Loosen lending?

Reuters reports BOA won’t take the bait from government policy makers to loosen credit
Here’s the rub.  While government leaders bemoan the real estate market lackluster recovery and go on Sunday morning talk shows ginning up need for looser mortgage underwriting credit --  one wonders if they are surprised that banks are not only ignoring their cries, but are openly saying “no”.
First, the government called for more home ownership in the 1990’s and pushed for greater capacity by increasing the amount of one’s income used for housing expenses (higher DTI).  Then, the government enticed that by tying the higher DTI to handing out candy to banks via CRA credits.  Without those CRA credits, banks could not operate fully.  So, out came “Low to Moderate Income” loans (“LMI”) and the slippery slide to no income verification loans and the sub prime was greased all the way to 2008 when it crashed.  
During the crash the government sold banks on acquiring the now defunct banks.  The Banks followed through.  BOA took over Countrywide.  Wells took over Wachovia.  You remember the famous picture of the banks lined up alphabetically in a room with government regulators looking for bail outs for failing banks?
Fast forward from 2008 to 2013 and 2014 and the regulators created by the government went on a PR campaign to blame banks and then fine banks – billions of dollars – for the acts that the government asked them to do.
Politicians felt pretty good.  They had banks save the failing banks (and they lent a large sum of money to failing banks themselves) and the went on a new PR campaign blaming banks (not themselves) for the reckless lending, tying it to high profits over sound lending.
So, lending got tight.  Now the economy is not recovering as quickly as they would like. So, now they want the banks to loosen up again.
So – after creating the mess, blaming it on the banks, lending untold billions to bail everyone out, failing to tell anyone they got their money back with interest, now the government wants banks to loosen lending?
JP Morgan Chase already said they are re-evaluating FHA mortgages and may exit from it.  HSBC pretty much has throttled back.  Mortgage brokers are for the most part, extint.  Small mortgage bankers are closed.  Mid sized mortgage bankers are seeking out marriage partners to survive.  Big banks won’t loosen lending.  Bank of America said “
In October, the top regulator for the U.S. housing market announced plans to allow many more Americans to buy homes by making a down payment of as little as 3 percent of the purchase price.
But Bank of America CEO Brian Moynihan said at an investor conference his bank hosted on Wednesday that it will require borrowers to make larger down payments "to make sure that can withstand the bumps in the road" of homeownership, such as "unemployment, divorce or sickness."
"I don't think there's a big incentive for us to start to try to create more mortgage availability where the customers are susceptible to default," Moynihan said.
"I know that that doesn't sound good for an instant housing recovery and faster housing markets but it's actually good because in the long term it keeps the housing more fundamentally based," Moynihan added.
Now, is that not what the regulators and government screamed on top of Mount Rushmore about?  Isn’t Moynihan giving them what they demanded?  As one said, be careful of what you ask for – you may get it.
Harsh?  Perhaps.  The losers?  Sound borrowers with credit scores in the low to mid 600’s who had an issue that they got past and want to buy into a home – who just a few years ago a good underwriter would have worked hard to get them approved for their mortgage.  Today – no way without a large down payment and higher credit score. 
Why after paying billions of dollars, facing exuberant regulators who do not know the 5-C’s of underwriting but are quick to judge a file’s compliance to underwriting.  Years of regulators issuing out “Sanctions” that lenders have to sign or face more severe penalties.  Years of dealing with regulators like the North Carolina Commissioner of Banks who simply make decisions and issue out findings without rationale or the New York State Financial Services Department who literally employs individuals who not only have no clue about lending; but can not speak English.   Yet, these people can and will close down a company or fine another or issue out edicts.  And, that’s the state level.  Try facing the feds.
Why would anyone lend a penny more that could default or comes within 10 feet of what was “wrong” two-years ago?
That is like you being told by a policeman that you went 35 miles an hour three years ago when the speed limit was 35 mph, so now you face a 10,000 dollar fine and they release your mug shot.   Then, the mayor complains that people are literally doing 30 miles an hour and encourages people to take it up to 35 MPH, the posted speed limit.
I’d be the first to keep it at 30MPH, below the posted high speed limit and above the minimum – just in case someone gets in an accident at 35mph and the police go backwards in time to issue out more tickets again……
Silly?  That’s what happened.  And, now we must live with that irrationality.

