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Financial Services Law Insights and Observations


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  • CFPB lets QM cure provision expire

    Federal Issues

    January 10 was the sunset date for the QM Rule’s provision allowing creditors to cure loans that exceed the rule’s limitation on points and fees. For transactions consummated prior to January 10, a creditor could cure any loan exceeding the (generally 3 percent) points and fees limit by refunding to the consumer the excess amount plus interest within 210 days of consummation (assuming the borrower had not notified the creditor of the error or become 60 days past due). The cure provision was originally added by the amendments to the ATR/QM Rule published in November 2014 and was always set to expire on January 10, 2021. The new QM rulemakings issued by the CFPB in December 2020 (covered by a Buckley Special Alert) do not extend it or replace the cure provision.

    Federal Issues CFPB Ability To Repay Qualified Mortgage

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  • OCC conditionally approves conversion of digital bank

    Federal Issues

    On January 13, the OCC announced it has conditionally approved a South Dakota non-depository public trust company’s application to convert to a national trust bank. The digital bank—which offers digital asset and cryptocurrency custody services in certain states—has entered into an operating agreement as an enforceable condition of approval, which specifies capital and liquidity requirements and risk management expectations. By receiving a national trust bank charter, the digital bank will be allowed to expand its digital asset custody services nationally and may perform the functions and “activities of a fiduciary, agency, or custodial nature, in the manner authorized by federal and state law” with oversight being conducted by the OCC. According to the OCC, this approval “demonstrates that the national bank charters provided under the National Bank Act are broad and flexible enough to accommodate evolving approaches to financial services in the 21st century.”

    Federal Issues OCC Fintech Cryptocurrency Bank Charter National Bank Act

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  • Brainard weighs benefits and risks of using AI in financial services industry

    Federal Issues

    On January 12, Federal Reserve Governor Lael Brainard spoke at the AI Academic Symposium hosted by the Fed’s Board about the increased use of artificial intelligence (AI) in the financial services industry. Brainard reflected that since she first shared early observations on the use of AI in 2018 (covered by InfoBytes here), the Fed has been exploring ways to better understand the use of AI, as well as how banking regulators can best manage risk through supervision while supporting the responsible use of AI and providing equitable outcomes. “Regulators must provide appropriate expectations and adjust those expectations as the use of AI in financial services and our understanding of its potential and risks evolve,” Brainard noted, adding that the Fed is currently collaborating with the other federal banking agencies on a potential request for information on the risk management of AI applications in financial services.

    Emphasizing the “wide ranging” scope of AI applications, Brainard commented that financial services firms have been using AI for operational risk management, customer-facing applications, and fraud prevention and detection. Brainard also suggested that machine learning-based fraud detection tools could also have the potential to increase the detection of suspicious activity “with greater accuracy and speed,” while potentially enabling firms to respond in real time. Brainard also acknowledged the potential of AI to improve accuracy and fairness of credit decisions and improve overall credit availability.

    However, Brainard also discussed AI challenges, including the “black box problem” that can arise with complex machine learning models that “operate at a level of complexity” which is difficult to fully understand. This lack of model transparency is a central challenge she noted, stressing that financial services firms must understand the basis on which a machine learning model determines creditworthiness, as well as the potential for AI models to “reflect or amplify bias.” With respect to safety and soundness, Brainard stated that “bank management needs to be able to rely on models’ predictions and classifications to manage risk. They need to have confidence that a model used for crucial tasks such as anticipating liquidity needs or trading opportunities is robust and will not suddenly become erratic.” She added that “regulators must provide appropriate expectations and adjust those expectations as the use of AI in financial services and our understanding of its potential and risks evolve.”

    Federal Issues Federal Reserve Artificial Intelligence Fintech

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  • PPP portal to re-open to all lenders on January 19

    Federal Issues

    On January 13, the Small Business Administration (SBA) announced that the Paycheck Protection Program (PPP) loan portal will open to all eligible lenders with $1 billion or less in assets for First and Second Draw applications on January 15, with the portal fully opening on January 19 to all participating lenders. As previously covered by InfoBytes, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Economic Aid Act) provides an additional $284 billion for the PPP, extending the authority to make PPP loans through March 31, amending certain aspects of the program, and allowing for certain businesses to take second loans. The PPP portal initially reopened on January 11 to community financial institutions only in order to reach underserved and minority small businesses.

