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Fed Governor Bowman highlights her 2024 “New Year’s resolutions” for banking policymakers
On January 8, member of the Federal Reserve Board of Governors Michelle W. Bowman delivered a speech at a community bankers conference on the banking regulatory highlights of 2023, as well as three “New Year’s resolutions” that she would like to see policy makers implement in 2024. The speech first covered highlights of this past year’s banking regulatory environment, including the changes in the federal funds rate, the risk of inflation among food and energy markets, the Basel III Endgame requirements, and new guidance on third-party risk management practices.
Governor Bowman also highlighted her list of three New Years Resolutions, including (i) prioritizing banking safety and soundness; (ii) a renewed commitment to tailoring the prudential regulatory framework to the size of the institution; and (iii) increasing transparency in supervisory expectations. Bowman also focused on the new climate guidance, as covered by InfoBytes here, which she posits a lost focus by the federal banking agencies. Bowman closed by commenting on the lasting impact of changes to the banking system and bank regulatory framework, requesting that bankers and other interested stakeholders to share their views and concerns broadly, including to regulators, and expressing her hope that policymakers have the humility and courage to acknowledge consequences and change course as needed.
U.S. district court holds state laws partially preempted by FCRA
On January 9, the U.S. District Court of Maine entered judgment, determining that Maine law is only partially preempted by the federal Fair Credit Reporting Act (FCRA). The plaintiff, a trade association that represents the major credit reporting agencies, filed the suit as a facial challenge to certain provisions of Maine law, naming the Maine Attorney General and the Superintendent of the Maine Bureau of Consumer Credit Protection as defendants.
According to the complaint, the Maine Medical Debt Reporting Act and the Maine Economic Abuse Debt Reporting Act amended the Maine Fair Credit Reporting Act, adding state-specific restrictions on information inclusion in consumer credit reports. The plaintiff argued that the federal FCRA preempts these provisions and that enforcing these amendments threatens the accuracy, integrity, and reliability of consumer report information.
The court held that while federal law does not “preempt all state laws relating to information contained in consumer reports,” the federal FCRA did preempt provisions of the Maine Medical Debt Reporting Act related to the timing of reporting on veterans’ medical debts by nationwide consumer reporting agencies. The court noted, however, that sections §§ 1681c(a)(7) and (a)(8) of the federal FCRA do not preempt the Maine Medical Debt Reporting Act to the extent that they regulate non-veterans’ medical debt.
Regarding the Maine Economic Abuse Debt Reporting Act, the court held that the provisions related to identity-theft in the federal FCRA preempt state law requirements when identify theft is the only method of economic abuse identified by the consumer. In such cases, the court held that “the blocking of reporting activity on identity-theft-related grounds must proceed according to federal requirements and state requirements are of no effect.” The court noted that its ruling does not “support preemption of Maine’s Economic Abuse Debt Reporting Act insofar as a consumer’s debt is alleged to be the product of economic abuse carried out by means other than or in addition to identity theft.”
OCC issues State Small Business Credit Initiative 2.0 FAQs
On January 8, the OCC issued Bulletin 2024-1, which provides responses to frequently asked questions regarding the state small business credit initiative (SSBCI). The SSBCI, run by the U.S. Department of the Treasury, facilitates access to capital for small businesses, supports credit and investment programs, and offers technical assistance for applying to SSBCI funding and other government programs. The FAQs address a variety of topics, including the types of credit and investment programs states may set up, including collateral support programs, capital access programs, and loan guarantee programs, among others; criteria to qualify as “underserved” for access to the credit; treatment of certain funds; program descriptions; and whether loans made through the program could be considered for Community Reinvestment Act purposes.
