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Financial Services Law Insights and Observations

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  • FDIC requests 2019 diversity self-assessments through new automated portal

    Agency Rule-Making & Guidance

    On March 23, the FDIC issued FIL-23-2020 to announce a request from the agency’s Office of Minority and Women Inclusion for 2019 diversity self-assessments from FDIC-regulated financial institutions in accordance with Section 342 of the Dodd-Frank Act. Financial institutions with 100 or more employees should refer to the FIL for instructions on completing the voluntary self-assessment. The FDIC strongly encourages financial institutions to use the new automated portal: Diversity Self-Assessment of FDIC Regulated Financial Institutions when completing self-assessments, as it allows for multiple authorized users and the ability to view previous submissions, as well as provides additional resources for participants. Self-assessments are due May 31.

    Agency Rule-Making & Guidance FDIC Federal Issues Diversity Dodd-Frank Financial Institutions

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  • Idaho issues order to self-isolate

    State Issues

    On March 25, the Idaho Department of Health and Welfare issued an Order to Self-Isolate for all individuals living in Idaho except for those providing or receiving certain services or activities or engaged in essential businesses. Banks, credit unions, and financial institutions, including processing and maintaining systems for processing financial transactions and services are deemed essential business. Idaho also has published a List of Essential Services.

    State Issues Credit Union Financial Institutions Idaho Covid-19

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  • Indiana governor issues stay at home order

    State Issues

    On March 24, the Indiana governor issued a Stay at Home Order, for all residents except for those leaving their homes or residences for essential activities, essential governmental functions, or to participate in essential business and operations.  Essential business and operations include financial and insurance institutions. 

    State Issues State Regulation Indiana Governors Financial Institutions Covid-19

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  • Massachusetts DOB issues guidance to assist consumers affected by Covid-19

    State Issues

    On March 15, the Massachusetts Division of Banks issued guidance for financial institutions on working with consumers affected by Covid-19 and regulatory assistance available from the Division. The Division encourages financial institutions to work with affected customers and communities, including by: (i) waiving fees; (ii) increasing ATM cash withdrawal limits; (iii) easing restrictions on cashing checks; (iv) increasing credit card limits; and (v) offering payment accommodations to assist members having payment difficulty. The guidance notes that “prudent efforts” to modify loan terms would not be subject to examiner criticism, and institutions can ease their terms for new loans consistent with prudential banking practices. In the guidance, the Division also committed to work with affected institutions to reduce the burden when scheduling examinations and inspections, utilize off-site reviews, and work with institutions experiencing difficulties fulfilling reporting requirements. It further acknowledged that institutions may need to temporarily close facilities and encouraged them to offer alternative service options where practical and notify the Division regarding business disruptions or other significant developments, such as staff shortages, rapid withdrawal of deposits or other signs of erosion in consumer confidence.

    State Issues State Regulation Financial Institutions Massachusetts Loan Modification Covid-19

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  • Massachusetts DOB issues expectations for relief to mortgage borrowers

    State Issues

    On March 25, the Massachusetts Division of Banks (DOB) issued a memorandum to financial institutions, mortgage lenders, and mortgage loan servicers outlining the actions the DOB “fully expects” institutions will take to alleviate the impact of Covid-19 on mortgage borrowers. The actions include (i) postponing foreclosures for 60 days; (ii) forbearing payments for 60 or more days; (iii) waiving fees for late payment and online payment for at least 60 days; (iv) refraining from reporting late payments to credit rating agencies for 60 days; (v) offering an additional 60-day grace period for borrower to complete trial loan modifications; (vi) ensuring borrowers do not experience a disruption of service if a mortgage servicer closes its office; and (vii) proactively reaching out to borrowers to explain the assistance being offered. The memorandum also emphasizes that reasonable and prudent efforts to assist borrowers are consistent with safe and sound banking practices and will not be subject to examiner criticism.

    State Issues State Regulation Massachusetts Financial Institutions Mortgage Lenders Mortgage Servicing Mortgages Consumer Lending | Consumer Finance Examination Covid-19

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  • Louisiana issues guidance on branch closures due to Covid-19

    State Issues

    On March 16, Louisiana’s Commissioner of Financial Institutions issued an emergency declaration granting financial institutions temporary authority to close branches within the state or to limit hours, reduce functions, or close certain days of the week. The declaration expressly waives the standard requirements for branch closures and instead instructs institutions to post a notice for public view at the physical location and provide email notice to the Office of Financial Institutions as soon as practicable and no more than five days after closure. 