    Federal Issues Covid-19 SBA CARES Act Economic Aid Act

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  • FTC comments on application of ECOA, Regulation B in response to CFPB RFI

    Federal Issues

    Recently, FTC staff submitted a comment letter in response to the CFPB’s request for information (RFI) seeking input on ways to provide additional clarity under the Equal Credit Opportunity Act (ECOA) and implementing Regulation B. As previously covered by InfoBytes, the CFPB issued the RFI last July requesting comments on ways to create a regulatory environment that expands credit access and ensures consumers and communities are protected from discrimination with respect to any aspect of a credit transaction. Included in the RFI was a request for input on whether “the Bureau should provide additional clarity regarding its approach to disparate impact analysis under ECOA and/or Regulation B.” Citing to legislative history, the FTC noted that Regulation B explicitly incorporates disparate impact, and stressed that “[a]rticulating a single approach to disparate impact analysis that covers diverse sets of present and future facts and circumstances of discrimination could be difficult and could risk being both over and under inclusive.” The FTC suggested that if the Bureau chooses to provide additional detail regarding its approach to disparate impact analysis, a disclaimer should be included that such information is not intended to “bless” any violations of ECOA and Regulation B, but is rather “intended to provide examples of how the agency might approach a fair lending matter.”

    In response to the Bureau’s request for information about ways it might support efforts to meet the credit needs of small businesses, the FTC highlighted recent enforcement actions involving small businesses, including actions involving deceptively advertised financial products and unfair billing and collection practices, particularly with respect to merchant cash advances. The FTC also urged the Bureau to remind entities offering credit to small businesses that ECOA and Regulation B apply and that entities cannot avoid application of these statutes based solely on how they characterize a transaction or the benefits they claim to provide. The FTC further stressed that collecting small business lending demographic data could aid in enforcement efforts, as would encouraging small businesses to report misconduct and refer complaints to the FTC and the states. In addition, the FTC highlighted the importance of educating small businesses about different products and terms, as well as potential law violations, which could assist small businesses in comparing products resulting in less expensive financing options.

    Federal Issues CFPB FTC ECOA Regulation B Disparate Impact Small Business Lending Merchant Cash Advance

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  • CFPB denies guaranty agency’s petition to set aside CID

    Federal Issues

    On December 16, the CFPB denied a petition by a non-profit guaranty agency that serves as a guarantor of federal student loans to set aside a civil investigative demand (CID) issued by the Bureau last September. The CID requested information from the company to determine, among other things, whether “debt collectors, guaranty agencies, or associated persons” violated the CFPA’s UDAAP provisions by improperly causing borrowers to incur costs or fees in connection with the collection of student loans. The company petitioned the Bureau to set aside the CID. Among other things, the company argued that the Bureau lacked jurisdiction, because it does not provide a consumer financial product or service, but rather a commercial service to the Department of Education (Department). The company also argued that the Bureau lacked jurisdiction due to the company’s fiduciary relationship with the Department, citing a Memorandum of Understanding (MOU) between the Bureau and the Department related to their respective responsibilities for handling student borrower complaints. Additionally, the company claimed that any potential allegations are time-barred, and that, in the alternative, the CID should be stayed until the U.S. District Court for the District of Columbia issues a decision in a pending lawsuit challenging the validity of the Department’s Guaranty Agency Collections Fee Rule.

    The Bureau rejected the company’s request to set aside or modify the CID, finding that (i) it has a “reasonable basis to investigate” whether guaranty agencies, like the company, fall within its jurisdiction; (ii) the CID is proper because it seeks information “relevant to a violation” of consumer financial protection laws, as well as information related to the company’s relationships with private collection agencies and loan servicers; (iii) the Bureau’s MOU with the Department has “no relevance” to the Bureau’s exercise of its investigative or enforcement authority; (iv) its investigation is not time-barred because the CFPA’s statute of limitations begins to run upon the Bureau’s discovery of the violation, and, moreover, the Bureau is not limited to gathering information from only within the limitations period; and (v) the company “fail[ed] to establish any basis for an indefinite stay of the CID.”

