On August 31, Grovetta Gardineer, the OCC’s Deputy Comptroller for Compliance Operations and Policy, delivered remarks at the Association of Military Bankers of America annual workshop in Leesburg, VA. Throughout her presentation, Gardineer highlighted issues affecting financial institutions focused primarily on lending to servicemembers. Gardineer discussed the OCC’s ongoing efforts to identify and correct deficiencies within bank and thrift compliance practices and noted improved Servicemembers Civil Relief Act (“SCRA”) compliance by regulated institutions. Specifically, Gardineer observed that in 2014, the OCC cited sixty-five SCRA violations among large, midsized, and community institutions. For the first quarter of 2015, however, Gardineer reported that OCC examiners cited only seven SCRA violations. Gardineer also referenced recent amendments to the Military Lending Act (“MLA”) which expanded consumer protections to both open-end and closed-end consumer credit for servicemembers; she emphasized that banks should be proactive in updating their internal policies and procedures to reflect the MLA’s changes. Reiterating the OCC’s commitment to cybersecurity, Gardineer advised that OCC examiners intend to use the cybersecurity assessment tool “to supplement exam work to gain a more complete understanding of an institution’s inherent risk, risk management practices, and controls related to cybersecurity.” Finally, Gardineer discussed innovation within the industry, such as the emergence of various mobile payments transfer systems and peer-to-peer lending. She stressed that the OCC intends to facilitate a responsible regulatory environment that will encourage innovative financial products and services while also implementing regulations to ensure adequate consumer protections.
Federal Reserve Bank of Boston’s Payment Strategies Team Provides Snapshot of Mobile Banking Landscape
On August 17, the Federal Reserve Bank of Boston published a report that outlines the results of a 2014 survey intended to capture “a point-in-time snapshot of mobile banking and payments at [financial institutions]” across five Federal Reserve bank districts. One of the largest U.S. surveys completed on mobile banking and payment services at financial institutions, the collected data mostly came from banks and credit unions – a combined total of more than 600 – with less than $500 million in assets. The survey showed that with the rise of smartphones, consumers are more easily able to use mobile devices for payments, and they demonstrate “growing comfort with mobile and digital wallets as well as willingness to pay with mobile-based solutions.” As competing mobile technologies emerge, such as non-bank technology service providers, the report found the need for financial institutions to “create mobile banking and payment strategies to respond to [the] changing environment” becomes more relevant. The report highlighted that roughly 75 percent of the financial institutions surveyed offer the following mobile services, with a majority of the remaining 25 percent planning to offer them by 2016: (i) checking balances; (ii) transferring funds between a single owner’s account; (iii) viewing statements and transaction history; (iv) ATM / branch locator; and (v) bill payment. The report further suggested that financial institutions should “keep pace” with the growing mobile banking market and “be proactive and help make the best solutions succeed.”
On August 7, OCC Comptroller Thomas Curry delivered remarks at the Federal Home Loan Bank of Chicago, which was hosting a conference highlighting the future of financial services. Specifically, Curry discussed innovation in the emerging financial technology industry, or “fintech,” noting the risks and benefits associated with mobile payments, virtual currency, and peer-to-peer lending products within the U.S. banking system. With respect to virtual currency, Curry stressed how important it is for financial institutions to implement adequate procedures to deter money laundering and terrorist financing. Curry also recognized that the OCC is “still early in the process” of evaluating a regulatory framework to examine some new and innovative products and services. Rounding out his remarks, Curry expressed his growing concerns with so called “neobanks,” which operate primarily online but provide similar services to brick and mortar retail branch banks, including the heightened privacy risks that neobanks present in light of recent cybersecurity attacks.
On July 21, the Federal Reserve Board of Governors announced the members of the Faster Payments and Secure Payments Task Force as described in the Strategies for Improving the U.S. Payment System white paper released earlier this year. The committees will advise the Federal Reserve task force chair on meeting agendas, and help prioritize various task force activities, among other payments initiatives. The members include various interest groups representing industry, tech, and government, among others. More information about the task forces and the Fed’s payments improvement initiatives can be found at fedpaymentsimprovement.org.
On July 9, the CFPB issued a set of guiding principles aimed to help private industry better protect consumers as new, faster electronic payment systems continue to emerge. “While American consumers benefit from and make use of these payment systems, there remain opportunities to improve efficiency, reduce transaction costs for consumers, and reduce credit and fraud risks,” the CFPB’s announcements stated. Accordingly, the principles advocate for more secure, transparent, accessible, and affordable networks for consumers, and recommend proposals concerning funds availability, fraud and error resolution, and privacy concerns. The Bureau’s announcement comes as the Federal Reserve is currently engaged in an initiative to improve the U.S. payment systems network.
