I
109th CONGRESS
1st Session
H. R. 3426
IN THE HOUSE OF REPRESENTATIVES
July 26, 2005
Mr. Gutierrez (for himself, Mr. Frank of Massachusetts, Ms. Lee, and Mrs. McCarthy) introduced the following bill; which was referred to the Committee on Financial Services
A BILL
To clarify the applicability of State law to national banks and Federal savings associations, and for other purposes.
Short title
This Act may be cited as the Preservation of Federalism in Banking Act
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National banks
State law preemption standards for national banks clarified
In general
Chapter One of title LXII of the Revised Statutes of the United States (12 U.S.C. 21 et seq.) is amended by inserting after section 5136B the following new section:
State law preemption standards for national banks and subsidiaries clarified
State consumer laws of general application
In general
Notwithstanding any other provision of Federal law, any consumer protection in State consumer law of general application (including any law relating to unfair or deceptive acts or practices, any consumer fraud law and repossession, foreclosure, and collection) shall apply to any national bank.
National bank defined
For purposes of this section, the term national bank includes any Federal branch established in accordance with the International Banking Act of 1978.
State laws related to laws used by national banks for their benefit
When a national bank avails itself of a State law for its benefit, all related consumer protections in State law shall apply.
State banking laws enacted pursuant to Federal law
In general
Notwithstanding any other provision of Federal law and except as provided in paragraph (2), any State law that—
is applicable to State banks; and
was enacted pursuant to or in accordance with, and is not inconsistent with, an Act of Congress, including the Gramm-Leach-Bliley Act, the Consumer Credit Protection Act, and the Real Estate Settlement Procedures Act, that explicitly or by implication, permits States to exceed or supplement the requirements of any comparable Federal law,
Exceptions
Paragraph (1) shall not apply with respect to any State law if—
the State law discriminates against national banks; or
State law is inconsistent with provisions of Federal law other than this title LXII, but only to the extent of the inconsistency (as determined in accordance with the provision of the other Federal Law).
State laws protecting against predatory mortgage loans
To the extent not otherwise addressed in this section, State laws providing greater protection in high cost mortgage loans, however denominated, both in coverage and content, than is provided under the Truth in Lending Act (including the provisions amended by the Home Ownership and Equity Protection Act of 1994) shall apply to any national bank.
Comparable Federal regulation required
In relation to the regulation of consumer credit and deposit transactions, the Comptroller may preempt State law pursuant to this title only when there is a comparable Federal statute, or regulations pursuant to a Federal statute other than this title, expressly governing the activity, except in relation to interest pursuant to section 5197.
No negative implications for applicability of other state laws
No provision of this section shall be construed as altering or affecting the applicability, to national banks, of any State law which is not described in this section.
Effect of transfer of transaction
A transaction that is not entitled to preemption at the time of the origination of the transaction does not become entitled to preemption under this title by virtue of its subsequent acquisition by a national bank.
Denial of preemption not a deprivation of a civil right
The preemption of any provision of the law of any State with respect to any national bank shall not be treated as a right, privilege, or immunity for purposes of section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983).
Definition
For purposes of this section, the terms includes and including have the same meaning as in section 3(t) of the Federal Deposit Insurance Act.
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Clerical amendment
The table of sections for chapter One of title LXII of the Revised Statutes of the United States is amended by inserting after the item relating to section 5136B the following new item:
5136C. State law preemption standards for national banks and subsidiaries clarified
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Visitorial standards
Section 5136C of the Revised Statutes of the United States (as added by section 101(a) of this Act) is amended by adding at the end the following new subsections:
Visitorial powers
No provision of this title which relates to visitorial powers or otherwise limits or restricts the supervisory, examination, or regulatory authority to which any national bank is subject shall be construed as limiting or restricting the authority of any attorney general (or other chief law enforcement officer) of any State to bring any action in any court of appropriate jurisdiction—
to enforce any applicable Federal or State law, as authorized by such law; or
on behalf of residents of such State, to enforce any applicable provision of any Federal or State law against a national bank, as authorized by such law, or to seek relief and recover damages for such residents from any violation of any such law by any national bank.
Enforcement actions
The ability of the Comptroller to bring an enforcement action under this title or section 5 of the Federal Trade Commission Act does not preclude private parties from enforcing rights granted under Federal or State law in the courts.
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Clarification of law applicable to State-chartered nondepository institution subsidiaries
Section 5136C of the Revised Statutes of the United States (as added by section 101(a) of this Act) is amended by inserting after subsection (k) (as added by section 102) the following new subsection:
Clarification of law applicable to nondepository institution subsidiaries and affiliates of national banks; definitions
In general
No provision of this title shall be construed as preempting the applicability of State law to any State-chartered nondepository institution, subsidiary, other affiliate, or agent of a national bank.
Definitions
For purposes of this section, the following definitions shall apply:
Depository institution, subsidiary, affiliate
The terms depository institution, subsidiary, and affiliate have the same meanings as in section 3 of the Federal Deposit Insurance Act.
