February 2012 Legal Briefs

• The Bureau of Consumer Financial Protection has a Director and the republishing of rules has begun. At the present time, the only major "new" language is in the CFPB’s new Reg E amendments on foreign remittances transfers. Since those don’t take effect until 2013, we will write about them in a future issue. For now, we want to share a selection of questions and answers from the compliance team that cover a broad spectrum of problem areas.

• FAQs

FAQs

 

Q: In the “old” days, when we received return items, we would re-run them without first charging them back. In later years, we were told by examiners that we must dispose of each return item daily by posting it or charging it back. The charge back item could then be re-deposited. This was in order to allow the proper dates of presentment and reasons for return. Is anyone supposed to be re-running items anymore?
A: The issue has to do with the requirements of Reg CC 229.33: 
(d) Notification to customer. If the depositary bank receives a returned check or notice of nonpayment, it shall send or give notice to its customer of the facts by midnight of the banking day following the banking day on which it received the returned check or notice, or within a longer reasonable time.

The reason for this is in order to give him the opportunity to make the decision to re-run the item or turn it over to the DA as a bogus check or otherwise proceed against the drawer. If your customer is a business, it may refuse subsequent dealings if it knows a check from their customer has been returned.

Q:  Our bank charges a $25 closing account fee when an account is closed within the first 90 days after the account is open. This fee is disclosed on our schedule of fees and charges. Do we disclose this on the Truth in Savings disclosure at account opening or would this need to be disclosed on some other disclosure? Are we allowed to place an internal hold on $25 when an account is opened which will then been released once the account has been opened 90 days?
A:  You do have to disclose the account closing fee in your TIS disclosures if it is a consumer account. Even if it is not a consumer account, Reg CC will not allow you to place a "hold" on $25.00 to make sure you get that fee. The only way I can see to actually accomplish that is to impose an account opening charge of $25 for all new customers (I doubt that you want to impose this on existing customers), and then refund it after 90 days.

Q: I have confused myself on Reg CC and the New Account Exception. We have a new account hold with the deposit amount of $37,585.44. We give the $200 next day availability, but do we also give them $5,000.00 next day availability?

A:  At this point, the new account hold for checks was not changed by DFA’s increase to $200 next day availability although there are proposed rules that would affect it if and when finalized. What kind of check did the customer deposit? If the check is a US Treasury Check deposited into the account of the named payee, then my answer is $5000 is available the next business day and the remainder is available on the 9th business day. If it is a U.S. Postal MO, FRB or FHLB Check, State or Local Government Check or Cashier’s, Certified or Teller Check or a Traveler’s Check, deposited to the account of the named payee in person, then again $5,000 available the next business day, remainder on the 9th business day. (In each case it is plus the first $200.)  If it is any other kind of check, even an on-us item, there is no maximum new account hold period.
Q: How long do we have to retain a copy of the Notice of Funds Held that we send customers when we place a hold on their deposit?

A:  Reg CC 229.21 (g) Record retention. (1) A bank shall retain evidence of compliance with the requirements imposed by this subpart for not less than two years. Records may be stored by use of microfiche, microfilm, magnetic tape, or other methods capable of accurately retaining and reproducing information.  (2) If a bank has actual notice that it is being investigated, or is subject to an enforcement proceeding by an agency charged with monitoring that bank’s compliance with the EFA Act and this subpart, or has been served with notice of an action filed under this section, it shall retain the records pertaining to the action or proceeding pending final disposition of the matter, unless an earlier time is allowed by order of the agency or court.

Q:  In a recent audit, our auditor made note that the bank should include check order fees in our fee disclosure as per Reg DD. I do not see where check order fees are required to be disclosed. I don’t see that it falls into any of the examples Reg DD gives in the commentary. Am I missing something?

A:  It is kind of round about how you reach this conclusion, but here goes:   Check printing fees are required to be disclosed under to 203.4 because of the Official Commentary contained in 203.5 that excludes them from subsequent disclosure if the amount increases, and the Official Commentary to 203.8 which excludes fees not required to be disclosed under 203.4(b)(4) AND check printing fees from account service and maintenance charges with regard to advertising "free accounts." If check printing charges are not fees excluded from disclosure under 203.4, then notice of increase would be required under 203.5 but for the Commentary and would not need a separate exemption from being an account service and maintenance fee under 203.8.

