On December 7, 2023, Atlantic Union Bank (the “Bank”) entered into a consent order with the Consumer Financial Protections Bureau (CFPB) related to its in-person and telephone overdraft opt-in sales practices during 2017-2020. The settlement requires the Bank to refund affected consumers $5 million in overdraft fees and pay a $1.2 million civil money penalty to the CFPB.… Continue Reading

A complaint filed on July 20, 2023 in Minnesota federal court seeks declaratory and injunctive relief under the Administrative Procedures Act (APA) against defendants Federal Deposit Insurance Corporation (FDIC) and Chairman Martin J. Gruenberg for the FDIC’s issuance of supervisory guidance to banks under its supervision (i.e., state-chartered banks that are not members of the Federal Reserve System) prohibiting them from charging multiple non-sufficient funds (NSF) fees for the same item.… Continue Reading

The CFPB has issued a data spotlight that shows bank overdraft/non-sufficient funds (NSF) fee revenues have declined significantly from their pre-pandemic levels.  

The report states:

Overdraft/NSF revenue for the fourth quarter of 2022 alone was approximately $1.5 billion lower than in the fourth quarter of 2019 – a decrease of 48% compared to before the pandemic, suggesting an annual reduction of over $5.5 billion going forward. … Continue Reading

The OCC has issued a new bulletin and the FDIC has issued new supervisory guidance directed to their supervised institutions to address “authorize positive, settle negative” (APSN) overdraft  fee practices.  The OCC bulletin also addresses non-sufficient funds (NSF) fee practices.  Based on the bulletin and guidance, it would appear that the OCC and FDIC share the CFPB’s apparent view that APSN fees are unfair regardless of how clearly and conspicuously they are disclosed to consumers. … Continue Reading

In a new report published last week titled “Banks’ overdraft/NSF fee revenue declines significantly compared to pre-pandemic levels,” the CFPB reported that its most recent analysis found that bank overdraft/NSF fee revenue was 43% lower in the third quarter of 2022 than in the third quarter of 2019 before the COVID-19 pandemic onset – suggesting $5.1 billion less in fees on an annualized basis. … Continue Reading

On February 2, 2023, New York Governor Kathy Hochul released her 2024 fiscal budget proposal, which included banking policy to “Protect New Yorkers from Predatory Banking Fee” in the Executive Budget Briefing Book.  The Briefing Book states:

“The Executive Budget includes nation-leading legislation that comprehensively addresses abusive bank fee practices, which tend to disproportionally harm low- and moderate-income New Yorkers, including stopping the opportunistic sequencing of transactions in a way designed to maximize fees charged to consumers, ending other unfair overdraft and non-sufficient funds fee practices, and ensuring clear disclosures and alerts of any permissible bank processing charges.”… Continue Reading

On October 25, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s order dismissing a class action alleging that an Illinois internet-based credit union breached its account agreement when it charged non-sufficient funds (NSF) fees to its customers. Plaintiff alleged the account agreement required the credit union to use the ledger-balance to assess NSF fees and only assess one NSF fee per transaction.… Continue Reading

We discuss each of the three categories of risk identified in the guidance (consumer compliance, third-party, and litigation), plaintiffs’ legal theories in class actions challenging NSF fees, the role of arbitration clauses and contract language in defending class actions, the FDIC’s suggested risk mitigation practices, issues to consider in navigating FDIC expectations for remediation of self-identified NSF fee issues and plaintiffs’ demands in class action settlements, the position of other federal regulators on re-presentment NSF fees, and state focus on NSF fees.… Continue Reading

A New York federal district court has issued an order allowing a putative class action to proceed against Trustco Bank, finding that the plaintiff had stated a claim for breach of contract based on the bank’s assessment of non-sufficient funds (NSF) fees.  The complaint in Jenkins v. Trustco Bank alleges that Trustco’s assessment of multiple NSF fees on the same transaction constituted 1) a breach of the covenant of good faith and fair dealing, 2) unjust enrichment, 3) a deceptive act or practice under New York General Business Law § 349, and 4) a breach of contract. … Continue Reading

The FDIC has issued new supervisory guidance (FIL-40-2022) on multiple non-sufficient funds (NSF) fees arising from the re-presentment of the same unpaid transaction.  The guidance directly applies only to state-chartered banks and thrifts that are not members of the Federal Reserve System.  National banks and federal thrifts are supervised by the Office of the Comptroller of the Currency (OCC) and state-chartered banks that are members of the Federal Reserve System are supervised by the Federal Reserve Board (FRB). … Continue Reading