole account relationship needs to be flagged as subject to SCRA protections? How does the bank know before it implements a repossession order or foreclosure proceedings whether a borrower is protected under the SCRA? Policies and procedures are called for because they can guide employees to listen for buzzwords about being in the service, to search the military database to verify SCRA protected status, to recognize that the protections on a vehicle are different than those on a mortgage and to understand that an overdraft and a safe deposit box may also be subject to SCRA protections.

What about banks that do very little business with servicemembers? I recently asked a banker if her bank had a National Guard unit nearby, and she answered “Yes.” So, they have a lot of National Guardsmen but few active duty military. Bear in mind that in April 2018, the Defense Secretary signed an authorization, as requested by the president, for up to 4,000 National Guard troops to be activated for border security. These guardsmen will be activated but likely for short periods of time. Many guard units could be activated to protect the border on a rolling basis.

Revisiting the definition of “military service” in the SCRA and commentary I have added from my teaching documents, National Guard and military service includes, “service under a call to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days under section 502(f) of title 32, United States Code, for purposes of responding to a national emergency declared by the President and supported by Federal funds (normally Title 32 activation is not for more than 30 days and often Title 32 is not considered military service);”

Each bank would need to be familiar with the orders, but these Guardsmen will be paid by federal dollars based on what I have read and are being called up by the president and there is a good chance that if they serve more than 30 days they could be entitled to these SCRA protections. This means it is an excellent time to revisit the SCRA if the bank has not done so recently.

The March 28, 2018, case that prompted this article is United States vs California Auto Finance (CAF), Case No. 8:18-cv-00523. CAF is a large sub-prime lender in Southern California and the southwest. The suit alleges CAF repossessed a servicemember’s car after being made aware the borrower was in the service.

Andrea Starks purchased a car in Glendale, AZ in September 2015. She made her first payment in October 2015 which was pre-service and meets the requirements for SCRA protection. She enlisted in April 2016 and reported for active duty on May 9, 2016, the same day her vehicle was repossessed. Two days after enlisting she provided CAF with a copy of her orders. She would not have been protected as a reservist being called to active duty based on receipt of her orders, but rather when she met the definition of “military service” which, in this case, would be when she was paid by the government. Had the vehicle been repossessed the day before, Starks would not have been technically protected. CAF sold the vehicle on or about May 25, 2016.

This was the single complaint against CAF made by Starks to the DOJ in November 2016. There were no other complaints against CAF mentioned. In describing the violations committed by CAF, the DOJ explains the facts it reviewed in its investigation, which began in December 2016.

  • The Defense Manpower Data Center (DMDC) is a free database allowing lenders to determine is a person is protected under the SCRA. The CAF did not verify her status prior to repossessing the vehicle. (It would be interesting to know if Starks would have been shown as currently serving, being her first day.) Regardless, CAF had already been given a copy of Starks orders by Starks herself.
  • This was pre-service debt under the SCRA.
  • No court order was obtained prior to the act of repossessing the vehicle.
  • The CAF believed at the time, and still as of this court filing, that only deployment orders would have provided protections to a servicemember. (This is incorrect. It is the act of serving, whether that be in the continental United States or overseas.)
  • The CAF had and still has no policies or procedures to provide staff with SCRA compliance guidance.
  • Because of a demonstrated lack of knowledge and guidance (the policy or procedures) the DOJ stated they “may have repossessed motor vehicles without court orders from other servicemembers” and as such viewed this as a pattern or practice of violating the SCRA protections and requirements of the SCRA. This means that Starks and other servicemembers have suffered damages.
  • The actions of CAF were “intentional, willful, and taken in disregard for the rights of servicemembers.”

This case begs for a discussion on the requirement for having a policy and procedures. Of the three reasons stated above, the SCRA would fit under reason two or three because there is no legal requirement for a policy in the Act. Examiners have been urging banks to create them and to ensure that repossession and foreclosure procedures are expressed, trained on and followed under the SCRA rules. Some banks may have resisted creating such documents because it would be one more thing to keep up with and they didn’t feel it was needed because it wasn’t required, and the low volume of accounts did not demand it. The DOJ might be accused of practicing regulation by enforcement. In many cases however, a servicemember can be viewed as close to a protected person under fair lending laws as any minority because they do have unique rights that lender must be aware of. The fact that the lender violated the law, expressed a misunderstanding of the requirements, and demonstrated no desire to immediately remedy the issues it created did not help. The CAF did not create a policy or procedures to provide guidance or repossession requirements and it did not attempt to replace the vehicle or compensate Starks when the problems came to light.

It is important to note the fact that the CAF is not being penalized because it did not have an SCRA policy which is not legally required; it is being pursued because it incorrectly interpreted the SCRA requirements, had no guidance information from which to operate, and did not attempt to correct those deficiencies after it was being investigated for violations. Another important note is that “ignorance is not bliss.” Because there was no policy or procedures to follow, CAF could not say it has tracked or provided special handling for SCRA protected loans. Even though there was only a single complaint against CAF, its own lack of knowledge is forcing the CAF to prove it is innocent on multiple counts of a violation. There is no evidence proving this repossession and sale was part of a pattern or practice, but the CAF cannot prove otherwise. Whether you agree with the DOJ position or not, the CAF will pay to settle this claim or pay to prove its innocence.

In Part 2 to this article, I’ll provide a list of key bank policies and discuss how policies can be written and kept current.


By Andy Zavoina

On April 2, 2018, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency issued a final rule that increased the threshold for commercial real estate transactions requiring an appraisal from $250,000 to $500,000.

Originally the 1994 figure of $250,000 was going to be raised to $400,000 but it was determined that the $500,000 limit would further reduce the regulatory burden and the number of transactions requiring appraisals while not exposing the loans to excessive risk.

The bank may now use evaluations for those loans up to the new limit if desired. Evaluations can provide the market value of real estate that will secure a loan while avoiding the need for a formal appraisal prepared in accordance with the Uniform Standards of Professional Appraiser Practices (USPAP). They do not have to be completed by a state licensed or certified appraiser. Evaluations can both expedite the loan process and reduce costs when commercial real estate is involved.

Note that this change is for commercial accounts and not loans for 1-4 family residential properties.