Cost of Regulations

According to the MBA,  higher costs and concerns about buybacks are driving the decline in mortgages for home purchases. It will slow to $635 billion this year, a 13 percent drop from 2013.
Banks have constrained home lending to many borrowers deemed creditworthy by mortgage finance companies Fannie Mae (FNMA) and Freddie Mac. Applicants approved for mortgages to purchase homes had an average FICO credit score of 755 in August, according to Ellie Mae, a company that makes software used to process mortgage applications. In contrast, Fannie Mae and Freddie Mac guidelines allow for credit scores as low as 620 for fixed-rate mortgages in some cases.
Lenders reported a 30 percent median increase in compliance costs this year from 2013, according to a survey by Fannie Mae released this month. And 72 percent of lenders surveyed said they spent more on compliance this year compared with last year

FHA Flipping

FHA flipping policy

In an effort to stimulate repairs and sales in neighborhoods hard hit by the mortgage crisis and recession, the FHA waived its standard prohibition against financing short-term house flips. Before the policy change, if you were an investor or property rehab specialist, you had to own a house for at least 90 days before reselling — flipping it — to a new buyer at a higher price using FHA financing. Under the waiver of the rule, you could buy a house, fix it up and resell it as quickly as possible to a buyer using an FHA mortgage — provided that you followed guidelines designed to protect consumers from being ripped off with hyper-inflated prices and shoddy construction.

Access to credit

Removing barriers to getting a mortgage

HUD has been talking to their counterparts in the government about the reduction in FHA loans.

Jamie Dimon from JP Morgan stated in  a conference call that perhaps its’ time to re-think doing FHA loans.

Mortgage Bankers are looking at alternatives to Fannie Mae and Freddie Mac loans.

Why is all this going on?

Lenders are tired of being sued for lending.  That one-sentence probably best sums it up.  The days of subprime mortgages and bad lenders were cleansed when the market crashed and rinsed and washed a second time with some valuable Frank-Dodd reforms.

However, the US government continues to sue lenders and announce large settlements, regulators continue to overzealously enforce provisions that even they do not fully understand and banks and bankers seek to settle because the cost of litigating is high, but to litigate your regulator is toxic.

What choices do lenders have?  Lend without using Fannie, Freddie or FHA.  Tighten lending standards above and beyond what CFPB requires and deny credit to anyone who would have gotten a loan as recently as 2011.  And, lenders now over underwrite and over request documentation while over disclosing and demanding proof from the borrower that they received the disclosures to ensure they are in compliance.

So, HUD and Fannie have taken a step back.  HUD is in the process of re-writing their FHA lending requirements and Fannie and Freddie are looking at providing a more concise lending matrix that is very clear about how lenders can protect themselves from claims over bad loans.

The claims over bad loans are a big issue to lenders.  Fannie, Freddie and HUD all look to kick a loan back to the lender for the smallest of things when that loan is, typically, found to be 30 or 60 days late.   The late payment status of a particular loan triggers a complete review of the loan.  Any “t” not crossed or “I” not dotted triggers buy back demands.  This then triggers lenders to demand buy backs from other lenders and the game of “Hot Potato” with Mr. and Mrs. Smith’s mortgage begins.  As the game heightens and the loan gets sent from lender to lender back down the chain, the borrowers find themselves getting notices that their loan payment is not due to lender X, it’s due to lender Y now and maybe in 3-months it may be due to lender Z.   This hurts everyone and typically is caused by Mr. Smith forgetting to make the mortgage payment and everyone from Fannie to the small mortgage banker that originally originated the loan getting involved in who has what exposure.

Now, Fannie, Freddie and HUD realize that the mortgage market has gone too far in tightening credit.  They don’t cite the reasons, but the reasons are clearly outlined above – they and the government went too far and became too punitive following the market crash of 2008 and 2009.

