Bank of America, N.A.
Documents in this case
Case summary
On July 11, 2023, the Bureau issued an order against Bank of America, N.A., which is a national bank headquartered in Charlotte, North Carolina with branches and ATMs located in 38 states and the District of Columbia. When a consumer writes a check or authorizes an ACH transaction to a merchant or other payee using their deposit account at Bank of America, the merchant or other payee may then present that check or ACH authorization to the bank for payment. Until February 2022, if a consumer did not have sufficient funds in their account to pay for the transaction and the bank decided not to pay it, Bank of America assessed the consumer a $35 non-sufficient funds fee. Merchants commonly “re-present” these returned transactions—that is, they again try to receive payment—often multiple times. For many years, Bank of America assessed non-sufficient fund fees on ACH and check transactions that it returned unpaid even though it had already assessed a $35 fee for the same ACH or check transaction that it had previously returned unpaid (i.e., repeat non-sufficient fund fees). Bank of America would assess these repeat non-sufficient fund fees potentially as soon as the next day after the initial transaction. From September 2018 until February 2022, Bank of America generated hundreds of millions of dollars in such fees. The Bureau found that Bank of America’s assessment of repeat non-sufficient fund fees was unfair in violation of the Consumer Financial Protection Act of 2010. The Bureau’s order requires Bank of America to refund all repeat non-sufficient fund fees that it collected since September 2018 and has not yet refunded, totaling approximately $80.4 million in redress. The bank must also pay a $60 million civil penalty to the Bureau. The Office of the Comptroller of the Currency (OCC) concurrently issued an order against the Bank separately fining it $60 million.
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UNITED STATES OF AMERICA CONSUMER FINANCIAL PROTECTION BUREAU ADMINISTRATIVE PROCEEDING File No. 2023-CFPB-0006 In the Matter of:
CONSENT ORDER BANK OF AMERICA, N.A.
The Consumer Financial Protection Bureau (Bureau) has reviewed the practices of Bank of America, N.A. (Respondent or the Bank) related to assessing multiple non-sufficient funds fees (NSF Fees) on the same transaction and has identified the following law violation: the Bank committed unfair acts and practices when it charged consumers repeat NSF Fees on transactions resubmitted to the Bank for payment after they were initially declined (often referred to as “representing” transactions). Under §§ 1053 and 1055 of the Consumer Financial Protection Act of 2010 (CFPA), 12 U.S.C. §§ 5563, 5565, the Bureau issues this Consent Order (Consent Order).
2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 1 of 25
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I.
Overview 1.
Until 2021 and 2022, respectively, Respondent assessed consumers $35 NSF Fees each time the Respondent returned as unpaid a re-presented Automated Clearing House (ACH) transaction or check, despite already having charged consumers an NSF Fee on the initial returned transaction (Re-Presentment NSF Fees).
2.
Respondent ceased assessing these Re-Presentment NSF Fees on ACH transactions in November 2021 and ceased assessing them on checks, along with all other NSF Fees, in February 2022. The Bank’s efforts to reduce fees, including NSF Fees, has led to the Bank charging customers millions of dollars less in fees.
3.
From September 2018 until February 2022, Respondent generated hundreds of millions of dollars from its practice of charging multiple NSF Fees on represented checks or ACH transactions. These fees substantially harmed consumers.
4.
Consumers could not reasonably understand that they could be assessed a new $35 fee each time Respondent declined to pay the same ACH transaction or check. Even if some consumers did understand that Respondent assessed these fees, they still could not reasonably avoid them 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 2 of 25
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or otherwise protect their interests against incurring Re-Presentment NSF Fees.
II.
Jurisdiction 5.
The Bureau has jurisdiction over this matter under §§ 1053 and 1055 of the CFPA, 12 U.S.C. §§ 5563 and 5565.
III.
Stipulation 6.
Respondent has executed a “Stipulation and Consent to the Issuance of a Consent Order,” dated June 28, 2023 (Stipulation), which is incorporated by reference and is accepted by the Bureau. By this Stipulation, Respondent has consented to the issuance of this Consent Order by the Bureau under §§ 1053 and 1055 of the CFPA, 12 U.S.C. §§ 5563, 5565, without admitting or denying any of the findings of fact or conclusions of law, except that Respondent admits the facts necessary to establish the Bureau’s jurisdiction over Respondent and the subject matter of this action. IV.
Definitions 7.
