2022-CFPB-0002_Bank of America, N.A.

UNITED STATES OF AMERICA

CONSUMER FINANCIAL PROTECTION BUREAU

ADMINISTRATIVE PROCEEDING

File No. 2022-CFPB-0002

In the Matter of:

CONSENT ORDER

BANK OF AMERICA, N.A.

The Consumer Financial Protection Bureau (“Bureau”) has reviewed the

garnishment-related practices of Bank of America, N.A. (“Respondent”) and has

identified t

he following law violations: (1) Respondent engaged in unfair acts and

practices by responding to and processing garnishment notices against out-of-state

bank accounts in violation of certain garnishment-issuing states’ prohibitions

against out-of-state garnishment; (2) Respondent engaged in unfair acts and

practices by failing to apply the appropriate state exemptions to certain consumers’

deposit accounts after receiving garnishment notices; (3) Respondent engaged in

deceptive acts and practices by misrepresenting to consumers, by implication, the

applicable state exemption rights for garnishment by applying the issuing state’s

exemptions instead of the exemptions of the consumer’s state of residence, where

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the states of issuance and residence differ; (4) Respondent engaged in unfair acts

and practices by using a deposit agreement that required consumers to direct

Respondent not to contest legal process and waive Respondent’s liability for its

unlawful garnishment conduct; and (5) Respondent engaged in deceptive acts and

practices by suggesting consumers could not bring legal claims misrepresenting

consumers’ legal rights against Respondent regarding garnishment proceedings, all

in violation of Sections 1031(a) and 1036(a)(1)(B) of the Consumer Financial

Protection Act of 2010 (“CFPA”), 12 U.S.C. §§ 5531(a) and 5536(a)(1)(B). Under

Sections 1053 and 1055 of the CFPA, 12 U.S.C. §§ 5563, 5565, the Bureau issues

this Consent Order (“Consent Order”).

Jurisdiction

1. The Bureau has jurisdiction over this matter under Sections 1053 and 1055

of the CFPA, 12 U.S.C. §§ 5563 and 5565.

II.

Stipulation

2. Respondent has executed a “Stipulation and Consent to the Issuance of a

Consent Order,” dated April 29, 2022 (“Stipulation”), which is

incorporated by reference and is accepted by the Bureau. By this

Stipulation, Respondent has consented to the issuance of this Consent

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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.

III.

Definitions

3. The following definitions apply to this Consent Order:

a. “Affected Consumers” are Consumers who, as a result of Respondent

acting upon an Out-of-State Garnishment Notice issued by a court,

attorney, or other authorized person (i.e., issuing entity) in a

Restriction State, paid Garnishment-Related Fees between August 1,

2011 and the Effective Date.

b. “Board” means Respondent’s duly-elected and acting Board of

Directors or a committee thereof.

c. “Consumer” means an individual holding at least one active Deposit

Account with Respondent.

d. “Deposit Account” means a consumer deposit account held by one or

more Consumers between August 1, 2011 and the Effective Date.

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e. “Deposit Agreement” means the standard deposit agreement to which

Consumers consent when opening a Deposit Account.

f. “Effective Date” means the date on which the Consent Order is

issued.

g. “Enforcement Director” means the Assistant Director of the Office of

Enforcement for the Consumer Financial Protection Bureau, or his or

her delegate.

h. “Garnishment Notice” means the first notice of legal process by one

or more creditors or judgment creditors, their counsel, or a court, of a

legal proceeding seeking that Respondent turn over funds in a

Consumer’s Deposit Account in Respondent’s custody or control to

satisfy an amount owed to a creditor or judgment creditor,

including—but not limited to—a garnishment, writ of attachment,

execution, levy, restraining order, restraining notice, restraining notice

and information subpoena, seizure order, forfeiture, or other similar

legal process or order, but excluding any legal process where (1) the

party seeking to have Respondent turn over a Consumer’s funds is a

federal, state, municipal, or local governmental agency or entity, or

(2) the creditor is seeking to satisfy a judgment awarding child

support, alimony, or spousal maintenance.

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i. “Garnishment-Related Fees” means legal order processing fees,

attorneys’ fees, overdraft fees, insufficient funds fees, or account

maintenance fees assessed by Respondent after processing an Out-of-

State Garnishment Notice issued from a Restriction State from the

time Respondent froze or held the Consumer’s Deposit Account until

30 days after the freeze or hold was removed.

j. “Issuing State” means the State from which a particular Garnishment

Notice, including an Out-of-State Garnishment Notice, was issued.

k. “Out-of-State Account” means a Deposit Account located in a State

other than the Issuing State.

l. “Out-of-State Garnishment Notice” means a Garnishment Notice

concerning an Out-of-State Account but does not include Garnishment

Notices domesticated in the state where the Consumer’s Deposit

Account is located.

m. “Regional Director” means the Regional Director for the Southeast

Region for the Office of Supervision for the Consumer Financial

Protection Bureau, or his or her delegate.

n. “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

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substantially the same facts as described in Section IV of this Consent

Order.

o. “Relevant Period” means August 1, 2011 to March 29, 2022.

p. “Respondent” means Bank of America, N.A. and its successors and

assigns.

q. “Restriction State” is a State that prohibited or otherwise restricted

garnishment of Out-of-State Accounts, at the time Respondent was

served with or acted upon an Out-of-State Garnishment Notice issued

from that State. Restriction States include but are not limited to

Alabama, Arizona (before August 2019), California, Florida (after

August 2014), and Oregon.

r. “States” or “states” means all U.S. states where Respondent has a

physical presence as well as the District of Columbia and any U.S.

territory where Respondent has a physical presence.