April 2018 Legal Briefs

  •  Watch that tax advice!
  • Credit reports are changing again
  • Telephone Consumer Protection Act – Update
  • Sellers’ cost on borrowers’ closing disclosures

Watch that tax advice!

By Andy Zavoina

When it comes to tax deductibility, “watch that tax advice.” Let’s get straight to the point, considering it is April and income taxes are due. I want to caution banks, and especially their marketing departments and lenders about providing any tax advice, implied or express. “Sure, we can hook you up with a home equity loan, and the interest you pay is all deductible, so you get that added benefit” are words that should never be spoken by your bankers or seen in your advertisements.

That said, I am not a tax adviser and am not providing any tax advice in this article. As a non-expert on taxes, I am providing information based on what I have read and understand. Banks should consult their own tax advisers to better understand the implications of the changes to the tax laws.

Let’s first revisit § 1026.16(d)(4) of Regulation Z, which addresses advertising requirements for home equity plans in Reg Z and in particular, any mention of the tax implications. The regulations states:

An advertisement that states that any interest expense incurred under the home-equity plan is or may be tax deductible may not be misleading in this regard. If an advertisement distributed in paper form or through the Internet (rather than by radio or television) is for a home-equity plan secured by the consumer’s principal dwelling, and the advertisement states that the advertised extension of credit may exceed the fair market value of the dwelling, the advertisement shall clearly and conspicuously state that:

(i) The interest on the portion of the credit extension that is greater than the fair market value of the dwelling is not tax deductible for Federal income tax purposes; and

(ii) The consumer should consult a tax adviser for further information regarding the deductibility of interest and charges.

The commentary to this section (16(d)-3) goes on to say:

An advertisement that refers to deductibility for tax purposes is not misleading if it includes a statement such as “consult a tax advisor regarding the deductibility of interest.” An advertisement distributed in paper form or through the Internet (rather than by radio or television) that states that the advertised extension of credit may exceed the fair market value of the consumer’s dwelling is not misleading if it clearly and conspicuously states the required information in §§ 1026.16(d)(4)(i) and (d)(4)(ii).

This is more important now than ever, even though this language has been in Reg Z for many years, and here is why. On December 22, 2017, the president signed the Tax Cuts and Jobs Act (TCJA), the first piece of major tax legislation in over 30 years. The $1.5 trillion tax code rewrite was described as “historic” and about jobs. Soon after the Act was signed into law, many companies, including banks, were announcing bonuses for employees. But even if some tax programs are helpful, you can bet there is another side that is detrimental to some folks. Interest deductions will likely be a part of this balance sheet – in the detrimental column.

While the tax code changed, interpretations are still based on defined terms and many of those terms remained the same. In Section 163(h) of the Internal Revenue Code it says that no deduction for personal interest is allowed to an individual. But there are some exceptions to this rule that have been unofficial selling points for home ownership and equity loans. For many years interest paid for a “qualified residence” was an allowable federal income tax deduction. What is considered “qualified residence interest” includes the interest expense for the acquisition of a qualified residence and interest paid on a home equity loan. For married taxpayers there was an aggregate limitation of $1,000,000 of debt for deductibility. A reduced limitation of $100,000 applied to home equity indebtedness.

So, now we also need to define “acquisition indebtedness” which is the debt incurred to acquire, construct or substantially improve any qualified residence when the loan is secured by that residence. Further, a “qualified residence” is the principal residence of the taxpayer and one other residence. Home equity indebtedness is any debt (other than the already defined acquisition indebtedness) secured by a qualified residence.

Again, there are specific limitations in the prior tax code allowing a married couple to have $1,100,000 in qualified residence interest debt of which $100,000 could be used for purposes other than acquisition indebtedness, commonly an equity loan. Acquisition indebtedness includes refinanced debt, but only to the extent of the debt prior to the refinance.

You may recall hearing some commenters on the TCJA say it was good for now, when the companies were announcing bonuses, but watch out for the future. The reason the numbers above for debt and interest qualifications are important is because there are two key areas that are changing. These changes are temporary for now and will be in effect through 2025.  The limitation on the amount of acquisition indebtedness that qualifies for the deductibility of interest for married taxpayers is now $750,000. The limitation applies for 2018 and beyond and is applied to acquisition indebtedness incurred after December 14, 2017. Acquisition indebtedness incurred before December 15, 2017, continues to be capped at $1,000,000.

Another change applies to those home equity loans. Originally interest on home equity indebtedness was thought to be non-deductible beginning in 2018. But on March 19, 2018, the IRS issued a statement that interest paid on home equity loans is still deductible under the new tax law if it is used for home improvements. Emphasis is on the “if it is used for home improvements” part of that statement.

The Tax Cuts and Jobs Act of 2017, enacted December 22, suspends from 2018 until 2026 the deduction for interest paid on home equity loans and lines of credit, unless they are used to buy, build or substantially improve the taxpayer’s home that secures the loan,” according to the IRS statement. “Under the new law, for example, interest on a home equity loan used to build an addition to an existing home is typically deductible, while interest on the same loan used to pay personal living expenses, such as credit card debts, is not.

And this is exactly why borrowers need to see or hear “You should consult a tax adviser for further information regarding the deductibility of interest and charges” when you advertise your mortgage and equity loans. Failure to qualify any indication of deductibility in your ads may be considered a deceptive practice.

As the new rule is understood, an equity loan used for a qualified purpose still enjoys a tax deduction. There is no grandfathering, however, meaning that your home equity borrowers writing off interest as they file their returns for last year, may not be able to do so again.

Here is a question that banks should begin to consider, and ask of the IRS and elected officials, because clarification will be needed. Let’s assume you have a borrower with a home equity loan now. Will there be changes in Form 1098 reporting for 2018 interest? Will borrowers have to indicate what portion of their home equity loans represent home acquisition costs, and lenders report deductible and non-deductible interest? Or will we stick with the current practice of reporting all the interest paid on equity loans, with the responsibility on the taxpayer to determine how much can be deducted? I do not believe many core systems will compute the interest separation based on the purpose now, meaning major work could be required. Answers will be needed before any new coding is done.

