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Maryland banking regulators release settlement agreement with bank
On May 16, the Maryland Office of Financial Regulation (OFR) publicized an April 30 settlement agreement pursuant to which the Maryland banking agencies will withdraw its four counts against the bank and dismiss the case with prejudice. The OFR alleged the bank violated certain of the state’s credit provisions by making loans without a license, and that its fintech partners allegedly violating the Maryland Collection Agency Licensing Act (MCALA) and the Maryland Credit Services Business Act (MCSBA). Under the settlement agreement, the respondents agreed to clearly and conspicuously provide the bank’s name and contact information in all advertisements and other communications related to credit issuance to Maryland consumers, and the fintech company agreed to get licensed as a debt collection agency under MCALA and otherwise comply with the MCSBA (without explicitly agreeing to obtain a license or not); the fintech will pay the OFR a $50,000 investigative fee and a $225,000 administrative payment.
FFIEC releases its revisions to call reports during open comment period
On May 22, members of the FFIEC, comprising the FDIC, Fed, and OCC, released their changes to how banks report their financial information through all three versions of the Call Report (FFIEC 031, FFIEC 041, and FFIEC 051) and the FFIEC 002 report. These revisions are intended to improve data accuracy and promote reporting consistency across institutions.
The first wave of updates will affect all three versions of the Call Report, as well as the FFIEC 002, and will go into effect on June 30. The primary focus will be on the alignment of reporting language with recent changes in accounting standards. Changes will include replacing references to “troubled debt restructurings” and will be replaced with “modifications to borrowers experiencing financial difficulty.” Additionally, the revisions will include new standards for electronic signatures. In addition, the agencies are implementing revisions related to the reporting of loans to nondepository financial institutions and government-backed structured financial products.
The agencies will still consider public comments on other proposed changes, including revisions to reporting requirements for loan modifications for struggling borrowers, past-due loans, and long-term debt. These potential future revisions aim to further enhance bank financial reporting clarity. Comments on these revisions must be submitted by June 21.
OCC’s Hsu speaks on recovery planning to avoid banking crises
On May 27, the Acting Comptroller of the Currency, Michael J. Hsu, delivered a speech emphasizing the importance of recovery planning in mitigating the risks associated with bank crises. Hsu argued that while preventing crises through risk management, capital and liquidity requirements, and strong supervision was the primary goal, having a robust recovery plan was critical for stabilizing banks and restoring confidence in stressful times. He noted his comments came in light of recent bank failures in the U.S. and abroad.
Acting Comptroller Hsu drew an analogy to the philosophical “trolley problem,” highlighting the difficult choices regulators face. Hsu emphasized how banks and their regulators need actionable recovery plans with options to sell certain portfolios or businesses, increase liquidity and capital, or reduce risk-weighted assets to avoid losses. The Acting Comptroller also detailed how effective recovery plans should incorporate timely triggers for action, thorough impact assessments, and clear communication with stakeholders. He concluded by calling for the application of recovery planning requirements to all large banks with at least $100 billion in assets (down from the current $250 billion in assets requirement) suggesting that applying recovery planning guidelines in this manner could have mitigated recent regional bank failures and limited losses to the Deposit Insurance Fund.
CFPB says SCRA-related complaints are increasing
On May 23, the CFPB published a blog post reporting that complaints from servicemembers, veterans, and their families significantly increased, with the total number of complaints surpassing 400,000 since the CFPB began cataloging complaints. The Bureau noted a 27 percent rise in complaints from 2022 and a 98 percent increase compared to 2021, with servicemember complaints mostly alleging credit reporting errors, mortgage problems, and financial fraud and scams.