IV.

Bureau Findings and Conclusions

The Bureau finds the following:

4. Respondent is a national bank headquartered in Charlotte, North Carolina

with branches and ATMs located in 38 states and the District of Columbia.

As of December 31, 2021, Respondent had $2.5 trillion in consolidated

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assets, which makes it an insured deposit institution with assets greater than

$10,000,000,000 within the meaning of 12 U.S.C. § 5515(a).

5. Respondent is a “covered person” under 12 U.S.C. § 5481(6) because it

“engages in offering or providing a consumer financial product or service,”

including by engaging in deposit-taking activities for use by Consumers

primarily for personal, family, or household purposes.

Respondent’s Garnishment Practices

Background

6. Garnishment (referred to in some states as “attachment”) is a common

method used by a creditor to enforce a money judgment against a debtor.

After a creditor receives a judgment in a lawsuit, the “judgment creditor”

can seek authorization from a court to garnish the bank account of the

“judgment debtor” in a post-judgment garnishment proceeding. To do so,

either a court in the state that issued the underlying judgment or the

judgment creditor itself issues a Garnishment Notice against the judgment

debtor and serves it on a financial institution (the “garnishee”).

7. Bank account garnishments are governed by state law. Each state has a

judicial process by which a judgment creditor can freeze or hold and then

seize money from a judgment debtor’s deposit account to enforce a civil

judgment against the judgment debtor.

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8. To garnish a bank account lawfully, a state court must have jurisdiction

over the garnishee (the bank that holds a deposit account) and the property

to be garnished (the deposit account).

9. During the Relevant Period, Respondent’s standard consumer deposit

agreement defined the location of the Consumer’s account as the branch

where the account was opened.

Out-of-State Garnishments

10. During the Relevant Period, Respondent processed hundreds of thousands

of Garnishment Notices issued by courts across the country, including Out-

of-State Garnishment Notices. In many cases, Respondent failed to follow

certain state-specific requirements and instead generally treated all

Garnishment Notices alike: if the Garnishment Notice was issued from a

state where Respondent had a financial center, it responded to the

Garnishment Notice by indicating that the identified Consumer had a

Deposit Account with potentially-garnishable assets and froze or held the

Consumer’s account, regardless of whether the account was located outside

of the Issuing State.

11. In many cases, Respondent’s responses to Garnishment Notices did not

distinguish between Out-of-State Garnishment Notices issued in

Restriction States and Out-of-State Garnishment Notices issued in non-

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Restriction States. Garnishment Notices issued from a state other than

where the bank account is located—i.e., Out-of-State Garnishment

Notices—require further scrutiny from Respondent.

12. Respondent frequently answers Out-of-State Garnishment Notices by

identifying all Deposit Accounts it held for the Consumer anywhere in the

nation and held or froze the funds in those Deposit Accounts regardless of

where the Deposit Accounts were located.

13. In most cases, Respondent’s state-specific policies and procedures

specifically instructed its staff to identify and process Garnishment Notices

(which may include holding or freezing funds) without regard for whether

the Consumer’s accounts were located in the same state as the court that

issued the Garnishment Notice.

14. During the Relevant Period, Respondent has responded to Consumers who

complain about Out-of-State Garnishment Notices by telling Consumers

that it will identify assets held in accounts located in any state where it is

located “subject to any limitations imposed by state law.”

15. Respondent’s training materials also teach Respondent employees that, for

the most part, a Garnishment Notice issued by a court or other issuing

entity in one state reaches accounts located outside that state. During the

Relevant Period, Respondent’s training materials identified a few of the

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Restriction States that limit the reach of Out-of-State Garnishment Notices

issued by courts or other issuing entities in those States and instruct

Respondent employees not to process those Out-of-State Garnishment

Notices. But, during the Relevant Period, Respondent’s training materials

did not include all of the Restriction States identified in this Consent Order.

Moreover, Respondent did not consistently apply those instructions. During

the Relevant Period, Respondent processed Out-of-State Garnishment

Notices from Restriction States identified in Respondent’s training

materials.

16. In many cases, when answering Out-of-State Garnishment Notices,

Respondent did not notify the issuing court or other issuing entity that the

funds sought to be garnished were located in another state, which would

have put the issuing court or other issuing entity on notice that the funds

were outside the state.