More questions: Will borrowers even want home equity loans when deductibility is no longer an advantage? Will they begin paying down home equity loans faster than they have historically, and how will you factor these considerations into your next budget forecasts? Your home and home equity borrowers may also want answers if they are not aware of the changes when they file next year. How will you respond?


Advertisements – State something to the effect of “You should consult a tax adviser for further information regarding the deductibility of interest and charges.”

Training – To respond to customer’s questions with “The tax laws have changed, and you should consult a tax adviser for further information regarding the deductibility of interest and charges.”

Considerations – Does the bank want to urge banking associations and elected officials to seek out answers on the tax reporting requirements that may be changed in nine short months?

Budget – Determine through internal and external resources what the bank projects as to the future of home equity products currently offered. Will they rise, fall, need adjusting for maximum appeal, etc.?


Credit reports are changing again

By Andy Zavoina

The National Consumer Assistance Plan (NCAP) is an initiative of the big three credit reporting agencies, Equifax, TransUnion and Experian. It was launched in 2015. The NCAP’s goals include improving data accuracy and quality and making it easier for consumers to understand their credit information. Several of the current goals coincide with the multistate investigation and subsequent legal agreement in 2015 between the three credit reporting agencies and 31 state attorneys general. Four of the accomplishment listed on the NCAP website include:

  1. Allowing consumers who obtained a free report and challenged entries to obtain another free report sooner than waiting a year to see the effects of any adjustments.
  2. Having a 180-day waiting period before medical debt information is reported, allowing time for insurance companies to remit payments
  3. Omitting debts from credit reports which were not a result of a contract or other agreement (such as parking tickets or traffic fines)
  4. Paying special attention to the credit report files of victims of fraud who have items reported against them that are not theirs, and improving communications about credit disputes.

It was also NCAP which just over a year ago established new standards for the reporting of public records information on consumers’ credit files. Effective July 2017, civil judgments and tax liens require at least the consumer’s name, address and Social Security number or date of birth to be considered sufficiently verified and identified to be placed on a consumer’s credit report, and the data furnisher of that public record information must visit the applicable courthouse at least once every 90 days to obtain newly filed and updated public records so that it is known the data is current.  Early estimates were that 95 percent of the civil judgments and more than 50 percent of tax liens were going to be dropped for failing to meet these new standards and that credit scores could increase as a result. It was later believed that essentially all civil judgments were removed but that when these problems existed on a credit report, there were other problems on the credit report and credit scores would increase minimally.

The Consumer Financial Protection Bureau released a study entitled “Public Records” in February 2018 that stated, “when all judgments were eliminated from records in July, the credit scores of consumers with active civil judgments increased. For those with an active judgment (about 8 million consumers), 65 percent experienced an increase in credit score greater than 5 points. For those with only inactive judgments (about 2 million consumers), 46 percent experienced such an increase in credit score. The score changes for both civil judgments and tax liens show that consumers with these public records generally experienced score changes that were either around zero or 15 points.” The CFPB put consumer credit scores in five categories: deep subprime, subprime, near prime, prime and super prime. After studying credit reports over a four-month period, it found 75 percent did not move up a category as a result of the data exclusions. Of consumers who did see an improvement in their credit scores, particularly those in the deep subprime to subprime category, about 6 percent saw an increase to near prime or above from June until September as the omissions took effect. Only 0.24 percent of ALL consumers with credit reports saw an increase.

Phase two of NCAP is about to take effect. Equifax, Experian, and TransUnion will stop reporting tax lien data and all tax liens will be removed from consumer credit reports in April 2018. That will remove an estimated 5.5 million tax liens and more consumers’ credit scores may creep up another few points. Bankruptcy reports are the public records that will remain and those have basically been unchanged.


Telephone Consumer Protection Act – Update

By Andy Zavoina

The Telephone Consumer Protection Act (TCPA) is in the news again. There was a court ruling last month that can affect your bank. Unfortunately, the ruling prompted more questions than it answered. Here’s a little background on both the TCPA and the ACA International case.

The TCPA applies to your bank when it makes calls to consumers. The TCPA regulates and restricts the use of artificial or prerecorded voice calls to make unsolicited telemarketing calls or faxes to residential telephone lines, or to call or text cell phones. It also prohibits the making of any non-emergency call using an automatic dialing telephone system (ADTS) without prior express consent. Keep reading because how an ADTS has been defined may surprise you (and we all know that definitions can make all the difference in the world)!

The Federal Communications Commission (FCC) is not a government agency that bankers routinely follow. The FCC is, however, the agency with “ownership” over the TCPA. Under Chairman Tom Wheeler, the policies of the FCC expanded the reach of the TCPA to the point that the judge in the ACA International case concluded that by definition, the FCC had made every smartphone in the country a federally-regulated autodialer.

The TCPA defined an “automatic telephone dialing system” (the ATDS or an autodialer) as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and, to dial such numbers.” That definition appears specific, but the FCC interpreted much more broadly.

In 2003, the FCC ruled that “predictive dialers” include equipment that can dial numbers, and when attached to certain software, assist in connecting an available agent to the calls. They concluded predictive dialers were autodialers under the TCPA because such equipment “had the capacity to dial numbers without human intervention.” In 2015 the FCC’s TCPA Declaratory Ruling and Order attempted to update its interpretations of the TCPA, which were technologically obsolete. It redefined which equipment fell within the definition of “autodialer,” specified liability for calls to reassigned telephone numbers, and provided consumers with a right to revoke consent by any reasonable means. The definition created by this ruling expanded the reach of the TCPA to regulate virtually any software-enabled dialing device and a cell phone meets the 2015 description. The FCC’s rulings defining a vague term like ATDS, were given deference by courts and are used by those suing a company accused of violating the TCPA.

The FCC’s goal in using these definitions was to give itself the ability to enforce the law against unscrupulous telemarketers. But it opened the door for private TCPA lawsuits against companies that were trying to discuss products and services with their customers at phone numbers they had been provided.

The TCPA is also intended to prevent calls to cell phones without the express consent of the “called party.” If you violate that restriction, recipients of unlawful calls or texts may seek injunctive relief in a private action, but most likely will go for the wallet. Liability for a violation is the greater of actual damages or statutory damages of $500 per violation or treble damages, $1,500, for willful or knowing violations.