    Federal Issues CFPB Enforcement CIDs Guaranty Agency CFPA UDAAP

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  • CFPB taskforce releases recommendations for modernizing consumer financial marketplace

    Federal Issues

    On January 5, the CFPB Taskforce on Federal Consumer Financial Law released a two volume report with approximately 100 recommendations on ways the CFPB, Congress, and state and federal regulators can improve and modernize the legal and regulatory environment for the consumer financial services market. The report is the end-product of a request for information issued by the taskforce last March (covered by InfoBytes here). The report’s first volume provides a historical and economic overview of the legal and regulatory landscape for consumer finance, and explores issues related to consumer financial protection, competition, innovation, and financial inclusion. The second volume outlines more than 100 proposed recommendations for strengthening consumer protections and maintaining competition in the financial marketplace. Among these are recommendations related to the regulation of non-banks and fintech companies, including:

    • Recommending that Congress either (i) “authorize the Bureau to issue licenses to non-depository institutions that provide lending, money transmission, and payments services,” with licenses “provid[ing] that these institutions are governed by the regulations of their home states, even when providing services to consumers located in other states,” or (ii) “clarify that the OCC has the authority to issue charters to non-depositories engaged in lending, money transmissions, or payment services.” Acting Comptroller of the Currency, Brian P. Brooks released a statement the next day endorsing the need for federal charters for fintech companies, but stressed that the OCC, not the Bureau, should be responsible for granting national charters;
    • Identifying and addressing competitive barriers and making appropriate recommendations to policymakers and regulators for expanding access to the payments systems by non-bank providers;
    • Recommending that the Bureau weigh the costs and benefits of preempting state law where potential conflicts “can impede provision of valuable products and services, such as the regulation of [fintech] companies engaged in money transmission”; and
    • Ensuring that fintech companies with multistate operations are subject to a single set of laws to promote consistency, reducing unnecessary regulatory costs, and promoting competition.

    The taskforce further recommends that the Bureau establish an independent review of its regulatory cost-benefit analyses, and calls for increased regulatory coordination between the Bureau and other federal and state regulators. Other recommendations address, among other things, the use of alternative data; suggested changes to the Bureau’s internal organization; competition in the consumer financial marketplace, including with respect to the cost of credit, the effect and burden of state licensure requirements, and settlement servicing prices; consumer credit reporting, including clarifying the obligations of credit reporting agencies and furnishers with respect to dispute investigations; consumer empowerment and education; equal access to credit and financial inclusion; disclosure requirements; electronic signatures and document requirements; disparate impact; privacy; small dollar credit; and enforcement and supervision.

    Federal Issues CFPB Agency Rule-Making & Guidance Consumer Finance Consumer Protection Fintech OCC

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  • SBA releases PPP guidance and expansion rules

    Federal Issues

    On January 8, the Small Business Administration (SBA) announced the Paycheck Protection Program (PPP) will re-open the week of January 11, with only community financial institutions able to make “First Draw” PPP loans on Monday, January 11, and “Second Draw” PPP loans on Wednesday, January 13 (re-opening to all participating lenders “shortly thereafter”). The SBA also released two interim final rules and associated guidance relating to the relaunch of the PPP, as dictated by the Consolidated Appropriations Act, 2021 (HR133). The Act, which was signed by President Trump on December 27, extends certain emergency authorities and temporary regulatory relief contained in the CARES Act, including an extension of the eviction moratorium until January 31. Under a section titled, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Economic Aid Act), the legislation also provides an additional $284 billion for the PPP, extending the authority to make PPP loans through March 31, amending certain aspects of the program, and allowing for certain businesses to take second loans. The SBA notes that the new issuances satisfy the Economic Aid Act’s requirement that the agency promulgate rules to carry out the PPP provisions within 10 days of enactment:

