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CFTC extends no-action relief to market participants in light of Covid-19
On June 10, the Commodity Futures Trading Commission announced that it has extended through September 30, 2020, certain aspects of its no-action relief issued in response to Covid-19. The CFTC’s staff letter extends previously issued no-action guidance regarding certain regulatory requirements for persons who are registered with the CFTC as futures commission merchants, introducing brokers, swap dealers, retail foreign exchange dealers, and floor brokers. Certain relief for members of designated contract markets or swap execution facilities that are not registered with the CFTC is also extended. Those relying on relief are expected to establish and maintain a supervisory system to oversee activities of personnel who are working from remote locations during Covid-19.
FBI warns of increased mobile banking cyber threats
On June 10, the Federal Bureau of Investigation issued a Public Service Announcement (PSA) cautioning mobile banking application users to remain vigilant of cyber activity. Specifically, the PSA indicated, with a more than 50 percent increase in mobile web application usage since the start of the year, that cyber actors may attempt to steal login credentials through the introduction of trojans embedded in other software and the deployment of fake banking applications, designed to trick consumers into entering their credentials. The PSA provides three recommendations for all mobile banking application users and organization: (i) use strong passwords (at least eight characters); (ii) use multifactor authentication and not share multifactor PINs; and (iii) contact the financial institution if a banking application appears suspicious. Finally, the PSA reminds consumers that financial institutions will not ask for login credentials over the phone.
Fannie and Freddie issue Covid-related servicing updates
On June 10, Fannie Mae and Freddie Mac issued numerous updates to temporary servicing guidelines due to the Covid-19 pandemic. Fannie Mae issued Lender Letter LL 2020-07, which, among other things (i) updates the workout option incentive fee structure introduced in LL-2020-09 (these updates are also reflected in LL-2020-05); (ii) clarifies when a HAMP borrower will keep “good standing” under a Covid-19 payment deferral; (iii) clarifies continued solicitation for a Fannie Mae Flex Modification after a borrower has defaulted on a Covid-19 payment deferral; and (iv) revises the Covid-19 payment deferral agreement. Additionally, LL 2020-02 clarifies that a servicer is not required to send a payment reminder notice to the borrower during an active forbearance plan term. Similar updates can be found in Freddie Mac’s Guide Bulletin 2020-21.
FHFA’s Calabria discusses housing market with Senate Committee
On June 9, Federal Housing Finance Agency (FHFA) Director Mark Calabria testified before the Senate Committee on Banking, Housing, and Urban Affairs on the state of the housing market due to the Covid-19 pandemic. In his published statement, Calabria noted that at the start of 2020, the housing market was in a “strong position,” but “in response to Covid-19, financial markets endured a severe dislocation in March.” According to the statement, home prices have remained supported, as drops in demand have been balanced by a decrease in inventory. The statement also provides an update on FHFA’s policy responses to the Covid-19 pandemic. With regard to forbearances, Calabria acknowledged that forbearance rates were predicted to reach 25-50 percent; however, internal data indicates that “[e]nterprise forbearance rates remain manageable.” Specifically, the 30-60 day combined delinquency rate for borrowers with loans in Enterprise mortgage-backed securities “remains below the estimated rate of forbearance,” with Calabria commenting that some borrowers “who have requested forbearance are nonetheless continuing to make payments on their loan.” At the hearing, in response to a question asking if the FHFA plans to extend the foreclosure moratorium past June 30, Calabria noted that the agency is considering extending it “a month at a maximum” and would be “making that announcement certainly within a week.”
Calabria also discussed FHFA’s re-proposed capital rule for the Enterprises (covered by InfoBytes here). His statement notes that “Fannie and Freddie lack the capital to withstand a serious downturn in the housing market,” and the re-proposed rule would “help each [E]nterprise become safe and sound to fulfill its statutory mission across the economic cycle.”
FTC shares 2019 enforcement report with CFPB
On June 4, the FTC announced that it submitted its 2019 Annual Financial Acts Enforcement Report to the CFPB. The report covers the FTC’s enforcement activities regarding the Truth in Lending Act (TILA), the Consumer Leasing Act (CLA), and the Electronic Fund Transfer Act (EFTA). Highlights of the enforcement matters covered in the report include:
- TILA and CLA. FTC enforcement actions concerning TILA/Regulation Z and CLA/Regulation M include: (i) efforts to combat deceptive automobile dealer practices; (ii) a payday lending action involving undisclosed, inflated fees; (iii) credit repair and debt relief schemes, including the failure to make clear, conspicuous written disclosures for closed-end financing; and (iv) consumer electronics financing.
- EFTA. The FTC reported 12 new or ongoing cases related to EFTA/Regulation E. These include: (i) negative option plans involving, among other things, companies applying recurring charges to consumers’ debit or credit card numbers for goods or services without obtaining proper written authorization; and (ii) unfair loan servicing practices.
Additionally, the report addresses the FTC’s research and policy efforts related to truth in lending and leasing, and electronic fund transfer issues, including (i) a study of consumers’ experiences in buying and financing automobiles at dealerships; (ii) a small business financing forum to examine “trends and consumer protection issues in the small business marketplace, including. . .online loans and alternative financing products”; and (iii) the FTC’s Military Task Force’s work on military consumer protection issues. The report also outlines the FTC’s consumer and business education efforts, which include several blog posts warning of new scams and practices.
