Posts filed under ‘Financial Institutions’

CFPB Issues Consent Order for RESPA Violations

Written by:  Robert Harry

On January 31, 2017, the Consumer Financial Protection Bureau (“CFPB”) published a Consent Order with Prospect Mortgage, LLC (“Prospect”) for alleged violations of the Real Estate Settlement Procedures Act (“RESPA”) prohibitions against kickbacks and unearned fees, commonly referred to as “RESPA Section 8”. RESPA Section 8 states that “no person shall give and no person shall accept any fee, kickback or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person”. RESPA Section 8 applies to, among others, mortgage lenders, title companies, lawyers, servicers, and real estate agents.

The CFPB alleges that Prospect entered into a series of agreements with two real estate brokerage agencies and a loan servicer for mortgage origination referrals. The CFPB noted that Prospect violated RESPA Section 8 by:

1. Using lead agreements to pay brokers for referrals;
2. Using Marketing Services Agreements, commonly referred to as “MSAs” to pay brokers for referrals;
3. Using desk licensing agreements to pay brokers for referrals;
4. Encouraging brokers and agents to require consumers to loan obtain pre-approvals with Prospect’s loan officers
5. Paying the servicer for referrals;
6. Using a third-party’s website advertising to pay real estate brokers for referrals; and
7. Encouraging brokers to use fees and credits to pressure consumers into using Prospect.

The CFPB ordered Prospect to pay a $3.5 million dollar civil money penalty to the bureau. Further, Prospect may still have liability for any private civil action available under RESPA Section 8 to any consumer harmed by these actions, is prohibited from engaging in the activities described in the Consent Order, and must undergo compliance training, and conduct extensive reporting and recordkeeping.

Additionally, and in a departure from the CFPB’s prior RESPA Section 8 enforcement actions, the CFPB also entered into Consent Orders with the two real estate brokerages for accepting the payments in violation of the law. This is the first time the CFPB has enforced RESPA Section 8’s prohibition against kickbacks against real estate brokers under the common use of MSAs, desk licensing, and co-marketing agreements. The two brokerages agreed to pay a combined $230,000.00 in fines and disgorgement due to the alleged violations and may still be held liable under related consumer private causes of action.

The actions by the CFPB reinforce Richard Cordray’s position that the bureau will analyze marketing arrangements between settlement service providers with great scrutiny. The orders rely on internal communications and statements to demonstrate that the facially lawful arrangements under RESPA Section 8 were likely only a means of circumventing the anti-kickback provisions while still paying for referrals. It’s imperative that all settlement service providers carefully evaluate any marketing or business activities with other settlement service providers to ensure compliance with RESPA.

The attorneys at Stinson Leonard Street are uniquely able to counsel and assist clients in the residential real estate finance and sales industry to navigate the complex regulation that is RESPA Section 8.

February 16, 2017 at 10:35 am

Stinson Leonard Street’s Quarterly Banking Seminar – How to Prosper Through Market Change

With the beginning of a new year comes new opportunities in the banking and financial fields. These opportunities, however, are not without potential challenges, obstacles and pitfalls. Focused attention on strategy and problem avoidance is more critical than ever.

Join us Tuesday, January 24 for a panel discussion on some of the hot topics in the banking industry. Learn how new regulations will pose significant compliance and operational challenges for your organization and how you can prepare to implement the right steps to avoid complications and scrutiny.

Our presenters will cover critical changes in the market including :

  • Strategy and Competition
  • Financial Technology
  • Regulatory Landscape
  • Talent Acquisition and Retention
  • Customer Demands
  • The Impact of Global Decisions

This program will be presented from various Stinson Leonard Street locations.

Join us in person in the Denver, Kansas City, Minneapolis, St. Louis and Washington, DC offices for this informative event.

Register online to attend this event.

WHEN:

Tuesday, January 24

Registration: 8:30 – 9 a.m. (MT) 9:30 – 10 a.m. (CT) 10:30 -11 a.m. (ET)

Program: 9 – 11 a.m. (MT) 10 a.m. – 12 p.m. (CT) 11 a.m. – 1 p.m. (ET)

Lunch reception immediately following in Denver, Kansas City, Minneapolis, St. Louis and Washington, DC.

WHERE:

Stinson Leonard Street

Denver [map]

Kansas City [map]

Minneapolis [map]

St. Louis [map]

Washington, DC [map]

December 7, 2016 at 8:00 am

National Bank Charters for FinTech Companies

Written by: P. Michael Campbell

On Friday December 2nd, the Office of the Comptroller of Currency (“OCC”) announced that it would start considering applications for special purpose national bank charters from fintech (financial technology) companies.  The OCC believes that providing fintech companies charters will establish a regulatory framework for the fintech industry.  As noted by the OCC, a company receiving the special purpose national bank charter will be “held to the same rigorous standards of safety and soundness, fair access, and fair treatment of customers that apply to national banks and federal savings associations.”

In addition to regulation by the OCC, a fintech company receiving a charter could be subject to regulation from other governmental bodies, including the Federal Reserve, Federal Deposit Insurance Corporation and the Consumer Financial Protection Bureau.

