Filed under: Dodd-Frank Act | Tags: Durbin Amendment, Electronic Fund Transfer Act
by John B.C. Porter, Esq.
On December 16, 2010, the Federal Reserve Board (“Board”) released its proposed rule to implement the Durbin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protection Act, which was enacted on July 21, 2010. The Durbin Amendment amends the Electronic Fund Transfer Act by adding a new section 920 regarding interchange transaction fees and rules for payment card transactions. Comments on the proposed rule were due by February 22, 2011, and the rule goes into effect July 21, 2011. The Board was supposed to release its final rule on April 21, 2011, but that date has passed and a final rule has not materialized. The proposed rule capped debit card interchange fees at $0.12 per transaction for institutions with assets exceeding $10B.
There is speculation that the Board is playing a waiting game with Congress, as two bills to delay implementation of the Durbin Amendment (one for two years and the other for one year) have been sponsored in Congress, S. 575 and H.R. 1081 respectively.
Debbie Matz, Chairman of the National Credit Union Administration (“NCUA”), wrote a letter to Ben S. Bernanke, Chairman of the Board, dated April 29, 2011, in which she furthers the comments of the NCUA with respect to the Board’s proposed rule on interchange fees. In her letter, Ms. Matz outlined the results of data collected from credit unions of various asset sizes relative to the direct costs of processing debit card transactions. This data does not include indirect costs such as labor, facilities, equipment and other overhead costs related to operating a debit card program. Based on this data, Ms. Matz concludes that the cost per debit card transaction for institutions with assets of less than $100M exceeds the $0.12 cap within the proposed rule. In conclusion, Ms. Matz urged the Board to modify the proposed rule on interchange fees to provide meaningful exemptions for smaller card issuers related to network exclusivity and merchant routing.
Interchange Cost Chart
Senator Richard Durbin continues to defend his amendment, despite unprecedented opposition from financial institutions from multi-billion dollar banks down to the smallest credit unions, and penned an open letter to JPMorgan Chase CEO Jamie Dimon in which he wrote: “[T]here is no need for you to threaten your customers with higher fees when you and your bank are already making money hand-over-fist. And there is no need to make such threats in response to reform that simply tries to spare consumers from bearing the cost of interchange fees that are anticompetitive and unreasonably high.” This was partly in response to Dimon’s letter to shareholders in which he stated that the proposed fee caps are akin to “price fixing” and “downright idiotic.” It is not entirely clear who will benefit from the interchange cap, consumers or merchants, but it is abundantly clear that the big loser in all of this will be credit unions. With the effective date quickly approaching and uncertainty as to what the fee cap will be or when it will be implemented, this promises to make an interesting, if not rocky, summer for us all. Stay tuned….
John B. Porter is the managing attorney of the Credit Union Group in the Columbus office. He can be reached at 614.857.4488 or jporter@weltman.com.
Filed under: Current Issues in Credit Unions | Tags: ADA, ATM, Bylaws, CFPB, CUSO, Dodd-Frank, Interchange
Andrea Stritzke from PolicyWorks joins Hal, Guy, Katherine and Rob on the show this month. Also, we say goodbye to our good friend Anthony who has left the show (because of a terrific promotion). Here are the topics:
–CFPB Shenanigans.
–EW on The Daily Show.
–Interchange
–Model forms
–Politics.
–Update on the Texas CUSO rule.
–ADA Compliance dates for ATMs.
–Bylaws best practices.
–Big K Roundup.
Sound editing by Victor Khaze
The CIiCU hosts are:
Brian Witt
Hal Scoggins
Farleigh Wada Witt,
Attorneys at Law
121 SW Morrison Street, Suite 600
Portland, Oregon 97204
Telephone: 503-228-6044 503-228-6044 Fax: 503-228-1741
http://www.fwwlaw.com
Guy Messick
Katherine Weber
Messick & Weber P.C.
211 North Olive Street
Media, PA 19063
Telephone 610-891-9000 610-891-9000 Fax 610-891-9008
http://www.cusolaw.com
Faith Anderson
American Airlines Credit Union
P.O. Box 619001
MD 2100
DFW Airport, TX
75261-9001
(800) 533-0035 (800) 533-0035
https://www.aacreditunion.org/default.asp
Robert Rutkowski
Shareholder
Weltman, Weinberg & Reis Co., L.P.A.