17. Instead, Respondent routinely responds to Out-of-State Garnishment

Notices from the Restriction States with an answer or other document that

identified Consumers’ funds held in accounts that were not located in those

states. It then often held or froze and eventually turned over those funds to

the judgment creditor. In some other cases, however, Respondent

responded by informing the issuing court or other issuing entity that the

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Consumer did not have any attachable funds or accounts within the Issuing

State and declined to process the Out-of-State Garnishment Notice. This

approach was not done consistently in the Restriction States that

Respondent identified in its training materials.

18. After receiving Garnishment Notices from certain states, but before turning

over Consumers’ funds, Respondent charged legal order processing and,

sometimes, attorneys’ fees to Consumers’ frozen or held Deposit Accounts,

unless doing so would be inconsistent with the relevant state law. It then

paid the amount of the Out-of-State Garnishment Notice, or as much of the

amount as could be paid from funds available in the garnished Deposit

Accounts.

19. During the Relevant Period, Respondent has processed at least 3,700 Out-

of-State Garnishment Notices from Restriction States without notifying the

issuing court or other issuing entity that the Consumer’s Deposit Account

was not located in the Issuing State. Affected Consumers have paid at least

$592,000 in Garnishment-Related Fees to Respondent because of these

Out-of-State Garnishment Notices.

State-Specific Exemption Laws

20. Many state laws exempt, or prohibit the garnishment of, certain amounts of

money from a Consumer’s Deposit Account. These state exemption laws

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often provide that funds up to a certain defined amount are temporarily or

permanently protected from garnishment. In many states, Consumers may

affirmatively assert their statutory protections in court. In most such states,

Consumers make exemption claims pursuant to forms provided or

prescribed by the co

urts. In other states, the garnishee, like Respondent, is

required to apply certain exemptions on the Consumer’s behalf, and the

Consumer may then claim additional exemptions, where applicable.

Financial institutions, including Respondent, are also required to apply

federal exemptions.

21. For those states where Respondent is required to apply certain state

exemptions on behalf of the Consumer, Respondent’s policy and practice

when responding to Garnishment Notices, including Out-of-State

Garnishment Notices, is to apply the exemption law of the state that issued

the Garnishment Notice—i.e., the Issuing State—rather than the law of the

state where the Consumer resides in those instances where the two states

differ.

Respondent’s Deposit Agreement and Disclosures

22. Respondent’s Deposit Agreement purports to have Consumers “direct”

Respondent, when served with legal process such as a writ of garnishment,

“not to contest the legal process,” and states that Respondent has “no

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liability to [the Consumer] if [Respondent] accept[s] and compl[ies] with

legal process as provided in this section or by law.”

23. Respondent directs Consumers to this waiver when responding to

Consumers who complain that their accounts were frozen, held, or

garnished in response to an Out-of-State Garnishment Notice.

24. Federal law, such as the Treasury Department’s rule on Garnishment of

Accounts Containing Federal Benefit Payments, 76 Fed. Reg. 9939, 9951

(Feb. 23, 2011) (Federal Benefits Garnishment Rule), and many states’

laws, prohibit banks from requiring consumers to waive certain exemption

rights.

25. The Federal Benefits Garnishment Rule, which protects a litany of federal

benefits from garnishment and the claims of judgment creditors, prohibits a

financial institution from requiring an account holder to waive any

protection available under the rule.

26. Respondent’s Deposit Agreement, however, purports to require that

Consumers waive all claims against Respondent, regardless of whether it

applies the Consumer’s correct exemption rights, as a condition of opening

a Deposit Account.

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Findings and Conclusions as to Responses to Out-of-State Garnishment

Notices (Unfair Practice)

27. The CFPA prohibits covered persons or service providers from engaging

“in any unfair, deceptive, or abusive act or practice.” 12 U.S.C. §§ 5531(a),

5536(a)(1)(B).

28. An act or practice is unfair under the CFPA if “the act or practice causes or

is likely to cause substantial injury to consumers which are not reasonably

avoidable by consumers” and “such substantial injury is not outweighed by

countervailing benefits to consumers or competition.” 12 U.S.C. § 5531(c).

29. Section 1054(a) of the CFPA grants the Bureau authority to commence a

civil action against any person who violates a Federal consumer financial

law. 12 U.S.C. § 5554(a). The CFPA is a Federal consumer financial law.

12 U.S.C. § 5481(14).

30. In at least 3,700 instances during the Relevant Period, Respondent

responded to Out-of-State Garnishment Notices from the Restriction States

without disclosing to courts or other issuing entities in its answers or other

responses that the Deposit Accounts in question were not located in the

states from which the Garnishment Notices issued.

31. In many of those instances where Respondent failed to disclose to a

Restriction State court or issuing entity that the Out-of-State Garnishment

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Notices were for bank accounts located outside of the state, Respondent

informed the Consumer about the Out-of-State Garnishment Notice,

subsequently processed the Out-of-State Garnishment Notice, froze or held

the Consumer’s funds, turned over those funds to the judgment creditor,

and imposed Garnishment-Related Fees on the Consumer.