    State Issues Louisiana Financial Institutions Covid-19 State Regulation

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  • Regulatory agencies issue pandemic planning statement

    Federal Issues

    On March 6, the Federal Reserve, FDIC, OCC, NCUA, Conference of State Bank Supervisors, and the CFPB—through the Federal Financial Institutions Examination Council—issued an Interagency Statement on Pandemic Planning, which, among other things, updates 2006 and 2007 guidance on the need for business continuity plans (BCPs) that address the effects of pandemics. The interagency statement encourages banks to develop plans that, among other things, limit disruption of operations, minimize staff contact by utilizing remote access, and plan for staffing challenges by cross-training bank staff. The statement recommends that the BCPs of financial institutions should include: (i) a preventive program; (ii) a documented strategy that applies to the stages of the pandemic; (iii) a “comprehensive framework of facilities, systems, or procedures to ensure that the institution’s critical operations will continue” (iv) a testing program; and (v) an oversight program to ensure ongoing review and updates to the plan.” The statement also lists websites that offer information on pandemic planning activities. The FDIC and the OCC also published advisories, FIL-14-2020, and OCC 2020-13, respectively.

    On March 9, the agencies issued a joint press release encouraging the financial institutions to “meet the financial needs of customers and members affected by” COVID-19. Also, the U.S. Senate sent a letter to trade associations encouraging them to provide job security for employees who self-quarantine or must miss work to take care of sick family members, and to ensure staff will not be required to use all sick leave/vacation leave or “report for work when such leave is exhausted.” The letter urges the entities to work with their customers by waiving late fees and overdraft fees among other measures. The Connecticut Department of Banking issued its own guidance as well regarding temporary remote work, and on March 5, the Washington Department of Financial Institutions issued similar guidance.

    Federal Issues Community Banks Financial Institutions State Regulators Federal Reserve FDIC OCC Covid-19 NCUA Credit Union CSBS CFPB

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  • International bank’s motion to dismiss denied in RMBS suit

    Courts

    On December 10, the U.S. District Court for the Eastern District of New York issued a memorandum and order denying an international bank’s motion to dismiss a DOJ suit filed in 2018. As previously covered in InfoBytes, the DOJ alleges the bank and several affiliates violated the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) by misleading investors and rating agencies in offering documents and presentations regarding the underwriting quality and other important attributes of the mortgages they securitized into residential mortgage-backed securities (RMBS) for sale to investors during the financial crisis. Specifically, the complaint alleges (i) “mail fraud affecting federally-insured financial institutions (FIFIs)”; (ii) wire fraud affecting FIFIs; (iii) bank fraud; (iv) “fraudulent benefit from a transaction with a covered financial institution (FI)”; and (v) “false statements made to influence the actions of a covered FI.” The DOJ seeks the maximum civil penalty.

    According to the district court’s memorandum, the bank’s motion to dismiss sets forth a number of arguments, including, among other things, a failure to sufficiently plead fraudulent intent and the particular circumstances constituting fraud, and a lack of personal jurisdiction, all with which the court rejected. Specifically, the bank suggested that the DOJ’s complaint did not show that the bank “acted with fraudulent intent,” or that the bank committed “bank fraud, [made] fraudulent bank transactions, and [made] false statements to banks.” The memorandum rejects the bank’s claims, adding that personal jurisdiction over the bank and its affiliates is shown “based on [the bank’s] origination of loans” in New York.

    Courts Financial Institutions RMBS Fraud DOJ False Claims Act / FIRREA Securitization

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  • CFTC Orders Large Financial Institution to Pay for Supervision Failures

    Securities

    On September 28, the Commodity Futures Trading Commission (CFTC) announced a concurrent filing and settling of charges against a large financial institution/clearing firm (Firm) for failing to adequately supervise fee processing. The Order alleges that between 2009 and 2016, the Firm did not implement and maintain adequate procedures and systems that could account for and help prevent the risk of overcharging customers for exchange and clearance fees. In 2015, according to the Order, the Firm modified its processes to prevent future overcharges to customers.

    The settlement requires the Firm to pay a $500,000 civil penalty.

    Securities Enforcement CFTC Financial Institutions Compliance Settlement

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  • CFTC Director of Enforcement Offers Incentives to Regulated Companies for Self-Reporting and Cooperation

    Securities

    On September 25, the U.S. Commodity Futures Trading Commission Director of the Division of Enforcement James McDonald spoke before the New York University Institute for Corporate Governance & Finance to address the Division’s priorities and outline its self-reporting and cooperation program. Director McDonald described the Division’s enforcement actions as part of a “broader mission to facilitate healthy, robust, and resilient markets,” with the goal of deterring misconduct. “Optimal deterrence,” he stressed, requires receiving buy-in from regulated companies and financial institutions, which is the premise of the Division’s cooperation and self-reporting program. The Division’s program requires companies to comply with three specific criteria: (i) voluntarily report wrongdoing to the Division in a timely and fully disclosed manner prior to the announcement of a government investigation; (ii) proactively cooperate with the Division throughout the investigation; and (iii) engage in timely and appropriate remedial measures to prevent future misconduct, and implement fixes to internal compliance and control programs. Should a company follow these steps, Director McDonald stated, the Division “will recommend a substantial reduction in the penalty,” and in “extraordinary circumstances . . . may recommend declining to prosecute a case.”

    Securities Agency Rule-Making & Guidance CFTC Enforcement Financial Institutions Compliance

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