Q:  If we raise our NSF fees, must we give 30 days’ advanced notice to customers?
A:  Take a look at the subsequent disclosure requirements in Reg DD 230.5. It requires 30 days’ notice of change for items disclosed under 230.4(b) which includes fees.

Q:  We show on our ATM Receipts an available balance that includes an overdraft limit if the customer has one. Our ATM vendor has told us we can have added to the receipt wording that says “the available balance shown includes yours assigned overdraft limit.” We were wondering if this was sufficient, or if we had to go through the process of including fees, and all of the other necessary information required for advertising? The balance does not appear on the screen, only on a printed receipt.

A:  Section 230.11(b) of Regulation DD, Truth in Savings, has a requirement that four pieces of information be provided when a bank promotes the payment of overdrafts by providing
a "padded" balance — a balance including overdraft coverage amounts. However, doing so on a printed ATM receipt is an exception, and you don’t need to add anything to the verbiage on the slip.
However, you can’t celebrate a "win" here. The next section of the regulation, §230.11(c), clearly says that if you provide a balance via an automated system (read:   at an ATM), that balance must not include funds not in the account that might be used to cover an overdraft. Then you can add a second balance (which may be what you have on your receipts) that includes the "pad" amount, but that balance must be clearly labeled to indicate it includes overdraft funds.
So, if you now show two balances on the receipt, one of which is the account balance and the other of which is the "padded" balance, and if you add wording to label the padded balance as including overdraft funds, that’s all you really need to do. There’s no need to add info about fees for overdrafts, etc., which you would have to add if the balances were displayed on the screen.
Q:  Now that we can pay interest on Commercial checking accounts I have a question. We setup a Super NOW Commercial account with higher fees. Hoping that no business will set one of these accounts up. In our regular Super NOW category we have about 23 accounts that are business accounts. We are not going to open any business accounts under this category.
Can we leave the 23 regular Super Now accounts where they are or will the examiners make us move these to Super NOW Commercial accounts?

A:  The term "Super NOW" doesn’t really mean anything to me. You have to define what you mean by that term. Are the 23 regular super NOW accounts true NOW accounts which you have reserved the right to require at least seven days’ written notice prior to withdrawal or transfer but may be accessed by unlimited numbers of check, negotiable order of withdrawal, share draft, or other similar items? Or are they Money Market Deposit Accounts (MMDAs) subject to transfer limits (6 per month, etc.)?

The eligibility requirements for NOW accounts have not changed. Businesses (other than sole proprietorships, non-profits, government agencies, etc.) cannot hold NOW accounts.

Those businesses that are NOT eligible were formerly not eligible for NOW accounts are still ineligible. However, they may, earn interest on a demand deposit account (as of 7/21/11).

You currently have business accounts set up in what you call regular Super NOW accounts, and you’ve set up a different Super NOW Business account where you will put all future business checking-with-interest accounts. As long as you the accounts are classified on your call report correctly by type, I don’t see a problem.

Q: We have always paid overdrafts on a discretionary, "ad-hoc" basis. We have not marketed any type of overdraft program with an overdraft limit that applies to their account, but in an effort to try to keep from losing overdraft fees from pre-authorized ATM & one-time debit card transactions (that the bank has to pay regardless of the customer’s balance at the time the items hit the account) we offer "courtesy pay" to customers (consumers) who choose to opt-in to being charged overdraft fees from these transactions.

We have found out that the automated "courtesy pay" that we set up for our Reg E opt-in customers for paying the ATM & one-time debit card transactions that overdraw their account is also paying their checks, ACH, etc. that overdraw their account also. Our system is not able to tell the difference in the type of transactions to pay. Is this going to get us into trouble with examiners?

A: I am guessing that you sent out the A-9 for the customers to opt-in in order to allow the bank to charge for fees for one time POS and ATM being paid into overdraft. The problem here is, in order to have something to opt into, you must have an overdraft program. Approval of overdrafts on an ad hoc basis does not give the customer an overdraft service as defined by Reg E.

Since the bank will have to pay pre-approved one time debit and ATM transactions whether or not the customer “opts-in, this is arguably an unfair and deceptive practice, and implies that those who “opt-in” have a “padded” balance of an overdraft service when one does not exist. It is possible the regulators will require you to refund any fees charged for one time POS and ATM to those who opted-in.

