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Financial Services Law Insights and Observations

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  • CFTC revises LIBOR transition no-action letters

    Federal Issues

    On December 22, the CFTC announced that the Division of Clearing and Risk (DCR), Division of Market Oversight (DMO), and Market Participants Division each issued revised no-action letters (see 21-2621-27, and 21-28) to swap dealers and other market participants associated with the transition from swaps that reference LIBOR and other interbank rates to swaps that reference alternative benchmarks. As previously covered by InfoBytes, the United Kingdom’s Financial Conduct Authority announced the dates that all LIBOR settings will cease to be provided by any administrator and will no longer be representative. All sterling, euro, Swiss franc and Japanese yen settings, and one-week and two-month U.S. dollar settings ceased immediately after December 31, 2021, while all remaining U.S. dollar settings will cease immediately after June 30, 2023. Therefore, according to the recent CFTC announcement, the DMO and the DCR letters are effective until June 30, 2023 “for swaps otherwise covered by such letters to the extent such swaps reference one of the 2023 USD LIBOR Settings.”

    Federal Issues CFTC LIBOR UK Of Interest to Non-US Persons Financial Conduct Authority Swaps

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  • DOJ solicits additional comments on bank mergers

    Federal Issues

    On December 17, the DOJ announced that its Antitrust Division is soliciting additional public comments regarding the potential revision of the 1995 Bank Merger Competitive Review Guidelines (Banking Guidelines) as part of a continuing effort by the federal agencies responsible for banking regulation and supervision. According to the announcement, the division will utilize “additional comments to ensure that the Banking Guidelines reflect current economic realities and empirical learning, ensure Americans have choices among financial institutions, and guard against the accumulation of market power.” The division had previously announced in September 2020 that it was soliciting comments regarding the Banking Guidelines’ potential revision. The call for public comment contained specific questions, including whether: (i) any new guidance should be bank-specific; (ii) any new bank merger guidance should be jointly issued; (iii) the 1800/200 Herfindahl-Hirschman Index screen should be updated; and (iv) there should be a de minimis exception. The announcement also noted that “[b]uilding on the responses, the updated call for comment focuses on whether bank merger review is currently sufficient to prevent harmful mergers and whether it accounts for the full range of competitive factors appropriate under the laws.” The announcement further noted that the division will continue working with the Federal Reserve, OCC, and the FDIC, and will consider comments from the public.

    Federal Issues Bank Regulatory Antitrust Bank Mergers Federal Reserve OCC FDIC Agency Rule-Making & Guidance

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  • CFPB releases annual HMDA and TILA adjustments

    Federal Issues

    On December 23, the CFPB announced final rules adjusting the asset-size thresholds under HMDA (Regulation C) and TILA (Regulation Z). Both rules took effect January 1, 2022. Under HMDA, institutions with assets below certain dollar thresholds are exempt from the collection and reporting requirements. The final rule increases the asset-size exemption threshold for banks, savings associations, and credit unions from $48 million to $50 million, thereby exempting institutions with assets of $50 million or less as of December 31, 2021, from collecting and reporting HMDA data in 2022. TILA, likewise, exempts certain entities from the requirement to establish escrow accounts when originating higher-priced mortgage loans (HPMLs), including entities with assets below the asset-size threshold established by the CFPB. The final rule increases this asset-size exemption threshold from $2.230 billion to $2.336 billion, thereby exempting creditors with assets of $2.336 billion or less as of December 31, 2021, from the requirement to establish escrow accounts for HPMLs in 2022.

    Federal Issues CFPB HMDA TILA Consumer Finance Regulation C Regulation X Mortgages

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  • States say FHA must require servicers to comply with Covid-19 loss mitigation options

    State Issues

    On December 21, a coalition of attorneys general from 20 states and the District of Columbia sent a letter to the FHA urging the agency to address mortgage servicers’ alleged failure to adequately implement Covid-19 recovery loss mitigation options for eligible borrowers. As previously covered by InfoBytes, FHA issued Mortgagee Letter 2021-18 in July, which required mortgage servicers to offer a zero-interest subordinate lien option to eligible homeowners who can resume their existing mortgage payments under the “COVID-19 Recovery Standalone Partial Claim” option. For borrowers that are unable to resume their monthly mortgage payments, FHA established the “COVID-19 Recovery Modification” option, which extended the term of a mortgage to 360 months at market rate and targeted a 25 percent principal and interest reduction for all eligible borrowers. At the time, FHA informed servicers that they could start offering the options as soon as operationally feasible but were required to use the new options within 90 days.

