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Financial Services Law Insights and Observations

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  • OCC proposes rescinding its 2020 CRA rule

    Agency Rule-Making & Guidance

    On September 8, the OCC announced in the Federal Register that it is soliciting comments on a proposal to rescind its 2020 Community Reinvestment Act Rule and to replace it with rules based largely on those adopted jointly by the Federal banking agencies in 1995, as amended. As previously covered by a Buckley Special Alert, the final rule, issued in May 2020, provides for at least a 27-month transition period for compliance based on a bank’s size and business mode, among other things. According to the OCC, the proposal, “would align the OCC’s CRA rules with the current Board of Governors of the Federal Reserve System and Federal Deposit Insurance Corporation rules and thereby facilitate the on-going interagency work to modernize the CRA regulatory framework and create consistency for all insured depository institutions.” Since many aspects of the CRA 2020 rule remain in transition and have not been implemented, the OCC anticipates that the proposed rule will have a limited impact on national banks and savings associations. According to Acting Comptroller Michael J. Hsu, the issuance “is an important step toward strengthening and modernizing the CRA,” and that the agency “is committed to working with the Federal Reserve and FDIC on a future joint rulemaking.” According to the OCC, the proposed rules would apply to all national banks and all federal and state savings associations. Comments are due by October 29.

    Agency Rule-Making & Guidance OCC CRA Federal Register

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  • SEC seeks public information regarding online trading

    Securities

    On August 27, the SEC announced a request for information and public comments regarding the use of digital engagement practices by broker-dealers and investment advisers, such as behavioral prompts, differential marketing, game-like features (gamification), and other design elements or features designed to engage with retail investors on digital platforms, as well as analytical and technological tools and methods (collectively “digital engagement practices” or “DEPs”). The SEC issued the request to better understand the market practices related to firms' use of DEPs and intends “to learn what conflicts of interest may arise from optimization practices and whether those optimization practices affect the determination of whether DEPs are making a recommendation or providing investment advice.” The request is also intended to provide a forum for market participants to provide their perspectives regarding the use of DEPs, including the potential benefits that DEPs provide to retail investors, and protection concerns related to potential investors. The request will assist in the Commission's assessment of existing regulations and consideration regarding whether regulatory action may be required to continue the Commission's mission. A statement by SEC Chair Gary Gensler noted that though “new technologies can bring us greater access and product choice, they also raise questions as to whether we as investors are appropriately protected when we trade and get financial advice.” The public comment period for the request will remain open for 30 days after publication in the Federal Register.

    Securities Fintech Federal Register Agency Rule-Making & Guidance SEC

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  • CFPB seeks comment on mobile-device disclosures

    Agency Rule-Making & Guidance

    On August 11, the CFPB issued a notice and request in the Federal Register for comments on a Generic Information Collection titled, “Electronic Disclosure on Mobile Devices.” According to the notice, the CFPB is planning “to conduct several studies using methodologies rooted in psychology and behavioral economics to understand electronic disclosure on mobile devices.” Through these studies, the CFPB intends to collect information about demographics, reading electronic disclosures, and how consumers engage with their finances on different devices. Comments are due by September 10.

    Agency Rule-Making & Guidance CFPB Disclosures Federal Register

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  • Education Dept. rolls back state-law preemption on student loans

    Federal Issues

    On August 9, the U.S. Department of Education published an interpretation, noting “that there is significant space for State laws and regulations relating to student loan servicing, to the extent that these laws and regulations are not preempted by the Higher Education Act of 1965, as amended (HEA), and other applicable Federal laws.” The interpretation clarifies the Department’s position on the legality of state laws and regulations regarding certain aspects of federal student loan servicing, such as preventing unfair or deceptive practices, correcting misapplied payments, or addressing refusals to communicate with borrowers. According to the interpretation, though federal law preempts state laws that conflict squarely on issues such as timelines, dispute resolution procedures, and collections, the Department believes that it does not preempt state laws regarding affirmative misrepresentations or other measures meant to address improper conduct that could occur in Federal Family Education Loan Program. The Department stated that “[s]tates may consider and adopt additional measures which protect borrowers and do not conflict with Federal law,” and that “such measures can be enforced by the States and the Department can and will work with State officials to root out all forms of fraud, falsehood, and improper conduct that may occur in the Federal student aid programs.” According to the Department, “[t]his action will help states enforce borrower bills of rights or other similar laws to address issues with servicing of federal student loans.” The new interpretation revokes and supersedes the interpretation published in March 2018, “Federal Preemption and State Regulation of the Department of Education’s Federal Student Loan Programs and Federal Student Loan Servicers” (covered by InfoBytes here). Comments are due 30 days after publication in the Federal Register.

    Federal Issues Department of Education Student Lending Preemption Federal Register Student Loan Servicer

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  • Fed announces new details of the FedNow Service

    Federal Issues

    On August 6, the Federal Reserve Board (Board) announced details of its new payment clearing system, the FedNow Service, which the Board plans to implement through a phased approach with a target launch date sometime in 2023 or 2024. As previously covered by InfoBytes, in August 2019, the Board issued a request for information on a “round-the-clock real-time payment and settlement service,” seeking feedback on how the service might be designed in order to support payment system stakeholders and the general functioning of the U.S. payment system. The Board notes that the newly released details are based on the input received from stakeholders. The Federal Register notice discusses the phased released approach, noting that the “approach will ensure the core features and functionality are delivered as quickly as possible,” even if “certain desirable features” are not available in the initial release. Highlights of the core features of the “24x7x365” FedNow Service include, among other things, (i) a payment flow where the receiver’s bank has an opportunity to confirm that it holds a valid account for the receiver and intends to accept the payment message, before interbank settlement occurs; (ii) the use of the “widely accepted ISO 20022 standard and adopt other industry best practices” for payment message format; (iii) a transaction limit that will be “consistent with market practices and needs at the time” of the launch of service; and (iv) a liquidity-management tool that will allow participants to transfer funds to each other to support the liquidity needs of instant payments. After the initial launch, the Board intends to offer additional features related to fraud prevention, error resolution and case management. 