323 W. Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
Telephone: 216-739-5004 216-739-5004 Fax: 216-739-5642
http://www.thatcreditunionblog.com
http://www.weltman.com
Subcribe to the show via iTunes Music Store:http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=151785964&s=143441
Filed under: mortgages | Tags: HAMP, Home Affordable Modification Program, Supplemental Directive 11-04
By Alan C. Hochheiser, Esq.
On May 18, 2011, The Treasury Department issued Supplemental Directive 11-04 under the Home Affordable Modification Program (HAMP). The purpose of this Directive is to require servicers of non-GSE mortgages to have a single point of contact for dealing with customers who are currently in or may be eligible for HAMP programs on first mortgages. Second Mortgages are not covered under this Directive.
The single point of contact (SPC) must be in a position to communicate with the borrower about a resolution for their delinquency. The SPC must be in place for the entire delinquency or the imminent default resolution process including any home retention or non-foreclosure liquidation options, and if the loan is subsequently referred to foreclosure, the relationship manager must be available to respond to the borrower’s inquiries regarding the status of the foreclosure. In addition to HAMP, this will be required with the Home Affordable Unemployment Program (UP) and the Home Affordable Foreclosure Alternatives (HAFA) program. The effective date of this Supplemental Directive is September 1, 2011.
Please be advised that for those borrowers who are in the process of being evaluated for HAMP, UP or HAFA, who are in a trial period plan or a UP forbearance plan, or who have executed a short sale or deed in lieu agreement by the effective date, the Supplemental Directive must be signed by the relationship manager by no later than November 1, 2011. In addition, borrowers who were originally ineligible for any of the aforementioned programs prior to September 1, 2011 and re-request an evaluation after that time, must be assigned a relationship manager if the servicer determines there has been a significant change in the borrower’s circumstances that merits the re-evaluation.
Under this Supplemental Directive, the relationship manager must provide the borrower, in writing within five (5) business days of being assigned to the borrower, a notice which includes a toll free number and at lease one other means of contact for the relationship manager. The notice must also provide the preferred means for the transmission of any required documentation from the borrower to the servicer. Please note, that if circumstances arise where the relationship manager should change, written notice of said change and contact information must be communicated to the borrowers.
Additional information in regard to Supplemental Directive 11-04 may be obtained through the US Treasury’s website at treasury.gov.
Weltman, Weinberg & Reis Co., LPA will keep you advised on issues pertaining to HAMP and other bankruptcy matters.
If you have any questions, please contact Alan C. Hochheiser, Esq. Alan is the Managing Partner of the Bankruptcy Practice Group of Weltman, Weinberg & Reis Co., LPA located in the Brooklyn Heights, Ohio office. He can be reached at 216.739.5649 or ahochheiser@weltman.com.
By Zarksis Daroga, Esq.
As a result of Senate Bill 582 (SB 582), the Indiana legislature has made several procedural changes as to the foreclosure process effective July 1, 2011. These changes include the following:
- For all residential foreclosure actions filed after June 30, 2011, the lender must provide to the Court, at the time of filing the foreclosure complaint, the debtors’ most recent contact information, such as phone number, e-mail address, and last known property address, if different than the mortgaged property address. Currently, WWR provides this information to several counties in Indiana, including Lake and St. Joseph Counties. This basically makes it an across-the-board requirement for all counties.
- After June 30, 2011, the language regarding the debtor’s right to a settlement conference is to be included on the first page of the summons that is to be issued with the foreclosure complaint. Currently, the settlement conference notice is included as a separate page to the foreclosure complaint. The Courts are to also send a separate settlement conference notice to the debtor, upon the filing of the foreclosure complaint. Additionally, SB 582 charged the Indiana Housing and Community Development Authority (IHCDA) with drafting the settlement conference notice language that is to be included on the first page of the summons. Per the bill, IHCDA is required to post that new language on its website on or before June 1, 2011. Once IHCDA posts the required information on its website, WWR will incorporate the same in our summons for all foreclosure cases filed after June 30, 2011.
- If after receiving the settlement conference notice, a debtor requests a settlement conference with the court, the request is treated as an official appearance by the debtor in the foreclosure case. WWR will be required to move for summary judgment instead of default judgment in cases where the settlement conference was unsuccessful.