    The AGs alleged in their letter that several servicers of FHA-insured loans are reportedly failing to adequately implement these Covid-19 relief programs, and are instead “routinely sending borrowers letters that fail to include the Covid-19 Recovery Modification as an available option, are requiring paperwork and imposing qualifications that are not necessary under the FHA’s guidelines, and are instructing borrowers during customer-service phone calls that this option does not exist.” The AGs expressed deep concerns over these reports and requested that FHA take immediate action to ensure that FHA’s loss mitigation options, including the Covid-19 Recovery Modification, are fully implemented, and that borrowers receive accurate, up-to-date information. The AGs asked that FHA-approved lenders and servicers be required to demonstrate that they are taking affirmative actions to implement these Covid-19 relief options and requested training for all customer service staff to ensure borrowers receive the necessary information.

    State Issues State Attorney General FHA HUD Mortgages Mortgage Servicing Covid-19 Federal Issues Consumer Finance Loss Mitigation

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  • Agencies release 2020 CRA data

    On December 21, the three federal banking agency members of the Federal Financial Institutions Examination Council (FFIEC) with Community Reinvestment Act (CRA) responsibility—the Federal Reserve Board, the FDIC, and the OCC—announced the release of the 2020 small business, small farm, and community development CRA data. The analysis contains information from 687 lenders about originations and purchases of small loans (loans with original amounts of $1 million or less) in 2020, a 1.2 percent decrease from the 695 lenders that reported data in 2019. According to the analysis, the total number of originated loans decreased by approximately 1.7 percent from 2019, with the dollar amount of originations increasing by roughly 7.9 percent. The analysis further noted that 621 banks reported community development lending activity totaling nearly $169 billion in 2020, a 52 percent increase from 2019.

    Bank Regulatory Federal Issues FDIC OCC Federal Reserve CRA FFIEC

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  • NCUA extends Covid-19 regulatory relief

    Federal Issues

    On December 21, the NCUA unanimously approved an extension to the effective date of a temporary final rule, which granted regulatory relief to federally insured credit unions during the Covid-19 pandemic. In 2020, the NCUA issued the final rule to temporarily raise “the maximum aggregate amount of loan participations that a [federally insured credit union (FICU)] may purchase from a single originating lender to the greater of $5,000,000 or 200 percent of the FICU’s net worth.” The final rule also temporarily suspended certain “limitations on the eligible obligations that a federal credit union [] may purchase and hold.” Required timeframes related to the occupancy or disposition of certain properties not in use for federal credit union business or that were abandoned were also suspended. The temporary final rule’s modifications will remain in effect through December 31, 2022.

    Federal Issues NCUA Credit Union Covid-19 Agency Rule-Making & Guidance

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  • FTC finalizes decision banning respondents from surveillance business

    Federal Issues

    On December 21, the FTC announced a decision banning a data monitoring application and its CEO (collectively, “respondents”) from the surveillance industry. As previously covered by InfoBytes, the respondents allegedly violated Section 5 of the FTC Act by failing to provide reasonable data security for consumers’ personal information. According to the FTC, the respondents allegedly “secretly harvest[ed] and shar[ed] data on people’s live location, web use, and online activities through their product’s hidden device hack,” and sold real-time access to their surveillance system, which allowed stalkers and domestic abusers to “stealthily track” unknowing victims. Under the terms of the final decision, the respondents are: (i) ordered to “immediately disable all access to any information collected by or through a monitored Mobile Device” and immediately stop collecting any data through any app installed before the date of entry of the order; (ii) required to delete any information illegally collected from their apps; (iii) required to notify owners who installed respondents’ apps on their devices that their devices might have been monitored and may not be secure; and (iv) banned from offering, promoting, selling, or advertising any surveillance app, service, or business. The respondents are also required to implement a comprehensive information security program and obtain initial and biennial third-party security assessments.