To ease the situation Fannie, Freddie and HUD know they have two issues to attack.  One is the reduction in credit to individuals that is pushing potential homeowners into the rental market and slowing the home buying market.  The second is being clear to lenders that if they lend in good faith and follow the rules, they will not be held accountable if a loan becomes non-performing.

Recently, Fannie and Freddie announced that they were working to clarify what constitutes a buy back.  In 2013 they stated that no buy back would be demanded if the borrower did not miss any payments for three years.  In May they announced that the borrowers could miss two nonconsecutive payments within three-years without triggering a buy back demand.

The agencies are now working on other issues including small mistakes (minor clerical errors or missing paperwork that does not alter the soundness of the underwriting decision made while processing and approving the loan).   That’s a big concern for lenders because many banks and agencies will look for a missing pay stub or a missing disclosure to trigger a buy back on a loan that they just want to find a reason to demand it be purchased because they simply do not want that loan.

Also, fraud is coming into view in the horizon.  They are finally looking at what constitutes fraud and the definition of that.   This is an important point because lenders have met and exceeded due diligence in making a mortgage to a borrower only later to find out that the borrower was slick in providing false and misleading information to the lender to induce the lender to provide a mortgage.  This has led many lenders to close, others to be wrongfully accused of fraud and yet still others to lose a lot of money on fraudulent loans.  And, this problem, comes from consumers and individuals outside the mortgage industry.  The general public has been sold the story by the US Government that the bad guys are the mortgage professionals and they do not know the story of the bad person who may be living next door to them that pulled off a sophisticated mortgage fraud scheme to acquire their home (which, is the equivalent of stealing hundreds of thousands of dollars from a bank but since it was not done with a stick up they are not, in many cases, being prosecuted.  Instead, the lenders is being scrutinized by investigators from three, four and five federal agencies looking for anything to indict a company or staff of a felony; when in fact they were a victim.  Most people don’t view lenders as victims following the outrage of the crisis and the shrill voice of uniformed politicians throwing red meat to the angry voter)

So, how does the government provide lenders with the protections that they need so that they can make solid, good loan decisions based on information provided to them and received by them using third party tools to verify said information without fear of being second-guessed later on?  

How does the government reduce angst by lenders so that they loosen up credit?

And, how does the government address the fraud question and determine who is culpable (and this is a sticky one because, in the defense of the government, anyone could have committed the crime since there’s gain to be had for everyone in the process from the lender to the loan officer to the borrower to the attorney to the realtor and so on).

Well, that process has begun.

Fannie & Freddie are coming out with new “road rules” that address buy backs and addresses expanding credit to borrowers with lower down payments.  And, they’ve begun to attack the buy back issue along with the fraud issue.

HUD also has begun that process

So, it may be a new day in the mortgage industry where saner heads prevail and the adults take control of the room from the crazy kids who ran rampant.

Perhaps returning to vanilla products that were available before Clinton pushed for expanded home ownership is a sound decision.  Perhaps throwing in a few more products like one or two expanded ratio products geared specifically to LMI borrowers as defined by HUD medium incomes, issued by Fannie/Freddie is wise. Sticking to basic DTI’s and sticking to basic credit requirements is key. 

In 1995 the mortgage market began to see the lugs that held the wheels to their cars loosen when first the government announced that certain minorities lacked access to traditional credit and an underwriter could use alterative credit sources – and such began the process of tiered credit (Tier I, Tier II and Tier III credit) that could be used instead of traditional credit reports.  

That lead to tossing the basics out of underwriting and off loaded tax returns, eliminated proving income, went off only credit if the borrower put “enough down” and lent to borrowers at higher and higher DTI’s to get the coveted CRA’s from the government.

That was insanity.  And, that led to the subprime market.  And, that is a story the government does not want told  - its’ to arcane a story to tell and the public would prefer to dumb down what happened and blame the lenders.  This works for the likes of Barney Frank who pushed for the very rules he railed against in hearings in 2008 and 2009.

Maybe now we realize that too far left and too far right is simply too far.  Perhaps we now get that lending soundly means lending rules should be clear, concise and across the board.  The basic underwriting tools used from the 1990s were sound,: they should be used universally. 

