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Bank Websites New Target of ADA Claims

Bank Websites New Target of ADA ClaimsFor years, plaintiffs with hearing and visual impairments have sued companies alleging that their business websites violate the accessibility provisions of the Americans with Disabilities Act (ADA).  Until recently, the banking industry has not been much bothered by these suits, but this is changing.

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FinCEN Reminds Banks of Regulatory Obligation to File SARS for Cyber EventsOn October 25, 2016, the Financial Crimes Enforcement Network (FinCEN) issued an advisory to financial institutions, advising them that they must report cyber events via Suspicious Activity Reports (SARs) to fulfill their regulatory obligations under the Bank Secrecy Act (BSA).

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CFPB Updates Guidance for Financial Institution Supervision of Service ProvidersOn October 31, 2016, the Consumer Financial Protection Bureau (CFPB) updated a prior Compliance Bulletin on the supervision of service providers by financial institutions.

The new Compliance Bulletin 2016-02 states:

“The Bureau is reissuing its guidance on service providers, formerly titled CFPB Bulletin 2012–03, Service Providers to clarify that the depth and formality of the risk management program for service providers may vary depending upon the service being performed—its size, scope, complexity, importance and potential for consumer harm—and the performance of the service provider in carrying out its activities in compliance with Federal consumer financial laws and regulations. This amendment is needed to clarify that supervised entities have flexibility and to allow appropriate risk management.”

The new bulletin includes new language that recognizes not every service provider will necessarily require the same level of supervision as others:

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Ninth Circuit Rules Non-Judicial Foreclosure Trustee Not Debt Collector Under FDCPAOn October 19, 2016, the U.S. Court of Appeals for the Ninth Circuit held that a trustee seeking a non-judicial foreclosure on a deed of trust could not be classified as a debt collector under the Fair Debt Collection Practices Act (FDCPA).

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California Revises Identity Theft Review and Reporting Requirements for Debt CollectorsDebt collectors that receive consumer claims of identity theft must meet new requirements under the new Identity Theft Resolution Act passed by the California legislature, which becomes effective January 1, 2017.

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New California Law Requires Commercial Leases to Include Accessibility DisclosuresA new California law that requires commercial landlords to include in their leases certain disclosures regarding accessibility is now in effect for leases executed on or after January 1, 2017.

The law, which took effect on September 16, 2016, requires landlords leasing a commercial space to provide in the lease a disclosure about whether the property has been inspected by a Certified Access Specialist (CASp) and, if so, state whether it has been determined that the property meets the applicable accessibility standards and provide a copy of the CASp inspection report.

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11th Circuit: Debtors Surrendering Property in Bankruptcy Cannot Contest ForeclosureOn October 4, 2016, the U.S. Court of Appeals for the Eleventh Circuit upheld a bankruptcy court’s decision that debtors who surrender real property in bankruptcy cannot contest a foreclosure action at a later date.

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U.S. Supreme Court Focusing on Key Bankruptcy Issues During New TermThe U.S. Supreme Court began its 2016-2017 term on October 3, 2016, with three bankruptcy issues of particular note before the Court: insider claims, structured dismissals and proofs of claim on time-barred debt.

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DC Court of Appeals Rules CFPB Structure is Unconstitutional

DC Court of Appeals Rules CFPB Structure is UnconstitutionalOn October 11, 2016, the U.S. Circuit Court of Appeals for the District of Columbia ruled that the single-director structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional.

The case — PHH Corp. v. Consumer Financial Protection Bureau — involves mortgage lender PHH Corporation, which asked the appellate court to vacate an enforcement ruling by the CFPB last year that ordered the company to pay $109 million in fines for allegedly violating anti-kickback provisions in the Real Estate Settlement Procedures Act (RESPA).

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California Appeals Court Rules Deficiency Judgment Protection Does Not Extend to GuarantorA California appeals court has ruled in LSREF2 Clover Property 4, LLC v. Festival Retail Fund 1, LP that California’s anti-deficiency statutes prohibiting lenders from obtaining deficiency judgments against borrowers following a nonjudicial foreclosure do not extend to guarantors unless the guarantor is proven to be the principal borrower.  The appeals court reversed the trial court’s ruling in favor of the defendant, finding the evidence did not support the trial court’s conclusion that the guarantor was the principal borrower.

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