DFPI fines online platform for omitting convenience fee disclosures
On January 9, DFPI issued a consent order against an online platform (respondent) that enables merchants to provide installment contracts to customers. The consent order resolved alleged violations of the California Consumer Financial Protection Law (CCFPL) arising from the convenience fees assessed by a third-party service provider when consumers opt to pay their installments online or by phone. According to the consent order, since 2021 respondent guaranteed that consumers entering into contracts on its platform had a fee-free payment method. However, for a time respondent failed to disclose potential optional convenience fees in the initial contract. Although the third-party servicer disclosed the convenience fees to consumers, DFPI took issue with the respondent’s failure to disclose these fees before transferring consumers to the third-party servicer to enter into the contracts. In other words, consumers only became aware of both the existence and amounts of these fees after entering into contractual obligations. DFPI accused respondent of deceiving consumers by failing to disclose this information first.
Under the terms of the consent order, respondent must pay a $50,000 penalty and must disclose information about the potential convenience fees that may be assessed by a servicer.
Title lender reaches settlement with Pennsylvania AG
On January 10, Pennsylvania AG Michelle Henry announced a settlement with a national auto title lending company, resolving alleged violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law and the Loan Interest and Protection Law (LIPL). According to the settlement, since 2016, the lender made thousands of vehicle title loans to Pennsylvania residents, with interest rates exceeding 100 percent without the necessary license required by the Consumer Discount Company Act.
The AG also noted that some of the loans resulted from leads that they bought from third parties who purported to have physical offices in Pennsylvania, when in fact, neither the lender nor its lead generators were in Pennsylvania. The AG also said that most Pennsylvania-based borrowers drove to one of the lender’s Delaware locations. Nonetheless, the AG said, “Pennsylvania usury laws apply because [the lender] collected money from Pennsylvania consumers and repossessed vehicles in Pennsylvania.” In the settlement, the lender denies all allegations of unlawful conduct, including the assertion that it knowingly acquired leads from third parties leading to loans for Pennsylvania residents. The lender explained its position that until the U.S. Court of Appeals for the Third Circuit rendered its opinion in another matter in January 2022, it held a “good faith and reasonable belief” based on then-existing law, particularly the Commerce Clause of the U.S. Constitution, that its operations were lawful.
Among other things, the settlement (i) requires the lender to pay $2.2 million in consumer restitution; (ii) requires the lender to cancel approximately $3.7 million in existing loans; (iii) enjoins and prohibits the lender from violating the LIPL; and (iv) requires the lender to return any repossessed vehicles at no charge and refund consumers of all repossession fees previously charged.
New York State enhances the consumer notification obligations on automatic renewals
Recently, the State of New York enacted SB 5941-B (the “Act”), which revises the general business law, focusing on the obligation of businesses to inform consumers about an impending automatic renewal or continuous service charge at least forty-five days before the charge is applied. The amendment states that in the case of a business allowing a consumer to accept an automatic renewal of six months or more, the business is required to notify the consumer about the upcoming automatic renewal or continuous service charge at least fifteen days, but not more than forty-five days, before the cancellation deadline for such automatic renewal. The notice must also include instructions on how the consumer can cancel the renewal charge. The new amendment does not apply to any business, or its subsidiary or affiliate, subject to regulation by the NY Department of Public Service or the FCC. The bill became effective upon enactment.
CFTC’s subcommittee report on decentralized finance highlights its findings and recommendations
On January 8, the CFTC issued a report on decentralized finance ahead of the CFTC’s event on artificial intelligence, cybersecurity, and decentralized finance. Authored by the CFTC’s Subcommittee on Digital Assets and Blockchain Technology, which is a group of fintech experts selected by the CFTC, the report urged government and industries to work together and advance the developments of decentralized finance in a responsible and compliant way.
The report lists many key findings and recommendations for policymakers to implement. For example, the report highlights how policymakers should keep in mind customer and investor protections, promotion of market integrity and financial stability, and efforts to combat illicit finance when creating regulations, among others. Recommendations for policymakers include increasing their technical understanding of this space, surveying the existing regulatory “perimeter,” identifying and cataloging risks, identifying the range of regulatory strategies, and applying regulatory framework on digital identity, KYC and AML regimes, and calibration on privacy in decentralized finance.
For further learning on decentralized finance, IOSCO released a publication on its nine recommendations, which was previously covered by InfoBytes here.