The CFPB’s blog post specifically focused on the application of interest rate protections under the Servicemembers Civil Relief Act (SCRA), which among other protections permitted servicemembers to request a decrease to 6 percent in interest rates on loans they took out before active duty. However, after a review of the complaints, the Bureau found servicemembers who claimed to face challenges in obtaining interest rate reductions. The CFPB noted a significant number of otherwise eligible servicemembers did not receive SCRA benefits. The CFPB suggested possible solutions like automated interest rate reductions, which it argued have been successful for federal student loans. The CFPB also noted instances where the CFPB cannot directly resolve an issue, it would refer complaints to appropriate agencies, such as the DOJ, for potential SCRA violations. The CFPB has also coordinated with other agencies to address military community complaints, including identity theft and financial fraud.
CFPB releases RFI on mortgage closing costs
On May 30, the CFPB announced a request for information (RFI) regarding mortgage “junk fees” and their impact on borrowers and lenders. The CFPB identified an increase of over 36 percent in median total loan costs for home mortgages from 2021 to 2023 in its analysis, with median mortgage closing costs of $6,000 in 2022. The Bureau argued these fees and costs, many of which are fixed, can reduce home equity and may undercut home ownership.
The RFI requested public input on whether the fees are subject to competition, how fees are set, who profits from them, and how fee changes, if any, impact consumers and the mortgage market. The CFPB was particularly interested in the factors driving fee increases, such as hard-pull tri-merge credit report costs, and how such fees are affecting housing affordability and access to homeownership. The CFPB also highlighted the potential impact of title insurance and mortgage origination fees.
The RFI included nine specific questions related to
(i) whether there are fees that are particularly problematic or burdensome for consumers;
(ii) whether there are unnecessary fees charged for loan closure;
(iii) whether and to what extent consumers compare closing costs across lenders;
(iv) whether and to what extent consumers shop for closing costs across settlement providers;
(v) the determination of fees, the beneficiaries, and lenders’ influence over third-party costs;
(vi) which fees have increased, and what are their causes;
(vii) factors contributing to rising closing, credit report, and credit score costs, the roles of various entities in the credit report chain, competitive pressures on these costs, and their consumer impact;
(viii) lenders’ ability to negotiate closing costs more effectively than consumers; and
(ix) the potential impact of closing costs on housing affordability, homeownership access, or home equity.
Comments in response to the RFI must be received by August 2.
FTC outlines TILA and EFTA efforts in letter to CFPB
On May 20, the FTC released a letter to the CFPB detailing its enforcement activities related to Regulation Z (TILA), Regulation M (the Consumer Leasing Act or CLA), and Regulation E (the EFTA) during 2023.
The FTC noted its TILA enforcement efforts related to automobile financing; specifically, the Commission detailed two actions involving deceptive car dealer practices. The Commission reported its finalization of the CARS Rule to address the sale, financing and leasing of motor vehicles. The Commission highlighted its “junk fees” rulemaking and stated that such fees cost consumers tens of billions of dollars each year and undercut honest businesses. The Commission noted its military credit and leasing initiatives as well as its report to Congress on consumer issues affecting American Indian and Alaska Native populations, such as impersonation scams and predatory lending.
The Commission also discussed its work pertaining to the EFTA and Regulation E. The Commission referenced its 2023 enforcement actions, including a case involving negative options. The Commission described its proposed amendments to its 1973 Negative Option Rule which included the addition of a “click to cancel” provision requiring sellers to make cancellation as easy for consumers as it was to sign up. Finally, the Commission confirmed that it released guidance cautioning consumers about money transmission payment apps and their potential for exploitation by scammers.
Colorado enacts insurance proceeds disbursement requirements for mortgage servicers
On May 20, Colorado enacted HB24-1011 (the “Act”), which predominantly addressed mortgage servicers’ disbursement of insurance proceeds.