32. In at least 3,700 instances, Respondent’s conduct caused or was likely to

cause substantial injury to Affected Consumers in the form of

Garnishment-Related Fees, frozen or held funds, and funds turned over to

judgment creditors.

33. As a result of Respondent’s practices related to Out-of-State Garnishment

Notices, Affected Consumers often lost access to funds that Respondent

froze or held when it received those notices. Consumers may also have

suffered a permanent loss of the account funds when Respondent

responded to these Out-of-State Garnishment Notices without indicating

that the relevant account was not located in the issuing Restriction State,

froze or held the funds, and ultimately turned the funds over to judgment

creditors.

34. Respondent charged Consumers fees for responding to a Garnishment

Notice, including legal order processing fees and, where applicable,

attorneys’ fees. Respondent may also have assessed other fees such as

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overdraft, insufficient funds, or account maintenance fees, which might not

have been assessed had Respondent declined to process the Out-of-State

Garnishment Notices.

35. Consumers could not reasonably avoid such substantial injury. Consumers

do not and cannot control whether Respondent discloses to the issuing

court or entity that Consumers’ Deposit Accounts are located outside of the

state that issued the Garnishment Notice. Further, even if a Restriction

State’s procedural requirements allow Consumers to object to a

Garnishment Notice, it is not reasonable to expect Consumers to have the

necessary understanding of the reach of Garnishment Notices issued from

states that limit or restrict out-of-state garnishment and any rights they may

have to object to them to avoid the harm.

36. The substantial injury Respondent caused or was likely to cause to

Consumers is not outweighed by countervailing benefits to Consumers or

to competition.

37. Respondent’s acts and practices as described herein 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).

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Findings and Conclusions as to Respondent’s Application of the Wrong State

Law for Garnishment Exemptions (Unfair Practice)

38. In numerous instances during the Relevant Period, when garnishing

Consumers’ Deposit Accounts, Respondent has applied the exemption laws

of the Issuing State rather than the laws of the state where the Consumer

resides, in circumstances where the applicable exemption law is that of the

consumer’s state of residence. Most states require their garnishment

exemptions to be applied to their residents.

39. Respondent’s conduct caused or was likely to cause substantial injury to

Consumers. Because exemptions vary by state, applying the wrong state’s

exemption law will frequently harm Consumers by failing to apply

exemptions of the Consumer’s state of residence and thus failing to protect

the full amount of exempt funds.

40. Consumers could not reasonably avoid this substantial injury. Consumers

cannot control Respondent’s policy of applying the exemption laws of the

state where the court that issued the Garnishment Notice is located rather

than the laws of the state where the Consumer resides. Further, Consumers

are unlikely to understand which state’s exemption law applies or any

rights they may have to object to Respondent’s failure to apply the proper

exemptions to avoid the harm.

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41. The substantial injury Respondent caused or was likely to cause to

Consumers is not outweighed by countervailing benefits to Consumers or

to competition.

42. Respondent’s acts and practices as described herein constitute 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).

Findings and Conclusions as to Respondent’s Misrepresentations to

Consumers about the Applicable State Garnishment Exemptions (Deceptive

Practice)

43. An act or practice is deceptive if it misleads or is likely to mislead a

consumer, the consumer’s interpretation is reasonable under the

circumstances, and the misleading act or practice is material.

44. During the Relevant Period, by stating to Consumers that it has applied the

exemption law of the Issuing State, Respondent has implicitly represented

to Consumers that their rights to have certain funds exempted from

garnishment were governed by the law of the Issuing State.

45. In fact, in most cases, the exemption rights of Consumers are not controlled

by the law of the state where the court that issued the Garnishment Notice

is located; rather, Consumers’ exemption rights are usually determined by

the law of the state where the Consumer resides.

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46. Respondent’s implied misrepresentations concerning which state’s

exemption law applies were likely to mislead Consumers acting reasonably

under the circumstances.

47. These misrepresentations were material because they concerned the terms

and limitations of Respondent’s transactions with Consumers. Consumers

relying on these misrepresentations would have been misinformed about

the protections available to them, and potentially dissuaded from seeking to

effectuate such protections.

48. Respondent’s acts and practices as described herein constitute deceptive

acts or practices in violation of Sections 1031 and 1036 of the CFPA, 12

U.S.C. §§ 5531(a) and 5536(a)(1)(B).

Findings and Conclusions as to Respondent’s Use of a Deposit Agreement

That Requires Consumers to Direct It Not to Contest Legal Process and

Waive Its Liability (Unfair Practice)

49. Respondent requires Consumers to agree to its lengthy Deposit Agreement

to open a Deposit Account. The Deposit Agreement states that Consumers

“direct” Respondent “not to contest [any] legal process,” including process

“served at locations other than the location where the account, property, or

records are held.” The Deposit Agreement further states that Respondent

has “no liability to [the Consumer] if [Respondent] accept[s] and

compl[ies] with legal process as provided in this section or by law.”

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50. Many federal and state exemption rights and similar protections cannot be

waived.