Fed’s Barr speaks at fireside chat, underscores the importance of public comment
On January 9, Fed Vice Chair of Supervision Michael S. Barr delivered remarks at an event held by Women in Housing and Finance, during which he discussed consumer credit, bank supervision, DEI issues, capital issues, bank regulation and more. Barr began by addressing current risks that the Fed is focused on mitigating, which included efforts surrounding the Community Reinvestment Act final rule and the Basel III Endgame proposal. The Fed, he said, has been receiving many comments on the proposal, which will help ensure the “balance” is right on the final capital rule. There is one more week before the comment period closes, he added.
Barr also discussed the second quantitative impact study the Fed is conducting to ensure accuracy and help shape the final version of the Basel III proposal. He noted that the Fed conducted the first study a “few years ago” to inform the first proposal. He mentioned that the Fed is collecting information and will be publishing their aggregated analysis for public comment. Barr also discussed comments considering whether the Fed should adjust for historical losses based on particular firms, or if there should be standardized accountability for all risk.
In response to questions from the moderator, Barr opined that the capital rules in the Basel III proposal would have a modest impact on the affordability and accessibility of mortgage credit and consumer credit. He conceded that the proposal’s impact would create higher costs, but that the impacts on consumers would be “very very small.” Barr also invited commenters to inform the Fed about the impacts. On international competition, Barr also noted that the higher capital standards would not detrimentally impact the U.S. banking system.
When asked about the Fed’s Bank Term Funding Program, made available by the Fed, FDIC, and Treasury last spring, Barr said banks and credit unions are still leveraging the program today. He explained that the “program was really designed in that emergency situation … to make sure that banks[,] and creditors of banks[,] and depositors [in] banks understand that banks have the liquidity they need.”
FinCEN report on identity fraud in 2021 outlines statistics and processes
On January 9, FinCEN published a report titled “Identity-Related Suspicious Activity: 2021 Threats and Trends” which focuses on patterns in reported Bank Secrecy Act (BSA) data linked to suspicious activity from 2021. The report is part of a broader set of financial trend analyses conducted by FinCEN under section 6206 of the Anti-Money Laundering Act of 2020. During 2021, about 1.6 million of all BSA reports (or 42 percent) on suspicious activity were related to identity, equaling $212 billion in suspicious activity.
Key findings in the report included: (i) 69 percent of identity-related BSA reports indicate attackers have impersonated others; (ii) depository institutions have filed the most BSA reports at 54 percent, with the next highest being money services businesses at 21 percent; (iii) general fraud was the most reported typology with 1.2 million BSA reports totaling $149 billion in suspicious amounts, with the next two being false records and identity theft, respectively; and (iv) there were a significant number of identity-related exploitations based on BSA report volumes and dollar values. FinCEN reported three identity-related exploitations, including how attackers (a) impersonate others; (b) dodge or exploit verification processes; and (c) use compromised credentials. A model on page six of the report provides further clarity on how attackers undermine identity processes, such as through bust out schemes (attackers open credit card accounts then max out the cards), check fraud, credit and debit card fraud, and Covid-19 fraud.
SEC approves Bitcoin use in 11 exchange-traded products
On January 10, the SEC issued an order approving 11 exchange-traded products (ETPs) holding Bitcoin to be publicly traded. According to the order, the SEC found that the proposed ETPs are consistent with the Securities Exchange Act of 1934, specifically Section 6(b)(5), which requires that the rules prevent fraudulent and manipulative acts and practices and protect investors and the public interest. The SEC also found that the 11 proposed ETPs are consistent with Section 11A(a)(1)(C)(iii) which states that it is in the public interest to make the ETPs available to brokers, dealers, and investors. The order goes into further detail and outlines how the two subsections of the ‘34 Act are applied.
As previously covered on InfoBytes, the SEC originally denied a similar application from a company but had to reexamine that company’s application following the D.C. Court of Appeals overturning of the SEC’s initial rejection. The appellate court alleged the SEC “acted arbitrarily and capriciously by denying the listing of [the company]’s proposed bitcoin ET[F],” and members of Congress also urged the Chair of the SEC to approve Bitcoin’s use within ETPs in a September 2023 letter (covered in InfoBytes here).