Borrowers who don’t meet the criteria of vanilla conforming or vanilla govy loans or even vanilla expanded credit loans (lower LTV) should be viewed as tomorrow’s borrower.  Not today’s reject or the need for some politician to interject about unfair and discriminatory lending demanding new lending laws.

Lenders and agencies need clear rules of the road that dictate when a loan does not conform to agencies guidelines or regulations that then does trigger a buy back.

And, regulators and the government need to let people know that they will prosecute Joe Blow for lying on his mortgage application and getting a mortgage in addition to prosecuting rings of thieves who do so and rings of those in the industry who do so.   Breaking lending laws is not just the provence of those inside the lending industry.

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By 

MIGUEL BUSTILLO 

CONNECT

Updated Oct. 15, 2014 9:54 a.m. ET

 http://online.wsj.com/articles/ebola-found-in-second-healthcare-worker-at-texas-hospital-1413365880?mod=WSJ_hppMIDDLENexttoWhatsNewsSecond

 

With a second Texas health-care worker testing positive for Ebola, hospital protocol and preparedness are being questioned. WSJ's Betsy McKay and Michael Casey discuss. Photo: Getty

DALLAS—Political leaders warned Wednesday that there could be more cases of Ebola here in coming days, after a second health-care worker at a Texas hospital tested positive for the virus.

The worker, a woman whose name wasn’t disclosed, “reported a fever Tuesday and was immediately isolated at the hospital,” the Texas Department of State Health Services said in a statement.

She was among those who treated Thomas Eric Duncan, a Liberian man who was diagnosed with Ebola at Texas Health Presbyterian Hospital Dallas on Sept. 30, anddied last Wednesday.

Another nurse who treated Mr. Duncan, Nina Pham, 26 years old, was also infected while caring for Mr. Duncan and is now being treated at the hospital, which said Tuesday that she was in good condition. Health officials and the hospital haven’t determined how she became infected, and have said she was wearing a mask, gown, shield and gloves when treating Mr. Duncan.

Dr. Daniel Varga, chief clinical officer at Texas Health Presbyterian Hospital, speaks at a news conference Wednesday as Dallas Mayor Mike Rawlings looks on at right. Associated Press

At a news conference Wednesday morning, Dallas leaders sought to play down public fears about the spread of Ebola in the nation’s ninth-largest city, noting that all transmissions of the disease so far have been limited to health-care workers at the one Dallas hospital. But they acknowledged that more cases were now likely.

“It may get worse before it gets better, but it will get better,” Mayor Mike Rawlings said.

Daniel Varga, chief clinical officer for the hospital’s parent company, Texas Health Resources, said that like Ms. Pham, the second health-care worker was isolated within minutes and faced a better prognosis than Mr. Duncan thanks to the early diagnosis.

He acknowledged that the second diagnosis showed something had gone wrong with the hospital’s efforts to contain the spread of the virus. “It is clear that there was an exposure, sometime, somewhere,” Dr. Varga said.

However, he defended the hospital’s ability to contain Ebola. “I don’t think we have a systematic institutional problem,” he said.

A second health-care worker at a Texas hospital who provided treatment for the first person diagnosed with Ebola in the U.S. has tested positive for the virus, state workers said. Photo: Getty Images

Related

• Survivors Comfort Other Patients in Liberia
• Ebola Killing 70% of People Infected
• Ebola Strains Hospitals
• Patient in Germany Dies
• Ebola’s Deadly Reach

In addition to the two workers who have now tested positive for Ebola, the U.S. Centers for Disease Control and Prevention is monitoring 75 additional workers at the hospital who were also involved in the treatment of Mr. Duncan for potential Ebola exposure.

The workers are in addition to 48 people who were already being monitoredbecause they were in contact with Mr. Duncan, or with people who themselves had been in close contact with the Liberian man before he was admitted to the hospital Sept. 28.

While preliminary tests in Texas found that the second worker had Ebola, testing on a separate specimen from the patient will be conducted by the CDC in Atlanta to confirm the person has the virus, the state said.