OCC Comptroller Discusses Emerging Payment Systems Technology and Cybersecurity, FFIEC Set to Release Cybersecurity Assessment Tool
On June 3, in prepared remarks delivered at the BITS Emerging Payments Forum, OCC Comptroller Thomas Curry advised that as financial institutions continue to develop payment systems, banks need better preparation for potential cyber-risks. Curry warned that “[c]yber criminals will also probe emerging payment systems for vulnerabilities that they can exploit to engage in money laundering[.]” In addition, Curry advocated for more regulatory oversight of digital currencies and non-bank mobile payment providers, such as ApplePay and Google Wallet. Addressing cybersecurity concerns, Curry called for increased information-sharing to promote best practices and strengthen cybersecurity readiness among the banking industry. In particular, he urged financial institutions – of all sizes – to participate in the Financial Services Information Sharing and Analysis Center, or FS-ISAC, a non-profit founded by the banking industry to facilitate the sharing and dissemination of cybersecurity threat information. Moreover, Curry confirmed that the FFIEC will soon be releasing a Cybersecurity Assessment Tool for financial institutions to use when evaluating their cybersecurity risks and risk management capabilities, observing that the tool will be particularly helpful to community banks as cybersecurity threats continue to increase.
On March 23, the FTC announced – via blog post – the formation of the Office of Technology Research and Investigation (OTRI), a newly formed research office within its Bureau of Consumer Protection. The OTRI succeeds the Mobile Technology Unit and will have an enhanced mission within the FTC to investigate technology issues encompassing privacy, data security, automobiles, smart phones, smart homes, emerging payment methods, Internet of Things, and big data.
Fair Isaac shared some eye-popping statistics on the financial preferences and habits of the so-called “millennial” generation, born in the early 1980s or 90s. Also called Generation Y, 75+ million millennials have a much greater propensity to use mobile financial apps than their Gen X predecessors or Baby Boomers. Financial institutions will soon confront “millennials and their money” issues.
When dealing with money and finance, millennials demand convenience and relevance. Millennials are the social generation – inextricably entwined with social media and eager participants in the sharing economy. They share restaurant and bar tabs with the Venmo app rather than writing checks to each other or swiping multiple cards. But don’t just take our word for it – watch the FICO videos, and this is what you’ll hear: it’s “10 times faster,” millennials are “connected all the time,” and mail from banks is “weird and annoying.” Even phone calls may be passé; some millennials don’t answer if they don’t recognize the caller’s number. Read more…
While 2014 is closing out with worldwide cyber-threats, at BuckleySandler, we’re going to close out our first year publishing Digital Insights & Trends on an optimistic note. Looking forward, we welcome a mobile payments development that could be cause for cyber-celebration in 2015 and the years to follow.
As financial services lawyers, we usually navigate the regulatory concerns of e-commerce providers in the financial sector for a clientele of banks, other financial institutions and technology companies. But we are keenly aware that access to financial services is vital even for those without access to traditional banks. This reality, referred to as the “unbanked” problem, has preoccupied financial service providers (and consumer advocates, and policymakers) for decades. Mobile payment technology may be the solution. Read more…
On August 1, the FTC released a staff report on the agency’s review of shopping apps—those used for comparison shopping, to collect and redeem deals and discounts, and to complete in-store purchases. The FTC staff examined information available to consumers before they download the software onto their mobile devices—specifically, information describing how apps that enable consumers to make purchases dealt with fraudulent or unauthorized transactions, billing errors, or other payment-related disputes. The staff also assessed information on how the apps handled consumer data. The FTC staff determined that the apps studied “often failed to provide pre-download information on issues that are important to consumers.” For example, according to the report, few of the in-store purchase apps provided any information prior to download explaining consumers’ liability or describing the app’s process for handling payment-related disputes. In addition, according to the FTC, most linked privacy policies “used vague language that reserved broad rights to collect, use, and share consumer data, making it difficult for readers to understand how the apps actually used consumer data or to compare the apps’ data practices.” The FTC staff recommends that companies that provide mobile shopping apps to consumers: (i) disclose consumers’ rights and liability limits for unauthorized, fraudulent, or erroneous transactions; (ii) clearly describe how they collect, use, and share consumer data; and (iii) ensure that their strong data security promises translate into strong data security practices. The report also includes recommended practices for consumers.
Recently, the Federal Reserve Board released two payments-related reports: (i) a report to Congress on government-administered general use prepaid cards; and (ii) a detailed report on the Federal Reserve’s 2013 payments study. The report on government-administered prepaid cards analyzes the $502 million in fee revenue collected by issuers in 2013, a majority of which was attributable to interchange fees. For consumer-related fees, the report indicates such fees derived primarily from ATM-related charges. The second report details findings from the 2013 Federal Reserve Payments Study, the fifth in a series of triennial studies conducted by the Federal Reserve System to comprehensively estimate and study aggregate trends in noncash payments in the United States. The paper expands on the 2013 summary findings originally published last December, and includes, among many other things, the following new findings: (i) credit cards are more prevalent than other general-purpose card types; (ii) among general-purpose cards with purchase activity in 2012, consumers preferred debit cards, with an average use of 23 payments per month, compared with an average of 11 payments per month for general-purpose credit cards and 10 payments per month for general-purpose prepaid cards; (iii) although the number of ATM cash withdrawals using debit cards and general-purpose prepaid cards dropped slightly, growth in the value of ATM withdrawals continued to exceed inflation; (iv) the number of online bill payments reported by major processors, which included those initiated through online banking websites and directly through billers and settled over ACH, exceeded three billion in 2012; and (v) there were more than 250 million mobile payments made using a mobile wallet application, and at least 205 million person-to-person or money transfer payments.