As to violations, an FCC ruling stated the, “TCPA requires the consent not of the intended recipient of the call, but of the current subscriber.” This meant that if the bank had permission to call Customer A’s cell phone, and the number is now reassigned to someone else without the bank’s knowledge, that “someone else” should not be called. If they are called, the FCC said a caller — the bank in this example — has one chance to get it right; “callers who make calls without knowledge of reassignment and with a reasonable basis to believe that they have valid consent to make the call should be able to initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber… If this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such.” Even with permission, frequent reassignment of cell phone numbers made lawsuits too big a risk for some banks

ACA International represents third-party collection agencies, law firms, asset buying companies, creditors and vendor affiliates. A number of companies including ACA International petitioned the FCC for clarification and to draw differences between autodialers and predictive dialers. That did not happen, and a lawsuit was initiated. In the ACA International v. FCC suit the concern was the over-reaching definitions and rulings concerning autodialers, reassigned numbers, and revocation of consent.

After a lengthy court battle, the U.S. Court of Appeals for the District of Columbia Circuit overturned two controversial portions of the FCC’s 2015 Telephone Consumer Protection Act Order.

The definition of an ATDS and the provision on calls to reassigned numbers are of particular concern to bankers, because they hobble a bank’s ability to send time-critical, non-marketing messages to customers, including alerts concerning suspicious activity, data security breach warnings, low balance alerts, etc., using cell phone calls or text messages.

The court set aside the FCC’s definition of an ATDS because of its “unchallenged assumption that a call made with a device having the capacity to function as an autodialer can violate the statute even if autodialer features are not used to make the call.” The court found the FCC’s interpretation that all smartphones qualify as autodialers is unreasonably and impermissibly expansive. This will offer some protection to your bank’s legitimate marketing efforts with customers through traditional calling methods which do not actually use auto-dialers.

The other critical issue concerns reassigned numbers and consent. The court eliminasted the FCC’s treatment of reassigned numbers in its entirety, finding it could not, without consequence, void the one-call safe harbor, but leave in place the FCC’s interpretation that the “called party” refers to the current subscriber, and not the intended recipient.

The court upheld the FCC’s ruling that a person can revoke consent through any reasonable means by clearly expressing a desire to receive no further calls or texts.

The court’s ruling does not replace the FCC’s definition of an autodialer or the treatment of reassigned numbers, but essentially voided the interpretations and requires the FCC to issue new ones.

The setting aside of “reassigned numbers” will have at least short-term relief, although the FCC likely will take this issue up again, and could adopt a strict-liability standard. In addition, the ongoing ability for consumers to use “reasonable” opt-out methods will likely continue to be litigated. TCPA compliance remains important and high-risk, with a private right of action and statutory damages. Accordingly, all text message campaigns should be carefully vetted for full compliance.


Sellers’ costs on borrowers’ closing disclosures

By John S. Burnett

When a specific question becomes a “trending” topic in our work, it often becomes the basis of one of our monthly Legal Briefs articles. This month, we take on the question of who gets which information as part of the closing disclosures that are issued under the TRID rules in Regulation Z when the loan is financing the purchase of the property securing the loan. From what we have read, there is more than a little confusion about who gets disclosures of what costs, and about disclosing at all certain seller and third-party costs.

More than just the loan costs

To begin with, when it first introduced the TRID rule in Boston in 2013, the Bureau said that, in addition to combining the early and closing disclosures required by Regulation X under the Real Estate Settlement Procedures Act (RESPA) and by Regulation Z under the Truth in Lending Act (TILA), the TRID disclosure requirements would expand the scope of the disclosures to include the costs involved in not only the loan, but also the other costs involved when the loan is a consumer transaction financing the purchase of real estate.

So, what are the options for providing all this information, and to whom? The CFPB’s rule provides for three ways to deliver the closing disclosure.

Option 1: Same disclosure for borrower and seller

The most basic closing disclosure option is to create a single form that includes the disclosures for both the consumer/borrower/buyer and the seller. This option has its origins in the combined buyer/seller Settlement Statement on the old HUD-1 form. This format, using Regulation Z Model Form H-25(A) without any of the modifications permitted in section 1026.38(t), includes all the required disclosures on a single five-page form, revealing the particulars of the loan transaction and the costs of the underlying real estate purchase transaction to both the buyer and the seller of the property and to any other person entitled to a copy of the disclosures.

Option 2: Standard disclosure, with portions blank

Under § 1026.38(t)(5)(v) Separation of consumer and seller information, a creditor can use the standard disclosure forms for transactions involving a seller, but withhold selected information from the copy provided to the consumer/borrower/buyer and from the copy for the seller, in the interests of confidentiality.

Specifically, separate copies of page 3 of the closing disclosure can be issued to the borrower and seller, omitting the seller’s transaction information on the right side of the Summary of Transactions table from the copy given to the borrower/consumer (this is the only part of the seller’s information that can be omitted from the borrower’s closing disclosure). The borrower’s transaction information on the left side of the Summary of Transactions table can be omitted from the copy given to the seller. You can also leave blank the Calculating Cash to Close table on the seller’s copy of page 3.

On page 2 of the closing disclosure, the information on costs paid by the consumer/borrower can be left blank on the seller’s copy of the page. The borrower’s copy, however, must show costs paid by the borrower, the seller and third parties.

On page 1 of the seller’s copy of the closing disclosure, you can omit the statement “This form is a statement of final loan terms and closing costs. Compare this document with your Loan Estimate.” You can also leave blank the name of the lender in the Transaction Information box and all of the Loan Information box. The rest of page 1 (Loan Terms, Projected Payments and Costs at Closing) can also be left blank on the seller’s copy.

Page 4 of the Closing Disclosure can be eliminated altogether from the seller’s copy.

Page 5 of the seller’s copy can be left blank except for the large question mark and the paragraph about questions adjacent to it, and the Contact Information for the real estate broker(s) and settlement agent (the columns for the lender and mortgage broker can be left blank).

Not surprisingly, this option isn’t used by many lenders.

