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Must the bank obtain a new consent from customers who previously opted-in to the bank’s debit card overdraft service? In addition, if the bank only plans to increase the overdraft fee, must it obtain customer consent to the increase?

My bank charges overdraft fees for one-time-debit and ATM transactions and, as Regulation E requires, provides the appropriate model "A9 notice" and opportunity to opt-in before charging these fees. The bank is now planning to charge a daily overdraft fee on accounts in overdraft status longer than three business days. The bank plans to disclose this fee 30 days in advance in accordance with Regulation DD. Must the bank obtain a new consent from customers who previously opted-in to the bank’s debit card overdraft service? In addition, if the bank only plans to increase the overdraft fee, must it obtain customer consent to the increase?

To respond to your first question, yes, a new opt-in consent is required. To respond to your second question, consent is not needed, but advance notice of the change is required.

Under §1005.17(b)(iii) of Regulation E, customers must "affirmatively consent" to any fees charged in connection with an overdraft caused by a one-time debit or ATM transaction. Your customers opted-in to the overdraft service based on a notice that presumably did not include a continuous overdraft fee because, at that time, it was not charged. Thus, the customers did not agree to this continuous overdraft fee as Regulation E requires.

However, increasing a fee that the bank disclosed previously is different. In that case, customers did agree to the fee when they opted-in, so they need not opt-in again. That being said, both Regulation E (1005.8(a)) and Regulation DD (1030.5(a)) require the increase to be disclosed in advance. In addition, if the bank in its original notice limited the amount of overdraft fees that may be assessed, and the new daily fee may cause that amount to be exceeded, the bank must provide a change in terms notice. (February 2018)

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