The CDC said in a statement Wednesday morning that it has “interviewed the patient to identify any contacts or potential exposures in the community.”

“As we have said before, because of our ongoing investigation, it is not unexpected that there would be additional exposures,” the CDC said.

CDC Director Tom Frieden said Tuesday that the CDC was making changes to its Ebola response efforts, including dispatching an infection-control team to any U.S. hospital with a confirmed case “within hours,” and conceded that such a measure might have prevented Ms. Pham from contracting the virus.

In addition, the CDC said Tuesday that it was making specific changes at the Dallas hospital to better assist hospital workers. A site manager will monitor workers at every step of caring for an infected patient, especially the donning and removal of gloves, masks and other protective gear. Two nurses at Emory University Hospital in Atlanta who treated Ebola patients are on the ground in Dallas to train and assist hospital staff, Dr. Frieden said. And measures will be taken to limit the size of the team caring for Ebola patients in Dallas, to allow a smaller group of employees to gain experience and comfort working in an isolation unit, he said.

Emergency service workers prepare to decontaminate the apartment of the second health-care worker in the U.S. to have tested positive for Ebola. Twitter/Dallas Police Department

By dawn Wednesday morning, Dallas police and other officials were walking the neighborhood of the newest health-care worker to contract Ebola, preparing to decontaminate her apartment and letting neighbors know that someone living near them had tested positive for the virus. The second worker lives alone in the apartment and has no pets, according to local news reports.

Dallas County Judge Clay Jenkins, the county’s top elected official, pleaded Wednesday for people to support the hospital’s health-care workers, who are now anxious about the possibility that they too will contract Ebola.

“Like Nina Pham, this is a heroic person,” Judge Jenkins said of the newest worker diagnosed with Ebola, adding, “I hope this community will rally around the human beings that are suffering.”

Write to Miguel Bustillo at miguel.bustillo@wsj.com

Editorial: What are we to think about M&T sanction?

M&T Bank (Buffalo NY) was recently fined by the Consumer Financial Protection Bureau (CFPB).

The CFPB stated that the fine centered around M&T's advertisements to the public about free bank accounts.  In essence, M&T ran ads stating that consumers could get free checking at M&T Bank if they signed up for a specific account.

The CFPB stated that M&T bank failed to 1. Notify customers that to maintain their status of free checking, they needed a certain amount of activity in the account and; if they did not do so they 2. Would no longer qualify for the free checking account, 3. M&T Bank would not tell them they no longer qualified, 4. M&T would put them in a fee based account 4. The consumer would only find out after being billed a monthly maintenance charge in a new, fee based, account with a different name on it.

M&T Bank, in essence, stated that this happened prior to the creation of the CFPB (true) and that laws and regulations are have dramatically changed over the past few years (true).  Furthermore, they have tried to keep inline with the regulations and currently are compliant (we should take them at their word on these last two points).

However, what M&T failed to address in their statements is that deceptive advertising is not a new regulatory issue.  In fact, deceptive ads have been a focus on government regulators going back to the 1960's or further back. 

As for the financial world, to thwart deceptive ads, the State of New York (where M&T is domiciled) specifically has financial and consumer laws that address this.   Transparency are utmost importance and some regulators, long in existence prior to the CFPB, have gone so far as to mandate the size of fonts and what is and is not misleading or deceptive threatening fines and sanctions.

So, for M&T to say they are just going to agree with this -and refund the fees and pay a 200,000 fine to the CFPB to put it behind them continues to muddy the waters that M&T swims in.

Truthful advertising is a mainstay of any business.  It is unethical otherwise.  Period.

M&T should have fessed up to what, in the end, probably was really just an oversight on their part - where someone in some department who approved the ad did not vet it for compliance.

Had M&T stated that this was an oversight on their part, it would have been the ethical thing to do.

Ethics, especially in banking, is the cornerstone to a bankers lifeline.  M&T stumbled here and is bruised.