- Once the debtor requests a settlement conference, the Court will stay the granting of any dispositive motions in the foreclosure case until the Court receives notice that the settlement conference concluded and that the parties have either entered into a foreclosure prevention agreement or were unable to agree on the terms of an agreement.
- SB 582 charges IHCDA to come up with a prescribed list of loss mitigation documents to use in foreclosure cases, on or before June 1, 2011. The bill also authorizes the IHCDA to amend this list in response to any changes in the federal loan modification programs, or as IHCDA deems otherwise to be necessary. WWR will provide the loss mitigation documents list to our clients, as soon as it is posted by the IHCDA.
- In all residential foreclosure cases after June 30, 2011, where the debtor requested a settlement conference, the debtor is required to provide to the creditor’s attorney and the court with a complete package of the loss mitigation documents, as provided by the IHCDA, by certified mail at least 30 days prior to the settlement conference. The creditor is required to provide the debtor a copy of the payment history via certified mail, substantiating the debt, plus an itemization of all amounts owed (payoff statement), at least 30 days prior to the settlement conference.
- Any cost associated with the settlement conference, or any fines imposed by the courts on the lender for violating a court order, may not be forwarded or passed onto the debtor.
- SB 582 authorizes the courts in foreclosure cases where the debtor continues to occupy the property, to require the debtor to make monthly payments. These payments are to be based on the debtor’s ability to pay, may not exceed the debtor’s monthly payments under the terms of the mortgage, the payments shall be held in trust for the parties by the clerk of the court, and payments can only be disbursed upon order of the court. Payments will be disbursed to the creditor if a foreclosure prevention agreement is reached or if the case proceeds to judgment, and the debtor shall receive a credit for any payments disbursed.
- SB 582 allows a non-owner of a property to come onto the property in order to visually inspect the property to see if it has been abandoned or vacated. If that individual feels that the property is abandoned or vacated, he/she may contact the necessary authorities and will be immune from any civil liability for trespassing due to the inspection.
- In addition to the changes made by SB 582, the Indiana House of Representatives also amended the same foreclosure statute in HB 1024 by requiring creditors to mail a copy of the foreclosure complaint, via certified mail, to the last known address of the insurance company for the property being foreclosed. The statute also states that the creditor will not be subject to any penalty, or the foreclosure proceeding will not halt if the creditor does not mail the complaint to the insurance company.
WWR will comply with this amendment and mail a copy of the foreclosure complaint to the last known insurance company, but we will have to rely on that information from the lender. As such, I suggest that if at all possible, the information be obtained from the debtor either at the closing or during any loss mitigation negotiations, prior to the foreclosure being filed.
It is very helpful for lenders to provide foreclosure counsel with the most up-to-date contact information possible on debtors, at the time of the referral. Lenders should be ready to respond to increased requests for payment histories and itemized breakdowns of all amounts owed.
If you have any questions on this matter, please contact Zarksis Daroga, Esq. Zarksis provides foreclosure services as an associate in WWR’s Integrated Real Estate Default Group and is based in the Cincinnati office. He can be reached at 513.333.4075 or zdaroga@weltman.com.
By Francis X. Grady
On March 30, 2011, all Federal bank regulators jointly released proposed rules with respect to incentive-based compensation arrangements for banks with $1 billion or more in assets. Issued under the authority of Section 956 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), the proposed rules would align the U.S. more closely with international compensation standards by:
- Prohibiting incentive-based compensation arrangements that would encourage inappropriate risks by banks providing excessive compensation;
- Prohibiting incentive-based compensation arrangements for covered persons that would expose the institution to inappropriate risks by providing compensation that could lead to a material financial loss;
- Requiring policies and procedures for incentive-based compensation arrangements that are commensurate with the size and complexity of the institution; and
- Requiring annual reports on incentive compensation.
The rules explicitly apply to all banks with assets of $1 billion or more. All “covered” financial institutions will be required to annually report incentive compensation arrangements to their primary Federal bank regulator within 90 days of the fiscal year end.
If issued in final form as proposed, the final rules will be burdensome. However, successful banks will not only comply with the rules but, with the right assistance, use them to gain a competitive advantage over less nimble competitors. Good incentive plans support short and long-term business goals, and the rewards of well-designed plans support shareholder and executive success.