On June 11, the CFPB released a request for information (RFI) about how consumers are using mobile financial services (MFS) to access products and services, manage finances, and achieve financial goals, with a focus on “economically vulnerable” consumers. The request does not cover point of sale payments, except with respect to mobile payment products targeted to underserved consumers. The request states that the information will be used to inform the CFPB’s “consumer education and empowerment strategies.” On June 12, the CFPB hosted a field hearing on MFS, which included presentations from consumer advocates and emerging mobile services providers regarding the future potential of MFS to reach the underserved. Read more…
On May 16, the Conference of State Bank Supervisors Emerging Payments Task Force held a public hearing to examine the changing payments landscape and opportunities and risks presented by current and emerging technologies. The Legacy Payment Systems panel focused on continued efforts to improve efficiency and speed while simultaneously “preserving consumer confidence and system stability.” The Retail Payments Innovations panelists described innovative electronic and mobile payment systems and suggested that further innovation would be best supported by existing regulatory framework, which offers sufficient consumer protections. Finally, the Virtual Currencies panel urged state and federal regulators to “provide clear and consistent regulatory expectations and guidance without restricting innovation.” The event was the most recent of a number held by federal and state policymakers to address the proliferation of emerging financial technologies used to move money and transfer funds, which range from enhancements of traditional ACH or credit and debit methods of payment to virtual currencies that disrupt the traditional model. The CSBS is expected to use public hearings like this one to develop a proposed regulatory framework for state agencies.
On February 20, the CSBS announced the formation of an Emerging Payments Task Force to study changes in payment systems—including virtual currencies and other innovations—to determine the potential impact on consumer protection, state law, and banks and nonbank entities chartered or licensed by the states. The Task Force is comprised of nine state regulators, including New York State Department of Financial Services Superintendent Lawsky who has recently indicated New York will seek to become the first state to directly address virtual currency through new regulations. The Task Force will be chaired by David Cotney, Commissioner of the Massachusetts Division of Banks, who testified on these issues on behalf of the CSBS last fall before the Senate Banking Committee. The CSBS stated that the Task Force will “take a comprehensive approach to studying the changing payment systems” by engaging with a broad range of federal, state, and industry stakeholders to understand how new entrants and technologies affect the stability of payment systems and the broader financial marketplace and “to develop ideas for connecting the emerging payments landscape to the financial regulatory fabric.”
On January 28, the House Financial Services Committee held a lengthy hearing with CFPB Director Richard Cordray in connection with the CFPB’s November 2013 Semi-Annual Report to Congress, which covers the period April 1, 2013 through September 30, 2013. The hearing came a day after the Committee launched a CFPB-like “Tell Your Story” feature through which it is seeking information from consumers and business owners about how the CFPB has impacted them or their customers. The Committee has provided an online submission form and also will take stories by telephone. Mr. Cordray’s prepared statement provided a general recap of the CFPB’s recent activities and focused on the mortgage rules and their implementation. It also specifically highlighted the CFPB’s concerns with the student loan servicing market.
The question and answer session centered on the implementation and impact of the CFPB’s mortgage rules, as well as the CFPB’s activities with regard to auto finance, HMDA, credit reporting, student lending, and other topics. Committee members also questioned Mr. Cordray on the CFPB’s collection and use of consumer data, particularly credit card account data, and the costs of the CFPB’s building construction/rehabilitation.
Mortgage Rule Implementation / Impact
Generally, Director Cordray pushed back against charges that the mortgage rules, in particular the ATR/QM rule, are inflexible and will limit credit availability. He urged members to wait for data before judging the impacts, and he suggested that much of the concerns being raised are “unreasoned and irrational,” resulting from smaller institutions that are unaware of the CFPB’s adjustments to the QM rule. He stated that he has personally called many small banks and has learned they are just not aware of the rule’s flexibility. He repeatedly stated that the rules can be amended, and that the CFPB will be closely monitoring market data.
The impact of the mortgage rules on the availability of credit for manufactured homes was a major topic throughout the hearing, On the substance of the issue, which was raised by Reps. Pearce (R-NM), Fincher (R-TN), Clay (D-MO), Sewell (D-AL), and others, Director Cordray explained that in his understanding, the concerns from the manufactured housing industry began with earlier changes in the HOEPA rule that resulted in a retreat from manufacture home lending. He stated that industry overreacted and now lenders are coming back into the market. Mr. Cordray has met personally with many lenders on this issue and will continue to do so while monitoring the market for actual impacts, as opposed to the “doomsday scenarios that are easy to speculate on in a room like this.” Still, he committed to work on this issue with manufacturers and lenders, as well as committee members. Read more…