Q: After reading the FAQ from FDIC, I understand that an “An “occasion” occurs each time an overdraft transaction generates a fee.”  We have an Overdraft Program, but we also review items daily on an Ad Hoc Basis for customers who do not have overdraft protection.
We were told that a Returned Item where a fee is charged is not considered an Occasion and should not be counted against the 6? So if the customer is over their limit or if they do not have protection and we return the item we can charge without limitation and it does not have to be counted under an “Occasion”?

A: If you operate both an automated and an ad hoc overdraft program, you can have a separate procedure for the ad hoc program that does not involve the counting of "occasions" and counseling follow-up, as long as you address the portions of the Guidance that the FDIC will apply to both types of programs (risk management and the order of posting concerns). A fee assessed for the return of an item unpaid is not an Overdraft Fee and does not create an "occasion" for the purposes of the Guidance.

Q:  Is it permissible to include a notice with each OD notice pertaining to counseling instead of after the 6th occurrence? We are ad hoc and our computer system only monitors the number of charges if we have ODP. In that case, the system would automatically issue a notice after the 6th occurrence. However, those fields do not populate if you are ad hoc, and therefore won’t send a notice. We were trying to figure a way to monitor the number of times and felt it much easier to put a notice in each one. What are your thoughts?

A: I’m not really certain what you’re trying to accomplish. If your bank does "ad hoc" overdraft decision making, the FDIC’s guidance does not anticipate that you’d have to follow the "6 occasions in 12 rolling months" follow-up expectation. If your bank wants to provide consumers with information on counseling with their overdraft notices, you can do so as far as I can see. I can only offer one thought — If you’re trying to grab the customer’s attention, the notice ought to be something special (infrequent), rather than something that routinely appears with every OD notice the customer gets. I think you might have good intentions, but might be wasting the effort and expense if the notices just become the equivalent of background noise — there, but unnoticed.

Q:  I’m still just a tad confused. So the FDIC guidance that went into effect in July –expecting a bank to place a limit on the amount or number of ODs paid on a customer, requiring counseling for excessive OD use, suggesting (strongly) that a bank establish a de minimis OD amount, etc. – would any of this apply to a sole proprietorship/DBA? Or can we continue doing whatever we have been in regards to these accounts (paying and charging for as many ODs as we want) and just implement the new “restrictions” for true consumer accounts?
A: A sole proprietorship account is a business account and is not subject to most of the consumer protections afforded by Reg DD, Reg E, and Reg CC (Check 21 recredit), so the OD Payment Supervisory Guidance does not apply because it is a business entity. The type of account doesn’t matter. Just because a long time ago the regulators decided that sole proprietorships could have NOW accounts despite being businesses on the basis that they were also used for consumer transactions doesn’t matter. You can charge sole proprietorship accounts overdraft fees for all debit transactions without an "opt-in," have no requirement for rapid recredit under Check 21, etc. even if the account is being used for consumer transactions.

Q: If we do not open a checking account for a potential customer based on information obtained from Chexsystems, are we required to give them anything?

A:  If you deny a product or service based on third party information such as this an adverse action notice is required. This is similar to what you do for loan denials, but it is different. Loan applicants get an adverse action under both Reg B and Reg V, the latter being the FCRA. The FCRA rules are what apply here. QualiFile has said that they are subject to these rules. In my experience they will provide you with the forms to give account denials. It is less detailed than you are accustomed to for loans as the reasons
(cited for Reg B, not FCRA) aren’t there. But it does provide the consumer with info on what happened, why and how to review it if they want or suspect an error. You’ll need to incorporate these FCRA notices into training, procedures and audits to best document your procedures.

Q: We currently DO NOT have a separate agreement for business debit cards and are researching implementing a program. Could you assist me in forming the best possible agreement as to reduce the liability of the bank as much as possible but to still abide by any rules that may apply?

A:  Reg E and Reg DD do not apply to commercial customers even if used for consumer purposes. Reg B will apply with regard to adverse action plus FCRA/FACTA if consumer credit reports are pulled on guarantors of the business cards. The UCCC does not apply to commercial credit cards.

Q: Question 1 – When opening a new account do we have to have a new account application that the customer signs?  So many banking computer programs do not have applications for the customer. Everything is prefilled by the bank employee and all documents printed at the end of the transaction. Therefore the customer is only signing the signature card, which discloses all of the regulatory forms that they are receiving.
Question 2 – To pull “Chexsystems” on a customer, do they have to have a signed form?  Not a credit check just the Chexsystems or some banks are doing Telecheck.