51. Respondent’s practice of requiring Consumers to “direct” Respondent not

to contest legal process and to waive its liability for its actions regarding all

legal process causes or is likely to cause substantial injury to Consumers by

(1) purportedly allowing Respondent to process Out-of-State Garnishment

Notices issued by a Restriction State it knows or should know to be

improper; and (2) preventing Consumers from pursuing any legal claims

against Respondent for improperly handling Garnishment Notices.

52. This injury is not reasonably avoidable by Consumers. Consumers cannot

negotiate the terms of their deposit agreements, are unlikely to realize that

the waiver language will eliminate their ability to pursue legal remedies

against Respondent related to garnishment, and are unlikely to be able to

shop for other bank accounts based on this term.

53. The substantial injury Respondent caused or was likely to cause to

Consumers is not outweighed by countervailing benefits to Consumers and

competition.

54. Respondent’s acts and practices as described in Paragraphs 22–26

constitute 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).

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Findings and Conclusions as to Respondent’s Communications to

Consumers about the Garnishment of Their Deposit Accounts

(Deceptive Practice)

55. During the Relevant Period, Respondent represented in communications to

Consumers that because they signed a Deposit Agreement that included

broad language directing Respondent not to contest legal process,

Consumers had waived their right to hold Respondent liable for improperly

responding to Garnishment Notices.

56. In fact, regardless of the language in the Deposit Agreement, Consumers

have the right to go to court to attempt to prevent wrongful garnishments or

seek to have the appropriate state or federal exemptions applied. Many

federal and state exemption rights and similar protections cannot be

waived.

57. These misrepresentations were likely to mislead Consumers acting

reasonably under the circumstances because they were express statements

in documents that appeared to state Consumers’ rights under the

circumstances.

58. These misrepresentations were material because they concerned the terms

and limitations of Respondent’s Deposit Agreement with Consumers.

Consumers relying on these misrepresentations would have been

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misinformed about the protections available to them, and potentially

dissuaded from seeking to effectuate such protections.

59. Respondent’s acts and practices as described herein constitute deceptive

acts or practices in violation of Sections 1031 and 1036 of the CFPA, 12

U.S.C. §§ 5531(a) and 5536(a)(1)(B).

CONDUCT PROVISIONS

Prohibited Conduct

IT IS ORDERED, under §§ 1053 and 1055 of the CFPA, that:

60. 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, in connection with processing Garnishment Notices,

including responding to Out-of-State Garnishment Notices, freezing or

holding Consumers’ accounts in connection with processing Out-of-State

Garnishment Notices except as provided herein, turning over funds in

response to Out-of-State Garnishment Notices issued by courts in

Restriction States except as directed by a court to do so, or imposing fees

on Consumers related to Garnishment Notices issued by courts in

Restriction States.

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61. Respondent and its officers, agents, servants, employees, and attorneys

who have actual notice of this Consent Order, whether acting directly or

indirectly, must take the following affirmative actions:

Out-of-State Garnishments

a. Compile and maintain accurate up-to-date information about the limits

of Out-of-State Garnishment Notices issued by each state where

Respondent processes such Notices, maintains a financial center, or

otherwise is subject to the state’s jurisdiction, including identifying all

Restriction States.

b. Create, maintain, and implement policies and procedures that

accurately and consistently comply with the current, relevant state and

federal laws regarding Out-of-State Garnishment Notices.

c. Train Respondent personnel responsible for processing Garnishment

Notices on the policies and procedures for Out-of-State Garnishment

Notices created and maintained in subpart (b) and monitor compliance

with those policies and procedures.

d. Answer or otherwise reply to all facially valid Out-of-State

Garnishment Notices by notifying the issuing court or other issuing

entity that the relevant Deposit Account is not located in the state

from which the Out-of-State Garnishment Notice was issued. If such

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notice is provided to an entity other than a court, the form and

substance of the notice must be included in the Compliance Plan as

described in Paragraphs 63–65.

e. Answer or otherwise reply to all facially valid Out-of-State

Garnishment Notices issued by a court in the Restriction States by

notifying the issuing court or other issuing entity if Respondent does

not have garnishable assets located within the state.

f. Cease freezing or holding funds in an Out-of-State Deposit Account

on receipt of an Out-of-State Garnishment Notice from any

Restriction State, unless required to do so under state law.

g. Unless prohibited by applicable law, provide notice to the named

Consumer that Respondent has received a Garnishment Notice and

has acted upon (or will act upon) the Garnishment Notice, identifying

(i) the Deposit Accounts responsive or potentially responsive to the

Garnishment Notice; (ii) the state(s) where each of the Deposit

Accounts is located according to Respondent’s records; (iii) the

Issuing State; and (iv) the Consumer’s state of residence as

determined by Respondent’s current records.

h. Maintain records of each Out-of-State Garnishment Notice

Respondent receives (however, Respondent is not required to keep

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records of Garnishment Notices it rejects or takes no action on), what

notice Respondent provided to the issuing court or other issuing entity

in response, and whether Respondent froze, held, or turned over funds

to the judgment creditor.