The following definitions apply to this Consent Order: 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 3 of 25
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a.
“Affected Consumers” includes all consumers who were assessed any Re-Presentment NSF Fees between September 1, 2018 and February 18, 2022.
b.
“Board” means Respondent’s duly-elected and acting Board of Directors.
c.
“Effective Date” means the date on which the Consent Order is entered on the administrative docket.
d.
“NSF Fees” mean non-sufficient funds fees that Respondent assessed when it declined to pay or returned as unpaid any transaction. e.
“Regional Director” means the Regional Director for the Southeast Region for the Office of Supervision Examination for the Consumer Financial Protection Bureau, or his or her delegate. f.
“Related Consumer Action” means a private action by or on behalf of one or more consumers or an enforcement action by another governmental agency brought against Respondent based on substantially the same facts as described in Section V of this Consent Order.
g.
“Relevant Period” is September 1, 2018 until February 18, 2022. 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 4 of 25
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h.
“Re-Presentment NSF Fees” means an NSF Fee assessed to a consumer for the same check or ACH transaction that had been previously declined or returned unpaid and assessed an NSF Fee. i.
“Respondent” means Bank of America, N.A. and its successors and assigns.
j.
“Unreimbursed” means Re-Presentment NSF Fees assessed and collected by Respondent during the Relevant Period and not yet refunded in full to Affected Consumers. V.
Bureau Findings and Conclusions The Bureau finds the following:
8.
Respondent is a national bank headquartered in Charlotte, North Carolina. As of March 31, 2023, Respondent had $2.4 trillion in consolidated total assets.
9.
Respondent is a “covered person” under 12 U.S.C. § 5481(6). Respondent’s Re-Presentment NSF Fee Practices 10.
When a consumer writes a check or authorizes an ACH transaction to a merchant or other payee using their deposit account at Respondent, the merchant or other payee may then present that check or ACH authorization to Respondent for payment. If a consumer does not have sufficient funds in 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 5 of 25
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their account to pay for the transaction, Respondent must decide whether to pay the transaction.
11.
If Respondent does not pay the merchant or other payee when presented with a transaction for an account with insufficient funds, Respondent may— according to the terms of its deposit agreements in effect before February 2022—assess a $35 NSF Fee to the consumer.
12.
Some merchants “re-present” these returned transactions—that is, they again try to receive payment—often multiple times. Merchants can re-present an ACH transaction as an ACH transaction, re-present a check as a check, or represent a check as an ACH transaction.
13.
During the Relevant Period, Respondent assessed NSF Fees on ACH and check transactions that it returned unpaid even though it had already assessed a $35 NSF Fee for the same ACH or check transaction that it had previously returned unpaid (i.e., Re-Presentment NSF Fees). Respondent would assess these Re-Presentment NSF Fees potentially as soon as the next day after the initial transaction.
14.
From September 2018 until February 2022, Respondent generated hundreds of millions of dollars in Re-Presentment NSF Fees. 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 6 of 25
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15.
Respondent ceased assessing Re-Presentment NSF Fees on ACH transactions in November 2021 and ceased assessing them on checks, along with all other NSF Fees, in February 2022.
16.
Respondent has already waived, refunded, or agreed to refund approximately tens of millions of dollars in Re-Presentment NSF Fees that it assessed during the Relevant Period, and has charged off tens of millions of dollars more in Re-Presentment NSF Fees that it assessed during the Relevant Period but did not collect after it closed consumers’ accounts. Respondent’s Assessment of Re-Presentment NSF Fees During the Relevant Period Was Unfair 17.
Respondent had a policy of assessing Re-Presentment NSF Fees during the Relevant Period.
18.
Respondent’s policy of assessing Re-Presentment NSF Fees caused substantial injury because each fee cost $35. Consumers paid hundreds of millions of dollars in Re-Presentment NSF Fees during the Relevant Period. 19.
Consumers could not reasonably avoid the Re-Presentment NSF Fees assessed under Respondent’s policy. Whether or not consumers expected or understood that Respondent would charge a new $35 fee each time it returned the same transaction, they were not reasonably able to avoid the fee because they did not know when merchants would re-present transactions, which could occur as soon as the next day. Nor could consumers generally 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 7 of 25
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stop payments or revoke authorizations on transactions easily or in time, and by attempting to stop payment they would incur substantial additional costs, even if the stop payment was untimely or otherwise unsuccessful. Further, the amount that consumers owed increased with each subsequent NSF Fee, adding to the difficulty for some consumers of avoiding the injury caused by these fees.