Option 3: Modified seller’s closing disclosure

Many, if not most, lenders use a third option permitted by § 1026.38(t)(5)(vi) that uses a modified closing disclosure form (Model form H-25(I)) for a seller or third party that omits unused portions of the standard form, rather than simply leaving those portions blank.

Costs disclosed on page 2

We’ve already seen that nothing gets omitted from page 2 of the form. There don’t appear to be many problems with where to report the loan-related costs found in sections A, B and C, or what gets included there.

As for sections E, F, G and H in the Other Costs part of the page, here’s what § 1026.38(g) has to say, in its introductory paragraph (emphasis added):

(g) Closing cost details; other costs. Under the master heading “Closing Cost Details” disclosed pursuant to paragraph (f) of this section, with columns stating whether the charge was borrower-paid at or before closing, seller-paid at or before closing, or paid by others, all costs in connection with the transaction, other than those disclosed under paragraph (f) of this section, listed in a table with a heading disclosed as “Other Costs.” [Sections E, F, G and H are in this table.]

When we get to section H, some lenders have been persuaded, incorrectly, that only the borrower’s costs are recorded here. In § 1026.38(g)(4), we find instructions for this section of the form:

(4) Other. Under the subheading “Other” and in the applicable column as described in paragraph (g) of this section, an itemization of each amount for charges in connection with the transaction that are in addition to the charges disclosed under paragraphs (f) and (g)(1) through (3) for services that are required or obtained in the real estate closing by the consumer, the seller, or other party, the name of the person ultimately receiving the payment, and the total of all such itemized amounts that are designated borrower-paid at or before closing.

Clearly, the rule requires that all parties’ costs, not only those of the borrower, are to be disclosed.

As always, when it comes to the TRID rules, you have to look to the Commentary for many of the details involved in compliance with the regulation. Here are comments 38(g)(4)-1 and -4 on that paragraph of the rule:

  1. Costs disclosed. The costs disclosed under § 1026.38(g)(4) include all real estate brokerage fees, homeowner’s or condominium association charges paid at consummation, home warranties, inspection fees, and other fees that are part of the real estate closing but not required by the creditor or not disclosed elsewhere under § 1026.38.
  2. Real estate commissions. The amount of real estate commissions pursuant to § 1026.38(g)(4) must be the total amount paid to any real estate brokerage as a commission, regardless of the identity of the party holding any earnest money deposit. Additional charges made by real estate brokerages or agents to the seller or consumer are itemized separately as additional items for services rendered, with a description of the service and an identification of the person ultimately receiving the payment.

Note the underlined text in comment 1, which indicates these are costs that are part of the real estate closing, which is broader than the costs involved with the loan itself, carrying out the statements made in Boston in 2013. Taken with the wording of § 1026.38(g)(4), the requirement includes all parties’ costs relating to the real estate closing, and finally, comment 4 makes it clear that those costs include real estate commissions paid by all parties to the transaction.

March 2018 OBA Legal Briefs

  • OBA website update, Legal Briefs and Legal Links
  • Without the App, you can’t comply with HMDA
  • A Revised USA PATRIOT Act/CIP Sign?
  • HMDA Signage Correction
  • Spirit and Intent, SCRA and BMW
  • The Beneficial Ownership Rule
  • UBO:  How low do you go?


OBA website update, Legal Briefs and Legal Links

By Pauli D. Loeffler

It has been more than a decade since the OBA last updated its website, and I hope you are enjoying the recent changes as much as I am. I know that we all hate change because it takes getting used to, but I am sure that in a short amount of time, you will have that “ah ha” moment when you realize that the site is so much better than before.

When I was hired as OBA’s assistant general counsel in June 2004, the OBA Legal Briefs, as I recall, did not require a username and password for access. That was changed when the website was updated within a year of my employment. With the 2005 website update, a login was required, but it was simple since everyone who was an employee of an OBA member bank, an OBA Partner or Endorsed Vendor as well as OBA’s employees used the same login credentials (“community” as username and “strong” for the password).  When a banker would call me wanting the login, I would joke that it was the same for all OBA member bank employees so feel free to share it with other employees, and I supposed that if they left employment, Guido would be sent to rub them out. The deathless prose we wrote wasn’t really protected other than by the fact that most former employees would easily forget the login if they weren’t using it.

The OBA updated its website in February, and to access the monthly Legal Briefs as well as the Legal Links page — which has numerous links to other websites as well as useful Templates, Forms and Charts (more about these later), — you will need to register with OBA by providing your business email and a password. To access the Legal Briefs or the Legal Links page, you will have to login to the site with your individual credentials for access.

Prior to the website update, the Legal Briefs from January 2005 to the most recent appeared from newest to oldest and were searchable using “find in page” (control+F) and a keyword. They are still in reverse chronological order, but with different pagination, and you cannot use “find in page.” However, if you use the search box in the upper right corner, you will get results for the keywords you enter. (I do miss “find in page” but am adjusting to the loss.)

Things change over time, and some of the links in the Legal Briefs may no longer work. If you discover a bad one, please shoot us an email at, and we will provide you with the correct link and edit the article to alleviate the issue for others.

Note that Legal Briefs is a four-page pull-out in the middle of the Oklahoma Banker, the monthly newspaper sent to our member banks. It is also available via email subscription which is sent usually within a couple of days of our submission. To subscribe to the email edition, you will need to go to this link for purchase:  The online Legal Briefs monthly editions are posted on the website about two weeks after the print versions are received.

I highly recommend taking some time to explore the Legal Links page. There you will find links to compliance news links, state regulatory agencies, Oklahoma law-related links, various regulatory resources, regulations and statutes, as well as our newest addition: Templates, Forms, and Charts!