Section 956 of the Dodd-Frank Act requires that the Federal banking agencies jointly adopt measures that:
- Require the “covered financial institutions” to disclose to their appropriate Federal regulator the structure of their incentive-based compensation arrangements so the regulator can determine whether such compensation is excessive or could lead to material financial loss to the bank; and
- Prohibit any type of incentive-based compensation that the regulators determine encourages inappropriate risk by providing excessive compensation or that could lead to material financial loss to the covered bank.
The seven agencies involved in the joint rulemaking process include the Office of the Comptroller of the Currency, the Federal Reserve Board, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the National Credit Union Administration, the Securities and Exchange Commission, and the Federal Housing Finance Agency.
Proposed Rules on Incentive-Based Compensation
The proposed rules, which would apply to banks, brokers, dealers or investment advisers with assets of at least $1 billion, contain three elements:
(1) Annual Reporting About Incentive-Based Compensation Arrangements Under the proposed rules, a bank with assets of $1 billion or more would be required to file annually with its appropriate Federal bank regulator a report describing the firm’s incentive-based compensation arrangements. The information that would be required to be submitted would include, but not be limited to:
- A narrative description of the components of the bank’s incentive-based compensation arrangements;
- A succinct description of the bank’s policies and procedures governing its incentive-based compensation arrangements; and
- A statement of the specific reasons as to why the bank believes the structure of its incentive-based compensation arrangements will help prevent the bank from suffering a material financial loss or does not provide covered persons with excessive compensation.
For purposes of the proposed rules, the term “incentive-based compensation” is defined broadly to include any variable compensation that serves as an incentive for performance. Whether the form of payment is cash, an equity award, or other property does not affect whether compensation meets the definition of “incentive-based compensation.” Compensation would not be incentive-based if it is awarded solely for, and payment is tied solely to, continued employment (e.g., salary). Incentive-based compensation includes direct and indirect payments, fees and benefits, payments or benefits pursuant to an employment contract, compensation or benefit agreement, fee arrangement, perquisite, stock option plan, post-employment, or other compensatory arrangement.
(2) Prohibition on Encouraging Inappropriate Risk
(a) General Prohibitions
The proposed rules apply to executive officers, employees, directors, or principal shareholders – “covered persons” – at a covered financial institution. Under those rules, a covered financial institution would be prohibited from establishing or maintaining an incentive-based compensation arrangement that encourages inappropriate risks by providing covered persons with excessive compensation, or that could lead to material financial loss. Incentive-based compensation for a covered person would be excessive when amounts paid are unreasonable or disproportionate to, among other things, the amount, nature, quality, and scope of services performed by the covered person. In making such a determination, the proposed rules indicate that the agencies will consider:
- The combined value of all cash and non-cash benefits provided to the covered person;
- The compensation history of the covered person and other individuals with comparable expertise at the covered financial institution;
- The financial condition of the covered financial institution;
- Comparable compensation practices at comparable institutions, based upon such factors as asset size, geographic location, and the complexity of the institution’s operations and assets;
- For postemployment benefits, the projected total cost and benefit to the covered financial institution; and
- Any connection between the individual and any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse with regard to the covered financial institution.
(b) Incentive Compensation
The proposal states that incentive-based compensation arrangements would be deemed not to encourage inappropriate risk if they meet vague standards established under Section 39(c) of the Federal Deposit Insurance Act and guidance issued by Federal bank regulators in June 2010 setting forth principles for incentive compensation standards. The incentive-based compensation arrangement would not encourage inappropriate risk if the arrangement:
- Balances risk and financial rewards, for example by using deferral of payments, risk adjustment of awards, reduced sensitivity to short-term performance, or longer performance periods;
- Is compatible with effective controls and risk management; and
- Is supported by strong corporate governance.
The incentive compensation rules on establishing or maintaining any type of incentive compensation arrangements that could lead to a material loss to the financial institution includes groups of persons who are subject to the same or similar incentive compensation arrangements and who, in the aggregate, could expose the institution to a material financial loss (e.g., loan officers who, as a group, originate loans that account for a material amount of the covered financial institution’s credit risk).
Because the Dodd-Frank Act rules on incentive-based compensation represent principlesbased regulation, not rules-based supervision, the regulations’ lack of specificity leads to nebulous standards that will be enforced through examiner leverage. When it comes to incentive-based compensation, the basis for a board’s judgment has to be documented. If the board does not document the process, the bank examiner can question the results. The financial
health of a bank will play a big part in compensation-focused exams. If the bank regulator has a safety and soundness concern with a bank and then finds that the bank is paying compensation at the upper end of the scale for similar sized institutions, that institution will be at more risk for having the incentive compensation arrangement challenged.