    • SBA Guidance. The guidance covers access to capital for minority, underserved, veteran, and women-owned business concerns and details the set-asides for loans issued by community development financial institutions, minority depository institutions, and certain small depository institutions. Most notably, the guidance states that the SBA will only accept PPP loan applications from community financial institutions for at least the first two days when the PPP loan portal re-opens.
    • First Interim Final Rule. The interim final rule incorporates the Economic Aid Act’s amendments required to be implemented by regulation within 10 days of enactment. It also consolidates and restates SBA’s previous interim final rules and guidance covering the PPP (such as those governing borrower eligibility, lender eligibility, and PPP application and origination, and loan forgiveness). The interim final rule implements the various changes to the PPP made by the Economic Aid Act, including:
      • Allowing additional expenses and forgivable uses for PPP funds, including certain operational expenditures, certain costs related to property damage due to public disturbances that occurred during 2020, certain supplier costs, and certain protective equipment expenditures. The expanded forgivable expenses may be utilized by borrowers who obtained PPP loans before the enactment of the Act so long as they have not already had their loans forgiven.
      • Provisions stating that lenders (i) may rely on any certification or documentation submitted by applicants for both initial and second PPP loans, and (ii) may not be subject to enforcement action or penalties relating to loan origination or forgiveness, so long as (a) the lender acts in good faith relating to loan origination or forgiveness, and (b) all relevant federal, state, local and other statutory and regulatory requirements are satisfied.
      • Certain streamlined conditions for loans of up to $150,000, including simplified loan forgiveness application and simplified certification of revenue for second loans.
    • Second Interim Final Rule- PPP Second Draw. The interim final rule implements the key provisions of section 311 of the Economic Aid Act, allowing for a second PPP draw. Specifically, the Economic Aid Act allows for certain businesses to take a second loan under the PPP with a maximum draw amount of $2 million. In order to qualify, businesses must generally: (i) employ no more than 300 employees; (ii) have used or will use the full amount of their first PPP loan; and (iii) demonstrate at least a 25 percent reduction in gross receipts in the first, second, or third quarter of 2020 relative to the same quarter in 2019.  Applications submitted after January 1, 2021 can utilize gross receipts from the fourth quarter of 2020. Additionally, the Economic Aid Act includes restrictions on types of eligible businesses, including entities involved in political and lobbying activities. Qualified borrowers may receive a loan amount of up to 2.5X the average monthly payroll costs during the 1-year period prior to the date of the loan or in calendar year 2019.

    Additionally, in response to the Consolidated Appropriations Act, the Federal Reserve Board extended the termination date of the Main Street Lending Program facilities to January 8, in order to allow more time to process and fund loans that were submitted to the portal on or before December 14, 2020. The SBA also extended the deadline to apply for the Economic Injury Disaster Loan (EIDL) program to December 31, pending the availability of funds.

    Federal Issues Covid-19 SBA Federal Reserve CARES Act Federal Legislation Consolidated Appropriations Act

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  • SBA issues notice detailing remittance of EIDL advances

    Federal Issues

    On January 8, the Small Business Administration (SBA) issued a procedural notice discussing the repeal of Section 1110(e)(6) of the CARES Act, which required the SBA to deduct the amount of any Economic Injury Disaster Loan (EIDL) advance received by a Paycheck Protection Program (PPP) borrower from the PPP forgiveness payment from the SBA to the PPP lender. According to the notice, effective immediately, the SBA will no longer deduct EIDL advances from PPP forgiveness payments and will apply this change to any SBA forgiveness payments that were confirmed by December 29, 2020 or later.

    Additionally, for any forgiveness payments that were already reduced by an EIDL advance, the SBA will automatically remit a reconciliation payment to the PPP lender that will include the advance amount, plus interest through the remittance date. The SBA notes that the PPP lender does not need to request the reconciliation payment, but must notify the borrower of the payment, re-amortize the loan, and notify the borrower of the next payment amount or whether the loan has been paid in full.

    Federal Issues Covid-19 SBA EIDL CARES Act

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  • CFPB issues two new CAS approval orders

    Federal Issues

    On December 30, the CFPB issued two compliance assistance sandbox (CAS) approval orders covering a dual-feature credit card and an earned wage access product. The first approval was issued to a federal savings bank regarding its proposal to develop a “dual-feature credit card,” which would be offered to consumers with limited or damaged credit history to help reestablish more favorable credit history. According to the approval order, the consumer would be required to provide a security deposit to be used with the secured credit card feature and after “at least one year” and meeting certain eligibility requirements, the consumer would be offered to “graduate” to unsecured use of the credit card. The three-year approval order, by operation of TILA section 130(f), provides the bank a safe harbor from liability under TILA and Regulation Z, to the fullest extent permitted by section 130(f), as to any act done in good faith compliance with the order.

    The second approval order covers certain aspects of an earned wage access (EWA) payment program, which allows employees access to their earned but unpaid wages prior to payday. According to the CAS application, an employee of a participating employer can download the company’s app and agree to the company’s terms prior to engaging in an EWA program. Among other things, the company notes that it will not engage in any debt collection activities related to the EWA program or submit reports to a consumer reporting agency regarding the transactions. The two-year approval order, by operation of TILA section 130(f), provides the bank a safe harbor from liability under TILA and Regulation Z, to the fullest extent permitted by section 130(f) as to any act done in good faith compliance with the order.

    Federal Issues Fintech Regulatory Sandbox No Action Letter TILA Regulation Z

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