SAFETY AND SOUNDNESS—Joint Guidance on Overdraft-Protection Programs

The Office of the Comptroller of the Currency (OCC), Board of Governors of the Federal Reserve System (Board), Federal Deposit Insurance Corporation (FDIC), and National Credit Union Administration (NCUA), collectively “the agencies,” are issuing this joint guidance concerning a service offered by insured depository institutions that is commonly referred to as “bounced-check protection” or “overdraft protection.” This credit service is sometimes offered on both consumer and small-business transaction accounts as an alternative to traditional ways of covering overdrafts. This joint guidance is intended to assist insured depository institutions in the responsible disclosure and administration of overdraft-protection services, particularly those that are marketed to consumers.¹

To protect against account overdrafts, some consumers obtain an overdraft line of credit, which is subject to the disclosure requirements of the Truth in Lending Act (TILA). If a consumer does not have an overdraft line of credit, the institution may accommodate the consumer and pay overdrafts on a discretionary, ad hoc basis. Regardless of whether the overdraft is paid, institutions typically have imposed a fee when an overdraft occurs, often referred to as a nonsufficient-funds, or NSF, fee. Over the years, this accommodation has become automated by many institutions. Historically, institutions have not promoted this accommodation. This approach has not raised significant concerns.

More recently, some depository institutions have offered “overdraft-protection” programs that, unlike the discretionary accommodation traditionally provided to those lacking a line of credit or other type of overdraft service (e.g., linked accounts), are marketed to consumers essentially as short-term credit facilities. These marketed programs typically provide consumers with an express overdraft “limit” that applies to their accounts.

While the specific details of overdraft-protection programs vary from institution to institution, and also vary over time, those currently offered by institutions incorporate some or all of the following characteristics:

Aspects of the marketing, disclosure, and implementation of some overdraft-protection programs, intended essentially as short-term credit facilities, are of concern to the agencies. For example, some institutions have promoted this credit service in a manner that leads consumers to believe that it is a line of credit by informing consumers that their account includes an overdraft-protection limit of a specified dollar amount without clearly disclosing the terms and conditions of the service, including how fees reduce overdraft-protection dollar limits and how the service differs from a line of credit.

In addition, some institutions have adopted marketing practices that appear to encourage consumers to overdraw their accounts, such as by informing consumers that the service may be used to take an advance on their next paycheck, thereby potentially increasing the institutions’ credit exposure with little or no analysis of the consumer’s creditworthiness. These overdraft-protection programs may be promoted in a manner that leads consumers to believe that overdrafts will always be paid when, in reality, the institution reserves the right not to pay some overdrafts. Some institutions may advertise accounts with overdraft-protection coverage as “free” accounts, and thereby lead consumers to believe that there are no fees associated with the account or the overdraft-protection program.

Furthermore, institutions may not clearly disclose that the program may cover instances when consumers overdraw their accounts by means other than check, such as at ATMs and point-of-sale (POS) terminals. Some institutions may include overdraft-protection amounts in the sum that they disclose as the consumer’s account “balance” (for example, at an ATM) without clearly distinguishing the funds that are available for withdrawal without overdrawing the account. Where the institution knows that the transaction will trigger an overdraft fee, such as at a proprietary ATM, institutions also may not alert the consumer prior to the completion of the transaction to allow the consumer to cancel the transaction before the fee is triggered.

Institutions should weigh carefully the risks presented by the programs, including the credit, legal, reputation, safety-and-soundness, and other risks. Further, institutions should carefully review their programs to ensure that marketing and other communications concerning the programs do not mislead consumers to believe that the program is a traditional line of credit or that payment of overdrafts is guaranteed, do not mislead consumers about their account balance or the costs and scope of the overdraft protection offered, and do not encourage irresponsible consumer financial behavior that potentially may increase risk to the institution.

When overdrafts are paid, credit is extended. Overdraft-protection programs may expose an institution to more credit risk (e.g., higher delinquencies and losses) than overdraft lines of credit and other traditional overdraft-protection options to the extent these programs lack individual account underwriting. All overdrafts, whether or not subject to an overdraft-protection program, are subject to the safety-and-soundness considerations contained in this section.

Institutions providing overdraft-protection programs should adopt written policies and procedures adequate to address the credit, operational, and other risks associated with these types of programs. Prudent risk-management practices include the establishment of express account-eligibility standards and well-defined and properly documented dollar-limit decision criteria. Institutions also should monitor these accounts on an ongoing basis and be able to identify consumers who may represent an undue credit risk to the institution. Overdraft-protection programs should be administered and adjusted, as needed, to ensure that credit risk remains in line with expectations. This may include, where appropriate, disqualification of a consumer from future overdraft protection. Reports sufficient to enable management to identify, measure, and manage overdraft volume, profitability, and credit performance should be provided to management on a regular basis.