We get a lot of questions from bankers dealing with deceased customers, guardians, trusts, and other topics and have drafted some useful templates, forms, and charts to help deal with these. Here is a list of currently available offerings for download:

Deceased customers

  • Affidavit of Heirs Flow Chart – Deposits
  • Affidavit of Heirs Template – Banking Code Sec. 906 (Deposits)
  • Affidavit of Heirs Template – Probate Code Sec. 393 (Deposits & Safe Deposit Boxes)
  • Affidavit of Heirs Template – Banking Code Sec. 906 (Safe Deposit Boxes)
  • Appointment of Agent by Heirs Template – Banking Code Sec. 906 (Safe Deposit Boxes)
  • Authorization for Access on Death Deputy Appointment for Safe Deposit Box & Revocation Templates
  • Affidavit of Access on Death Deputy for Safe Deposit Box Template
  • Oklahoma Intestate Succession Laws Chart
  • Co-Personal Representatives of Estate

Guardians, conservators

  • Co-guardian Authorization Template


  • Certificate of Trust Template
  • Co-trustee Power of Attorney Template


  • No Jurisdiction Letter Template for Out of State Subpoenas, Levies, and Garnishments


Without the App, you can’t comply with HMDA

By Andy Zavoina

One hundred and ten.  That is the number of data fields the current Loan Application Register (LAR) has for banks subject to the Home Mortgage Disclosure Act (HMDA). Contrast that to the 26 fields many lenders had problems with on the older LAR and we have a recipe for disaster. Data entry questions aside, and we know there are many, what banks are having issues with now are fast loan decisions. Yes, this is turning out to be a problem and here is why:

A lender receives an online real estate application or perhaps a drop-off and it is quickly scanned. An in-file credit report is pulled and for any number of reasons, poor credit, no credit, low credit score, the application is immediately denied. The lender wants the adverse action sent and moves on to income generating work.

Here is where the problem comes in. The application is incomplete for one or more reasons. Perhaps the reason for the loan is unclear; an applicant indicates they are currently renting, but they are applying to refinance a mortgage loan; the applicant is applying for a manufactured home loan, but there is some indication that land will come with it, but the facts are incomplete; or simply personal information was omitted, such as the applicant’s date of birth.

Now that the application has been received and a credit decision finalized, the adverse action notice is sent and days later the application is handled by the person having to enter data for the HMDA LAR. But the information is incomplete. Banks have asked if they can enter NA for not applicable. That does not work in many or most cases. It may not be a valid entry. As an example, assume the applicant omitted their age. That field entry calls for a numeric answer such as 24, or 8888 for not applicable. If the applicant for the loan is not a natural person, 8888 is appropriate, but if it is a natural person, that person’s age is the only acceptable entry. One bank indicated that it anticipates many such problems. Remember that the HMDA LAR is a foundation for a fair lending exam and that is a foundation for a Community Reinvestment Act exam. If there are numerous “holes” such as this in the HMDA LAR, they become violations of Reg C and HMDA, and make fair lending and CRA impossible to grade because there is doubt as to the accuracy of the foundations needed to arrive at sound conclusions. If age or racial demographics are omitted repeatedly, there could be a valid fair lending problem and the missing data could be viewed as a coverup. It just does not work.

What can the bank do? Either the individual completing the HMDA LAR or the lender will have to get answers for the omitted data. I assure you, neither one wants to call the applicant who has just been told no, they do not qualify for a loan from your bank and ask the applicant for additional application information. You may have some information on file or available from a credit report that you can use as a source. Without the data fields being completed, edit checks on the LAR will continually be listed and the data noted as absent or incorrect.

Prevention is better than a cure

Correct these problems at the source. Online applications should be reviewed. Each field on the HMDA LAR that the applicant provides should be accounted for. Is it on the online application? Is it shown as a required field? Is that field properly coded such that the application cannot be submitted without providing the data required? Once these questions can be answered with a “Yes,” these issues will begin to be non-issues.

Next, the bank must reinforce in lender training that loan decisions cannot be made until the same data fields identified above are completed. While the lender may not see these fields as necessary to make a credit decision, and many are not, the bank needs the information to complete the application process. This process extends beyond what the lender needs to make a decision. If the necessary information is not requested prior to the credit decision being made the entire process will take more time and cost the bank more money in the long run, plus lead to potential violations and increased scrutiny in an exam.

Who is best equipped to ask for the complete information? The lender should complete an interview process and not only get all the necessary data for HMDA, but ensure the bank understands the request and can determine if there is some other way to grant a loan or counteroffer for the applicant if a denial seems likely. Any other person can call the applicant, but they would likely just be asking for data. Again, the applicant will be in no mood to assist them, and that person will not be able to salvage the application for the mutual good of the bank and the applicant if a denial has already been communicated to the applicant.

If the applicant does not yet have property in mind, and the bank does not do prequalifications or preapprovals, interview the prospective applicant and show an expression of interest for the loan for when there is a known property. If your bank sees the potential for these HMDA problems, it is best to address the issues now and not when LAR entries are rejecting and will be difficult to resolve, and someone’s workload has just increased.

A Revised USA PATRIOT Act/CIP Sign?

By Andy Zavoina

The USA PATRIOT Act mandated your bank’s Customer Identification Program and financial institutions asked that the CIP regulations include the notice requirement found at 1020.220(a)(5)(i). This is the lobby or application notice starting with, “To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain…” There are rumors circulating that this notice must be changed with the impending May 11, 2018, “applicability date” for implementation of the Beneficial Ownership requirements added by FinCEN. The new rules have not required any change in the required signage. This does not mean signage cannot be posted to better explain the Beneficial Ownership rules. But some vendors incorrectly say that new signs must be purchased and displayed. That is simply not the case.


HMDA Signage Correction

By Andy Zavoina

In the December 2107 edition of Legal Briefs, I recommended posting the new required HMDA signage in addition to leaving your existing signage up for HMDA reports the bank already has. The new 2017 data will be available online later this year from the CFPB and to avoid confusion I had made the recommendation so that 2016 and prior years could be obtained in paper format, as has been done in the past. It has come to our attention that the CFPB does now have the prior years’ disclosures statements available, online. This means that if the bank wants to remove the old HMDA availability sign, it may, because the new requirements (a referral to the CFPB) will meet all the HMDA requirements.

There is a new caveat, however. Referring to 1003.5(c)(1), “A financial institution shall make available to the public upon request at its home office, and each branch office physically located in each MSA and each MD, a written notice that clearly conveys that the institution’s loan/application register, as modified by the Bureau to protect applicant and borrower privacy, may be obtained on the Bureau’s Web site at” Note that this is what the notice must convey; there is not specific language recommended. And 1003.5(d)(1), “A financial institution shall make the notice required by paragraph (c) of this section available to the public for a period of three years and the notice required by paragraph (b)(2) of this section available to the public for a period of five years. An institution shall make these notices available during the hours the office is normally open to the public for business.” (b)(2) is a written notice of availability of the disclosure statement. It would be easiest to provide the same information as it posted for the new HMDA, though Reg C has suggested text (in the Commentary to section1003.5), it is not required meaning your bank has flexibility in the content.