Federal Reserve Bank of New York updates FAQs and forms relating to loan facility program
On June 8, the Federal Reserve Bank of New York updated its frequently asked questions (previously covered here and here) regarding the Term Asset-Backed Securities Loan Facility (TALF). Among other things, the changes clarify (i) who qualifies as a “material investor,” (ii) when asset-backed securities (ABS) are eligible to secure a TALF loan, (iii) the documentation required for ABS issued during a specific period in order for the ABS to be eligible collateral for a TALF loan, and (iv) for newly-issued ABS to be considered for a subscription date, when the issuer must price such ABS. The Federal Reserve Bank of New York also updated several TALF-related forms.
Fed expands Main Street Lending Program
On June 8, the Federal Reserve Board (Fed) announced an expansion to its Main Street Lending Program in order to assist more small and medium-sized businesses. The Fed notes that small and medium-sized businesses’ needs “vary widely,” and after seeking feedback, revised the program to, among other things, (i) lower the minimum loan size for certain loans to $250,000 from $500,000; (ii) increase the maximum loan size for all facilities; (iii) increase the term option to five years, from four years; (iv) delay principal payments for two years, rather than one; and (v) raise the purchase rate to 95 percent of each eligible loan. The announcement notes that the Fed expects the program to be open for lender registration “soon” and will be “actively buying loans shortly afterwards.” The program will continue to accept loans that were originated under previous terms if the loans are funded before June 10 (see InfoBytes here on the program’s previous terms).
The Fed’s announcement also contains a chart covering the detailed changes and term sheets for the program’s New Loan Facility, Priority Loan Facility, and Expanded Loan Facility.
SBA, Treasury address PPP amendments, rules and guidance forthcoming
On June 8, Small Business Administration (SBA) Administrator Jovita Carranza and U.S. Treasury Secretary Steven T. Mnuchin issued a joint statement on the enactment of the Paycheck Protection Program Flexibility Act (Flexibility Act). As previously covered by InfoBytes, the Flexibility Act—which took effect June 5—amends provisions of the CARES Act and the Small Business Act to provide Paycheck Protection Program (PPP) borrowers greater flexibility and more time to make qualifying expenditures for loan forgiveness. Among other things, the Flexibility Act (i) extends the maturity period for PPP loans with remaining balances after applying for forgiveness to five years; (ii) extends the covered period from eight weeks to the earlier of 24 weeks after origination or December 31, 2020; (iii) sets the minimum amount that businesses must spend on payroll to receive forgiveness at 60 percent (rather than 75 percent); (iv) allows borrowers to defer principal and interest payments on PPP loans until the SBA remits the amount of determined forgiveness to the lender, instead of the original six-month deferral period; and (v) confirms that June 30, 2020 will be the last date on which a PPP loan application can be approved.
SBA, in consultation with Treasury, will promptly issue rules and guidance, along with a modified borrower application form and loan forgiveness application to implement the Flexibility Act’s amendments to the PPP. The forthcoming rules and guidance will also establish various safe harbors from reductions in loan forgiveness based on reductions in full-time equivalent employees, as well as for businesses that document their inability to rehire workers employed as of February 15, and their inability to find similarly qualified workers by the end of the year.
Paycheck Protection Program Flexibility Act of 2020 provides more options for borrowers
On June 5, President Trump signed the Paycheck Protection Program Flexibility Act of 2020 (H.R. 7010), which amends provisions of the CARES Act (covered by a Buckley Special Alert) and the Small Business Act to provide Paycheck Protection Program (PPP) borrowers greater flexibility and more time to make qualifying expenditures for loan forgiveness. Among other things, the Act (i) extends the maturity period for PPP loans with remaining balances after applying for forgiveness to five years; (ii) extends the covered period to the earlier of 24 weeks after origination or December 31, 2020, rather than the current eight weeks; (ii) maintains forgiveness amounts for businesses that document their inability to rehire workers employed as of February 15, and their inability to find similarly qualified workers by the end of the year; (iv) sets the minimum amount that businesses must spend on payroll at 60 percent in order to receive forgiveness; (v) allows borrowers to defer principal and interest payments on PPP loans until the Small Business Administration remits the amount of determined forgiveness to the lender, instead of the current six-month deferral period (borrowers that do not apply for forgiveness will be given at least 10 months after the program expires to begin making payments); and (vi) allows businesses with forgiven loans to defer payroll taxes. The Act takes effect immediately.
Office of the Inspector General issues statement on Coronavirus oversight challenges
The Office of the Inspector General of the Federal Reserve Board, which provides independent oversight of both the Consumer Financial Protection Bureau and the Federal Reserve Board, issued a statement on Coronavirus pandemic oversight challenges. The statement identifies areas of focus for the OIG, including coordination between the Reserve Banks, data aggregation, and monitoring and tracing the unique features associated with specific programs (e.g., the Paycheck Protection Program). The OIG is also actively monitoring, among other things, measures taken to encourage financial institutions to lend consistent with specific lending programs and the extent to which pandemic response lending efforts reach intended recipients and communities. The OIG has also expanded testing of critical information technology systems and has broadened the scope of security reviews.