Nondepository institution
The term nondepository institution means any entity that is not a depository institution.
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Data collection and reporting
Collecting and monitoring consumer complaints
In general
The Comptroller of the Currency shall record and monitor each complaint received directly or indirectly from a consumer regarding a national bank or any subsidiary of a national bank and record the resolution of the complaint.
Factors to be included
In carrying out the requirements of paragraph (1), the Comptroller of the Currency shall include—
the date the consumer complaint was received;
the nature of the complaint;
when and how the complaint was resolved, including a brief description of the extent, and the results, of the investigation made by the Comptroller into the complaint, a brief description of any notices given and inquiries made to any other Federal or State officer or agency in the course of the investigation or resolution of the complaint, a summary of the enforcement action taken upon completion of the investigation, and a summary of the results of subsequent periodic reviews by the Comptroller of the extent and nature of compliance by the national bank or subsidiary with the enforcement action; and
if the complaint involves any alleged violation of a State law (whether or not Federal law preempts the application of such State law to such national bank) by such bank, a cite to and a description of the State law that formed the basis of the complaint.
Report to the Congress
Periodic reports required
The Comptroller of the Currency shall submit a report semi-annually to the Congress on the consumer protection efforts of the Office of the Comptroller of the Currency.
Contents of report
Each report submitted under paragraph (1) shall include the following:
The total number of consumer complaints received by the Comptroller during the period covered by the report with respect to alleged violations of consumer protection laws by national banks and subsidiaries of national banks.
The total number of consumer complaints received during the reporting period that are based on each of the following:
Each title of the Consumer Credit Protection Act (reported as a separate aggregate number for each such title).
The Truth in Savings Act.
The Right to Financial Privacy Act of 1978.
The Expedited Funds Availability Act.
The Community Reinvestment Act of 1977.
The Bank Protection Act of 1968.
Title LXII of the Revised Statutes of the United States.
The Federal Deposit Insurance Act.
The Real Estate Settlement Procedures Act of 1974.
The Home Mortgage Disclosure Act of 1975.
Any other Federal law.
State consumer protection laws (reported as a separate aggregate number for each State and each State consumer protection law).
Any other State law (reported separately for each State and each State law).
A summary description of the resolution efforts by the Comptroller for complaints received during the period covered, including—
the average amount of time to resolve each complaint;
the median period of time to resolve each complaint;
the average and median time to resolve complaints in each category of complaints described in each clause of subparagraph (B); and
a summary description of the longest outstanding complaint during the reporting period and the reason for the difficulty in resolving such complaint in a more timely fashion.
Disclosure of report on occ website
Each report submitted to the Congress under this subsection shall be posted, by the Comptroller of the Currency, in a timely fashion and maintained on the website of the Office of the Comptroller of the Currency on the World Wide Web.
Savings associations
State law preemption standards for federal savings associations clarified
In general
The Home Owners' Loan Act (12 U.S.C. 1461 et seq.) is amended by inserting after section 5 the following new section:
State law preemption standards for federal savings associations and affiliates clarified
State consumer laws of general application
Notwithstanding any other provision of Federal law, any consumer protection in State consumer law of general application (including any law relating to unfair or deceptive acts or practices, any consumer fraud law and repossession, foreclosure, and collection) shall apply to any Federal savings association.
State laws related to laws used by Federal savings associations for their benefit
When a Federal savings association avails itself of a State law for its benefit, all related consumer protections in State law shall apply.
State banking or thrift laws enacted pursuant to Federal law
In general
Notwithstanding any other provision of Federal law and except as provided in paragraph (2), any State law that—
is applicable to State savings associations (as defined in section 3 of the Federal Deposit Insurance Act); and
was enacted pursuant to or in accordance with, and is not inconsistent with, an Act of Congress, including the Gramm-Leach-Bliley Act, the Consumer Credit Protection Act, and the Real Estate Settlement Procedures Act, that explicitly or by implication, permits States to exceed or supplement the requirements of any comparable Federal law,
Exceptions
Paragraph (1) shall not apply with respect to any State law if—
the State law discriminates against Federal savings associations; or
the State law is inconsistent with provisions of Federal law other than this Act, but only to the extent of the inconsistency (as determined in accordance with the provision of the other Federal law).
State laws protecting against predatory mortgage loans
To the extent not otherwise addressed in this section, State laws providing greater protection in high cost mortgage loans, however denominated, both in coverage and content, than is provided under the Truth in Lending Act (including the provisions amended by the Home Ownership and Equity Protection Act of 1994) shall apply to any Federal savings association.
Comparable Federal regulation required
In relation to the regulation of consumer credit and deposit transactions, the Director of the Office of Thrift Supervision may preempt State law pursuant to this Act only when there is a comparable Federal statute, or regulations pursuant to a Federal statute other than this Act, expressly governing the activity, except in relation to interest pursuant to section 4(g).
No negative implications for applicability of other state laws
No provision of this section shall be construed as altering or affecting the applicability, to Federal savings associations, of any State law which is not described in this section.