So, in addition to a posted notice, anyone requesting the LAR or disclosure statement must receive a written notice.  The notice requirements under 1003.5(b)(2) and (c)(1) may each be provided in written or electronic form. Because the provision for electronic disclosure is explicit and there is no reference to E-SIGN, E-SIGN appears to not be a requirement. It is recommended that branches have preprinted notices available for distribution when a request is made in person, and an electronic version that can be used if a request comes in electronically. Don’t waste money on a huge supply. Ask yourself how many times in the last year you have been asked for your HMDA disclosure statement and modified LAR (probably very few, if any), and add 10 or 20 to that and you should have an adequate supply on hand. Mark the last form in your stack as “Use this form to copy 10 more, and place on top of this.” Train staff on your new procedure and they can hand them out, or send the notice electronically in response to an emailed request. While it is not necessary to have a receipt or signed request, the bank should have a procedure which is trained for and periodically tested.

Spirit and Intent, SCRA and BMW

By Andy Zavoina

A recent and first-of-its-kind case between the Department of Justice (DOJ) and BMW AG exemplifies why the spirit and intent of a law or regulation is important when defining how to comply with that law or regulation.

BMW leases autos to servicemembers. These lease programs allow for an upfront payment, often several thousand dollars, which then reduce the monthly lease payment itself. BMW considered these capital cost reduction payments as down payments and not subject to a refund in the case of an early lease termination. This has been their policy and practice since at least 2011.

As servicemembers are being called to active duty, the SCRA allows lease terminations in some cases. These protections apply whether the lease agreement was entered into pre- or post-service. A servicemember may terminate a motor vehicle lease when that servicemember enters the military or receives PCS (permanent change of station) orders or a deployment order. For motor vehicles, the time requirement is 180 days or more and the PCS/deployment will take them outside the continental United States. (Residential leases vary from this.) The lease may be for personal or business purposes.

Cited in this case particularly were two Air Force sergeants deployed to Afghanistan for six months and then reassigned to Japan for a three-year tour. While BMW cancelled the leases, it would not refund the initial payment. If the initial payment was to lower the monthly payment, one could conclude that an early termination would trigger an amortized refund of that payment based on the months remaining in the lease. If the payment was intended to reduce a residual cost at the end of the lease, that may differ. In any event, without admitting any fault BMW has agreed to pay $2.17 million to compensate 492 servicemembers (that’s $4,400 each) and to pay $61,000 to the U.S. Treasury to settle the case.

“Men and women who serve in the armed forces have made enormous sacrifices while selflessly protecting our nation from danger,” U.S. Attorney Craig Carpenito in New Jersey said in a statement. “We must honor their sacrifice by ensuring that their rights are protected when duty calls for their relocation or deployment overseas.” For many purposes a servicemember is quite similar to a protected class under Reg B and it is best to operate with the spirit and intent of consumer protection when handling a servicemember’s account.

And just to clarify that servicemember protections reach beyond banks and other lenders, last month the City of Honolulu came to a settlement on a dispute it was involved in pertaining to the sale of abandoned vehicles. The City had, between 2010 and 2016, auctioned three vehicles belonging to active duty servicemembers without court approvals or a waiver allowing the sale. The City will now pay almost $56,000 to the three, pay a civil money penalty to the U.S. Treasury of $61,000 and create a $150,000 fund to allow for additional claims.

The City has been inundated with abandoned vehicles, many owned by servicemembers, and has run out of storage lots. Regardless of the reasoning, the SCRA protections apply.

The Beneficial Ownership Rule

Questions and Answers from the Top Gun Conference

By John S. Burnett

Even though almost two years have passed since the final Customer Due Diligence rule was issued by FinCEN, the substantial portion of the rule that adds requirements for obtaining and verifying the identity of beneficial ownership of legal entity customers is still generating lots of questions, as we confirmed at BOL Conferences’ recent Top Gun BSA/AML Conference in Scottsdale.

Here are several of those questions and answers, in an FAQ format:

Q1. What accounts are subject to the rule?

Answer: The definition of “account” is the same as the one used under the CIP rules. It is “any formal banking relationship established to provide or engage in services, dealings, or other financial transactions including a deposit account, a transaction or asset account, a credit account, or other extension of credit. It also includes a relationship established to provide a safe deposit box or other safekeeping services, or cash management, custodian and trust services.”

Q2. Can you give examples of products or services that are NOT accounts?

Answer: Any product or service where a formal banking relationship isn’t established, such as check-cashing, wire transfer, or sale of a check or money order. Also excluded are accounts that the bank acquires through an acquisition, merger, purchase of assets, or assumption of liabilities. Also excluded is an account opened for the purpose of participating in an employee benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA).

Q3. Is a loan purchased as “dealer paper” from an auto dealer considered an account under the rule?

Answer: If the dealer extended the credit and your bank purchased it after the loan was consummated by the borrower and the dealer, it would be considered a purchase of assets, and not an account under the rule. However, if the bank underwrites a loan extended by the bank through a dealer/agent, the loan would be an account and subject to the rule.

Q4. This rule requires that we obtain information on beneficial ownership when a new account is opened. What is a “new account” under the rule?

Answer: A new account is any account opened at a covered financial institution by a legal entity customer on or after May 11, 2018. A new account is opened on or after that date when a legal entity customer:

  • Opens a new operating checking account
  • Opens a new payroll account
  • Opens a new IOLTA account
  • Purchases a new auto-renewing time deposit (certificate of deposit)
  • Signs a new safe deposit box lease
  • Obtains, and signs paperwork for, a new revolving line of credit
  • Obtains a new commercial mortgage loan with a balloon payment
  • Obtains a new extension of credit for inventory purchase, signing a 90-day note
  • Signs an agreement for trust services with your bank’s trust department

Those are just examples; it’s not an exhaustive list.