State Exemption Rights

i. Compile and maintain accurate up-to-date information about state-

specific garnishment exemptions in every state where Respondent

maintains Consumers’ Deposit Accounts or has a financial center.

j. Create, maintain, implement, and routinely update policies and

procedures that accurately and consistently follow the relevant state

laws regarding state garnishment exemptions.

k. Train Respondent personnel responsible for processing Garnishment

Notices on the policies and procedures for state garnishment

exemptions created and maintained under subpart (j) and monitor

compliance with those policies and procedures.

l. For those states where Respondent is required to apply certain state

exemptions on behalf of the Consumer, Respondent must accurately

and consistently apply the correct state’s exemptions pursuant to the

information compiled under subpart (i) for each Garnishment Notice it

processes, and refrain from garnishing exempted funds.

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m. For those states where Respondent is not required to apply state

exemptions on behalf of the Consumer, Respondent must notify each

Consumer named in a Garnishment Notice that Respondent has

processed (or will process) that:

i. the Garnishment Notice may identify exemptions under the law

of the state where the judgment was obtained (i.e., the Issuing

State); and

ii. if they reside outside of the Issuing State, the Consumer may be

entitled to claim exemptions pursuant to the law of their state of

residence and that they may wish to consult an attorney.

The form and substance of these notices must be included in the

Compliance Plan as described in Paragraphs 63–65.

Deposit Agreement Waiver Language

n. Cease including in Respondent’s Deposit Agreement or any other

Consumer-facing document the language identified in Paragraphs 22–

26 of this Consent Order, referring to Respondent’s standard Deposit

Agreement or any similar language requiring Consumers to direct

Respondent not to contest legal process on their behalf with respect to

processing Garnishment Notices or requiring Consumers to waive

consumer protection rights.

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o. Cease communicating to Consumers that they have purportedly

waived any rights regarding garnishment or Garnishment Notices as a

result of entering into Respondent’s Deposit Agreement.

Credit Reporting

p. In instances where (i) the Deposit Accounts of Affected Consumers

went into overdraft status within 30 days of Respondent charging the

Consumers Garnishment-Related Fees resulting from unlawful Out-

of-State Garnishment Notices and (ii) as a result, Respondent reported

the overdraft status of those accounts to Chex Systems, Inc. (“Chex”)

and/or Early Warning Services (“EWS”), Respondent shall instruct

Chex, EWS, or any other consumer reporting agency to which

Respondent has furnished the information in this subpart, to remove

those reports from their respective databases.

62. Respondent must provide the appropriate staffing and resources necessary

to comply with Paragraphs 63–65.

VI.

Compliance Plan

IT IS FURTHER ORDERED that:

63. Within 90 days of the Effective Date, Respondent must submit to the

Enforcement Director for review and determination of non-objection a

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comprehensive compliance plan designed to ensure that Respondent’s

garnishment-related conduct pertaining to Out-of-State Garnishment

Notices and state exemptions as set forth in this Consent Order complies

with all applicable Federal consumer financial laws and the terms of this

Consent Order (“Compliance Plan”). The Compliance Plan must include, at

a minimum:

a. Detailed steps for addressing each action required by this Consent

Order as set forth in Paragraphs 60–61, including identifying all

Restriction States; and

b. Specific timeframes and deadlines for implementation of the steps

described above.

64. The Enforcement Director will have the discretion to make a determination

of non-objection to the Compliance Plan or direct Respondent to revise it.

If the Enforcement Director directs Respondent to revise the Compliance

Plan, Respondent must revise and resubmit the Compliance Plan to the

Enforcement Director within 30 days.

65. After receiving notification that the Enforcement Director has made a

determination of non-objection to the Compliance Plan, Respondent must

implement and adhere to the steps, recommendations, deadlines, and

timeframes outlined in the Compliance Plan.

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VII.

Role of the Board

IT IS FURTHER ORDERED that:

66. The Board or a committee thereof must review all submissions (including

plans, reports, and programs) required by this Consent Order prior to

submission to the Bureau.

67. Although this Consent Order requires Respondent to submit certain

documents for review or non-objection by the Enforcement Director, the

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.

68. In each instance that this Consent Order requires the Board or a committee

thereof to ensure adherence to, or perform certain obligations of

Respondent, the Board or a committee thereof must:

a. Authorize whatever actions are necessary for Respondent to fully

comply with the Consent Order;

b. Require timely reporting by management to the Board or a committee

thereof on the status of compliance obligations; and

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c. Require timely and appropriate corrective action to remedy any

material non-compliance with any failures to comply with Board

directives related to this Section.

MONETARY PROVISIONS

VIII.

Order to Pay Redress

IT IS FURTHER ORDERED that:

69. Respondent must refund all Garnishment-Related Fees that were paid by

Affected Consumers during the Relevant Period and cancel any unpaid

Garnishment-Related Fees charged to Affected Consumers. The refunded

amount will not be less than $592,000.