Any company seeking a special purpose national bank charter is expected to have a well-developed business plan setting forth in “significant detail” the bank’s activities. The plan must also cover the governance structure, capital, liquidity, compliance risk management, financial inclusion and recovery and exit strategies.

SLS is well positioned to advise any company seeking a special purpose national bank charter. SLS has experts in every aspect of the application process and years of experience working with regulatory agencies.

The OCC’s proposal is open for comment until January 15th and is expected to receive many comments as the move has been both applauded and criticized in the financial and banking industry.  SLS will continue to monitor any developments with the OCC’s announcement.

December 6, 2016 at 8:00 am

CFPB Reissues Guidance on Supervised Bank and Non-Bank Relationship with Third-Party Service Providers

Written by:  George Sand

On October 31, 2016, the Bureau of Consumer Financial Protection (“CFPB”) reissued Bulletin 2012-03 (Service Providers) to clarify certain aspects of the risk management program for service providers. The intention behind the release is to clarify that appropriate risk management can be accomplished through giving flexibility to supervised entities.

The CFPB expects supervised banks and non-banks to properly provide oversight to their respective service providers to ensure compliance with Federal consumer financial law and to prevent consumer harm. Section 1002(26) of the Dodd-Frank Act (12 U.S.C. 5481(14)) defines a service provider as “any person that provides a material service to a covered person in connection with the offering or provision by such covered person of a consumer financial product or service.” The fact that a supervised bank or non-bank enters into a relationship with a service provider does not mean such bank or non-bank is absolved from liability for the service provider’s product. The supervised bank or non-bank may be liable for its service provider’s unfair, deceptive, or abusive acts or practices towards consumers. Circumstances triggering supervised bank or non-bank liability include a service provider’s unfamiliarity with legal requirements applicable to the product provided, inadequate efforts to implement such requirements carefully and effectively, and insufficient internal controls, among others. Title X authorizes CFPB to exercise enforcement authority over supervised service providers, which includes the ability of CFPB to examine supervised service provider operations on site.

Under the reissued bulletin, the CFPB clarifies that a supervised bank or non-bank risk management program may vary depending on the service being performed. Factors taken into consideration include the service’s size, scope, complexity, importance and potential for customer harm. The CFPB provides that supervised banks and non-banks should take the following steps with service providers:

  • Conduct a thorough due diligence to ensure service provider has the requisite knowledge and capacity to comply with Federal consumer financial law;
  • Review the service provider’s policies, procedures, internal controls, and training materials to ensure they provide for appropriate operations and oversight;
  • Draft contractual provisions with the service provider that provide “clear expectations about compliance, as well as appropriate and enforceable consequences for violating any compliance-related responsibilities, including engaging in unfair, deceptive, or abusive acts or practices”;
  • Establish internal controls and monitoring procedures for surveillance of the service provider to ensure service provider is abiding by Federal consumer financial law; and
  • “Promptly” react to identified problems, including terminating the relationship when necessary.

November 3, 2016 at 8:00 am

FinCEN Issues Advisory to Financial Institutions on Cyber-Events and Cyber-Enabled Crime

Written by: Jennifer Salisbury

On Tuesday, October 25, the Financial Crimes Enforcement Network (“FinCEN”) issued an Advisory to explain how regulations and requirements of the Bank Secrecy Act (the “BSA”) apply to cyber-events, cyber-enabled crime, and cyber-related information.

Under the BSA, a financial institution must file a Suspicious Activity Report (a “SAR”) in the event of any successful or unsuccessful cyber-event that poses or posed at least a $5,000 risk to such institution. Further, a SAR must be filed for any cyber-event that a financial institution knows or at all suspects was intended to influence a transaction or a series of transactions at such institution.  A cyber-event is an attempt to compromise or gain unauthorized electronic access to electronic systems, services, resources, or information.  In determining whether to report any cyber-event, a financial institution should take into consideration any information it has that relates at all to the cyber-event and should aggregate any funds and/or assets that were involved or put at all at risk by the cyber-event.  FinCEN also encourages any financial institution that discovers any cyber-event that falls outside of the mandatory SAR threshold to consider voluntarily filing a SAR because the information can still provide value to law enforcement investigations.

When filing a mandatory SAR, a financial institution should include any cyber-related information available to it. FinCEN also encourages any cyber-related information be included in the filing of any voluntary SAR.  Some examples of cyber-related information are IP addresses with timestamps, virtual-wallet information, device identifiers, and cyber-event information.  Both mandatory and voluntary SARs should include complete and accurate information including, to the extent available: a description and magnitude of the event; known or suspected time, location, and characteristics or signatures of the event; indicators of compromise; relevant IP addresses and their timestamps; device identifiers; methodologies used; and any other information the financial institution believes is relevant.

In addition, financial institutions should always ensure that they comply with any other cyber-related SAR requirements that might be imposed by their respective functional regulators.

To view the full text of the FinCEN Advisory, click here.

October 28, 2016 at 4:34 pm

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