Posts filed under ‘General’

Survey Says — Your Members are a Mess?


Perception is reality. Although I think that the US is in the best economic shape of any major country in the world right now, many of your members would say I’m nuts.

Something strange is going on here. Economic growth isn’t being translated into economic security. The latest example of this schizophrenia comes from a survey released earlier this week by The MarketPlace radio show.

The unemployment rate is down to five percent, GDP is growing, albeit sluggishly, and there are indications that workers on the lower end of the economic ladder are finally seeing economic growth translated into bigger paychecks.

Meanwhile, the show’s Economic Anxiety Index has risen 20%; 30% of Americans are very fearful that they will lose their job in the next six months, up from 10 percent a year ago, and more than 39% say their personal financial situation causes them to lose sleep.

This dour mood explains our politics better than anything else I have seen. One thing that almost two thirds of Americans agree on is that the economy is rigged in favor of the either guy. However, 66% of Trump supporters say the economy is rigged for people who receive government assistance, compared to only 32% of Clinton supporters who believe the same thing.  Conversely, 62% of Clinton supporters believe the economy is rigged for whites while only twenty one percent of Trump supporters believe this is the case.

I hope I am wrong, but I don’t see things getting much better any time soon. Statistically speaking we are at the back end of a typical an economic expansion and, more importantly, it will be more, not less, divided on November 9th whomever wins the election.

I am no marketing guru, but it seems to me that those financial institutions that are able to speak most directly to the economic anxiety of consumers are going to be the ones best positioning themselves to increase their membership.

Bank Regulators Propose Cyber Security Regulations

New York is no longer alone among government agencies in proposing enhanced cybersecurity regulations.

Yesterday, the OCC, Federal Reserve, and FDIC issued an Advanced Notice of Proposed Rulemaking discussing a potential framework for enhanced cybersecurity. Even though the regulation doesn’t impact credit unions, it intrigues me for two reasons.

First, these federal banking regulators are looking to limit its application to entities with $50 billion or more in assets. In contrast, New York State’s proposal would apply to almost every state chartered credit union.

Secondly, it may increase the pressure on NCUA to unveil a similar mandate.  It’s what all the cool kids are doing.   Will NCUA follow suit or will it correctly conclude that credit unions are already  subject to enough cybersecurity requirements? Time will tell.

October 20, 2016 at 8:06 am Leave a comment

Accountants gone Wild? Just What Are You Getting From Your Auditor?

afleckDoes the accounting firm retained to do your audit  owe your credit union a fiduciary obligation? That was the question pondered by the Supreme Court of North Carolina. In a decision released in late September that state’s highest court said the answer is No. (CommScope Credit Union v. Butler & Burke, LLP, No. 5PA15, 2016 WL 5335250 (N.C. Sept. 23, 2016)

CommScope Credit Union sued  Butler & Burke, LLP, the certified public accounting firm that  the CU  hired to conduct annual independent audits of its financial statements for its failure to find  that the credit union’s manager had not filed an IRS Form 990  from 2001-09. The oversight resulted in  IRS penalties of $374,000 and the credit union wanted the firm to pay.  One of the arguments it made was that, in failing to inform the credit union about the missing forms the firm breached its fiduciary duty to the credit union.  Hold on, said the accounting firm, auditors typically don’t owe a fiduciary obligation to the businesses they audit and credit unions are no exception.

(Although this argument involved an interpretation of North Carolina law the credit union’s argument resonated across the country as can be seen by the fact that the US Chamber of Commerce and the National Association of State Boards of Accountancy filed briefs).

What’s the big deal? As the court explained “All fiduciary relationships are characterized by “a heightened level of trust and the duty of the fiduciary to act in the best interests of the other party” The higher the duty the firm owed to the credit union the more responsible it becomes for the 990 mishap.

The credit union won at the appellate level and the firm appealed to North Carolina’s highest court. It successfully argued that audits are conducted in part for the benefit of the public to insure investors that they can trust the financial disclosures being made by businesses. This obligation to the public as well as the credit union means that an auditor doesn’t have the obligation of undivided loyalty that typifies fiduciary relationships.

The credit union could have created a fiduciary relationship with the auditor as part of its engagement agreement but did not do so. By agreeing to perform the audit consistent with accepted audit standards the firm “agreed to find internal control deficiencies only to the extent necessary to perform its audits. Because defendant did not agree to affirmatively search for deficiencies outside of the performance of its audits, it did not agree to do anything beyond what an independent auditor normally does.”

The case isn’t over yet. The credit union can still argue that the firm’s failure to spot the missing 990’s amounted to negligence.  But no matter what the ultimate outcome the accounting industry notched an important victory.