The Act states that, upon the borrower’s request, mortgage servicers must disclose the specific conditions under which the servicer will disburse insurance proceeds in the event that the underlying property was damaged and an insurance company paid proceeds to satisfy the claim. Among other requirements, if the borrower is not delinquent or was less than thirty-one days delinquent in respect of his or her mortgage payments, the borrower is responsible for creating a repair or rebuild plan for the mortgaged property and submitting such plan to the mortgage servicer for approval. In turn, the mortgage servicer is responsible for approving or denying a plan within thirty days of receipt. Additionally, the borrower is entitled to reimbursement of certain advance payments made to a contractor or to purchase materials for the repair or rebuild. The Act outlines a different process if a borrower is more than thirty-one days delinquent on a mortgage payment. The Act provides for additional details regarding the disbursement of proceeds, including the amounts of disbursement.
Additionally, the Act provides that (1) mortgage servicers must disclose, among other items of information, the mortgage interest associated with mortgages upon the commencing of servicing and thereafter as the request of the borrower, and (2) a mortgage servicer must keep all communications with a borrower for at least four years. The Act became effective upon passage.
2nd Circuit rules that text messages are not artificial voices
Recently, the U.S. Court of Appeals for the Second Circuit ruled that a text message did not violate the Telephone Consumer Protection Act (TCPA) and affirmed the lower court’s order. The appellate court granted the defendant’s motion to dismiss for failure to state a claim based on its finding that the TCPA did not apply. In December 2016, the defendant sent an automated text message to the plaintiff’s cell phone to market the defendant’s free chips promotion. The plaintiff no longer wished to receive these text messages, and accordingly, she responded to the promotion with a “STOP” message. The defendant then received a response stating that she would “no longer receive any more messages.” A few days later, the plaintiff received another automated text message with an offer.
The Court found that the TCPA did not apply because (1) the underlying system used to send the plaintiff a text message was not an automatic telephone dialing system (but rather a “stored” list of telephone numbers used), and (2) the message did not utilize “artificial or prerecorded voice,” each of which were required elements of prohibited activity under the TCPA.
Ginnie Mae outlines recovery planning requirements for issuers with over $50 billion
On May 20, Ginnie Mae released “APM 24-08: Mandatory Recovery Planning Requirements for Certain Issuers,” which outlined Ginnie Mae’s introduction of recovery planning requirements for issuers whose portfolios exceed $50 billion. Issuers will be required to submit recovery plans to Ginnie Mae no later than June 30, 2025. The submitted recovery plans must include, among other things, corporate structures (like organizational charts, locations, key personnel, etc.), information systems (detailed inventory mapping of management systems and processes), and recovery planning (which would meet the requirements of the Ginnie Mae Guaranty Agreement and included a plan to unwind its MBS portfolio in a timely and efficient manner). Covered issuers will be required to demonstrate their assessment of the risks that their organizational structure and business activities pose and that they have taken steps to mitigate such risks. Further, covered issuers must update their plans every two years or confirm their prior plans remain current. More details can be found within the two attachments: the Issuer Recovery Plan Requirements, and Chapter 3 of the Ginnie Mae MBS Guide.
CFPB holds its Consumer Advisory Board Meeting
On May 15, the CFPB held its Spring 2024 Consumer Advisory Board Meeting (CAB) to discuss mortgage servicing and origination, consumer data reporting accuracy, and medical debt on credit reports. The CAB met with the CFPB leadership to discuss broad policy matters related to the CFPB’s Unified Regulatory Agenda and scope of authority. The discussions on mortgage servicing and origination covered capping closing costs to make homeownership more accessible. Additional concerns related to the impact of private equity on the housing market and how it changes home affordability in certain neighborhoods. Additionally, CAB members raised yet another implication which would make home ownership difficult in the refinancing space for small-balance mortgages. Predatory practices involving solar lending were of concern due to the influx of funds related to the Inflation Reduction Act. CAB members shared the challenges faced by mortgage servicing and foreclosure prevention services leading to delays in loss mitigation processing and high-touch mortgage servicing areas. Additional talking points included topics such as tenant screening and employment background checks, purpose limitations under the FCRA, creation of a “Public Credit Registry,” reduced time limits on negative information reporting, and restricted use of credit scores in employment and rental decisions.