A recent decision by the 10th Circuit is bringing some comfort to depositary institutions determined to maintain a significant income stream generated from overdraft fees despite increasing peer competition and heavy pressure from the federal banking regulators to walk away from the fees. The court’s holding narrowly refers to a particular form of overdraft fees, but the decision reasonably can be read more broadly.
Originally published in a prior edition of this newsletter, this story is reprinted here due to the heightened interest in and continued timeliness of this important topic.
A recent decision from a Texas bankruptcy court involves a short-term financing arrangement that went “terribly wrong.” The issue is whether a venerable business enterprise was “dead on arrival” or just “walking wounded” and capable of reorganization. As determined by the bankruptcy court, the bridge lender acted in “bad faith” when it assumed control over the management of the business enterprise to protect its own interests, causing the business enterprise’s demise.
A recurrent problem in bank deposit and collection and lending disputes is the appropriate role of “good faith” as an overarching principle in lender liability cases. Oftentimes, plaintiffs will look to the UCC as the statutory source for an independent duty of good faith, usually framed as the “implied duty of good faith and fair dealings” under tort law. This can lead to problems.
The January 2022 issue of this newsletter is a Special Report on the cessation of the publication of the benchmark interest rate known as the LIBOR (London Interbank Rate) scheduled for June 30, 2023. The Special Report discusses the challenges during the transition period facing U.S. financial market participants who are stakeholders in so-called “tough legacy” (difficult to amend) financial contracts” lacking satisfactory “fallback provisions.”
For the financial institution, a garnishment order is a red flag signaling customer financial insecurity. There are certain federal benefits received by consumers administered by four federal agencies protected under federal law from garnishment by creditors. A threshold question for financial institution receiving a garnishment order is whether a federal exemption applies.
A federal district court sitting in the Northern District of California recently upheld the Office of the Comptroller of the Currency’s interest rate exportation rule. The Attorneys General from three states challenged the rule in a lawsuit filed on July 29, 2020. The decision released in early February 2022 is the latest development in the controversy over whether national banks have the authority to export interest rates in light of the uncertainty created by the Second Circuit’s much-discussed Madden decision.
The COVID-19 pandemic seriously impaired the economic livelihood of large numbers of consumers beginning in 2020. Certain types of payments on consumer debt were suspended or reduced during the pandemic in 2020 and 2021. Some extensions carried over into 2022 but forbearance relief is ending. Many of the hardship programs were enacted through government initiatives. Individual creditors also offered COVID-related hardship programs, in some cases on a national level. The moratoriums and stays issued by state and local governments and the judiciary on creditor collection activity generally have expired or will expire in 2022.
The impending end of the use of LIBOR as benchmark interest rate for commercial contracts and securities is “a global phenomenon that has the financial industry mobilizing ahead of a looming deadline,” according to the financial services megabank J.P. Morgan. This Special Report reviews, form an historical perspective, the events leading to the demise of LIBOR as well as the major actions taken in response by the banking regulators and state lawmakers in the United States. This analysis serves as a lead in to discussing these two questions: What financial market participants tied to the U.S. Dollar LIBOR should expect in the coming months as the transition away from LIBOR proceeds? An even more prescient question is what financial market participants tied to the U.S. Dollar LIBOR should expect when LIBOR disappears? We offer insights and takeaways. Until Congress passes federal legislation preempting state law or 48 state legislatures join New York and Alabama in passing LIBOR transition laws, financial institutions and market stakeholders will be working their way through a patchwork of responses from Congress, the U.S. banking regulators and state legislators.
U.S. market stakeholders with exposure to LIBOR have no choice but to prepare for the end of LIBOR. USD LIBOR is slated to disappear as of the end of publication on June 30, 2023. To the extent there are clear takeaways to be drawn from the myriad of actions taken so far by U.K. and U.S. banking regulators and two state legislatures, here is our working list:
New York and Alabama are the first two states to pass legislation addressing LIBOR’s cessation with respect to the U.S. dollar. On March 5, 2021, LIBOR’s United Kingdom regulators officially announced the discontinuation of the U.S. Dollar LIBOR (USD LIBOR).
The payment system landscape in the United States significantly changed in 2020 due to the global pandemic. This was the major theme running through the December 2021 update to the last comprehensive Federal Reserve Payments Study from 2018. For the first time, the December 2021 update collected quarterly data for 2020.
In handling a secured transaction under Article 9 of the UCC, the secured lender must make sure that it uses the correct categories of collateral. Different categories often require different methods of perfection. For example, a security interest in a “deposit account” may only be perfected by “control,” while a “securities account” may be perfected by either control or filing a financing statement.
The holder in due course doctrine dates back centuries. The doctrine allows a bona fide purchaser of a negotiable instrument to take the instrument free of claims and defenses.
On the horizon are changes to the existing federal regulatory structure for overdraft services as part of a new major reform initiative by the federal bank regulators to facilitate reform by the banking industry of its dependency on overdraft fees for profits.
A majority of the nation’s states now mandate financial institutions and or persons tied to the financial institution to report suspected financial exploitation against seniors and other vulnerable customers to law enforcement and social service agencies.
By way of a one paragraph Order, the Fifth Circuit recently stayed the CFPB’s ability to implement the payment provisions of its 2020 Final Rule on payday regulations, until 286 days after resolution of the appeal now pending before it.
To help combat a particularly pernicious and sophisticated type of cyber payments fraud, the Federal Reserve recently adopted a definition of “Synthetic Identity Fraud” (SIF). SIF is used by fraudsters to purchase a house or use credit cards over long periods of time. SIF also is known to finance money laundering operations, drug cartels, human trafficking, and illegal arms sales.
Article 4A of the Uniform Commercial Code (UCC) sets out a comprehensive set of rules governing funds transfers. Even without a special agreement, parties to a funds transfer may look to Article 4A to understand their rights and obligations. Moreover, unlike the general freedom of contract principle that prevails under Article 4 dealing with checks, Article 4A contains numerous provisions that may not be varied by agreement.
Banks engaging third parties to perform services and activities are held responsible for the third-party’s performance just as if the bank were to perform the service or activity itself. Moreover, engaging a third party does not diminish the bank’s own responsibility to operate in a safe and sound manner including compliance with applicable law. At least on paper, these principles are integral to modern day federal bank regulation and compliance.