A:  1)  No, there is no requirement that the customer sign a new account application under the circumstances you indicate. 2) No, you do not need permission to pull Chexsystems, you simply have to have a permissible purpose under the FCRA. P.S.  Such reports ARE credit reports.

Q: Do the prohibitions regarding to Mortgage Loan Originators Compensation apply to interim constructions loans for a dwelling where the loan is in the name of the consumer?

A:  Yes, the provisions apply to construction loans.

Q: When you were talking about loan officer compensation you mentioned that paying every staff member the same amount in a bonus could be a Reg Z violation. Would it be a violation of any kind to give every employee a Christmas gift? We’re thinking maybe one month’s salary for everyone. Please say it’s completely legal.

A:  As long as the bonus amount isn’t tied to bank profitability (and therefore indirectly tied to loan rates and terms), it should be permissible. I keep going back and forth on what might be required as far as the steering rules.
Q:  We pay our LOs on salary basis and not upon the loan’s rate or percentages. We have a statement in our loan policy that we comply. It appears that the steering rules do not apply to us.

Our secondary market vendor is not requiring us to have anything signed since we pay salaried compensation. Our in-house loan software has a form that has started printing with the loan documents that states the following: 
 
I have been presented with loan options for each of the types of loans that I have expressed interest in, for which my loan originator has determined that I would likely qualify. Except as set forth below, I acknowledge I was presented with these loan options: 
1.  A loan option with the lowest interest rate;
2. A loan option with the lowest interest rate without negative amortization, a prepayment penalty, interest-only payments, a balloon payment in the first 7 years of the life of the loan, a demand feature, shared equity, or shared appreciation; or in the case of a reverse mortgage, a loan without a prepayment penalty, or shared equity or shared appreciation; and
3. A loan option with the lowest total dollar amount for origination points or fees and discount points.
I also acknowledge that I may have been presented with fewer than three loan options if the fewer than three loan options presented: 
1. Included all of the above listed loan features; or
2. My loan originator determined in good faith that I would not likely qualify for all three loan options and presented me with the loan options for which I likely qualify.
By signing below, I acknowledge that I have been provided the above information and understand the other available options for this loan.
 
I guess what I am asking is if we need to have the above acknowledgement signed, does it really fit our situation the way it is worded and if we do, would we need to give a list of loans we offer as stated above by an FDIC Examiner? 

Q:  If your mortgage loan originators are paid a flat salary that is not connected to a loan’s terms in any way, I agree that the anti-steering rule at §226.36(e) is a non-issue and that form would not be required by Reg Z.
 
The comments by the FDIC examiner concern potential fair lending problems if applicants are steered toward particular loan products on a prohibited basis. That is quite separate, however, from the Regulation Z rule. Providing all applicants with a full "menu" of offerings
and ensuring that each applicant is given a choice of all offerings for which the applicant is qualified and which fit the applicant’s needs is a way to mitigate the risk of a fair lending steering allegation.
 
The acknowledgment form is not a Reg Z anti-steering issue, of course. But it could be documentation of an effort to avoid fair lending steering. Of course, any such documentation provides at best, rebuttable evidence of compliance.

Q:  I need an answer regarding the anti-steering provisions of Reg Z. If our bank provided a long-term mortgage product (30-yr fixed rate, secondary market loan), and we also typically do in-house 3-yr balloon mortgages amortized over 15 years, do we have to provide a loan quote for the LTM product?      Also, when we quote the LTM product, if someone is qualified at one rate with no points, do we also have to quote the lower rate with a half point origination, or a still lower rate with a full point origination?  This assumes they are qualified for all of these products.

A:  You only provide info on the LTM if the customer expresses an interest in that kind of long term financing. The anti-steering provisions only come into play if the LO will receive greater compensation for the loan the consumer is bring steered to. If that is the case, then the three options (lowest rate, lowest rate without bad stuff, etc.) that the consumer is likely to qualify for must be presented.
 
Q: The question regards compensation. The mortgage company is offering to pay us fixed rent for several of our locations. Additionally, they have offered to share in joint marketing costs based on their part of any ads or signage. We would like to receive a small percentage based on dollar volume of loans closed for compensation to us to help fund our referral program and to generate some revenue. It does not appear we can do this according to information I received from the Fed attached above. To me, this is asinine. We are not dictating rates and we are willing to disclose all fees paid to all parties.
 
Am I being told good information with the above?
 