    Federal Issues FTC Privacy/Cyber Risk & Data Security FTC Act Enforcement UDAP

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  • CFPB reaches settlement with online lender

    Federal Issues

    On December 30, the U.S. District Court for the Northern District of California approved the stipulated final judgment and order against a California-based online lender (defendant) for alleged violations of fair lending regulations and a 2016 consent order. As previously covered by InfoBytes, the CFPB filed a complaint against the defendant (the third action taken against the defendant by the CFPB) for allegedly violating the terms of a 2016 consent order related to false claims about its lending program. The 2016 consent order alleged that the defendant engaged in deceptive practices by misrepresenting, among other things, the fees it charged, the loan products that were available to consumers, and whether the loans would be reported to credit reporting companies, in violation of the CFPA, TILA, and Regulation Z (covered by InfoBytes here). According to the September 8 complaint, the defendants continued with much of the same illegal and deceptive marketing that was prohibited by the 2016 consent order. Among other things, the complaint alleged that the defendants violated the terms of the 2016 consent order and various laws by: (i) deceiving consumers about the benefits of repeat borrowing; and (ii) failing to provide timely and accurate adverse-action notices, which is in violation of ECOA and Regulation B.

    The settlement prohibits the defendant from: (i) making new loans; (ii) collecting on outstanding loans to harmed consumers; (iii) selling consumer information; and (iv) making misrepresentations when providing loans or collecting debt or helping others that are doing so. The order also imposes a $100,000 civil money penalty based on the defendant’s inability to pay.

    Federal Issues CFPB Enforcement CFPA TILA ECOA Regulation Z Regulation B Consumer Finance Fair Lending Online Lending UDAAP Deceptive Courts

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  • DOJ, FTC ban firm and CEO from negative option marketing

    Federal Issues

    On December 16, the DOJ and the FTC announced that a brokerage firm and its CEO (collectively, “defendants”) must pay $21 million in consumer redress and are permanently banned from engaging in deceptive negative option marketing for allegedly violating, among other things, the FCRA, TSR, and the Restore Online Shoppers’ Confidence Act (ROSCA). According to the FTC’s complaint filed by the DOJ, the defendants claimed that the company’s background reports on certain individuals had particular criminal records, even when they did not include such information, to mislead consumers into signing up for auto-renewing, premium subscriptions. The FTC claimed consumers who allegedly searched the firm’s website for an individual’s background report were shown search results that often falsely implied that the subject of the search may have records of criminal or sexual offenses, which could only be viewed by purchasing a subscription from the firm. The complaint alleged that the firm’s misleading statements resulted in some consumers believing that they, or other individuals, had arrest or criminal records. The complaint further alleged that the firm operated as a consumer reporting agency and violated the FCRA by, among other things, failing to maintain verifiable, reasonable procedures on how its reports would be utilized to ensure the information was accurate and to ensure that the information it sold would be used for legal purposes. Additionally, the defendants allegedly violated the TSR by misrepresenting its refund and cancellation policies. The complaint also alleged that the defendants’ misleading billing practices violated ROSCA by, among other things, failing to clearly disclose upfront charges.

    Under the terms of the settlement, the defendants agreed to separate judgments, which total approximately $33.9 million. The settlement also banned the defendants from engaging in deceptive negative option marketing. The CEO is ordered to pay a total of $5 million, and the firm is ordered to pay a partially suspended judgment of $16 million due to the company’s inability to pay the full amount. Together, the money will be used to provide refunds to consumers. The firm is required to pay the full remaining amount of the judgment if the company is found to have misrepresented its finances and must implement a monitoring program to ensure the company is complying with the FCRA.

    Federal Issues FTC Enforcement DOJ FCRA Telemarketing Sales Rule ROSCA Negative Option

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  • OCC updates OREO booklet

    On December 20, the OCC issued Bulletin 2021-65 announcing the revision of the Other Real Estate Owned (OREO) booklet of the Comptroller’s Handbook, which applies to the OCC’s supervision of community banks. The updated booklet replaces the booklet of the same title issued in September 2020, and rescinded OCC Bulletin 2020-79, “Other Real Estate Owned: Updated Comptroller’s Handbook Booklet.” (Covered by InfoBytes here.) Among other clarifying changes, the updated booklet: (i) defines physical possession as it pertains to OREO properties; and (ii) updates ownership obligations and actions as they pertain to the Fair Housing Act.

    Bank Regulatory Federal Issues OCC Comptroller's Handbook Real Estate OREO Fair Housing Act

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