(3) Establishing Policies and Procedures
A covered financial institution would be barred from establishing an incentive-based compensation arrangement unless the arrangement has been adopted under policies and procedures developed and maintained by the institution and approved by its board of directors. A foundation to ensure an effective pay-for-performance relationship is to
actually model and monitor the relationship. This is an area where many banks fall short.
By documenting scenario analyses, banks can show the rationale for rewards that result from these programs. While not common practice, the board record of incentive compensation approval should reflect consideration of the following:
- The complete range of compensation that would result from programs in aggregate under various performance scenarios;
- Relate the long-term award values received by executives to company performance relative to peers/industry over multiple years; and
- Monitor the level of equity/ownership by executives, employees and board members so that levels of ownership are sufficient to ensure their alignment with shareholders.
Because assessment of executive compensation is now part of the management evaluation in the CAMELS safety and soundness examination, the policies and procedures that promote compliance with the rules should:
- Provide data to the board or compensation committee from management or outside sources sufficient to allow the board or compensation committee to assess if the overall design and performance of the incentive compensation arrangements are consistent with Section 956 of the Dodd-Frank Act; and
- Maintain sufficient documentation regarding the establishment, implementation, modification and monitoring of incentive compensation arrangements to determine compliance with Section 956 of the Dodd-Frank Act.
Although the requirements under the proposed rule are not anticipated to become effective until late this year or early next year, it is not too early for financial institutions to begin to prepare for the requirements. We recommend that banks take the following actions:
- Inventory the compensatory arrangements of all covered persons to identify those that would constitute “incentive-based compensation”;
- For those arrangements that would constitute incentive-based compensation, begin compiling the information required to analyze the factors under Section 39(c) of the Federal Deposit Insurance Act that would be used to determine whether the compensation could be deemed “excessive”;
- Determine the subset of covered persons and groups of covered persons who would be covered by the prohibition on incentive-based compensation that could lead to material financial loss;
- Review the compensation committee’s charter and consider revising the compensation committee charter to ensure that the charter scope includes the approval of incentivebased compensation arrangements of applicable non-executive officers;
- Create a plan for implementing or revising policies and procedures governing the award of incentive-based compensation;
- Determine the appropriate risk-management, risk-oversight and internal-control personnel to be involved in the process of designing incentive-based compensation arrangements and assessing incentive-based compensation policies; and
- Consider the process required to prepare the annual report that would be submitted to the appropriate Federal bank regulator.
Francis X. Grady
Grady & Associates
Attorneys & Counselors At Law
440.356.7255
fgrady@gradyassociates.com
www.gradyassociates.com
Filed under: compliance, credit unions, Uncategorized | Tags: Americans with Disabilities Act, ATMs
By Matthew M. Young, Esq.
March, 2011 or March, 2012? There has been significant confusion and varied opinions concerning the deadline for compliance with the Americans with Disabilities Act (ADA) new accessibility requirements for Automated Teller Machines (ATMs). Some industry experts suggest this deadline is not until March, 2012 while others indicate this deadline already passed and compliance was required as of March, 2011. The actual answer to this question is both dates are correct.
Two sections of federal regulation govern changes to ATMs in the next year. The structural elements requirement entitled “removal of barriers” governs, among other things, changes to height and reach requirements for ATMs. Under this section, elements of your existing ATMs that are not compliant with 1991 standards must be modified by March 15, 2012. Within this section, there is a safe harbor providing that elements that comply with the requirements as set forth in the 1991 standards do not need to be modified. However, this safe harbor only applies to the structural elements.
Speech enable requirements entitled, auxiliary aids and services, must have been compliant as of March 15, 2011. These auxiliary aids and services include all “speech enabled” functions including those that you referenced (voice guidance, blank screens for privacy and brail indicator for audio jack). Since no safe harbor exists under this section of the Code, the deadline was March 15, 2011.
To clarify this issue, the Department of Justice- the enforcer of the ADA- has weighed in noting:
The Department consistently has taken the position that the communication-related elements of ATMs are auxiliary aids and services, rather than structural elements. See 28 CFR part 36, app. B at 728 (2009). Thus, the safe harbor provision does not apply to these elements. The Department believes that the limitations on the effective communication requirements, which provide that a covered entity does not have to take measures that would result in a fundamental alteration of its program or would cause undue burdens, provide adequate protection to covered entities that operate ATMs.