70. Within 60 days of the Enforcement Director’s non-objection of the

Compliance Plan, Respondent must submit to the Enforcement Director for

review and non-objection a comprehensive written plan for providing

redress consistent with this Consent Order (“Redress Plan”). The

Enforcement Director will have the discretion to make a determination of

non-objection to the Redress Plan or direct Respondent to revise it. If the

Enforcement Director directs Respondent to revise the Redress Plan,

Respondent must revise and resubmit the Redress Plan to the Enforcement

Director within 30 days. After receiving notification that the Enforcement

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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.

71. The Redress Plan must explain how Respondent will refund all

Garnishment-Related Fees to Affected Consumers and cancel any unpaid

Garnishment-Related Fees charged to Affected Consumers and must:

a. Identify each Affected Consumer;

b. Describe the method used by Respondent to identify Affected

Consumers, including Affected Consumers who no longer have active

Deposit Accounts with Respondent;

c. Describe the method used by Respondent to calculate Garnishment-

Related Fees;

d. State the total amount of Garnishment-Related Fees the Affected

Consumers paid;

e. State the amount of Garnishment-Related Fees paid by each Affected

Consumer;

f. State the total amount of unpaid Garnishment-Related Fees charged to

Affected Consumers;

g. State the amount of unpaid Garnishment-Related Fees charged to each

Affected Consumer;

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h. Describe the procedures for the issuance and tracking of redress to

Affected Consumers, including how Respondent will issue and track

redress to those Affected Consumers who no longer have active

Deposit Accounts with Respondent;

i. Describe the process for providing redress to Affected Consumers;

j. Include the template of the communication that will be sent notifying

Affected Consumers of their redress (“Redress Notification”), and, if

the Redress Notification will be mailed, the form of the envelope that

will contain the Redress Notification. The Redress Notification must

include language explaining the manner in which the amount of

redress was calculated and a statement that the refund payment is

being made in accordance with the terms of this Consent Order;

k. Provide that Respondent will pay all costs of administering redress as

required by this Consent Order; and

l. Set forth all procedures, deadlines, and timeframes for completing

each step of the Redress Plan, consistent with the terms of this

Consent Order.

72. Respondent must make reasonable attempts to obtain a current physical

address for any Affected Consumer for a period of 360 days from the date

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the redress was sent, during whic

h period such amount may be claimed by

such Affected Consumer upon appropriate proof of identity.

73. After completing the Redress Plan, if

the amount of redress provided to

Affected Consumers is less than the sum total of the amount calculated

under Paragraph 71(d) of this Order, within 30 days of the completion of

the Redress Plan, 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.

74. The Bureau may use these remaining funds to pay additional redress to

Affected Consumers. If the Bureau determines, in its sole discretion, that

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.

75. Respondent may not condition the payment of any redress to any Affected

Consumer under this Consent Order on that Affected Consumer waiving

any right.

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IX.

Order to Pay Civil Money Penalty

IT IS FURTHER ORDERED that:

76. Under Section 1055(c) of the CFPA, 12 U.S.C. § 5565(c), by reason of the

violations of law described in Section IV of this Consent Order, and taking

into account the factors in 12 U.S.C. § 5565(c)(3), Respondent must pay a

civil money penalty of $10,000,000 to the Bureau.

77. Within 10 business 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.

78. The civil money penalty paid under this Consent Order will be deposited in

the Civil Penalty Fund of the Bureau as required by Section 1017(d) of the

CFPA, 12 U.S.C. § 5497(d).

79. 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

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made under any insurance policy, with regard to any civil money

penalty paid under this Consent Order.

80. 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 any 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 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.

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Additional Monetary Provisions

IT IS FURTHER ORDERED that:

81. 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.

82. 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.

83. Under 31 U.S.C. § 7701, Respondent must furnis

h to the Bureau its

taxpayer-identification numbers, unless it already has done so, which may

be used for purposes of collecting and reporting on any delinquent amount

arising out of this Consent Order.

84. Within 30 days of the entry of a final judgment, consent order, or

settlement in a Related Consumer Action, Respondent must notify the

Enforcement 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

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Consumers or classes of Consumers to whom that redress has been or will

be paid.

COMP

LIANCE PROVISIONS

XI.

Reporting Requirements

IT IS FURTHER ORDERED that:

85. 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 l

east 30 days before

the development, but, in any case, no

later than 14 days after the development.

86. Within 7 days of the Effective Date, Respondent must 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.

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87. Respondent must report any change in the information required to be

submitted under Paragraph 85 at least 30 days before the change or as soon

as practicable after the learning about the change, whichever is sooner.

88. Within 90 days of receiving non-objection to the Compliance Plan, and

again one year after receiving non-objection to the Compliance Plan,

Respondent must submit to the Enforcement Director an accurate written

compliance progress report (Compliance Report) that has been approved by

the Board or a committee thereof, sworn to under penalty of perjury,

which, at a minimum:

a. Lists each applicable paragraph and subparagraph of the Consent

Order and describes in detail the manner and form in which

Respondent has complied with each such paragraph and subparagraph

of the Consent Order;

a. Describes in detail the manner and form in which Respondent has

complied with the Redress Plan and Compliance Plan; and

b. Attaches a copy of each acknowledgment of receipt of this Consent

Order obtained under Section XII, unless previously submitted to the

Bureau.

