On September 17, the CFPB published a circular clarifying that banks and credit unions can violate the EFTA and Regulation E if they cannot prove that consumers agreed to be enrolled in overdraft services before being charged fees for ATM and other transactions. As described by the CFPB, Regulation E mandates an opt-in regime, meaning consumers are not enrolled in covered overdraft services until they explicitly agree to enroll, and financial institutions are prohibited from charging fees without this consent.

The circular emphasized that the “form of records” demonstrating consumer consent may vary based on the channel the consumer uses, such as signed forms for in-person or mail opt-ins, recorded calls for phone opt-ins, and secured electronic signatures for online or mobile app opt-ins. The CFPB says it has observed instances where institutions failed to provide evidence of consumer consent and highlighted the importance of maintaining accurate records and adhering to Regulation E’s requirements to avoid deceptive and abusive practices.