Moreover, I contacted the Department of Justice seeking further clarification on this issue and they confirmed the Department’s position that the deadline for auxiliary aids and services is March 15, 2011.
If you have not met this March, 2011 deadline, do not panic. While the deadline for compliance with the “auxiliary aids and services” component has passed, the Department of Justice noted that many smaller financial institutions, and in particular Credit Unions, may have significant financial hardship with bringing all of its ATMs into compliance by that time. Accordingly, it is recommended by the Department to develop a compliance plan to meet these new requirements. If you have not already developed such a compliance plan you should do so immediately. Elements to consider include the following:
- Determine the number of existing ATMs at the Credit Union
- Determine if each of these ATMs meet 1991 ADA Standards and/or 2010 ADA Standards
- Get quotes from ATM providers to determine the cost to comply with these new requirements, as necessary
- Set a plan, budget and schedule to implement changes to your ATMs
The Credit Union’s budget and strategic plan should be reasonable in relation to the Credit Union’s size, the number of ATMs it has and the respective financial burden that the Credit Union bears for complying with the ADA’s new requirements. By developing and adhering to such a plan, which the Credit Union should revisit annually, the Credit Union lessens its exposure to liability with respect to complying with the ADA’s new requirements.
Matthew M. Young is an associate in the Credit Union Group located in the Brooklyn Heights office of Weltman, Weinberg & Reis co., LPA. He can be reached at 216.739.5726 or myoung@weltman.com.
Filed under: credit unions, Truth in Savings Act | Tags: advertising, Regulation DD
By Hannah F. G. Singerman, Esq.
“Regulation DD” of the Truth in Savings Act is issued by the board of governors of the Federal Reserve. 12 U.S.C. section 4311 excludes credit unions from regulation under Regulation DD, however, the National Credit Union Administration under 12 CFR 707 enacted substantially similar standards for credit unions also under the Truth in Savings Act. NCUA recently updated 12 CFR Part 707, effective January 1, 2010.
Both Regulation DD and 12 CFR 707 regulate certain advertising activities by depository institutions. For credit unions, 12 CFR 707.8 governs advertising. Under that rule, advertising must not be misleading or inaccurate, describe an account as free if there is a maintenance fee associated with it or use the word profit when referring to dividends or interest on an account. Rates on return must be stated as annual percentage yield (“APY”).
Additionally, several other disclosures are required under the rule. The disclosures, though slightly different depending on the account advertised typically include fees, minimums (balances and amounts needed to obtain special features), APY, and timing rules. Specifically, disclosures include variable rates, time annual percentage yield is offered, the minimum balance required to earn the annual percentage yield, the minimum opening deposit, and effect of fees on the account, i.e. that such would reduce earnings. Term share accounts most disclosure certain features including time requirements, early withdrawal penalties, and required dividend payouts. Further, if an advertisements discusses a bonus, the bonus must include the APY, the time requirements to obtain the bonus, the minimum balance required to obtain the bonus, the minimum required to open the account, and the timing for the bonus.
Advertisements which include payment of overdrafts are also regulated by 12 CFR 707.11.
The most important section of the regulation is the section regarding what advertisements are exempt from the disclosure requirements. There are three categories of advertisements that have the greatest number of exemptions, television or radio, outdoor media such as billboards, or telephone response machines. Signs inside the premises of credit unions also are exempt from certain requirements, provided the APY is used and that such signs tell members to contact the credit union for more details. Credit Union newsletter advertisements also are exempt from a great deal of the disclosures provided that the fees and APY are disclosed.
Interestingly, electronic media, specifically, internet advertisements are not treated the same as television or radio advertisements under the comments to the regulation. The disclosures are mandatory for such advertisements. However, one has to wonder if such applies to advertisements accompanying television or radio programs broadcast on the internet such as radio podcasts, YouTube, or Hulu, for example. The technical language of the rules discusses advertisements “posted” on the internet. Is there a difference between advertisements broadcast on the internet and if such a difference exists, is a Twitter “broadcast” more similar to a YouTube broadcast of a “post” to a blog or a Facebook Fan page? As more and more of our media is watched from computers, iPhones, Blackberries or other media devices, is the distinction between the different types of media so clear and which rules will apply? These are questions with answer that are unclear from the current relations despite their late dates and need to be explored.
