Blogs | Community Bank Counselors

The Independent Community Bankers of America (“ICBA”) reached out to the Department of Justice (“DOJ”) asking for guidance regarding whether the DOJ will adopt the standards in the World Wide Web Consortium’s Web Content Accessibility Guidelines (“WCAG”). The DOJ stated that although it has not yet adopted the WCAG standards, it is leaning toward adopting the standards. Furthermore, the DOJ stated that in its view, ADA requirements to provide accessible technology is an “already-existing obligation” and compliance is expected unless a business can prove an undue burden.

With Monday’s decision in Shaw v. U.S., the Supreme Court cleared up any ambiguity regarding who is protected by the bank fraud statute (18 U.S.C. §1344) and, along the way, continued to encourage federal prosecutors to rely on the powerful and far-reaching bank fraud statute. In saying that fraud against a customer is fraud against a bank, the decision continues the Court’s strong support of the statute and intolerance for technical, loophole-seeking defenses.

Document retention sounds like a boring topic until you realize that your bank can be subject to huge monetary damages and possible regulatory action if it doesn’t handle document retention correctly. In the old days, banks could simply keep every document forever to be on the safe side. That isn’t a practical alternative in today’s environment. Nowadays, retaining documents after their useful date can actually harm the bank.

Effective July 1, 2015, a Kansas bank can reduce its liability for fraudulent electronic fund transfers on a consumer account by revising its Reg E disclosures.

A California court recently found that delinquent borrowers may bring a claim under the Equal Credit Opportunity Act (“ECOA”) when a lender does not respond to an application for a loan modification within thirty days. MacDonald v. Wells Fargo Bank, N.A., No. 14-cv-04970 (N.D. Cal. Apr. 24, 2015).

With the upcoming regulatory changes going into effect on August 1st, it is more important than ever for mortgage lenders and title companies to have an electronic disclosure system to handle the disclosure requirements promulgated by the new regulations.

The Real Estate Settlement Procedures Act (“RESPA,” implemented by Regulation X) and the Truth-In-Lending Act (“TILA,” implemented by Regulation Z) have long been a bane for mortgage lenders as they attempt to interpret the statutes associated with each law and apply them to real-world lending.

The Bankruptcy Appellate Panel for the First Circuit recently held that a creditor holding a perfected security interest in accounts and payment intangibles did not have a perfected security interest in the proceeds of an insurance settlement.

We previously provided an update on developments concerning the right of rescission granted under the Truth in Lending Act (“TILA”). The United States Supreme Court recently issued a consumer-friendly decision regarding the rescission process.

Spencer Fane Chairman Pat Whalen was featured as a guest author in this month’s issue of BankNews magazine providing insights and updates on the protocol for handling data breach notifications. The article, titled “When to Send a Data Breach Notification,” discusses the laws surrounding security breaches and the responsibility of companies to determine when notification of customers is both necessary and required by law.

The Consumer Financial Protection Bureau recently proposed amendments to regulations that would broaden the definition of “small creditor” in an attempt to increase mortgage lending to rural and underserved markets. Currently, small creditors are able to make loans with slightly less restriction than larger creditors. The proposed changes would make this exemption available to a greater number of creditors.

In drafting loan documents, banks frequently cite to an index rate as the source of the interest rate governing a particular loan. One of the most commonly cited rates is LIBOR.

The Financial Crimes Enforcement Network (“FinCEN”) recently released advisory regarding indicators related to human smuggling and human trafficking.  FinCEN states that that human smuggling involves: (1) acts or attempt to bring unauthorized aliens to or into the United States, (2) transporting them within the United States, (3) harbor unlawful aliens, (4) encourage entry of aliens or (5) conspire to commit these violations, knowingly or in reckless disregard of illegal status.  FinCEN states that human trafficking involves: (1) recruiting, (2) harboring, (3) transporting, (4) providing or (5) obtaining a person for forced labor or commercial sex acts through the use of force, fraud or coercion.

The Missouri Court of Appeals for the Eastern District issued a lender-friendly decision earlier this year regarding the implied duty of good faith and fair dealing regarding a promissory note.

The Missouri Supreme Court recently issued two decisions (Conway v. Citi Mortgage, Inc. and Federal National Mortgage Association and Watson v. Wells Fargo Home Mortgage, Inc.) holding originators and servicers of mortgage loans may be subject to causes of action for unfair or deceptive practices under the Missouri Merchandise Practices Act (MMPA).

The Eighth Circuit recently issued a decision regarding the Equal Credit Opportunity Act (“ECOA”) that may change your bank’s approach to spousal guaranties.