Before your supervisory committee sends out its next engagement letter it might be worth it to review what you expect to get out of your audit and the language that you have been relying on to get you there. If you thought your auditor was a fiduciary responsible for noticing that basic forms haven’t been filed think again. Put your expectations in writing.  At the very least, you will start a discussion with your auditor about precisely what you are getting when you pay for its services.


October 18, 2016 at 8:56 am Leave a comment

Is A Fintech Charter On the Horizon?

The most interesting statistic I heard last week at the Association’s annual Northeast Economic Forum was that 48% of new mortgages last year were originated by nonbanks. Technology has come to mortgage lending and the companies that emphasize electronic mortgage applications and processing are beating the pants off lenders that rely on having people apply at their brick-and-mortar branches.

I was thinking about this factoid this morning as I read an interview with the OCC’s General Counsel, Amy Friend, in the American Banker.  The OCC is rolling out plans for creating a special charter for fintech companies. Now here is a regulator that sees the writing on the wall and wants to remain relevant.

Why would companies want to be regulated by the OCC? The OCC says that the idea has appeal to a lot of  companies that don’t want to be regulated by fifty different state regulators.  Anyone who has taken a look at New York’s proposed cybersecurity regulations can understand why.

She explains that “We can provide a single charter with some uniformity, and that makes it very appealing. But, we also take that authority very seriously, and understand its implications. The comptroller has made it clear that if we decide to grant a national charter in this area, the institution that receives the charter will be held to the same high standards of safety, soundness and fairness that other federally chartered institutions must meet.” She further explains that institutions might want to get both a traditional bank charter and take deposits in which case they will also need to be regulated by the FDIC. Why not the NCUA as well?

The plan is still in the conceptual stages but in March the OCC released a white paper on supporting financial innovation in the banking system  and last month it proposed regulations clarifying its  authority to wind-down bankrupt  non-depository financial institutions  that are not insured by the Federal Deposit Insurance Corporation . The regulation is seen as a first step in explaining how the OCC could oversee bankrupt Fintech charters.

More on Navy

In Thursday’s blog I highlighted the CFPB’s consent order against Navy Federal and the impact it could have on credit unions who suspend services to members who have caused them a loss. Judging by the number of readers I really hit a nerve.

According to the Bureau, it was an unfair and deceptive practice for Navy to freeze electronic account services to members who were delinquent on loan payments. That simply isn’t true-at least according to the NCUA.  To add a little fuel to the fire here is a 1997 opinion from the NCUA in which it explains that credit unions may restrict services to members who are delinquent:

“In the past, we have allowed for suspension of services when the member caused a loss as a result of bankruptcy, an NSF check or a charged-off loan, but we have never addressed the issue of a delinquent loan. You advise that a delinquent loan increases the FCU’s collection costs resulting in a loss to the credit union. As long as the FCU has a rational basis for limiting services, we would have no legal objection.”

So how can Navy be fined, in part, for adopting practices explicitly authorized by its primary regulator for almost thirty years? Is this another example of CFPB overreach? Inquiring minds want to know.

October 17, 2016 at 9:06 am 2 comments

Why Ruling Against The Bureau Helps Your Credit Union

king-cordrayYou can be forgiven if, upon seeing the initial headlines yesterday morning  that the CFPB was ruled unconstitutional, you allowed yourself to drift into a world of no TRID, no HMDA amendments and  no short-term loan restrictions, and  you  are a  little disappointed  this morning with the news that, even with yesterday’s ruling  in PHH CORPORATION, ET AL., PETITIONERS v. CONSUMER FINANCIAL PROTECTION BUREAU, RESPONDENT, No. 15-1177, 2016 WL 5898801,(D.C. Cir. Oct. 11, 2016), the Bureau that never sleeps  is alive and well.  In the short- term this decision, if it is upheld by the Supreme Court, will have no impact on your compliance burden.

But don’t be too depressed. The Court’s ruling is a significant victory for those of us who believe that Congress gave too much power to one person. It makes the Bureau more accountable to the political process and, by implication, potentially more receptive to the concerns of the credit union industry.  It also clarifies some important RESPA issues that I will address in a future blog

The case dealt with the legality of a $109 million fine imposed on PHH by an administrative law judge after the CFPB alleged it was violating the anti-kickback provisions of RESPA. Originally PHH just wanted the fine vacated but in appealing the ruling it broadened its argument to challenge the constitutionality of the Bureau itself.  It argued that the separation of powers mandated by the  constitution was violated because the CFPB’s Director could only be removed by the President “for  cause.”  Congress has created, and the Courts have approved , independent agencies but these agencies have been overseen by boards of individuals;  not a single director empowered to promulgate whatever rules and take whatever enforcement actions he or she deems appropriate.