Q5. Is the automatic rollover of a time deposit at maturity a new account? How about “subnotes” that are sometimes used for individual advances under a formal, advised line of credit?

Answer: The regulation doesn’t even mention such arrangements, as common as they are. I don’t think the time deposit rollovers are new accounts, and I am hoping that FinCEN will clarify this issue and others in its updated FAQ, which we were told FinCEN wants to issue before May 11, 2018. In the absence of guidance from the agency, you have to make a risk-based decision on how to treat them. The “subnotes” aren’t new accounts, because the new account event is the bank’s commitment to lend, i.e., extend the line of credit.

Q6. If an entity customer has a non-interest-bearing checking account with our bank and wants to have it changed to an interest-bearing checking account (assume we offer such accounts), will the change of the account status be a “new account event”?

Answer: If the change is accomplished by making changes to the existing account (such as a new class code, setting an interest payment flag, activating account analysis, etc.), there is not a new account event. However, if the old account is closed and a new interest-bearing DDA is opened, you would have a new account event.

Q7. If we open two accounts simultaneously for a business entity (e.g., a checking and a savings account), must we obtain two certifications of beneficial ownership?

Answer: That question is not addressed in the regulation or the current FinCEN FAQ. But given the purpose of the regulation – to obtain information on the beneficial ownership of the legal entity customer at a point in time, a single certification should be enough, particularly if your bank can index back to that certification from each of the accounts opened in that session with the customer’s representative.

Q8. What good is a photocopy of a driver’s license if the individual isn’t here so that we can compare the photo with the face or compare signatures?

Answer: A photocopy of someone who’s not present is certainly of less value that an original license brought in by the licensee. It can be used for verifying some of the identifying information included on the certification.

Q9. How should we handle IOLTA accounts, which are owned by the attorney or law firm’s clients and the state bar association? How can we get beneficial ownership information on these accounts, or should we?

Answer: Start by understanding who your customer is. The attorney’s clients do not own the account even though they may beneficially own (some of) the funds in the account. And the bar association doesn’t own the account, either. The account is owned by the attorney (in the case of a sole practitioner) or law firm. If your customer is a sole practitioner, there is no legal entity involved and the rule can’t apply. But if the customer is a law firm, a partnership, limited liability partnership (LLP), limited liability company (LLC), professional corporation (PC), etc., it is a legal entity, and you will apply the regulation just as you would for any other legal entity customer.

Q10. For established, low-risk legal entities, must financial institutions obtain beneficial ownership certifications with every future account opened by the entity?

Answer: Yes. Unlike the CIP rule, where you are verifying the identity of your customer at a point in time (account opening) and that identity doesn’t change, under the beneficial ownership rules you are looking at the ownership of the entity, which can change. The point of the rule is to identify ownership interests.

Q11. If we have obtained a beneficial ownership certification from a legal entity customer, should we look through documentation (articles of incorporation, tax returns, etc.) provided to us to ensure the correct information has been provided on the certification?

Answer: You can accept as correct the beneficial ownership certification unless you have reason to doubt its accuracy. For example, if your bank recently investigated pubic records to determine ownership of the entity for a loan under consideration, and become aware that the information obtained is at odds with the information provided on the certification, you would have to follow-up on the certification, requiring that the inconsistency be resolved.

Q12. A legal entity customer wants to open a new deposit account, but the individual opening the account doesn’t have all of the information needed for the beneficial ownership certification, nor does he have copies of photo IDs that we require for new legal entity accounts. Can the account be opened without the required information, and for how long can it remain open without the information/certification?

Answer: The beneficial ownership rule does not provide any such leeway. The beneficial ownership certification must be obtained by the time the account is opened. Verification of the identity of any individuals listed as beneficial owners (or as the control individual) can be completed by the bank after the account is opened, but the bank’s procedures must have a limit on how long that can take, and provide for the closing of the account if the bank cannot verify the identity of each individual named in the certification.


UBO:  How low do you go?

By Mary Beth Guard

When determining the Ultimate Beneficial Owners of a legal entity customer for purposes of the new Beneficial Owner/CDD rule, exactly how far do you need to drill down? Lower than you might think.

I had concluded one of my presentations at our recent Top Gun AML conference on the subject of Layers of Ownership. My husband, Michael, was in the audience, and while I was speaking, he charted out an ownership scenario he remembered from a case where he represented a bank chasing assets of a deadbeat borrower. There were multiple layers of entities that owned parts of the legal entity that had received the extension of credit and because they were essentially all shells, he was able to successfully pierce the corporate veil of each and get to the assets of the individuals behind them.

As I approached my seat, he asked “Do you aggregate ownership interests of individuals when you are determining UBOs?  If Entity A is owed by B Corp. and D Corp., and B Corp. owns 76% of Entity A and D Corp. owns 24% of Entity A, do you really not have to look at who owns D Corp.? Then he showed me his chart. Sam Smith owned 28% of B Corp (which owned 76% of Entity A — our new account customer).  Looks like Sam is not a Beneficial Owner of A, right? (28% of 76% is just over 21% indirect ownership of Entity A.)  Not so fast.  Turns out that Sam also owns 95% of D Corp, which owns 24% of Entity A. That’s another 22.8% indirect ownership of Entity A.

Sam indirectly owns more than 25% of Entity A!  Sam is a Beneficial Owner, as defined in the regulation.

So, the bottom line is that if it looks like an entity owns less than 25%, that is not the end of your inquiry.  You must look at whether, as you continue to go down through the layers, there is any common ownership by natural persons among the companies that own the new customer.

The complexities continue to emerge.

February 2018 OBA Legal Briefs

  • “I received a child support levy…”
  • Tax Refund Checks
  • The ADA and the WWW
  • Prepaid Accounts Rule Amended and Delayed
  • Payday Lending Rule Likely to be Rescinded or Trimmed

Read More »

December 2017 OBA Legal Briefs

  • Managing risk in mobile deposits (Removed for error)
  • The statement exemption for charged-off loans
  • Don’t sweat the HUD-SCRA expiration
  • HMDA notices
  • Abundance of caution”
  • “Legalese” for non-lawyers – Part II

Read More »