Institutions also are expected to incorporate prudent risk-management practices related to account repayment and suspension of overdraft-protection services. These include the establishment of specific time frames for when consumers must pay off their overdraft balances. For example, there should be established procedures for the suspension of overdraft services when the account holder no longer meets the eligibility criteria (such as when the account holder has declared bankruptcy or defaulted on another loan at the bank) as well as for when there is a lack of repayment of an overdraft. In addition, overdraft balances should generally be charged off when considered uncollectible, but no later than 60 days from the date first overdrawn.³ In some cases, an institution may allow a consumer to cover an overdraft through an extended repayment plan when the consumer is unable to bring the account to a positive balance within the required time frames. The existence of the repayment plan, however, would not extend the charge-off determination period beyond 60 days (or shorter period if applicable) as measured from the date of the overdraft. Any payments received after the account is charged off (up to the amount charged off against allowance) should be reported as a recovery. Some overdrafts are rewritten as loan obligations in accordance with an institution’s loan policy and supported by a documented assessment of that consumer’s ability to repay. In those instances, the charge-off timeframes described in the Federal Financial Institutions Examination Council (FFIEC) Uniform Retail Credit Classification and Account Management Policy would apply.⁴

With respect to the reporting of income and loss recognition on overdraft-protection programs, institutions should follow generally accepted accounting principles (GAAP) and the instructions for the Reports of Condition and Income (call report), and NCUA 5300 call report. Overdraft balances should be reported on regulatory reports as loans. Accordingly, overdraft losses should be charged off against the allowance for loan and lease losses. The agencies expect all institutions to adopt rigorous loss-estimation processes to ensure that overdraft fee income is accurately measured. Such methods may include providing loss allowances for uncollectible fees or, alternatively, only recognizing that portion of earned fees estimated to be collectible.⁵ The procedures for estimating an adequate allowance should be documented in accordance with the Interagency Policy Statement on the Allowance for Loan and Lease Losses Methodologies and Documentation for Banks and Savings Institutions.⁶

If an institution advises account holders of the available amount of overdraft protection, for example, when accounts are opened or on depositors’ account statements or ATM receipts, the institution should report the available amount of overdraft protection with legally binding commitments for call report, and NCUA 5300 call report purposes. These available amounts, therefore, should be reported as “unused commitments” in regulatory reports.

The agencies also expect proper risk-based capital treatment of outstanding overdrawn balances and unused commitments.⁷ Overdraft balances should be risk-weighted according to the obligor. Under the federal banking agencies’ risk-based capital guidelines, the capital charge on the unused portion of commitments generally is based on an off-balance-sheet credit-conversion factor and the risk weight appropriate to the obligor. In general, these guidelines provide that the unused portion of a commitment is subject to a 0 percent credit-conversion factor if the commitment has an original maturity of one year or less, or a 50 percent credit-conversion factor if the commitment has an original maturity over one year. Under these guidelines, a 0 percent conversion factor also applies to the unused portion of a “retail credit card line” or “related plan” if it is unconditionally cancelable by the institution in accordance with applicable law.⁸ The phrase related plans in these guidelines includes overdraft checking plans. The agencies believe that the overdraft-protection programs discussed in this joint guidance fall within the meaning of related plans as a type of overdraft checking plan for the purposes of the federal banking agencies’ risk-based capital guidelines. Consequently, overdraft-protection programs that are unconditionally cancelable by the institution in accordance with applicable law would qualify for a 0 percent credit-conversion factor.

Institutions entering into overdraft-protection contracts with third-party vendors must conduct thorough due-diligence reviews prior to signing a contract. The interagency guidance contained in the November 2000 “Risk Management of Outsourced Technology Services” outlines the agencies’ expectations for prudent practices in this area.

Overdraft-protection programs must comply with all applicable federal laws and regulations, some of which are outlined below. State laws also may be applicable, including usury and criminal laws, and laws on unfair or deceptive acts or practices. It is important that institutions have their overdraft-protection programs reviewed by counsel for compliance with all applicable laws prior to implementation. Further, although the guidance below outlines federal laws and regulations as of the date this joint guidance is published, applicable laws and regulations are subject to amendment. Accordingly, institutions should monitor applicable laws and regulations for revisions and to ensure that their overdraft-protection programs are fully compliant.

Federal Trade Commission Act/Advertising rules. Section 5 of the Federal Trade Commission Act (FTC Act) prohibits unfair or deceptive acts or practices.⁹ The banking agencies enforce this section pursuant to their authority in section 8 of the Federal Deposit Insurance Act, 12 U.S.C. 1818.¹⁰ An act or practice is unfair if it causes or is likely to cause substantial injury to consumers that is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. An act or practice is deceptive if, in general, it is a representation, omission, or practice that is likely to mislead a consumer acting reasonably under the circumstances, and the representation, omission, or practice is material.

In addition, the NCUA has promulgated similar rules that prohibit federally insured credit unions from using advertisements or other representations that are inaccurate or misrepresent the services or contracts offered.¹¹ These regulations are broad enough to prohibit federally insured credit unions from making any false representations to the public regarding their deposit accounts.