The Court agreed. “The single-Director structure of the CFPB represents a gross departure from settled historical practice. Never before has an independent agency exercising substantial executive authority been headed by just one person.” It  ruled that the CFPB as structured was unconstitutional.

But its remedy was as simple as its application of precedent was straightforward: Rather than disband the Bureau it simply invalidated that portion of Dodd Frank which stipulated that the Director could only be removed “for cause.” This means that the President could give Director Cordray  his walking papers today, no questions asked.

Does this matter to you? In the long-term I think it does. I am fond of calling the Director the Benign Dictator of Consumer Protection. From now on credit unions can blame the president for not doing enough to distinguish between the Big Banks and credit unions.  And it’s probable that an agency no longer insulated from politics will be more willing than the Bureau has been  recently to listen to  legitimate  industry concerns before promulgating regulations in the first place.

Frankly, the Bureau has grown more arrogant and intrusive with each passing month. Anything that constrains the actions it can take is a step in the right direction.

NY Issues Incentive Based Compensation Guidance

The only regulator pumping out mandates quicker than the CFPB lately is New York State’s Department of Financial Services. That’s not a good thing for those of us who want to maintain a viable state charter.

Reacting to the Wells Fargo Account Opening Scandal, the DFS released a guidance yesterday on Incentive Compensation Arrangements applicable to state chartered banks and credit unions.  Here is one of its highlights:

“The Department advises all regulated banking institutions that no incentive compensation may be tied to employee performance indicators, such as the number of accounts opened, or the number of products sold per customer without effective risk management oversight and control.”

On that note get busy implementing all those Bureau regulations. I hope I see you this week at the Economic Forum.


October 12, 2016 at 8:56 am Leave a comment

Is Biometric Security Already Obsolete?

biometricsHere is one more thing to keep your IT department up at night.

An international security consulting firm, has created quite the stir across the pond by reporting that hackers have already figured out not only how to steal biometric data from ATM machines but also how to commercialize the sale of devices facilitating its capture.

On September 22, 2016, Kaspersky Lab reported  there are already at least 12 sellers offering skimmers capable of stealing victims’ fingerprints from ATMs. In addition, at least three underground sellers are already researching devices that could illegally obtain data from palm vein and iris recognition systems. By the way. this is in addition to reports demonstrating  that it is possible for hackers to steal information stored on EMV chip cards.

The news caused one British regulator to write a letter to banks telling them to report on the steps that they are taking to secure biometrics. What makes this report so disturbing is that, whereas compromised ATM and credit cards can be reissued, you can’t change someone’s biometric data.  If it really is as easy to steal this information as it appears it will  be, then the use of biometric passwords will offer convenience to people like  your faithful blogger, who is  frustrated by an ever-growing list of passwords, but  will be an expensive dead-end when it comes to security.

From now on I’m going to tell my wife to follow Kim Kardashian’s lead and take millions of dollars in jewelry with her wherever she goes instead of using a  safety- deposit box.  What could possibly go wrong?

The report also underscores just how behind the curve this country is when it comes to cyber theft. Merchants are merchants are still grumbling about the use of chip readers and a major Presidential candidate is encouraging cyber-hacking his opponent while Europe is already debating the merits of biometric security. I can’t believe that this is the best the country that created Google, Facebook and Microsoft can do.

Which brings me to my proposed one sentence guidance for all regulators , financial institutions and businesses  to follow: “Every business must  have a cybersecurity plan, but one which is tailored to its  size, complexity and  cyber vulnerability. Any mandate more prescriptive than this will be outdated in days and deny institutions the flexibility they need to weigh cybersecurity costs against other expenditures eating away at the bottom line.

Extended Exam Cycle, Right Around The Corner

NCUA announced yesterday that well managed credit unions with assets of less than $1 billion  could move to an extended examination cycle, beginning next year, subject to board approval. The recommendation is among ten put forward by an agency working group on exam flexibility.

On that note enjoy your long weekend, I will be back on Tuesday!

October 7, 2016 at 9:24 am Leave a comment

What Payday Loans And The Mets Have In Common

metsfanSomethings are just meant to be.  The Mets are almost  always going to be no better than a slightly above average baseball team,  destined to leave their fans in stunned disbelief like a bride left at the altar;  payday loans will always be around: The question is how best to regulate them?