Effect of transfer of transaction
A transaction that is not entitled to preemption at the time of the origination of the transaction does not become entitled to preemption under this Act by virtue of its subsequent acquisition by a Federal savings association.
Denial of preemption not a deprivation of a civil right
The preemption of any provision of the law of any State with respect to any Federal savings association shall not be treated as a right, privilege, or immunity for purposes of section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983).
Definition
For purposes of this section, the terms includes and including have the same meaning as in section 3(t) of the Federal Deposit Insurance Act.
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Clerical amendment
The table of sections for the Home Owners' Loan Act (12 U.S.C. 1461 et seq.) is amended by striking the item relating to section 6 and inserting the following new item:
6. State law preemption standards for Federal savings associations and affiliates clarified
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Visitorial standards
Section 6 of the Home Owners' Loan Act (as added by section 201(a) of this title) is amended by adding at the end the following new subsections:
Visitorial powers
No provision of this Act shall be construed as limiting or restricting the authority of any attorney general (or other chief law enforcement officer) of any State to bring any action in any court of appropriate jurisdiction—
to enforce any applicable Federal or State law, as authorized by such law; or
on behalf of residents of such State, to enforce any applicable provision of any Federal or State law against a Federal savings association, as authorized by such law, or to seek relief and recover damages for such residents from any violation of any such law by any Federal savings association.
Enforcement actions
The ability of the Director of the Office of Thrift Supervision to bring an enforcement action under this Act or section 5 of the Federal Trade Commission Act does not preclude private parties from enforcing rights granted under Federal or State law in the courts.
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Clarification of law applicable to State-chartered nondepository institution subsidiaries
Section 6 of the Home Owners' Loan Act (as added by section 201(a) of this title) is amended by inserting after subsection (k) (as added by section 202) the following new subsection:
Clarification of law applicable to nondepository institution affiliates of Federal savings associations
In general
No provision of this Act shall be construed as preempting the applicability of State law to any State-chartered nondepository institution, subsidiary, other affiliate, or agent of a Federal savings association.
Definitions
For purposes of this section, the following definitions shall apply:
Depository institution, subsidiary, affiliate
The terms depository institution, subsidiary, and affiliate have the same meanings as in section 3 of the Federal Deposit Insurance Act.
Nondepository institution
The term nondepository institution means any entity that is not a depository institution.
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Data collection and reporting
Collecting and monitoring consumer complaints
In general
The Director of the Office of Thrift Supervision shall record and monitor each complaint received directly or indirectly from a consumer regarding a Federal savings association or any subsidiary of a Federal savings association and record the resolution of the complaint.
Factors to be included
In carrying out the requirements of paragraph (1), the Director of the Office of Thrift Supervision shall include—
the date the consumer complaint was received;
the nature of the complaint;
when and how the complaint was resolved, including a brief description of the extent, and the results, of the investigation made by the Director into the complaint, a brief description of any notices given and inquiries made to any other Federal or State officer or agency in the course of the investigation or resolution of the complaint, a summary of the enforcement action taken upon completion of the investigation, and a summary of the results of subsequent periodic reviews by the Comptroller of the extent and nature of compliance by the Federal savings association or subsidiary with the enforcement action; and
if the complaint involves any alleged violation of a State law (whether or not Federal law preempts the application of such State law to such Federal savings association) by such savings association, a cite to and a description of the State law that formed the basis of the complaint.
Report to the Congress
Periodic reports required
The Director of the Office of Thrift Supervision shall submit a report semi-annually to the Congress on the consumer protection efforts of the Office of Thrift Supervision.
Contents of report
Each report submitted under paragraph (1) shall include the following:
The total number of consumer complaints received by the Director during the period covered by the report with respect to alleged violations of consumer protection laws by Federal savings associations and subsidiaries of Federal savings associations.
The total number of consumer complaints received during the reporting period that are based on each of the following:
Each title of the Consumer Credit Protection Act (reported as a separate aggregate number for each such title).
The Truth in Savings Act.
The Right to Financial Privacy Act of 1978.
The Expedited Funds Availability Act.
The Community Reinvestment Act of 1977.
The Bank Protection Act of 1968.
The Home Owners' Loan Act.
The Federal Deposit Insurance Act.
The Real Estate Settlement Procedures Act of 1974.
The Home Mortgage Disclosure Act of 1975.
Any other Federal law.
State consumer protection laws (reported as a separate aggregate number for each State and each State consumer protection law).
Any other State law (reported separately for each State and each State law).
A summary description of the resolution efforts by the Director for complaints received during the period covered, including—
the average amount of time to resolve each complaint;
the median period of time to resolve each complaint;
the average and median time to resolve complaints in each category of complaints described in each clause of subparagraph (B); and
a summary description of the longest outstanding complaint during the reporting period and the reason for the difficulty in resolving such complaint in a more timely fashion.
Disclosure of report on ots website
Each report submitted to the Congress under this subsection shall be posted, by the Director of the Office of Thrift Supervision, in a timely fashion and maintained on the website of the Office of Thrift Supervision on the World Wide Web.