Overdraft-protection programs may raise issues under either the FTC Act or, in connection with federally insured credit unions, the NCUA’s advertising rules, depending upon how the programs are marketed and implemented. To avoid engaging in deceptive, inaccurate, misrepresentative, or unfair practices, institutions should closely review all aspects of their overdraft-protection programs, especially any materials that inform consumers about the programs.

Truth in Lending Act. The Truth in Lending Act (TILA) and Regulation Z require creditors to give cost disclosures for extensions of consumer credit.¹² TILA and the regulation apply to creditors that regularly extend consumer credit that is subject to a finance charge or is payable by written agreement in more than four installments.¹³

Under Regulation Z, fees for paying overdraft items currently are not considered finance charges if the institution has not agreed in writing to pay overdrafts.¹⁴ Even where the institution agrees in writing to pay overdrafts as part of the deposit account agreement, fees assessed against a transaction account for overdraft-protection services are finance charges only to the extent the fees exceed the charges imposed for paying or returning overdrafts on a similar transaction account that does not have overdraft protection.

Some financial institutions also offer overdraft-repayment loans to consumers who are unable to repay their overdrafts and bring their accounts to a positive balance within a specified time period.¹⁵ These closed-end loans will trigger Regulation Z disclosures, for example, if the loan is payable by written agreement in more than four installments. Regulation Z will also be triggered where such closed-end loans are subject to a finance charge.¹⁶

Equal Credit Opportunity Act. Under the Equal Credit Opportunity Act (ECOA) and Regulation B, creditors are prohibited from discriminating against an applicant on a prohibited basis in any aspect of a credit transaction.¹⁷ This prohibition applies to overdraft-protection programs. Thus, steering or targeting certain consumers on a prohibited basis for overdraft-protection programs while offering other consumers overdraft lines of credit or other more favorable credit products or overdraft services, will raise concerns under the ECOA.

In addition to the general prohibition against discrimination, the ECOA and Regulation B contain specific rules concerning procedures and notices for credit denials and other adverse action. Regulation B defines the term adverse action, and generally requires a creditor who takes adverse action to send a notice to the consumer providing, among other things, the reasons for the adverse action.¹⁸ Some actions taken by creditors under overdraft-protection programs might constitute adverse action but would not require notice to the consumer if the credit is deemed to be incidental credit as defined in Regulation B. Incidental credit includes consumer credit that is not subject to a finance charge, is not payable by agreement in more than four installments, and is not made pursuant to the terms of a credit card account.¹⁹ Overdraft-protection programs that are not covered by TILA would generally qualify as incidental credit under Regulation B.

Truth in Savings Act. Under the Truth in Savings Act (TISA), deposit account disclosures must include the amount of any fee that may be imposed in connection with the account and the conditions under which the fee may be imposed.²⁰ In addition, institutions must give advance notice to affected consumers of any change in a term that was required to be disclosed if the change may reduce the annual percentage yield or adversely affect the consumer.

When overdraft-protection services are added to an existing deposit account, advance notice to the account holder may be required, for example, if the fee for the service exceeds the fee for accounts that do not have the service.²¹ In addition, TISA prohibits institutions from making any advertisement, announcement, or solicitation relating to a deposit account that is inaccurate or misleading or that misrepresents their deposit contracts.

Since these automated and marketed overdraft-protection programs did not exist when most of the implementing regulations were issued, the regulations may be reevaluated.

Electronic Fund Transfer Act. The Electronic Fund Transfer Act (EFTA) and Regulation E require an institution to provide consumers with account-opening disclosures and to send a periodic statement for each monthly cycle in which an electronic fund transfer (EFT) has occurred and at least quarterly if no transfer has occurred.²² If, under an overdraft-protection program, a consumer could overdraw an account by means of an ATM withdrawal or POS debit card transaction, both are EFTs subject to EFTA and Regulation E. As such, periodic statements must be readily understandable and accurate regarding debits made, current balances, and fees charged. Terminal receipts also must be readily understandable and accurate regarding the amount of the transfer. Moreover, readily understandable and accurate statements and receipts will help reduce the number of alleged errors that the institution must investigate under Regulation E, which can be time-consuming and costly to institutions.

Clear disclosures and explanations to consumers of the operation, costs, and limitations of an overdraft-protection program and appropriate management oversight of the program are fundamental to enabling responsible use of overdraft protection. Such disclosures and oversight can also minimize potential consumer confusion and complaints, foster good customer relations, and reduce credit, legal, and other potential risks to the institution. Institutions that establish overdraft-protection programs should, as applicable, take into consideration the following best practices, many of which have been recommended or implemented by financial institutions and others, as well as practices that may otherwise be required by applicable law. While the agencies are concerned about promoted overdraft-protection programs, the best practices may also be useful for other methods of covering overdrafts. These best practices currently observed in or recommended by the industry include the following.