The NCUA took a shot at answering this question when it submitted a letter commenting on the CFPB’s Payday Loan proposal.  It not only argues that the CFPB should categorically exempt PAL loans from these  regulations but  it also advocates  for a numerical threshold below which financial institutions  could make loans that are technically payday loans  without complying with the regulation, thereby letting them avoid the underwriting and disclosure requirements proposed by the CFPB. The Association makes an almost identical argument in its comment letter to be submitted to the Bureau. Here is why a threshold makes sense.

Despite the CFPB’s best efforts, payday loans are, and will remain, the pornography of the financial industry: They can’t be defined, but you know it when you see it. In its extensive research on the payday lending industry, the CFPB makes a convincing argument that the industry’s business model is predicated on s customers getting into more and more debt.  An industry that profits only if its customers are made poorer and more financially desperate is repugnant and should be regulated.

But not all short-term loans are predatory loans. For example, there are credit union CEO’s who don’t officially offer  payday loan alternatives but who know and trust their members enough to give them a short-term loans when they are in a jam. No one is going to get rich of these loans. The problem is that unless the CFPB either exempts credit unions from these regulations, or at least allows them to make a certain number of short-term loans without having to worry about these regulations, credit unions will actually have less flexibility to provide emergency loans to those who need them. In other words, the CFPB should promulgate a regulation that goes after the Payday lending industry, not short-term loans. A numerical threshold accomplishes this goal.

The God Mother of the CFPB, Massachusetts Senator Elizabeth Warren, once compared bad financial products to defective toasters. She argued that, just like the government has the power to prevent companies from selling defective toasters, it should have the power to prohibit the sale of defective lending products. This analogy has always driven me nuts.  A defective toaster helps no one but the costs and benefits of a loan ultimately depend on the circumstances of the person applying for it.

The CFPB needs to understand this distinction as it finalizes these regulations…….

On that note, your blurry eyed blogger is off to the start the day, having watched the New York Mets lose their last game of the 2016 season. I know you’re not supposed to enjoy watching other people suffer, but as a lifelong Yankee fan, I got the biggest kick out of watching all those shocked Met fans moments after a 3 run home run ended their season. By the way, this is the year the Cubs’ drought ends. This  prediction  is as solid as your best collateral.


October 6, 2016 at 9:28 am Leave a comment

Big Banks Big Winners In “Debate Of the Century”

According to The Hill newspaper,  the “Debate of The Century” lived up to its billing. If that’s true then my increasing pessimism  about the future of this country is totally justified.  I’m not joking.

From the perspective of the financial services industry, the biggest winner in last night’s reality T.V. show masquerading as a Presidential debate was the banking industry.  I know people are busy constructing their own alternate realities, and that we had to get to the real important stuff like Clinton’s stamina and Trump’s comments to Howard Stern and talk show host Sean Hannity.  But was I really expecting  too much for thinking that moderator Lester Holt would ask something along the lines of: “Eight years ago the country suffered its greatest economic crisis since the Great Depression and the nation’s largest banks had to be bailed out with taxpayer dollars.  Do you believe that more needs to be done to prevent us from bailing out banks in the future?” I’m also more than a little surprised that we didn’t hear one mention from Hillary about the Wells Fargo Account scandal or that Trump didn’t point to the CFPB as over-regulator #1.

Instead, we got Trump’s standard dribble about the Fed keeping interest rates down for political reasons and a willingness to list the many banks that help the “underleveraged” (his words) real-estate tycoon and marketing genius finance his far-flung business interests. There was also not a mention of Hilary’s Goldman Sachs speeches, which is quite surprising given the fact that they almost derailed her primary run.

There are, however, two more debates to go. Why we could even have a discussion about what to do with the housing market, in general, and the GSE’s, in particular.

But none of this would make for particularly good TV.

NY Signs Gift Card Law

Governor Cuomo struck a blow for all of us who have the habit of losing holiday gift certificates when he signed legislation enhancing gift card protections.  The legislation (S.4771E / A.7610E) increases from 13 to 25 months the amount of time that must pass before dormancy fees can be charged. The catch is that dormancy fees  “shall be waived and the gift certificate  replenished  to its value where the holder of the gift certificate  presents the certificate within three years of issue.  Finally no certificate can expire in less than five years. It takes effect in 90 days, just in time for the holidays.

AMEX Wins Credit Card Appeal

Yesterday afternoon, the Court Of Appeals for the Second Circuit reversed a lower court ruling that Amex violated the antitrust laws by entering into agreements containing nondiscriminatory provisions barring merchants from offering customers any discounts or non-monetary incentives to use credit cards less costly for merchants to accept; expressing preferences for any card; or disclosing information about the costs of different cards to merchants who accept them.

September 27, 2016 at 8:47 am Leave a comment

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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