For some background, we have a relationship with a 3rd party investment rep who leases space from us at four of our centers. That lease payment is based on his on the fees from the assets he manages as a percent of those fees. That would be my dream, but it appears RESPA precludes that?
I keep going back and forth on what might be required as far as the steering rules. We pay our LOs on salary basis and not upon the loan’s rate or percentages. We have a statement in our loan policy that we comply.
 A: The information you have is good. Renting office space out is fine, but it cannot be out of market amounts, and collecting fees for referrals is a kickback (read that to be illegal). You do not want to either collect excessive rents or fees for the referrals. Likewise, low rents meant to influence the lender to make more of your loans is also problematic.

RESPA allows fines and imprisonment in its enforcement possibilities. The terms of the loans are moot. What matters is that work is performed for fees paid, and each must be reasonable. RESPA has long held to that standard.

Mutual advertising is fine so long as each party pays their proportional share.

Q: I have a question about our service Provider list. RESPA states that if the borrower chooses someone not on the Service Provider list that the service charges go in the Charges that can change section instead of the 10% section.
 
Does this include Owner’s title service as well as lender’s title insurance? Would our service Provider list cover the owner’s title?  We don’t know if our Service Provider list covers both Lender’s Title and Owner’s Title.

A: If you don’t know whether your listed providers issue both policies, how are you estimating the cost of the owner’s policy?  Why would you list providers that don’t provide both types of policies since under Oklahoma law, you have to provide the Notice of Title Protection at application if the lender is obtaining a policy?  As a practical matter, the cost of the Lender’s policy is generally discounted when an Owner’s policy is also purchased, and I always counsel banks to use the undiscounted amount for the GFE. I cannot think of any issuer of Lender’s policies that doesn’t also provide Owner’s policies, but this is something you will need to determine before you show them as a provider for these services.

Q: On page one of the GFE and page 3 of the HUD there is a question which states “Even if you make payments on time, can your monthly amount owed for principal, interest, and mortgage insurance rise?”
 
We have been answering yes to this since our loans are adjustable rate and the amount owed for interest can rise, are we doing this correctly? 

A: If the payment amount increases with the interest rate so that the principal balance does not, the answer would be "no."  If the payment remains the same regardless of the increase interest, then the answer would be "yes."

Q: The topic of concern is electronic delivery of ETIL, GFE & Servicing Disclosures…. we have a LOS system that tracks when the disclosures were published to the customer and when and if the customer consented, opened and viewed the email.
If our records show that the customer did not view the documents within 3 business days, then do we have a RESPA violation?
If the customer consented, opened and viewed the documents on day 4 instead of day 3 of our RESPA clock, do we have a violation?
A:  The way I see it, the issue is with regard to receipt of the information. If the ETIL, GFE, etc. were mailed or sent by courier, there is a presumption of receipt or an actual receipt, but no assurance that the recipient ever actually opened the envelope. If it is sent and you have a delivery receipt, a read receipt should not be required just because it is by email.

Q: If an Appraisal Management Company is being used for appraisals, on the GFE itself does the lender have to disclose the management fee and the appraisal fee and show them separately?  Or is the lender only required to show them as 2 separate fees/line items on the HUD-1 and that’s it?
A: You will need to break these out on both the GFE and the HUD-1.

Q: I have a question concerning the "Charges that can increase by 10%" section of the Comparison Chart on the HUD and specifically the inspections that would be placed in Block 6 of the GFE. How do we determine which services we need to provide a list of service providers for?
A:  If you allow the borrower to shop for a provider, you must provide a list.

Q: We do not require home inspection or pest inspection services for Real Estate Loans. Since we do not require them, we do not have to provide a list of service providers. Is that right?
A:  If you do not require the services, then you do not have to give a list of providers.

Q: We are still working on implementing credit scores, and I have a couple more questions…..Right now we do not charge for credit reports. We added $5.00 to our loan fees a few years ago and decided the bank would just absorb the costs. With the price of scoring, we may start charging again. We previously charged $5.00 across the board. According the invoices from CBC, an individual report runs approximately $3.50 and a joint report $5.00 and up. Scoring will add approximately $.60. Our concern is the GFE and HUD. When we previously charged, we disclosed $5.00 but an internal auditor said we needed to be exact. Until we get the bill, there is no way to know exactly. Also, if we allow CBC to provide the Notice to Home Loan Applicant, that is another $1.50 added to the price.
Also, to be in compliance for the Risk Based Pricing, once we start pulling scores, do we just need to provide the credit score proxy on the back of the report?  What about denials?
A:  Starting with your last question first, if you pull credit scores and deny the loan even partly on the basis of the credit score, you’ll need to use one of the new model combined adverse action forms.
 