20.
The substantial injury caused by Respondent’s policy of assessing Re- Presentment NSF Fees was not outweighed by countervailing benefits to consumers or competition. Charging Re-Presentment NSF Fees provided little to no benefit to consumers. Moreover, Re-Presentment NSF Fees serve no deterrent purposes relevant to the integrity of the financial system since consumers cannot reasonably avoid them.
21.
Respondent’s assessment of Re-Presentment NSF Fees constituted unfair acts or practices in violation of Sections 1031 and 1036 of the CFPA, 12 U.S.C. §§ 5531(a) and (c)(1), and 5536(a)(1)(B). 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 8 of 25
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CONDUCT PROVISIONS VI.
Prohibited Conduct IT IS ORDERED, under §§ 1053 and 1055 of the CFPA, that: 22.
Respondent and its officers, agents, servants, employees, and attorneys who have actual notice of this Consent Order, whether acting directly or indirectly, may not violate sections 1031 and 1036 of the CFPA, 12 U.S.C. §§ 5531 and 5536, and are prohibited from assessing Re-Presentment NSF Fees.
VII.
Role of the Board IT IS FURTHER ORDERED that:
23.
Respondent’s Board, or a committee thereof, will have the ultimate responsibility for proper and sound management of Respondent and for ensuring that Respondent complies with the laws that the Bureau enforces, including Federal consumer financial laws and this Consent Order. 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 9 of 25
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24.
Respondent’s Board, or a committee thereof, must review all plans and reports required by this Consent Order, and any submissions to the Bureau prior to such submission.
25.
One year after the Effective Date, Respondent must submit to the Regional Director an accurate written compliance progress report (Compliance Report) that has been approved by the Board, or a committee thereof, the accuracy of which is sworn to under penalty of perjury, and which, at a minimum:
a.
Describes the steps that Respondent has taken to reasonably assess whether Respondent is complying with the Redress Plan and each applicable paragraph and subparagraph of the Order; b.
Describes in detail whether and how Respondent has complied with the Redress Plan and each applicable paragraph and subparagraph of the Order, including the manner of verification of such compliance and any corrective actions taken to remedy potential non-compliance with the applicable requirement, paragraph, or subparagraph; and c.
Attaches a copy of each Order Acknowledgment obtained under Section XII, unless previously submitted to the Bureau. 26.
Respondent’s Board, or a committee thereof, must: 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 10 of 25
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a.
Authorize whatever actions are necessary for Respondent to assess whether Respondent is complying with the Redress Plan and each applicable paragraph and subparagraph of the Order; b.
Authorize whatever actions, including corrective actions, are necessary for Respondent to fully comply with the Redress Plan and each applicable paragraph and subparagraph of the Order; and c.
Require timely reporting by management to Respondent’s Board, or a committee thereof, on the status of compliance obligations. MONETARY PROVISIONS VIII.
Order to Pay Redress IT IS FURTHER ORDERED that:
27.
Respondent must redress all Affected Consumers for all Unreimbursed Re- Presentment NSF Fees, providing not less than $80,400,000 in total consumer redress.
28.
Respondent must reimburse Affected Consumers by direct deposit whenever feasible. Whenever direct deposit is not feasible, Respondent must reimburse Affected Consumers by paper check.
29.
Within 90 days of the Effective Date, Respondent must submit to the Regional Director for review and non-objection a comprehensive written 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 11 of 25
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plan for providing redress consistent with this Consent Order (Redress Plan). The Regional Director will have the discretion to make a determination of non-objection to the Redress Plan or direct Respondent to revise it. If the Regional Director directs Respondent to revise the Redress Plan, Respondent must revise and resubmit the Redress Plan to the Regional Director within 30 days. After receiving notification that the Regional Director has made a determination of non-objection to the Redress Plan, Respondent must implement and adhere to the steps, recommendations, deadlines, and timeframes outlined in the Redress Plan. 30.
The Redress Plan must:
a.
Describe the methodology Respondent proposes to use to identify Affected Consumers and the amount of redress to be provided to each Affected Consumer;
b.
Identify the amount of redress that would be provided to each Affected Consumer under the methodology described in subsection (a);
c.