CFPB Takes Action Against M&T Bank for Deceptively Advertising Free Checking M&T to Refund $2.9 Million to Approximately 59,000 Account Holders Who Paid Fees for Free Checking

CFPB Takes Action Against M&T Bank for Deceptively Advertising Free Checking

M&T to Refund $2.9 Million to Approximately 59,000 Account Holders Who Paid Fees for Free Checking

WASHINGTON, D.C. – Today the Consumer Financial Protection Bureau (CFPB) took action against M&T Bank for deceptively advertising free checking accounts. The CFPB found that M&T lured in consumers with promises of “no strings attached” free checking, without disclosing key eligibility requirements. When consumers failed to meet the requirements, M&T automatically switched them to checking accounts with fees. M&T will provide $2.9 million in refunds to the approximately 59,000 consumers deceived into paying fees and it will pay a $200,000 penalty for the violations.

“Although M&T promised people free checking, tens of thousands of consumers ended up paying for a product they had thought was free,” said CFPB Director Richard Cordray. “This is an important reminder to all banks and credit unions that they cannot misstate to consumers whether a financial product or service is free. Today we are putting $2.9 million back in the pockets of consumers as a result.”

The M&T consent order can be found at:http://files.consumerfinance.gov/f/201410_cfpb_consent-order_m-t.pdf

M&T Bank, headquartered in Buffalo, N.Y., is a retail bank that offers various deposit account products and has hundreds of branches in the northeastern U.S. During a routine CFPB supervision exam, the CFPB found that M&T was advertising a “Free Checking” account, then converting many consumers into a fee-based “M&T First” account. Banks and credit unions are prohibited from deceptively advertising deposit accounts. If an account is described as free or no cost, it cannot, for example, have any maintenance or activity fees, or any fees to deposit, withdraw, or transfer money.

The CFPB found that M&T:

• Deceptively advertised checking accounts with no strings attached:M&T’s free checking account advertisements included such ads as, “Untangle yourself from monthly service fees. Get a free checking account at M&T. No strings attached.” But M&T did not disclose in such ads that the free checking account customers had to maintain a minimum level of account activity with deposits and withdrawals to maintain the free account. These kinds of ads for free checking ran in various geographic regions through mediums including television, print, and radio. M&T also marketed the free checking accounts to its customers on their account statements and on ATM screens and receipts.

• Automatically converted many free checking accounts into accounts with fees: If there was no account activity for 90 days, M&T automatically converted the “Free Checking” accounts to “M&T First” checking accounts. Consumers with “M&T First” accounts who failed to maintain an average or combined monthly balance of $1,500 were charged fees of $5 to $14 per month.

• Did not adequately alert consumers to the account conversions: The only indication customers received that their “Free Checking” account had been converted to an “M&T First” account due to account inactivity was that “M&T First” would appear on account documents, such as paper statements.

During the period covered in today’s order, M&T converted approximately 80,000 “Free Checking” accounts to “M&T First” accounts. Of those, about 59,000 were charged account fees because they did not meet the $1,500 threshold required in the “M&T First” accounts. M&T assessed approximately $2.9 million in monthly maintenance fees from these consumers.

Enforcement Action

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB has the authority to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices. Today’s order covers from Jan. 1, 2009 to Sept. 25, 2012, when M&T stopped the conversions. Among the things the CFPB’s order requires of M&T:

• Refund $2.9 million to consumers: M&T must refund each of the approximately 59,000 affected consumers the sum of all monthly maintenance fees they paid under the “M&T First” accounts. If the consumers have a current checking, savings, or money market account with the bank, they will receive a credit to their account. For closed or inactive accounts, M&T will send a check to the affected consumers or reduce charged-off balances by the amount they were charged in fees.

• Update credit reports: In the cases where M&T closed an account due to a negative balance, M&T will provide updated information to each credit reporting agency to which M&T had previously furnished information.

• End all deceptive advertising: M&T cannot misrepresent, or assist in misrepresenting, that a checking account is free when the terms and conditions of the account impose account activity requirements or when the account will convert to an account with monthly maintenance fees if the account activity requirements are not met.

• Pay a $200,000 fine: M&T will make a $200,000 penalty payment to the CFPB’s Civil Penalty Fund.