    Federal Issues Federal Reserve Payments Payment Systems Federal Register

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  • SBA to limit maximum PPP loans to $20 million for corporate groups

    Federal Issues

    On April 30, the Small Business Administration (SBA) issued an Interim Final Rule (IFR) prohibiting a “single corporate group” from receiving more than $20 million in the aggregate from the Paycheck Protection Program (PPP). Businesses are considered to be a part of a single corporate group “if they are majority owned, directly or indirectly, by a common parent.”  Small businesses must adhere to this loan cap by withdrawing or cancelling any PPP loan application or approval above $20 million for any loan that is not fully disbursed as of April 30. Failure to follow the IFR, will make such loans ineligible for loan forgiveness. The IFR assures lenders that they are not responsible for a small business’s compliance with this rule, and further, that the IFR does not alter lender obligations required to procure an SBA loan guarantee. In addition, the IFR allows a non-bank lender to be a PPP lender, subject to certain criteria, if the non-bank lender is “either a community development financial institution…or a majority minority, women, or veteran/military owned lender.” The IFR is effective as of May 4, and comments must be received by June 3.

    Federal Issues Agency Rule-Making & Guidance Department of Treasury SBA Federal Register CARES Act Covid-19 Small Business Lending

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  • Agencies adjust threshold for Regulations Z and M

    Agency Rule-Making & Guidance

    On October 31, the CFPB and the Federal Reserve Board finalized the annual dollar threshold adjustments that govern the application of Regulation Z (Truth in Lending Act) and Regulation M (Consumer Leasing Act) to credit transactions, as required by the Dodd-Frank Act (published in the Federal Register here and here). Each year the thresholds must be readjusted based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). The exemption threshold for 2020, based on the annual percentage increase in the CPI-W, is now $58,300 or less, except for private student loans and loans secured by real property, which are subject to TILA regardless of the amount.

    Agency Rule-Making & Guidance CFPB Federal Reserve Federal Register TILA Consumer Leasing Act Regulation M Regulation Z

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  • Agencies increase threshold for appraisal exemption under TILA for HPMLs

    Agency Rule-Making & Guidance

    On October 30, the CFPB, OCC, and the Federal Reserve Board published a final rule in the Federal Register, which increases the smaller loan exemption threshold for the special appraisal requirements for higher-priced mortgage loans (HPMLs) under TILA. TILA requires creditors to obtain a written appraisal before making a HPML unless the loan amount is at or below the threshold exemption. Each year the threshold must be readjusted based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers. The exemption threshold for 2020 is $27,200, up from $26,700 in 2019. The final rule will take effect January 1, 2020.

    Agency Rule-Making & Guidance CFPB OCC Federal Reserve Federal Register Mortgages Appraisal TILA

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  • Agencies raise residential appraisal requirement to $400,000

    Agency Rule-Making & Guidance

    On September 27, the OCC, the Federal Reserve Board, and the FDIC announced a final rule increasing the threshold for residential real estate transactions requiring an appraisal from $250,000 to $400,000. As previously covered by InfoBytes, in November 2018, the agencies proposed the threshold increase in response to feedback that the exemption threshold had not increased to keep pace with the price appreciation in the residential real estate market. The final rule also includes the rural residential appraisal exemption included in the Economic Growth, Regulatory Relief, and Consumer Protection Act (previously covered by InfoBytes here), and implements the Dodd-Frank Act mandate that institutions appropriately review appraisals for compliance with the Uniform Standards of Professional Appraisal Practice. The final rule is effective the first day after publication in the Federal Register, except for the evaluation requirement for transactions exempted by the rural residential appraisal exemption and the requirement to review appraisals for compliance with the Uniform Standards of Professional Appraisal Practice, which are effective January 1, 2020.

    The FDIC press release is available here, the Federal Reserve Board press release is available here, and the concurrence letter from the CFPB is available here.

    Agency Rule-Making & Guidance Mortgages Appraisal OCC Federal Register Federal Reserve FDIC EGRRCPA CFPB Dodd-Frank

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  • NCUA approves additional payday loan alternative

    Agency Rule-Making & Guidance

    On September 19, the NCUA announced the approval of a final rule creating a new payday alternative loan product (PAL II). As previously covered by InfoBytes, in June 2018, NCUA proposed the PAL II as an additional offering to the current payday alternative loan product (PAL I), which has been available since 2010. PAL II includes most features of PAL I except that it (i) eliminates a loan minimum and sets the maximum at $2,000; (ii) requires a minimum loan term of one month and a maximum of 12 months; and (iii) does not contain a requirement for the minimum length of a membership. Moreover, federal credit unions are restricted to offering only one type of PAL loan to a member at any given time. All prior requirements of PAL I loans, such as the prohibition against rollovers, the limit on the number of loans a single borrower can take in a given period, and full amortization, remain in effect. The final rule will be effective 60 days after publication in the Federal Register.

    Agency Rule-Making & Guidance NCUA Payday Lending Federal Register Credit Union

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