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FDIC adds flood insurance penalty information to enforcement manual
On June 18, the FDIC announced an update to its “Formal and Informal Enforcement Actions Manual,” regarding the assessment of mandatory civil money penalties for certain pattern and practice violations of the National Flood Insurance Act (Act). The Act requires the FDIC to assess a penalty of up to $2,000 (adjusted annually for inflation) for each violation per loan against an insured depository institution. The FDIC will use the following two-step process to calculate the mandatory penalties for violations: (i) determine the base penalty, which takes into account the type and repeat nature of the violations; and (ii) apply the Institution Asset Size Factor, which takes into account the institution’s asset size based on the last Call Report. The manual also describes the difference between “Tier 1” violations and “Tier 2” violations and the base penalty for each.
Financial regulators issue examiner guidance on Covid-19
On June 23, the federal financial institution regulatory agencies (Federal Reserve Board, OCC, FDIC, and NCUA), in conjunction with the state bank and credit union regulators, issued interagency examiner guidance for assessing the safety and soundness of financial institutions in light of the Covid-19 pandemic. The joint guidance states that due to the “unique, evolving, and potentially long-term nature of the issues confronting institutions” from the Covid-19 pandemic, examiners will “exercise appropriate flexibility in their supervisory response.” The guidance acknowledges that Covid-19 can have an adverse impact on the financial condition and operational capabilities of financial institutions that have appropriate governance and risk management systems in place.
Among other things, the guidance notes that examiners will (i) “continue to assign supervisory ratings in accordance with the interagency CAMELS and ROCA rating systems”; and (ii) “assess the reasonableness of management’s actions in response to the pandemic given the institution’s business strategy and operational capacity.” The guidance also provides details on things such as capital adequacy and asset quality for examiners to consider when assigning composite and component CAMELS and ROCA ratings.
CFPB eases Covid-19 loss mitigation rules
On June 23, the CFPB issued an interim final rule that provides relief to mortgage servicers from certain Regulation X requirements when offering Covid-19 related loss mitigation options. Among other things, the interim final rule amends Regulation X to temporarily permit servicers to offer eligible loss mitigation options without obtaining a complete loss mitigation application from borrowers who have experienced a financial hardship due to Covid-19. In order to qualify for the exception, the loss mitigation option must satisfy certain criteria, including that (i) it must permit the borrower to delay paying certain amounts until liquidation, refinance, maturity, or, for a mortgage insured by FHA, the mortgage insurance terminates; (ii) the servicer cannot charge interest on delayed payment amounts, cannot charge fees in connection with the option, and must waive all existing penalties and fees upon acceptance; and (iii) the borrower’s acceptance must resolve any prior delinquency. The interim final rule is effective on July 1.
FHA issues temporary relief in light of Covid-19 challenges
On June 22, the Federal Housing Administration announced various policy changes to address the continuing impact of Covid-19. First, the FHA suspended the requirement that mortgagees select and review all early payment defaults on a monthly basis. Second, the FHA suspended the requirement that mortgagees conduct field reviews of 10 percent of FHA-insured mortgages on a monthly basis. Third, the FHA announced that it will consider the financial impact of Covid-19 as a mitigating factor when a mortgagee’s Compare Ratio is above a designated threshold. The FHA uses Compare Ratios to identify whether a termination or suspension of certain mortgagee authorities is needed under the Credit Watch Termination and Lender Insurance Program monitoring processes.
FDIC and OCC mitigate Covid-19 assessment effects
On June 22, the FDIC and the OCC released separate rules aimed at mitigating the assessment effects of participation in Covid-19 programs. Specifically, the FDIC issued a final rule to limit the deposit insurance effects of participation in the Paycheck Protection Program (PPP), the Paycheck Protection Program Liquidity Facility (PPPLF), and Money Market Mutual Fund Liquidity Facility (MMLF). Among other things, the final rule (i) removes the effect of PPP lending and borrowings under the PPPLF in calculating risk measures for an insured depository institution’s assessment rate; (ii) provides an offset to the total assessment amount for the increase in assessment base due to participation in the PPP and MMLF; and (iii) removes the effect of PPP and MMLF participation when classifying institutions as small, large, or highly complex for assessment purposes. The final rule is applicable as of April 1.
