Tag Archive for: Compliance

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January 2023 Compliance Journal

The first edition of the New Year is now available. In the January 2023 WBA Compliance Journal, WBA Legal covers FDIC’s recently revised guidelines for appeals of material supervisory determinations. WBA Legal has also pulled together state and federal regulatory thresholds and limits for 2023 and provides a recap of the recently issued regulator statement regarding crypto-asset-related risks. The publication also includes a summary of recently published agency rules and notices and other important compliance-related updates for bankers.
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Legal Q&A: Name and Signature Inconsistency in Documentation

Banks should consider document type, purpose, relevant issues

By Scott Birrenkott

Q: What Name Should Banks Use for Customers When Completing Documents?

A: The name that should appear, and be signed, on documents depends on a few things. Primarily, the type of documents being signed, the purpose for which the customer’s name is appearing, and any relevant rules.

Typically, a customer has a single, consistent name which will appear on documents, disclosures, and other communications and match their signature. However, there are scenarios where this is not the case. A customer might use inconsistent capitalization, or go by different names, such as a “nickname,” or perhaps use their middle initial in some situations, or a “Jr.” or “Sr.” designation. There may also be situations where a customer changes their name, either because of a marriage, or other situation — such as a change in identity or gender transition — and a change from an individual’s “deadname.”

Banks should consider how various types of documentation can be affected. For example, if opening a checking account, the specimen signature is important to verifying transactions on the account. If a customer provides a specimen signature which does not match the signature they intend to use on checks, that can result in a question as to whether certain items are authorized. For this reason, the signature card should match the name the customer intends to use when authorizing transactions and should be updated if a change occurs.

When entering into a contract, best practice would be using the customer’s legal name, as provided by customer. The customer should sign in a manner by which they intend to be bound. There are no specific standards for a signature, other than that it reflects the party’s intent to be bound. For example, a customer might sign in a manner different from the way their name otherwise appears on documentation, such as whether they use a middle initial in their signature or not. Or how they capitalize their signature, or whether they are able to sign their name at all and perhaps can only make a mark or symbol such as a checkmark or “X.”

Banks must consider whether the documents properly identify its customer, and whether the signature affixed to the document reflects a valid contract. In this regard, it is ultimately a matter of policy and preference, but a best practice recommendation would be for the bank to be consistent in how the name appears throughout all the documentation, and the signature itself.

However, when it comes to Uniform Commercial Code (UCC) financing statements, there are specific rules which must be followed. This article does not delve into the specifics, but banks should consider that for filing UCC financing statements, the filing should reflect the debtor’s exact name as required by Wis. Stat. section 409.503.

For any questions regarding customer names, accuracy of UCC financing statements, or other topics, contact WBA legal. Additional compliance resources can be found at wisbank.com/resources/compliance.

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December 2022 Compliance Journal

The December 2022 WBA Compliance Journal is now available. In this edition, WBA Legal summarizes recent revisions to Wisconsin’s uniform limited partnership and LLC rules, effective January 1, 2023. Also included is a reminder of the lower closed-end mortgage loan reporting threshold under HMDA, Regulation C due to a recent court decision. The publication also includes a summary of recently published agency rules and notices and other important compliance-related updates for bankers, including the Wisconsin Department of Financial Institution’s 2023 required escrow account interest rate. Also, this month — insights from Linda Blom, vice president – chief risk officer, BLC Community Bank, who is retiring this month having been in banking since 1978! Congrats, Linda!
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Legal Q&A: Managing Online Stop Payment Orders

Ensuring satisfactory written instruction for electronic payments

By Scott Birrenkott

Q: Can a Stop Payment Order for a Check Be Made Electronically?

A: Yes. An electronic stop payment order can be given for a check electronically and would be effective for six months.

Wisconsin Statute section 404.403 provides that a stop payment may be given by an order to the bank describing the item with reasonable certainty received at a time and in a manner that affords the bank a reasonable opportunity to act on the stop payment request. This order may be made orally or in writing. The statute provides that if the order is oral and not confirmed in writing, it is valid for 14 days. A written order is valid for six months, and the oral order must be confirmed in writing (before the end of the 14-day period) for it to be extended to six months.

The rule does not discuss online stop payment orders, nor have the courts yet interpreted whether an electronic stop payment is oral or in writing. For example, a stop payment made online, through bank’s website platform, or mobile application. However, it is WBA’s understanding that such an electronic stop payment would be considered “in writing” and thus, effective for six months.