Describe how Respondent proposes to remediate Affected Consumers, including how Respondent proposes to identify current mailing addresses for Affected Consumers for whom redress by direct deposit is not feasible, which must include reasonable efforts to identify 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 12 of 25
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current addresses prior to mailing redress checks and once any redress checks are returned as undeliverable;
d.
Specify that Respondent will provide a notification explaining that Respondent’s redress payment is in accordance with the terms of this Consent Order and provide an exemplar of this notification; and e.
In the event that redress to Affected Consumers is less than the amount identified in Paragraph 27, specify a method for providing alternative consumer redress to satisfy Respondent’s obligations to pay the redress amount identified in Paragraph 27. 31.
Respondent must provide the redress and notification described in this section within 60 days of the Regional Director’s non-objection to the Redress Plan.
32.
Within 30 days of the completion of the Redress Plan, if the amount of redress provided to consumers is less than the redress amount identified in Paragraph 27, Respondent must pay to the Bureau, by wire transfer to the Bureau or to the Bureau’s agent, and according to the Bureau’s wiring instructions, the difference between the amount of redress provided to consumers and the amount of redress identified in Paragraph 27. 33.
The Bureau may use these remaining funds to pay additional redress to Affected Consumers. If the Bureau determines, in its sole discretion, that 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 13 of 25
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additional redress is wholly or partially impracticable or otherwise inappropriate, or if funds remain after the additional redress is completed, the Bureau will deposit any remaining funds in the U.S. Treasury. Respondent will have no right to challenge any actions that the Bureau or its representatives may take under this Section. 34.
Respondent may not condition the payment of any redress to any Affected Consumer under this Consent Order on that Affected Consumer waiving any right.
IX.
Order to Pay Civil Money Penalty IT IS FURTHER ORDERED that:
35.
Under § 1055(c) of the CFPA, 12 U.S.C. § 5565(c), by reason of the violations of law described in Section V of this Consent Order, Respondent must pay a civil money penalty of $60,000,000 to the Bureau. 36.
Within 10 days of the Effective Date, Respondent must pay the civil money penalty by wire transfer to the Bureau or to the Bureau’s agent in compliance with the Bureau’s wiring instructions. 37.
The civil money penalty paid under this Consent Order will be deposited in the Civil Penalty Fund of the Bureau as required by § 1017(d) of the CFPA, 12 U.S.C. § 5497(d).
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38.
Respondent, for all purposes, must treat the civil money penalty paid under this Consent Order as a penalty paid to the government. Regardless of how the Bureau ultimately uses those funds, Respondent may not: a.
Claim, assert, or apply for a tax deduction, tax credit, or any other tax benefit for any civil money penalty paid under this Consent Order; or b.
Seek or accept, directly or indirectly, reimbursement or indemnification from any source, including but not limited to payment made under any insurance policy, with regard to any civil money penalty paid under this Consent Order.
39.
To preserve the deterrent effect of the civil money penalty in any Related Consumer Action, Respondent may not argue that Respondent is entitled to, nor may Respondent benefit by, any offset or reduction of any compensatory monetary remedies imposed in the Related Consumer Action because of the civil money penalty paid in this action or because of any payment that the Bureau makes from the Civil Penalty Fund. If the court in any Related Consumer Action offsets or otherwise reduces the amount of compensatory monetary remedies imposed against Respondent based on the civil money penalty paid in this action or based on any payment that the Bureau makes from the Civil Penalty Fund, Respondent must, within 30 days after entry of a final order granting such offset or reduction, notify the Bureau, and pay the 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 15 of 25
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amount of the offset or reduction to the U.S. Treasury. Such a payment will not be considered an additional civil money penalty and will not change the amount of the civil money penalty imposed in this action. X.
Additional Monetary Provisions IT IS FURTHER ORDERED that:
40.
In the event of any default on Respondent’s obligations to make payment under this Consent Order, interest, computed under 28 U.S.C. § 1961, as amended, will accrue on any outstanding amounts not paid from the date of default to the date of payment, and will immediately become due and payable.
41.
Respondent must relinquish all dominion, control, and title to the funds paid to the fullest extent permitted by law and no part of the funds may be returned to Respondent.
42.
Respondent acknowledges that its Taxpayer Identification Number, which Respondent previously submitted to the Bureau, may be used for collecting and reporting on any delinquent amount arising out of this Order, in accordance with 31 U.S.C. § 7701.
43.