Under the OCC’s interim final rule (see also Bulletin 2020-63), the assessments due on September 30 for covered banks will be based on the December 31, 2019 Call Report for each institution, rather than the June 30 Call Report, in order to lower the assessments for supervised banks. However, if an institution’s June 30 Call Report is lower than the December 31, 2019 report, the OCC will use the lower of the two options. The interim final rule expires after the September 30 assessment collection.
Boston Fed updates Main Street Lending Program FAQs
On June 20, the Federal Reserve Bank of Boston updated FAQs for its Main Street Lending Program (see here, here and here for previous coverage). Among other things, new FAQs address the treatment of applicant debt to third party lenders for purposes of calculating outstanding and undrawn debt, certifications regarding conflicts of interest, and the application of regulatory lending limits imposed on national banks, federal savings associations, and state savings associations to loans issued under the Main Street Lending Program.
SBA will release names of most PPP borrowers
On June 19, the Small Business Administration (SBA), in conjunction with the Treasury Department, announced that it will release the business information of certain Paycheck Protection Program (PPP) loan recipients. The SBA responded to bipartisan requests from the leaders of the U.S. Senate Small Business Committee and agreed to release the business names, addresses, NAICS codes, zip codes, business type, demographic data, non-profit information, jobs supported, and the loan amounts in general ranges for borrowers receiving loans between $150,000 and the maximum of $10 million. The SBA notes this accounts for nearly 75 percent of the program’s loans. For loans under $150,000, the SBA will release more generalized information about the recipients.
SEC extends permission for virtual fund board meetings
On June 19, the Securities and Exchange Commission extended conditional relief from its requirements for in-person voting boards of directors of registered management investment companies and business development companies (previously covered here). Instead, votes may be cast using any communication that permits all participating directors to hear each other simultaneously during the meeting. The commission extended the relief through December 31, 2020.
SBA’s Lender Match connects small businesses to small asset lenders
On June 19, the Small Business Administration (SBA) released a dedicated online tool that will match small businesses and non-profits impacted by the Covid-19 pandemic with Community Development Financial Institutions (CDFIs), Minority Depository Institutions, Certified Development Companies, Farm Credit System lenders, Microlenders, and traditional smaller-asset size lenders participating in the Paycheck Protection Program (PPP). Lender Match, which was paused due to CARES Act implementation priorities and loan volume, is being reinstated as an additional resource for small businesses that have not applied for or received approval for a PPP loan. Leads will only be forwarded to CDFIs and lenders with less than $10 billion in assets until the PPP program ends on June 30, 2020, at which point Lender Match will open to all participating SBA lenders. Applicants that are matched with lenders through the tool will receive an email within in two business days, which will allow them to immediately begin the application process for PPP loans and other SBA lending products. SBA notes, however, that Economic Injury Disaster Loan (EIDL) applications will not be accepted through Lender Match. Qualified small businesses and agricultural businesses must apply for EIDLs through a recently reopened portal (covered by InfoBytes here).
Kraninger emphasizes need for FCRA and CARES Act compliance
On June 19, CFPB Director Kathy Kraninger spoke during a Consumer Data Industry Association webinar, warning information furnishers and consumer reporting agencies (CRAs) that the Bureau has dedicated significant resources toward enforcement of certain provisions of the CARES Act and the FCRA. Specifically, Kraninger emphasized the Bureau’s reliance on consumer complaint data to inform its supervisory and enforcement activity and noted that April and May had the highest monthly complaint volumes in the Bureau’s history, with approximately 7,200 complaints mentioning Covid-19 related terms during that time. Kraninger referenced the Bureau’s April policy statement, which stated the Bureau would take a “flexible supervisory and enforcement approach during this pandemic regarding compliance with the [FCRA] and Regulation V” (covered by InfoBytes here). However, Kraninger warned that furnishers are still required to comply with the CARES Act, and that the “Bureau expects CRAs and furnishers to make good faith efforts to investigate disputes as quickly as possible.” According to Kraninger, due to the unique challenges the Covid-19 pandemic has created, the Bureau will evaluate each CRA and furnisher’s respective efforts and circumstances on an individual basis to determine whether it made the good faith effort to investigate as quickly as possible.