CFPB Takes Action Against M&T Bank for Deceptively Advertising Free Checking

http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-mt-bank-for-deceptively-advertising-free-checking/

M&T to Refund $2.9 Million to Approximately 59,000 Account Holders Who Paid Fees for Free Checking
http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-mt-bank-for-deceptively-advertising-free-checking/
WASHINGTON, D.C. – Today the Consumer Financial Protection Bureau (CFPB) took action against M&T Bank for deceptively advertising free checking accounts. The CFPB found that M&T lured in consumers with promises of “no strings attached” free checking, without disclosing key eligibility requirements. When consumers failed to meet the requirements, M&T automatically switched them to checking accounts with fees. M&T will provide $2.9 million in refunds to the approximately 59,000 consumers deceived into paying fees and it will pay a $200,000 penalty for the violations.
“Although M&T promised people free checking, tens of thousands of consumers ended up paying for a product they had thought was free,” said CFPB Director Richard Cordray. “This is an important reminder to all banks and credit unions that they cannot misstate to consumers whether a financial product or service is free. Today we are putting $2.9 million back in the pockets of consumers as a result.”
The M&T consent order can be found at: http://files.consumerfinance.gov/f/201410_cfpb_consent-order_m-t.pdf
M&T Bank, headquartered in Buffalo, N.Y., is a retail bank that offers various deposit account products and has hundreds of branches in the northeastern U.S. During a routine CFPB supervision exam, the CFPB found that M&T was advertising a “Free Checking” account, then converting many consumers into a fee-based “M&T First” account. Banks and credit unions are prohibited from deceptively advertising deposit accounts. If an account is described as free or no cost, it cannot, for example, have any maintenance or activity fees, or any fees to deposit, withdraw, or transfer money.
The CFPB found that M&T:

• Deceptively advertised checking accounts with no strings attached: M&T’s free checking account advertisements included such ads as, “Untangle yourself from monthly service fees. Get a free checking account at M&T. No strings attached.” But M&T did not disclose in such ads that the free checking account customers had to maintain a minimum level of account activity with deposits and withdrawals to maintain the free account. These kinds of ads for free checking ran in various geographic regions through mediums including television, print, and radio. M&T also marketed the free checking accounts to its customers on their account statements and on ATM screens and receipts.

• Automatically converted many free checking accounts into accounts with fees: If there was no account activity for 90 days, M&T automatically converted the “Free Checking” accounts to “M&T First” checking accounts. Consumers with “M&T First” accounts who failed to maintain an average or combined monthly balance of $1,500 were charged fees of $5 to $14 per month.

• Did not adequately alert consumers to the account conversions: The only indication customers received that their “Free Checking” account had been converted to an “M&T First” account due to account inactivity was that “M&T First” would appear on account documents, such as paper statements.

During the period covered in today’s order, M&T converted approximately 80,000 “Free Checking” accounts to “M&T First” accounts. Of those, about 59,000 were charged account fees because they did not meet the $1,500 threshold required in the “M&T First” accounts. M&T assessed approximately $2.9 million in monthly maintenance fees from these consumers.

Enforcement Action

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB has the authority to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices. Today’s order covers from Jan. 1, 2009 to Sept. 25, 2012, when M&T stopped the conversions. Among the things the CFPB’s order requires of M&T:

• Refund $2.9 million to consumers: M&T must refund each of the approximately 59,000 affected consumers the sum of all monthly maintenance fees they paid under the “M&T First” accounts. If the consumers have a current checking, savings, or money market account with the bank, they will receive a credit to their account. For closed or inactive accounts, M&T will send a check to the affected consumers or reduce charged-off balances by the amount they were charged in fees.

• Update credit reports: In the cases where M&T closed an account due to a negative balance, M&T will provide updated information to each credit reporting agency to which M&T had previously furnished information.

• End all deceptive advertising: M&T cannot misrepresent, or assist in misrepresenting, that a checking account is free when the terms and conditions of the account impose account activity requirements or when the account will convert to an account with monthly maintenance fees if the account activity requirements are not met.

• Pay a $200,000 fine: M&T will make a $200,000 penalty payment to the CFPB’s Civil Penalty Fund.