Within 30 days of the entry of a final judgment, consent order, or settlement in a Related Consumer Action, Respondent must notify the Regional 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 16 of 25
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Director of the final judgment, consent order, or settlement in writing. That notification must indicate the amount of redress, if any, that Respondent paid or is required to pay to consumers and describe the consumers or classes of consumers to whom that redress has been or will be paid. COMPLIANCE PROVISIONS XI.
Reporting Requirements IT IS FURTHER ORDERED that:
44.
Respondent must notify the Bureau of any development that may affect compliance obligations arising under this Consent Order, including but not limited to a dissolution, assignment, sale, merger, or other action that would result in the emergence of a successor company; the creation or dissolution of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this Consent Order; the filing of any bankruptcy or insolvency proceeding by or against Respondent; or a change in Respondent’s name or address. Respondent must provide this notice, if practicable, at least 30 days before the development, but in any case no later than 14 days after the development.
45.
Within 7 days of the Effective Date, Respondent must: 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 17 of 25
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a.
Designate at least one telephone number and email, physical, and postal addresses as points of contact that the Bureau may use to communicate with Respondent; and b.
Designate at least one telephone number and email, physical, and postal addresses as points of contact for consumers with inquiries related to consumer relief under the Consent Order. 46.
Respondent must report any change in the information required to be submitted under Paragraph 44 at least 30 days before the change or as soon as practicable after learning about the change, whichever is sooner. XII.
Order Distribution and Acknowledgment IT IS FURTHER ORDERED that:
47.
Within 7 days of the Effective Date, Respondent must submit to the Regional Director an acknowledgment of receipt of this Consent Order, sworn under penalty of perjury.
48.
Within 30 days of the Effective Date, Respondent must deliver a copy of this Consent Order to each of its Board members and senior executive officers, as well as to any business leaders and managers who have responsibilities related to the subject matter of the Consent Order. 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 18 of 25
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49.
For 5 years from the Effective Date, Respondent must deliver a copy of this Consent Order to any business entity resulting from any change in structure referred to in Section XI, any future Board members and senior executive officers, as well as to any business leaders and managers who will have responsibilities related to the subject matter of the Consent Order within 10 days of assuming their responsibilities.
50.
Respondent must secure a signed and dated statement acknowledging receipt of a copy of this Consent Order, within 45 days of delivery, from all persons receiving a copy of this Consent Order under this Section. 51.
Ninety days from the Effective Date, Respondent must submit to the Bureau a list of all persons and their titles to whom this Consent Order has been delivered under the Section of this Order titled “Order Distribution and Acknowledgment” and a copy of all signed and dated statements acknowledging receipt of this Consent Order under Paragraph 50. XIII.
Recordkeeping IT IS FURTHER ORDERED that:
52.
Respondent must create and retain the following business records: a.
All documents and records necessary to demonstrate full compliance with each provision of this Consent Order, including all submissions 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 19 of 25
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to the Bureau; and b.
All documents and records pertaining to the requirements of this Consent Order.
53.
Respondent must make the documents identified in Paragraph 52 available to the Bureau upon the Bureau’s request.
XIV.
Notices IT IS FURTHER ORDERED that:
54.
Unless otherwise directed in writing by the Bureau, Respondent must provide all submissions, requests, communications, or other documents relating to this Consent Order in writing, with the subject line, “In re Bank of America, N.A., File No. 2023-CFPB-0006,” and send them to the following email [email protected] addressed as follows: ATTN: Regional Director, Bureau Southeast Region Consumer Financial Protection Bureau XV.
Compliance Monitoring IT IS FURTHER ORDERED that:
55.
Within 14 days of receipt of a written request from the Bureau, Respondent must submit additional Compliance Reports or other requested information, 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 20 of 25
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which must be made under penalty of perjury; provide sworn testimony; or produce documents.
56.
Respondent must permit Bureau representatives to interview any employee or other person affiliated with Respondent who has agreed to such an interview regarding: (a) this matter; (b) anything related to or associated with the conduct described in Section V; or (c) compliance with the Consent Order. The person interviewed may have counsel present. 57.
Nothing in this Consent Order will limit the Bureau’s lawful use of civil investigative demands under 12 C.F.R. § 1080.6 or other compulsory process.
XVI.
Modifications to Non-Material Requirements IT IS FURTHER ORDERED that:
58.
Respondent may seek a modification to non-material requirements of this Consent Order (e.g., reasonable extensions of time and changes to reporting requirements) by submitting a written request to the Regional Director. 59.