As stated, the statute provides that a stop payment may be given by an “order.” The Uniform Commercial Code (UCC) defines an order as “a written instruction to pay money signed by the person giving the instruction,” establishing that an order must be written and must be signed. The UCC further provides that a writing “includes printing, typewriting, or any other intentional reduction to tangible form.” Although the UCC’s definition does not include “electronic,” or other such means, WBA believes that a valid argument exists that an electronic file can be reduced to a tangible form by printing the document. For example, electronic writings have been held to satisfy the writing requirement of the statute of frauds. Furthermore, The UCC defines “signed” as “any symbol executed or adopted with present intention to adopt or accept a writing.”

For the above reasons, it is WBA’s understanding that an electronic stop payment order would satisfy the writing requirement of the UCC. Banks offering the ability to issue an electronic stop payment should confirm the methods for doing so in accordance with the discussion above, to determine whether it aligns with this rationale.

For any questions regarding stop payments, or other topics, please contact WBA legal. Additional compliance resources can be found on the WBA website: wisbank.com/resources/compliance.

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November 2022 Compliance Journal

The November 2022 WBA Compliance Journal is now available. In this edition, WBA Legal summarizes FinCEN’s final beneficial ownership information reporting rule and provides a highlight of recently released CFPB guidance documents. The “Regulatory Spotlight” section provides a summary of rules, proposals, and notices issued by federal agencies, and the “Compliance Notes” section reports on other important compliance-related updates for bankers. For Wisconsin lawyers needing to report Continued Legal Education (CLE) credits, the November edition also includes a listing of 2021 and 2022 WBA webinars and programs which received CLE credit from the Wisconsin Board of Bar Examiners. This month’s edition also includes a special section, “Insights of a Wisconsin Compliance Officer” which includes thoughts from Bev Downing, VP-Compliance, Royal Bank. Bev recently retired after 39 years in the industry.
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October 2022 Compliance Journal

The October 2022 WBA Compliance Journal is now available. In this edition, WBA Legal covers Part 2 of a two-part series regarding contracting with minors. In this second part, readers will find guidance on what banks should consider when banking minors, including the doctrine of incapacity. The publication also includes an article about a recent court action that overturned closed-end loan HMDA reporting thresholds for exempt institutions, a summary of recently published agency rules and notices and other important compliance-related updates for bankers.

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Executive Letter: FHLBank Regulation Can Impact a Member Bank’s New Advance Option

Rose Oswald PoelsBy Rose Oswald Poels

Given recent rate increases by the Federal Reserve and the overall market impact of the current economy, banks that have lines with a Federal Home Loan Bank (FHLBank) need to be mindful of how FHLBank regulation can impact a member bank’s ability to obtain new FHLBank advances or letters of credit. With this Executive Letter, I wanted to be certain FHLB member banks are aware of the possibility.

Under FHLBank Regulation 12 CFR 1266.4(b), a FHLBank cannot make a new advance to a member bank whose tangible capital is not positive. To make a determination of whether a member bank has negative tangible capital, the FHLBank will use the member bank’s most recently available Call Report data. A member bank would not be considered to have negative tangible capital until its quarterly report is filed.

As an exception, a new advance may be made if the member bank’s prudential federal regulator (the Federal Reserve or OCC) or federal insurer (FDIC) requests, in writing, the FHLBank lend to the member bank. It is my understanding that the federal regulators are currently not willing to issue such instruction unless a particular member bank has a dire liquidity need for the advance.

Historically, bank capital calculations of the prudential federal banking regulators and the Federal Housing Finance Agency (FHFA) were similar. However, recent changes made to capital calculations by the banking regulators have not been adopted by FHFA. In particular, under FHLBank regulations the definition of tangible capital is inclusive of Accumulated Other Comprehensive Income (AOCI). Therefore, this difference will impact those member banks that made the election to opt-out of the requirement to include components of AOCI when calculating common equity tier 1 capital under Basel III rules.

It is important to note that the FHLBank regulation does allow member banks with negative tangible capital to renew outstanding advances, for successive terms of up to 30 days each. There is no limit to the number of times a member bank may roll over an existing advance. Such member banks may also renew outstanding advances for a term greater than 30 days at the written request of the appropriate federal banking regulator or FDIC as federal insurer.

It is also important to note that the limitation for a new advance does not impact a member bank’s use of Community Investment Products or for a member bank’s ability to sell loans into FHLBank’s Mortgage Partnership Finance (MPF) Program.

