Consumer Financial Services Alert - January 25, 2011 January 25, 2011
In This Issue

NACHA Rules Amended to Allow Telephone Authorization of Recurring Consumer Transactions

On September 16, 2011, an amendment to the NACHA Operating Rules will become effective that will allow originators to obtain oral authorization from a consumer over the telephone for a recurring-entry ACH transaction. Currently, the NACHA Rules only allow originators to obtain telephone authorization for a single-entry ACH transaction in accordance with a prior version of the FRB’s Regulation E Commentary. Prior to 2006, the Commentary explicitly stated that an audio recording of a consumer’s oral authorization taken over the telephone did not constitute authorization for recurring transactions. This prohibition was removed from the Commentary in 2006 and, according to NACHA, this amendment to its rules is intended to align the NACHA Rules with Regulation E. Originators obtaining oral authorizations for reoccurring transactions will have to ensure that the oral authorizations comply with Regulation E’s writing and signature requirements for preauthorized transfers. With respect to the question of what constitutes a “writing” that is “signed or similarly authenticated” by the consumer under Regulation E, the Commentary provides that Regulation E’s writing and signature requirements for preauthorized transfers can be satisfied by compliance with the Electronic Signatures in Global and National Commerce Act, which provides for legal equivalence of electronic records and electronic signatures with their physical counterparts. As a result, originators obtaining oral authorizations for reoccurring transactions will have to ensure that authorizations, including, for example, the use of a recorded telephone conversation, are in compliance with the E-Sign Act. Click here for the amendment to the NACHA Rules.

FRB Publishes Consumer Guide for Understanding Credit Report Notices

The FRB made available on its website a guide designed to help consumers better understand notices they may receive from lenders when credit reports or credit scores affect a decision to grant credit, including the new "risk-based pricing" notice requirement which took effect on January 1st. The guide describes the types of notices consumers may receive and provides links to sample notices. It also includes information about what consumers should do if they receive a notice, including instructions on how to dispute credit report errors. Click here for the guide.

FDIC Issues Rule Including IOLTAs in Temporary Unlimited Deposit Insurance Coverage for Noninterest-Bearing Transaction Accounts

The FDIC issued a final rule to include Interest on Lawyer Trust Accounts in the temporary unlimited deposit coverage for noninterest-bearing transaction accounts. The Dodd-Frank Wall Street Reform and Consumer Protection Act provides temporary, unlimited deposit insurance for all noninterest-bearing transaction accounts and this rule includes IOLTAs within the definition of a "noninterest-bearing transaction account." All funds held in IOLTA accounts, together with all other noninterest-bearing transaction account deposits, are fully insured, without limit, through December 31, 2012. Click here for the FDIC’s press release.