The Regional Director may, in his or her discretion, modify any nonmaterial requirements of this Consent Order (e.g., reasonable extensions of time and changes to reporting requirements) if he or she determines good 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 21 of 25
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cause justifies the modification. Any such modification by the Regional Director must be in writing.
ADMINISTRATIVE PROVISIONS XVII.
IT IS FURTHER ORDERED that:
60.
The provisions of this Consent Order do not bar, estop, or otherwise prevent the Bureau from taking any other action against Respondent, except as described in Paragraph 61. Further, for the avoidance of doubt, the provisions of this Consent Order do not bar, estop, or otherwise prevent any other person or governmental agency from taking any action against Respondent.
61.
The Bureau releases and discharges Respondent from all potential liability for law violations that the Bureau has or might have asserted based on the practices described in Section V of this Consent Order, to the extent such practices occurred before the Effective Date and the Bureau knows about them as of the Effective Date. The Bureau may use the practices described in this Consent Order in future enforcement actions against Respondent and its affiliates, including, without limitation, to establish a pattern or practice of violations or the continuation of a pattern or practice of violations or to calculate the amount of any penalty. This release does not preclude or affect 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 22 of 25
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any right of the Bureau to determine and ensure compliance with the Consent Order, or to seek penalties for any violations of the Consent Order. 62.
This Consent Order is intended to be, and will be construed as, a final Consent Order issued under § 1053 of the CFPA, 12 U.S.C. § 5563, and expressly does not form, and may not be construed to form, a contract binding the Bureau or the United States.
63.
This Consent Order will terminate on the later of 5 years from the Effective Date or 5 years from the most recent date that the Bureau initiates an action alleging any violation of the Consent Order by Respondent, if such action is initiated within 5 years of the Effective Date. If such action is dismissed or the relevant adjudicative body rules that Respondent did not violate any provision of the Consent Order, and the dismissal or ruling is either not appealed or upheld on appeal, then the Consent Order will terminate as though the action had never been filed. The Consent Order will remain effective and enforceable until such time, except to the extent that any provisions of this Consent Order have been amended, suspended, waived, or terminated in writing by the Bureau or its designated agent. 64.
Calculation of time limitations will run from the Effective Date and be based on calendar days, unless otherwise noted. Deadlines that fall on a weekend or federal holiday shall carry over to the following business day. 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 23 of 25
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65.
Should Respondent seek to transfer or assign all or part of its operations that are subject to this Consent Order, Respondent must, as a condition of sale, obtain the written agreement of the transferee or assignee to comply with all applicable provisions of this Consent Order. 66.
The provisions of this Consent Order will be enforceable by the Bureau. For any violation of this Consent Order, the Bureau may impose the maximum amount of civil money penalties allowed under §1055(c) of the CFPA, 12 U.S.C. § 5565(c). In connection with any attempt by the Bureau to enforce this Consent Order in federal district court, the Bureau may serve Respondent wherever Respondent may be found and Respondent may not contest that court’s personal jurisdiction over Respondent. 67.
This Consent Order and the accompanying Stipulation contain the complete agreement between the parties. The parties have made no promises, representations, or warranties other than what is contained in this Consent Order and the accompanying Stipulation. This Consent Order and the accompanying Stipulation supersede any prior oral or written communications, discussions, or understandings. 68.
Nothing in this Consent Order or the accompanying Stipulation may be construed as allowing Respondent, its Board, its Executives, officers, or employees to violate any law, rule, or regulation. 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 24 of 25
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IT IS SO ORDERED, this 10 th day of July, 2023. ____________________________ Rohit Chopra Director Consumer Financial Protection Bureau t 1 2023-CFPB-0006 Document 1 Filed 07/11/2023 Page 25 of 25
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- UNITED STATES OF AMERICA CONSUMER FINANCIAL PROTECTION BUREAU File No. 2023-CFPB-0006 In the matter of:
BANK OF AMERICA, N .A.
STIPULATION AND CONSENT TO THE ISSUANCE OF A CONSENT ORDER The Consumer Financial Protection Bureau (Bureau) intends to initiate an administrative proceeding against Bank of America, N.A. (Respondent), under 12 U.S.C. §§ 5563 and 5565, for its assessment of Re-Presentment NSF Fees in violation of the CFPA's prohibition on unfair acts or practices, 12 U.S.C. §§ 5531, 5536.
