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FDIC issues RFI on bank mergers
On March 25, the FDIC issued a request for information (RFI) seeking public comments on bank mergers, including mergers between an insured depository institution and a noninsured institution, to aid the agency’s understanding of and any potential policymaking in this area. Specifically, the RFI seeks input related to the effectiveness of the existing framework in meeting the requirements of Section 18(c) of the Federal Deposit Insurance Act (known as the Bank Merger Act). According to the FDIC, “[s]ignificant changes over the past several decades in the banking industry and financial system warrant a review of the regulatory framework.”
Among the questions posed by the RFI are topics concerning (i) whether additional requirements or criteria (including quantitative measures) should be added to the existing regulatory framework to address financial stability risks that may arise from bank mergers (e.g. “[s]hould the FDIC presume that any merger transaction that results in a financial institution that exceeds a predetermined asset size threshold, for example $100 billion in total consolidated assets, poses a systemic risk concern?”); (ii) the extent to which prudential factors should be considered when acting on a merger application, and whether bright line minimum standards for these factors should be established; (iii) whether agencies should rethink the way they consider whether a merger might affect the convenience and needs factor of a community, and to “what extent should the CFPB be consulted by the FDIC when considering the convenience and needs factor and should that consultation be formalized”; (iv) whether the existing merger review framework creates “an implicit presumption of approval” or requires “an appropriate burden of proof” on bank applicants to prove they have met the criteria of the Bank Merger Act; (v) to what extent has the Bank Merger Act exception “proven beneficial or detrimental to the bank resolution process and to financial stability”; and (vi) to what extent would responses to the questions differ if the merger transaction involves a small insured depository institution.
Comments on the RFI are due 60 days after publication in the Federal Register.
OCC’s Hsu warns banks not to be the last to update overdraft programs
On March 28, acting Comptroller of the Currency Michael J. Hsu warned banks that they “don’t want to be the last bank with a traditional overdraft program.” Hsu’s op-ed pointed to recent overdraft reforms taken by several OCC-regulated banks that may end up saving consumers more than $2 billion annually. Recognizing that these reforms are “just the start,” Hsu stressed that “[b]anks that hesitate to adopt pro-consumer overdraft programs will soon be negative outliers.” Hsu outlined several points banks should consider when implementing overdraft changes, including taking a “customer-oriented approach” and implementing meaningful changes with lasting benefits to both customers and the bank, rather than “taking a profit-oriented approach and reverse engineering costs to meet predetermined revenue targets.” Banks should also “use data to identify the reforms that help customers the most,” Hsu stated, including “grace periods that give customers time to cover overdrafts and avoid fees, grace amounts that allow customers to overdraft by certain amounts without a fee, and changes in posting order, i.e., the sequence in which payments are made, to limit repeat fees.” Additionally, banks should build on the “pro-customer” overdraft reform momentum when developing small dollar lending capabilities and considering other products, such as buy now/pay later and earned-wage access products. “The cumulative effect of these pro-consumer initiatives holds the promise of materially and sustainably improving the financial health of underserved populations and, by doing so, fortifying banks’ reputation for treating all customers, including the most financially vulnerable, fairly and thus earning their long-term trust,” Hsu said.
FDIC releases February enforcement actions
On March 25, the FDIC released a list of administrative enforcement actions taken against banks and individuals in February. During the month, the FDIC made public six orders consisting of “three Orders to Pay Civil Money Penalty, two orders terminating consent order, and one consent order.” Among those announced were two civil money penalties for alleged violations of the Flood Disaster Protection Act. In one civil money penalty, imposed against a Kansas-based bank, the FDIC claimed that the bank “made, increased, extended, renewed, sold, or transferred a loan secured by a building or mobile home located or to be located in a special flood hazard area without properly notifying the Administrator of FEMA or their designee.” The order requires the payment of a $2,250 civil money penalty. In another civil money penalty, imposed against a Minnesota-based bank, the FDIC claimed that the bank: (i) “made, increased, extended, or renewed loans secured by a building or mobile home located or to be located in a special flood hazard area without requiring that the collateral be covered by flood insurance”; (ii) “made, increased, extended or renewed a loan secured by a building or mobile home located or to be located in a special flood hazard area without providing timely notice to the borrower and/or the servicer as to whether flood insurance was available for the collateral”; and/or (iii) “failed to comply with proper procedures for force-placing flood insurance in instances where the collateral was not covered by flood insurance at some time during the term of the loan.” That order requires the payment of a $3,000 civil money penalty.