The most conservative practice in an uncertain environment would be to follow the regulations without the exemptions for every single advertisement made, especially as things can be broadcast on the internet without one’s permission. Such a conservative approach would most likely cost more initially but may save legal fees involving questions and unresolved issues in the law itself. Internet advertisement is not something to opt out of all together as it is so crucial to today’s market place, a conservative regulatory approach to it however may be a best practice. Nevertheless, more attention needs to be brought to new media and technology so that the guidelines will be better defined. Such should be an important step for the regulators so that the technology does not out-pace them.
Hannah F.G. Singerman is an associate practicing in Commercial Collections, is a member of the Commercial Banking, Commercial Business, Special Collections and Commercial/Agency Services Groups, and is based in the Cleveland office of Weltman, Weinberg & Reis Co., LPA. She can be reached at 216.685.1162 or hsingerman@weltman.com.
Filed under: Uncategorized
By Shari Storm
A friend recently posted on her Facebook page one interesting question, “What do you think are the top three inventions of our lifetime?”
The answers were plentiful and as varied as her friends
My list was:
cookie dough ice cream
GPS
credit cards
I remember when Ben & Jerry launched Chocolate Chip Cookie Dough Ice Cream inSeattle. It was the summer of 1991. My best friend and I were living in a ransacked fraternity house at theUniversityofWashington(we were barely in our 20’s at the time). We would drive all over the city looking for that ice cream. I wondered at the time how nobody had thought of that combination before. Nineteen years later, it is still one of my favorite desserts.
Just when I thought all the cool inventions had already been invented, along came the GPS. My husband’s parents gave me one after I got lost in the mountains with our three young daughters and drove around the dark snowy roads for hours. I have a terrible sense of direction and that little talking unit in my car has changed my quality of life completely. I recently discovered that you can get luggage with GPS badges in them. How brilliant is that? You never have to rely on the airlines to tell you where your luggage is again!
And since this is a financial industry blog, I have to add credit cards as one of the most amazing inventions of our lifetime. The fact that you use a 3 inch by 2 inch card practically anywhere in the world and information on available funds is transmitted almost instantaneously is really quite fantastic. The impact of third party lending and simplified transaction processes on our economy is somewhat mind boggling. Imagine how limited commerce would be if we were still required to carry around wads of cash or if merchants had to decide the credit worthiness of a potential customer who wanted to write a check. Imagine what the internet would have become (or NOT have become) had we not had the ability to move money electronically. We often take for granted how much credit cards have enhanced our lives.
Speaking of inventions… did you know the Co-Op is currently sponsoring a contest to help spur innovation in the credit union industry? You can find out more about the three finalists’ ideas here. http://www.thinkprizevote.org/ While you are there, take a moment to vote for the idea you think is best. Hopefully, it’s my idea. But if not, still vote. Your vote could play one small part of bringing a new invention to our industry.
That said – what do you think are the best three inventions of our lifetime?
Filed under: bankruptcy
There seems to be a lot of activity in the world of bankruptcy lately.
Monette Cope has been busy reporting on the topic of lien stripping, when debtors may or may not be able to strip mortgage liens. According to a client advisory she wrote on April 7th, “Chapter 13 debtors who are ineligible for a discharge may not strip mortgage liens, even if the liens are wholly unsecured.” Monette followed up that article with another one focused on barriers to stripping wholly unsecured liens on April 13th, “When Spouses Cannot Strip Mortgage Liens in Bankruptcy.” (link to both)
Monette also published an advisory on April 19th focused on illegal provisions in confirmation orders. She discusses creditors’ best defenses against illegal provisions as well as what to if a plan is confirmed with an illegal provision. (link)
Finally, David Yunghans wrote an article on a telephone scan affecting Chapter 13 bankruptcy cases in the Western District of Michigan. Go here to view David’s article.
Monette Cope is a junior partner in the bankruptcy group at Weltman, Weinberg & Reis Co., LPA (WWR) located in the Chicago office. She can be reached at 312.253.9614 or mcope@weltman.com. David is an associated focused on bankruptcy services in the Cincinnati office of WWR. He can be reached at 513.723.2211 or dyunghans@weltman.com.