FHLBank member bankers who may be impacted by this limitation should work closely with their FHLBank Sales Director for more information specific to the member. Affected member banks should also work closely with your accounting and investment resources as there may be options to consider as a means to avoid reaching a negative tangible capital position. Accounting and investment resources will also be able to explain the impact of such options to the member bank in areas other than under FHLBank regulation.

WBA is monitoring the impact of this FHLBank regulation component and is working for a resolution whereby banks whose tangible capital is negative due to a difference in tangible capital calculations are not negatively impacted by an inability to obtain new FHLBank advances. WBA plans to advocate for a change in the rule starting with addressing the issue directly with FHFA later this month during our D.C. Regulatory Trip. In addition, WBA is also working to organize an all-member call on this issue — please watch our publications for an announcement of a complimentary webinar in the near future.

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Legal Q&A: New Compliance Resources Now Available

Help your team make the most of WBA’s robust online resources

By Scott Birrenkott

Q: Does WBA Have New Resources Available for Compliance Officers?

A: Yes. WBA recently added new, updated resources to its website.

WBA continues to add to its new website — one such section recently updated was the Compliance Resources page. The Compliance Resources page can be found by visiting wisbank.com/resources/compliance or by navigating from the home page to the News and Resources tab found in the top menu, scrolling down, and looking for the red button under the heading Don’t Face Changes Alone.

On this section of the website, bankers will find previously listed resources such as the most recent WBA Compliance Journal, the comment letter library, links to Wisconsin laws, various compliance toolkits, and a number of new resources. New sections and resources include a monthly FAQ, a recently released resources section, most frequently requested resources, popular legal Q&As, and a new video series called the “WBA Compliance Corner.”

These resources will be updated and refreshed frequently as well as discuss hot topics, recently issued rulemakings, and commonly faced situations.

For example, the monthly FAQ is taken from questions received through the WBA legal call program to provide an answer to the most frequently asked question by Wisconsin bankers each month. The recently released resources section provides WBA’s newest creations — such as a flowchart for Wisconsin’s newly Revised Uniform Unclaimed Property Act. The most frequently requested resources section compiles some of the most useful guides and articles. The popular legal Q&As includes answers to the most frequently asked questions, and common scenarios bankers are likely to encounter. Lastly, the WBA Compliance Corner is a brand-new, monthly video series designed to provide the most recent compliance news in a concise presentation of 30–40 minutes, along with links to applicable material.

WBA hopes compliance staff and others interested in these resources find them useful. Additionally, while not new, WBA of course still maintains the legal call program. Certainly do not hesitate to contact WBA legal at wbalegal@wisbank.com or 608-441-1200.

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September 2022 Compliance Journal

The September 2022 WBA Compliance Journal is now available. In this edition, WBA Legal covers Part 1 of a two-part series regarding contracting with minors. In this first part, readers will find a series of Q&As regarding WUTMA accounts and a new reference chart. The publication also includes a summary of recently published agency rules and notices and other important compliance-related updates for bankers.    

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Action: Banks Need Consider Recent FOIA Request and Determine Whether to Object to Disclosure of EEO-1 Report Data

Banks need be aware of a recent Freedom of Information Act (FOIA) request of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1), filed by federal contractors from 2016-2020. OFCCP announced the request in the August 19, 2022, edition of the Federal Register. The FOIA request was made by Will Evans of the Center for Investigative Reporting (CIR). It is expected Evans seeks the information for further reporting about the racial, ethnic, and gender composition of federal contractors’ employees.

As stated in the Federal Register notice, OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, but has not yet determined whether the requested information is protected from disclosure under that exemption. OFCCP has requested that entities that filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, that object to the disclosure of the information, to submit those objections to OFCCP within 30 days of the date of the notice.

Objections must be filed with OFCCP by September 19, 2022.

For banks that consider themselves to be federal contractors, WBA urges the bank to file objections to the disclosure of its EEO-1 Report data by the filing deadline. OFCCP has stated that if it does not receive a written objection by September 19, it will assume that the federal contractor has no objection to the disclosure and will begin the process of sending specific EE0-1 Report data to the FOIA requester.