Upcoming Treasury reports will highlight CBDC issues
On March 22, Treasury Under Secretary for Domestic Finance Nellie Liang spoke before the National Association for Business Economics on topics related to stablecoins and a possible central bank digital currency (CBDC). As instructed by President Biden’s Executive Order on digital assets (covered by InfoBytes here), Liang announced that Treasury will partner with other agencies in the coming months to produce a series of reports and recommendations focusing on (i) the future of money and payment systems, with a discussion of CBDCs; (ii) financial stability risks and regulatory gaps posed by digital assets; (iii) the use of digital assets for illicit finance and associated national security risks; and (iv) international engagement supporting global principles and standards for digital assets and CBDCs. “Regulatory policy for new financial products may need to evolve, but should follow ‘same risk, same regulation,’ in the sense that regulations should be based on risks of the activity rather than the technology itself,” Liang stressed, adding that Treasury’s work will “complement” other agency efforts such as the Federal Reserve Board’s recent discussion paper which emphasized that any CBDC should ensure users’ privacy, have an intermediated model, be transferable, and prevent illicit finance (covered by InfoBytes here).
CFPB announces 2021 HMDA-modified LAR availability
On March 23, the CFPB announced that the HMDA modified loan/application register (LAR) is available on the Federal Financial Institutions Examination Council’s HMDA Platform for approximately 4,316 HMDA filers. According to the announcement, the modified LARs provide each financial institution's loan-level HMDA data, as modified to protect applicant and borrower privacy in accordance with the CFPB’s final policy guidance on the disclosure of HMDA data. Additionally, the 2021 HMDA data will be available later this year in other forms to provide users insights into the data, which will include: (i) a nationwide loan-level dataset with all publicly available data for all HMDA reporters; (ii) aggregate and disclosure reports with summary information by geography and lender; and (iii) the HMDA Data Browser to allow users to customize datasets, reports, and data maps. Additionally, the FFIEC released an updated version of “A Guide To HMDA Reporting: Getting It Right!," which is designed to be an "easy-to-use summary of certain key requirements" of Regulation C.
CFPB reports cover mortgage challenges, emergency savings
On March 23, the CFPB released two reports, New Data on the Characteristics of Mortgage Borrowers During the COVID-19 Pandemic and Emergency Savings and Financial Security: Insights from the Making Ends Meet Survey and Consumer Credit Panel. As previously covered by InfoBytes, the CFPB first released Characteristics of Mortgage Borrowers During the COVID-19 Pandemic in May 2021, which analyzed mortgage borrowers’ challenges due to the ongoing Covid-19 pandemic. The recently released report explores the characteristics of borrowers who are delinquent or in forbearance based a sample of more than 2 million loans for owner-occupied properties. The report shows, among other things, that Black and Hispanic borrowers are more at risk of poor outcomes than others, as they comprised 31.2 percent of borrowers in forbearance while only constituting 18.2 percent of the overall sample of mortgage borrowers. The report also found that single borrower loans were approximately 1.6 times more likely to be in forbearance through January 2022, compared to loans with a co-borrower, which is an increase relative to March 2021, where single borrowers were only 1.4 times more likely to be in forbearance compared to co-borrowers.
The Emergency Savings and Financial Security Insights from the Making Ends Meet Survey and Consumer Credit Panel report examines how consumers’ financial profiles vary by levels of emergency savings. Using the Making Ends Meet survey and pairing it with credit bureau data from our Consumer Credit Panel, the report found that, among other things: (i) approximately 24 percent of consumers do not have savings set aside for emergencies, “while 39 percent have less than a month of income saved for emergencies and 37 percent have at least a month of income saved for emergencies,” and (ii) “41 percent of consumers with no more than a high school or vocational degree have no emergency savings, [while] the share is 6 percent for those with a college degree.”
OCC applies heightened risk governance standards to mortgage servicer
Recently, the OCC published Interpretive Letter #1180 addressing the application of heightened risk governance standards under 12 C.F.R. Part 30, Appendix D, OCC Guidelines Establishing Heightened Standards (Guidelines) to a supervised bank. Specifically, the OCC determined that the bank’s operations were highly complex and presented a heightened risk. This determination was based on information provided by the Supervisory Office, which concluded that the bank’s operations, including significant mortgage servicing activities, warranted application of the Guidelines to the bank. “The Guidelines provide that a covered institution should establish and adhere to a written risk governance framework to manage and control its risk-taking activities,” the OCC stated, adding that the Guidelines “also provide minimum standards for an institution’s board of directors to oversee the risk governance framework.” In the interpretive letter, the OCC stated that it had notified the bank last December that it was considering exercising its reservation of authority to apply the Guidelines; however, the bank responded that application of the Guidelines was not appropriate at that time. The bank is expected to comply with the Guidelines by February 29, 2024.