Respondent, in the interest of compliance and resolution of the matter, and without admitting or denying any wrongdoing, consents to the issuance of a Consent Order substantially in the form of the one to which this Stipulation and Consent to the Issuance of a Consent Order is attached (Consent Order), and which is incorporated by reference.
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In consideration of the above premises, Respondent agrees to the following: Jurisdiction 1.
The Bureau has jurisdiction over this matter under§§ 1053 and 1055 of the Consumer Financial Protection Act of 2010 (CFPA), 12 U.S.C. §§ 5563, 5565.
Consent 2.
Respondent agrees to the issuance of the Consent Order, without admitting or denying any of the findings of fact or conclusions of law, except that Respondent admits the facts necessary to establish the Bureau's jurisdiction over Respondent and the subject matter of this action. 3.
Respondent agrees that the Consent Order will be deemed an "order issued with the consent of the person concerned" under 12 U.S.C. § 5563(b)(4) and agrees that the Consent Order will become a final order, effective upon its entry on the administrative docket, and will be fully enforceable by the Bureau under 12 U.S.C. §§ 5563(d)(l) and 5565. 4.
Respondent voluntarily enters into this Stipulation and Consent to the Issuance of a Consent Order (Stipulation).
5.
The Consent Order resolves only Respondent's potential liability for law violations that the Bureau asserted or might have asserted based on the practices described in Section V of the Consent Order, to the extent such 2023-CFPB-0006 Document 2 Filed 07/11/2023 Page 2 of 5
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practices occurred before the Effective Date and the Bureau knows about them as of the Effective Date. Respondent acknowledges that no promise or representation has been made by the Bureau or any employee, agent, or representative of the Bureau, about any liability outside of this action that may have arisen or may arise from the facts underlying this action or immunity from any such liability.
6.
Respondent agrees that the facts described in Section V of the Consent Order will be taken as true and be given collateral estoppel effect, without further proof, in any proceeding before the Bureau to enforce the Consent Order, or in any subsequent civil litigation by the Bureau to enforce the Consent Order or its rights to any payment or monetary judgment under the Consent Order.
7.
The terms and provisions of this Stipulation and the Consent Order will be binding upon, and inure to the benefit of, the parties hereto and their successors in interest.
8.
Respondent agrees that the Bureau may present the Consent Order to the Bureau Director for signature and entry without further notice. 2023-CFPB-0006 Document 2 Filed 07/11/2023 Page 3 of 5
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Waivers 9.
Respondent, by consenting to this Stipulation, waives: a.
Any right to service of the Consent Order, and agrees that entry of the Consent Order on the administrative docket will constitute notice to Respondent of its terms and conditions;
b.
Any objection to the jurisdiction of the Bureau, including, without limitation, under section 1053 of the CFPA, 12 U.S.C. § 5563; c.
The rights to all hearings under the statutory provisions under which the proceeding is to be or has been instituted; the filing of proposed findings of fact and conclusions of law; proceedings before, and a recommended decision by, a hearing officer; all post-hearing procedures; and any other procedural right available under section 1053 of the CFPA, 12 U.S.C. § 5563, or 12 CFR Part 1081; d.
The right to seek any administrative or judicial review of the Consent Order;
e.
Any claim for fees, costs or expenses against the Bureau, or any of its agents or employees, and any other governmental entity, related in any way to this enforcement matter or the Consent Order, whether arising under common law or under the terms of any statute, including, but not limited to the Equal Access to Justice Act and the 2023-CFPB-0006 Document 2 Filed 07/11/2023 Page 4 of 5
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Small Business Regulatory Enforcement Fairness Act of 1996; for these purposes, Respondent agrees that Respondent is not the prevailing party in this action because the parties have reached a good faith settlement;
f.
Any other right to challenge or contest the validity of the Consent Order;
g.
Such provisions of the Bureau's rules or other requirements of law as may be construed to prevent any Bureau employee from participating in the preparation of, or advising the Director as to, any order, opinion, finding of fact, or conclusion of law to be entered in connection with this Stipulation or the Consent Order; and h.
Any right to claim bias or prejudgment by the Director based on the consideration of or discussions concerning settlement of all or any part of the proceeding.
BANK OF AMERICA, N.A.
BY:
Holly O'Neill Managing Director; President, Retail Banking Consumer & Small Business June 28, 2023 2023-CFPB-0006 Document 2 Filed 07/11/2023 Page 5 of 5