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XII.

Order Distribution and Acknowledgment

IT IS FURTHER ORDERED that:

89. Within 7 days of the Effective Date, Respondent must submit to the

Enforcement Director an acknowledgment of receipt of this Consent Order,

sworn under penalty of perjury.

90. Within 30 days of the Effective Date, Respondent must deliver a copy of

this Consent Order to each member of its Board and executive officers, as

well as to any managers, employees, outside counsel, or other agents and

representatives who have non-ministerial responsibilities related to the

subject matter of the Consent Order.

91. 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 executive officers,

as well as to any managers, employees, outside counsel, or other agents and

representatives who will have non-ministerial responsibilities related to the

subject matter of the Consent Order before they assume their

responsibilities.

92. Respondent must secure a signed and dated statement acknowledging

receipt of a copy of this Consent Order, ensuring that any electronic

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signatures comply with the requirements of the E-Sign Act, 15 U.S.C. §

7001 et seq., within 30 days of delivery, from all persons receiving a copy

of this Consent Order under this

Section.

93. Within 90 days of the Effective Date, Respondent must provide the Bureau

with a list of all persons and their titles to whom this Consent Order was

delivered through that date under Paragraphs 90–91 and a copy of all

signed and dated statements acknowledging receipt of this Consent Order

under Paragraph 92.

XIII.

Recordkeeping

IT IS FURTHER ORDERED that:

94. 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

to the Bureau;

b. All documents and records pertaining to the Redress Plan, described

in Section VIII above;

c. All docum

ents and records pertaining to the Compli

ance Plan,

described in Section VI above;

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d. Copies sufficient to show the form of Respondent’s Deposit

Agreement and communications with Consumers regarding

Garnishment Notices;

e. All Consumer complaints and refund requests (whether received

directly or indirectly, such as through a third party) regarding

Respondent’s processing of garnishments, and any responses to those

complaints or requests;

f. Records showing, for each employee providing services related to

garnishments, that person’s name, telephone number, email, physical,

and postal address, job title or position, dates of service, and, if

applicable, the reason for termination; and

g. Records showing, for all outside couns

el providing services related to

garnishments, the name of a point of contact, and the attorney’s

telephone number, email, physical, and postal address, job title or

position, dates of service, and, if applicable, the r

eason for

termination.

95. Respondent must make the documents identified in Paragraph 94 available

to the Bureau upon the Bureau’s request.

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XIV.

Notices

IT IS FURTHER ORDERED that:

96. 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. 2022-CFPB-0002,” and send them by

overnight

courier or first-class mail to the below address and

contemporaneously by email to Enforcement_Co[email protected] and

to:

Assistant Director for Enforcement

Consumer Financial Protection Bureau

1700 G Street NW

Washington, DC 20552

and

Regional Director, CFPB Southeast Region

Peachtree Summit Building

401 W. Peachtree Street

Atlanta, GA 30308

XV.

Cooperation with the Bureau

IT IS FURTHER ORDERED that:

97. Respondent must cooperate fully to help the Bureau determine the identity

and location of, and the amount of injury sustained by, each Affected

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Consumer. Respondent must provide such information in its or its agents’

possession or control within 14 days of receiving a written request from the

Bureau.

XVI.

Compliance Monitoring

IT IS FURTHER ORDERED that:

98. Within 14 days of receipt of a written request from the Bureau, Respondent

must submit additional Compliance Reports or other requested information,

which must be made under penalty of perjury; provide sworn testimony; or

produce documents.

99. 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 IV; or (c) compliance with the

Consent Order. The person interviewed may have counsel present.

100. 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.

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XVII.

Modifications to Non-Material Requirements

IT IS FURTHER ORDERED that:

101. 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 Enforcement

Director.

102. The Enforcement Director may, in his or her discretion, modify any non-

material requirements of this Consent Order (e.g., reasonable extensions of

time and changes to reporting requirements) if he or she determines good

cause justifies the modification. Any such modification by the Enforcement

Director must be in writing.

ADMINISTRATIVE PROVISIONS

XVIII.

IT IS FURTHER ORDERED that:

103. The provisions of this Consent Order do not bar, estop, or otherwise

prevent the Bureau from taking any other action against Respondent.

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.

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104. 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 IV 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 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.

105. 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.

106. This Consent Order will terminate 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

dismissed or the relevant adjudicative body rules that Respondent did not

violate any provision of the Consent Order, and the dismissal or ruling is

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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.

107. 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.

108. 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.

109. 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.

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110. 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.

111. Nothing in this Consent Order or the accompanying Stipulation may be

construed as allowing Respondent, its Board, officers, or employees to

violate any law, rule, or regulation.

IT IS SO ORDERED, this 4th day of May, 2022.

____________________________

Rohit Chopra

Director

Consumer Financial Protection Bureau

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