Background

Will Evans of CIR submitted a FOIA request for “[a] spreadsheet of all consolidated (Type 2) EEO-1 reports for all federal contractors for 2016.” CIR subsequently amended the request multiple times, most recently on June 2, 2022, to include Type 2 EEO-1 reports for all federal contractors, including first-tier subcontractors, from 2016-2020. The Type 2 EEO-1 report is one of several different types of reports that multi-establishment employers must file annually, which consists of a consolidated report of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category.

Title VII of the Civil Rights Act provides statutory authority for the EEO-1 Reports. The Equal Employment Opportunity Commission (EEOC) enforces the employment nondiscrimination law. See 42 U.S.C. 2000e-8(c). The EEOC’s regulations require employers with 100 or more employees to file the EEO-1 Report with the EEOC. See 29 CFR 1602.7. In addition, OFCCP’s regulations require federal contractors and first-tier subcontractors that are covered by Executive Order 11246 and that have 50 or more employees to file the EEO-1 Report.

Banks as Federal Contractor

Whether a bank is a federal contractor for purposes of having to file an EEO-1 Report is a determination banks have previously made with instruction from bank counsel. Therefore, each bank should already have determined whether it must file an EEO-1 Report, including whether it had filed such report in 2016-2020.

Regarding OFCCP’s interpretation of federal contractor, there are a couple of items to consider. First, OFCCP has concluded through an “FAQ” posted on its website that because deposit insurance is a federal contract, FDIC-insured banks would be considered federal contractors as the bank would accept the insurance. See FAQ #13.

Second, some banks are required to file Affirmative Action Plans via OFCCP’s Contractor Portal. It is anticipated that if a bank is registered through OFCCP’s Contractor Portal or has subscribed to OFCCP’s “GovDelivery” e-mail listserv, the bank can generally expect that OFCCP considers the bank to be a federal contractor and may disclose the bank’s EEO-1 Report data.

In response to the FOIA request, a bank, as federal contractor, need consider whether to file objections with OFCCP regarding the FOIA request for its EEO-1 Report data. OFCCP has also issued a FAQ regarding the FOIA request.

Consider Filing an Objection to the Disclosure of EEO-1 Report Data and Steps for Filing

If a bank filed any EEO-1 Report in 2016–2020, it need consider whether to file an objection with OFCCP over the release of its EE0-1 Report data. As some banks voluntarily report diversity data, the release of EEO-1 Report data may be less of a concern than for those who seek to keep diversity data nonpublic. Again, it is expected that CIR seeks the information for further reporting about the racial, ethnic, and gender composition of federal contractors’ employees.

As stated in the Federal Register notice, OFCCP acknowledges that Exemption 4 of FOIA may provide for OFCCP to withhold specific federal contractor EEO-1 Reports. However, each federal contractor must object to the release if it seeks to protect its EEO-1 Reports from being released under the FIOA request. The written objection must be received no later than September 19, 2022.

To facilitate the process, OFCCP has created a web form through which written objections may be submitted. WBA recommends the use of the specifically created web form. Written objections may also be submitted via email. Regardless of the delivery system used, any objections filed by the bank must include the bank’s name, address, and contact information for the bank.

A bank will need to answer the following six questions. With exception to question #6, WBA recommends banks filing objections to answer “yes” to each question. Banks filing an objection also need to include a description of how the release of its EEO-1 Report data would impact its recruiting efforts, employee retention, and management of its workforce. Banks also need to describe the protections it has in place for maintaining the confidentiality of the data contained in its EE0-1 Reports. Answering the questions and providing descriptions are critical for OFCCP to determine whether the information should be withheld or disclosed pursuant to FIOA Exemption 4.

  1. Do you consider information in your EEO-1 report to be a trade secret or commercial information? If yes, please explain why.
  2. Do you customarily keep the requested information private or closely-held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.
  3. Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to question 4.
  4. If you answered “no” to question 3, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
  5. Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.
  6. Are there other legal issues OFCCP should be aware of? If yes, please explain.

Summary

A recent FOIA request of OFCCP seeks data from EEO-1 Reports filed by federal contractors from 2016-2020. As a result of the request and of the type of information requested, OFCCP requested that entities (which could include banks) that filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, that object to the disclosure of the information, to submit those objections to OFCCP by September 19, 2022.

OFCCP has created a web form for filing objections. If OFCCP does not receive a written objection by September 19, it will assume that the federal contractor has no objection to the disclosure and will begin the process of sending the bank’s EE0-1 Report data to the FOIA requester.

Any follow-up questions to the OFCCP notice may be posed to WBA Legal by email or by phone at 608-441-1200.

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