If the loan is one that is covered by RESPA, you cannot upcharge on the credit score fee. And, even on non-RESPA loans, you would have to treat the upcharge as a finance charge.
 
RESPA allows you to use an average charge. So, you will have one average charge you can use when it is an individual applicant and a different average charge you will use any time it is joint applicants. You need to decide up front if the CBC is going to provide the Notice to Home Loan Applicant.

Q: We normally don’t pull credit bureau reports for loans secured by CDs. Do we still have to provide a risk-based pricing notice?

A: Under 222.70(a) coverage of the RBPN applies to you if you use a consumer report in connection with an application for credit and may vary the pricing based on that report. You are not using a credit report for any of these loans and therefore do not vary the pricing based on the credit report. No disclosure should be required.

Q: On Risk Based Pricing, if scores are pulled, is the disclosure provided by CBC sufficient to give to the customer?  Is there a requirement for the customer to sign the disclosure?  If credit is pulled after the customer leaves and the loan is denied, would a mailed copy with the denial be sufficient?  We are providing the disclosure to the customer prior to the loan closing but do not have the customer sign at this time.
If we pull credit to update a customer’s file, would the risk based pricing notice apply?
When does the Notice to Home Loan Applicant have to be provided?  Would the notice apply to denied loans?

A: If a credit score is pulled, you can elect to give the customer the credit score exception notice as an alternative to providing the risk-based pricing notice. The customer is not required to sign the disclosure.
 
If credit is pulled after the customer leaves and the loan is denied, you have to provide an adverse action notice. I would recommend you use the new model form in Reg B that combines the Reg B adverse action notice with the FCRA adverse action notice.
 If you do a credit review, the risk-based pricing notice can come into play. There are separate model forms in Reg V for those notices.
 
The Notice to Home Loan Applicant is provided when you use a credit score in connection with an application to be secured by a dwelling. It, too, is something that takes the place of a risk-based pricing notice. (It’s the real estate credit score exception notice H-3.)  Even if you deny the loan, you must still provide the Notice to Home Loan Applicant.

Q: If we were to deny someone for a reason not credit related do we still give the credit score disclosure or a Risk Based Pricing Notice?
A: If your decision to deny credit was not based in whole or in part upon information contained in a credit report or credit score, you don’t give either notice.

Q:  We sat in on a brief Visa webinar this morning regarding the new Interchange rules and the presenter mentioned that banks might think they are exempt but they needed to check the regs regarding gift cards both reloadable and non-reloadable. We sell non-reloadable card ; can you help me understand how we might be affected (we are certainly under 10 billion dollars)?
A:  I think I can shed some light on the gift card interchange fee question.
 
First, the source of the problem:   Section 920(a)(7) of the EFT Act, added by § 1075 of Dodd-Frank). The exemption in that section is for government-administered payment programs and reloadable prepaid cards.
 
Then, in § 235.5(c) of Regulation II, that exemption is implemented. It applies only for a general-use prepaid card that is —
 
(i) Not issued or approved for use to access or debit any account held by or for the benefit of the cardholder (other than a subaccount or other method of recording or tracking funds purchased or loaded on the card on a prepaid basis);
(ii) Reloadable and not marketed or labeled as a gift card or gift certificate; and
(iii) The only means of access to the underlying funds, except when all remaining funds are provided to the cardholder in a single transaction.
So, it would seem that the LOWER interchange fees could apply to your non-reloadable gift cards, unless Visa decides (don’t hold your breath) not to apply it to identifiable gift card transactions.
 
Q:  We have procedures in place to know when consumer dwelling payments were made in person on Saturdays and were backdating the payments on Monday. We’ve decided to reflect on our notes that the payment cutoff time is M-F 5:  00. Will sending a letter to the grandfathered customers take care of the older ones?
A:  Refer to Reg Z §226.36(c)(1)(i) for mortgage loans. You must credit the account as of the date of receipt of the payment. The Commentary explains that the date of receipt is the date the payment is received. There is no allowance for a cutoff time for these loans.

Further, you cannot amend existing loan contracts to now include a cutoff time. To amend the contract takes a mutual agreement between the parties and possibly consideration for doing so. The reason for having a contract is so the terms are known by all parties.

If you accept payments at your drive through which is open after lobby hours and/or on Saturdays, you must credit as of the date of receipt.