On December 7, the CFPB announced a consent order against a Virginia-based bank, alleging it engaged in deceptive acts and practices and failed to comply with Regulation E. According to the CFPB, the bank did not comply with Regulation E because it did not provide appropriate written disclosures before enrolling customers in its overdraft service and imposing overdraft fees. The CFPB alleged that under the bank’s procedures, branch employees would provide oral disclosures and obtain oral consent but did not provide customers with the required written consent form under Regulation E until the end of the account-opening process. According to the CFPB, while the bank changed its practices partway through the period covered by the consent order, the disclosures it provided were still inadequate. The bank allegedly “requested that new customers orally specify their enrollment decision before providing them with adequate written notice describing the [opt-in] service,” which thereby allegedly breached the Electronic Fund Transfer Act. 

The CFPB also alleged the bank committed deceptive actions or practices when marketing opt-in overdraft services to consumers via telephone. Specifically, the CFPB alleged that the bank did not provide its customer service representatives with a script, which resulted in representatives failing to clearly differentiate between transactions covered by the bank’s standard versus its opt-in overdraft protection service. The CFPB asserted that these statements qualified as “representations and omissions of key information were likely to mislead consumers,” and that as a result, the Bank did not comply with the CFPA and Regulation E.  

The consent order imposes a $1.2 million civil money penalty and requires the bank to refund at least $5 million to affected consumers. The consent order also requires the bank to obtain a new overdraft enrollment decision from affected consumers before charging overdraft fees. Moreover, the bank must also create and implement a comprehensive compliance plan to ensure its overdraft program complies with all applicable laws. Finally, the consent order requires the bank to monitor compliance, maintain records, and inform the CFPB of any changes or developments that could impact its compliance responsibilities in the consent order.