Compliance Alliance Question of the Month

10/24/19

Question:

I’m being told we can opt people in for overdraft protection. Is that true?

Answer:

Reg. E sets out the requirements for providing customers with overdraft services for paying an ATM or a one-time debit card transaction. Under the Reg. E requirements, before the bank can assess an overdraft fee for paying an ATM or one-time debit card transaction, the customer must affirmatively consent to such coverage. This does not mean that the bank cannot pay the overdraft item, it merely means that without the customer’s affirmative consent, the bank may not assess an overdraft fee for paying those items.

(b) Opt-in requirement

(1) General. Except as provided under paragraph (c) of this section, a financial institution holding a consumer's account shall not assess a fee or charge on a consumer's account for paying an ATM or one-time debit card transaction pursuant to the institution's overdraft service, unless the institution:

(iii) Obtains the consumer's affirmative consent, or opt-in, to the institution's payment of ATM or one-time debit card transactions; and

§ 1005.17(b)(1)(iii): https://www.consumerfinance.gov/policy-compliance/rulemaking/regulations/1005/17/#b-1-ii

2) Conditioning payment of other overdrafts on consumer's affirmative consent. A financial institution shall not:

(i) Condition the payment of any overdrafts for checks, ACH transactions, and other types of transactions on the consumer affirmatively consenting to the institution's payment of ATM and one-time debit card transactions pursuant to the institution's overdraft service….

§ 1005.17(b)(2)(i): https://www.consumerfinance.gov/policy-compliance/rulemaking/regulations/1005/17/#b-2-i

Question:

This is regarding the recent threshold changes to Regulation CC. Since we have same day availability and the amounts are actually in the customers’ favor, do we have to do a change notice to reflect the new funds availability thresholds?

Answer:

Yes, it would still be required to be updated and provided within 30 days of the change as set out here:  

(e) Changes in policy. A bank shall send a notice to holders of consumer accounts at least 30 days before implementing a change to the bank's availability policy regarding such accounts, except that a change that expedites the availability of funds may be disclosed not later than 30 days after implementation.

https://www.ecfr.gov/cgi-bin/text-idx?SID=3637768da342b80a478311cfcb340a34&mc=true&node=se12.3.229_118&rgn=div8

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