As previously covered by InfoBytes, last October the OCC issued a consent order against the bank for allegedly maintaining inadequate risk management controls related to its servicing and default servicing activities. The OCC asserted that the bank had previously been informed about the alleged risk management deficiencies and did not take timely corrective action. Under the terms of the consent order, the bank was required to take comprehensive corrective measures, including developing and implementing internal controls that are “commensurate with the types and complexity of risks associated with all transactions the [b]ank executes.”
Credit bureaus to eliminate 70% of medical debt tradelines
On March 18, three major credit bureaus released a statement announcing that they are eliminating nearly 70 percent of medical collection debt tradelines from consumer credit reports. According to the statement, beginning July 1, “paid medical collection debt will no longer be included on consumer credit reports. In addition, the time period before unpaid medical collection debt would appear on a consumer’s report will be increased from 6 months to one year, giving consumers more time to work with insurance and/or healthcare providers to address their debt before it is reported on their credit file.” Finally, starting in 2023, medical collection debt under $500 will no longer be included on credit reports issued by the three credit bureaus. The statement noted that the decision to remove medical tradelines from credit reports was taken “after months of industry research.”
The same day Senator Sherrod Brown (D-OH), Chairman of the Senate Committee on Banking, Housing, and Urban Affairs, issued a statement supporting the credit bureaus’ announcement regarding medical debt. Brown noted the changes followed a CFPB announcement that it would hold consumer reporting agencies accountable for inaccurate reports (covered by InfoBytes here). Brown expressed his view that the CFPB is taking “real action for consumers” and noted he intends to collaborate with the CFPB to “address the growing burden of medical debt, protect working families, and hold bad actors accountable.”
Earlier on March 16, the CFPB a released a data spotlight regarding senior adults (those age 65 and older) and medical debt. The survey used information from the 2018 “FINRA Foundation National Financial Capability Study,” which was administered online to a sample of 27,091 adults ages 18 and older. In total, there were 5,166 respondents ages 65 and older. The study found that 8.5 percent of adults over 65 carried medical debt. The Bureau suggested this outcome “is likely the result of older Americans having the highest health insurance coverage rates of all age groups due to their eligibility for coverage through Medicare,” but referenced Medicare coverage as “limited.” The data spotlight also pointed out that, “[m]edical debt is more common among older people of color, older adults with incomes near the poverty line, people who are uninsured, who are currently unmarried, and who don’t own a home,” specifically noting that “[n]on-White older adults and older adults who are not married more often report medical debt than their counterpart.” The Bureau observed that 76 percent of seniors with medical debt are retired, while 17 percent are still employed and nearly 7 percent are disabled, sick, or unable to work. The Bureau noted that a recent job loss, declining health, or the onset of a disability may explain this data. The survey also found that older adults who had medical debt were significantly more likely to report significant cost-related health care challenges and hardships than others in the same age group without medical debt. More than 33.8 percent of older adults with medical debt have skipped medical treatment or a doctor’s visit due to cost, but just 6 percent of seniors without medical debt skipped medical treatment or a doctor’s visit due to cost, according to the survey data.
CFPB releases compliance guidance on online consumer reviews
On March 22, the CFPB released a compliance bulletin regarding potentially illegal practices related to consumer reviews. The guidance highlights certain business practices related to consumer reviews that are generally unlawful under the CFPA, which include, among other things: (i) deceiving consumers by using purported contractual restrictions that are unenforceable; (ii) unfairly depriving consumers of information using restrictions on consumer reviews; and (iii) deceiving consumers who read consumer reviews about the nature of those reviews. According to the CFPB, the effort is related to the FTC’s work to counter fake reviews and connected fraud in the digital economy. (Covered by InfoBytes here).
Biden urges private-sector businesses to strengthen cyber defenses
On March 21, President Biden issued a fact sheet warning private-sector businesses of potential retaliatory Russian cyberattacks. Biden reiterated previous “warnings based on evolving intelligence that the Russian Government is exploring options for potential cyberattacks” against the U.S. in “response to the unprecedented economic costs [] imposed on Russia alongside our allies and partners.” The fact sheet urges companies to execute specific measures to strengthen their cyber defenses such as (i) mandating multi-factor authentication to make it harder for attackers to access systems; (ii) deploying modern security tools on computers and devices to continuously look for and mitigate threats; (iii) patching and protecting systems against known vulnerabilities and changing passwords so previously stolen credentials cannot be used by malicious actors; (iv) backing up and encrypting data so it cannot be used if stolen; (v) educating employees on common tactics used by attackers and encouraging the reporting of “unusual behavior”; and (vi) engaging proactively with the FBI or the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) “to establish relationships in advance of any cyber incidents” (see CISA’s “Shields Up” guidance here). “I urge our private-sector partners to harden your cyber defenses immediately by implementing the best practices we have developed together over the last year,” Biden stated. “You have the power, the capacity, and the responsibility to strengthen the cybersecurity and resilience of the critical services and technologies on which Americans rely.”