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Financial Services Law Insights and Observations


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  • OCC releases enforcement actions

    On November 16, the OCC released a list of recent enforcement actions taken against national banks, federal savings associations, and individuals currently and formerly affiliated with such entities. Included is a cease and desist order against an Indiana bank for allegedly engaging in unsafe or unsound practices, related to corporate governance and enterprise risk management, credit underwriting and administration, liquidity risk management, and interest rate risk management. The order requires the bank to, among other things, (i) provide quarterly reports detailing corrective action and efforts to comply with the order; (ii) develop a written strategic plan; (iii) maintain specified capital ratios; (iv) engage an independent third party to review board and management supervision; (v) submit a written concentration risk management program and a written liquidity risk management program; (vi) adopt a credit underwriting and administration program; (vii) submit and adopt a written adequate allowance for credit losses; and (viii) adopt a written credit derivatives program.

    Bank Regulatory Federal Issues OCC Enforcement Cease and Desist

  • Agencies finalize 2024 HPML smaller loan exemption threshold

    On November 13, the CFPB, OCC, and the Fed published final amendments to the official interpretations for regulations implementing Section 129H of TILA, which establishes special appraisal requirements for “higher-risk mortgages,” otherwise termed as “higher-priced mortgage loans” (HPMLs). The final rule increases TILA’s loan exemption threshold for the special appraisal requirements for HPMLs. 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 will increase from $31,000 to $32,400 effective January 1, 2024.

    Bank Regulatory Federal Issues OCC Federal Reserve CFPB Mortgages Appraisal Consumer Finance HPML TILA

  • Fed releases report on banking supervision and regulation

    On November 10, the Fed released its biannual Supervision and Regulation Report ahead of congressional oversight hearings next week. The report covers banking system conditions, regulatory developments, and supervisory developments. The report stated that “[t]he banking sector remains sound overall.” After learning from the recent bank failures last spring, the Fed’s report aims to improve its supervision of “liquidity and interest rate risks by conducting targeted reviews… as well as conducting focused training and outreach… for banks and examiners.” Proposed regulatory developments include the Basel III endgame, long-term debt, and discount window preparedness. For supervisory developments, the Fed created the Novel Activities Supervision Program (previously covered by InfoBytes here) in August to supervise novel banking activities such as “crypto-assets, distributed ledger technology, and complex, technology-driven partnerships with nonbanks.”

    Bank Regulatory Federal Reserve Congressional Oversight Regulation Bank Supervision

  • Fed Governor Michelle Bowman gives speech discussing banking regulatory reforms and concerns

    On November 9, Federal Reserve Governor Michelle W. Bowman delivered a speech on the economy and prioritization of bank supervision and regulation. Governor Bowman highlighted recent developments in banking regulatory framework reform. Governor Bowman began by highlighting the proposed reforms to capital requirements for banks with more than $100 billion in assets. She mentioned the central concern raised is the potential inadequacy of the quantitative and analytical foundations of these reforms. Governor Bowman questioned whether Basel III reforms effectively address regulatory deficiencies and emphasized the need for a thorough understanding of both the benefits and costs of implementing such changes. Governor Bowman discussed the actions taken by the agencies, including an extended comment period and efforts to gather more information on the proposal's potential impact. Several areas are identified as necessary to address, such as redundancy in the capital framework, calibration of the Market Risk Capital Rule, the inefficiency of two standardized capital stacks, and the punitive treatment of fee income. Governor Bowman also highlighted the missed opportunity to review leverage ratio requirements, which could have implications for market functioning in times of stress.

    Shifting the focus to the CRA, Governor Bowman acknowledged the importance of improving access to credit, especially in low- and moderate-income (LMI) communities. However, the Governor mentioned concerns raised about the new final rule implementing the CRA. She explained some criticism for it being unnecessarily complex, overly prescriptive, and disproportionately burdensome for banks, especially community banks. It applies the same regulatory expectations to small and large banks, failing to recognize the differences among banks in terms of size, risk, and business models, she added. Governor Bowman’s remarks underscore the need for a balanced, data-driven, and risk-focused approach to regulatory reforms. 

    Bank Regulatory CRA Basel Bank Supervision

  • Fed releases third quarter SLOOS survey on bank lending practices

    On November 6, the Fed released its quarterly survey of Senior Loan Officer Opinion Survey (SLOOS) on bank lending practices. The report is administered to mostly domestic banks but includes some international banks.

    The findings are summarized based on each type of loan: commercial, real estate, and consumer. Regarding business loans, the Fed finds banks reported “tighter standards and weaker demand for commercial and industrial loans.” For commercial real estate loans, banks reported “tighter standards and weaker demand” as well. For household loans, banks reported that “lending standards tightened across all categories of residential real estate loans (other than government residential mortgages),” but demand weakened for all residential real estate loans. Similarly, but for HELOCs, banks reported “tighter standards and weaker demand.” For consumer loans, such as credit cards, and auto loans, among others, “standards reportedly tightened, and demand weakened on balance.”

    The Fed also asked questions related to banks’ comfort level in approving applications based on FICO scores; the Fed found that banks were “less likely to approve such loans for borrowers with FICO scores of 620 and 680 in comparison with the beginning of the year, while they were… about as likely to approve auto loan applications for borrowers with FICO scores of 720 over this same period.” Finally, the Fed inquired about reasons why banks tightened their lending standards in the third quarter. Banks explained that economic conditions created a “reduced tolerance for risk; deterioration in the credit quality of loans and collateral values; and concerns about funding costs.”

    Bank Regulatory Federal Issues Agency Rule-Making & Guidance Loans Banking

  • Fed Governor Cook on financial stability

    On November 8, Federal Reserve Governor Lisa D. Cook delivered a speech regarding financial stability at the Central Bank of Ireland. Governor Cook underscored the link between financial stability and the Fed’s stable process and maximum employment and focused on four key vulnerability categories: (i) asset valuations; (ii) business and household borrowing; (iii) financial-sector leverage; and (iv) funding risks. Governor Cook noted rising asset valuations in various markets, especially in the real estate sector, and the potential risks associated with high levels of borrowing by businesses and households. Additionally, she discussed the importance of monitoring financial sector leverage and funding risks, both in bank and nonbank financial institutions.

    Governor Cook also outlined near-term risks that could impact the resilience of the financial system. These risks included inflationary pressures, potential losses in the real estate market, banking-sector stress, and market liquidity strains. She emphasized the need for robust oversight and prudential requirements for nonbank financial institutions, as they are becoming increasingly interconnected with the banking sector.

    Finally, Governor Cook stressed the importance of remaining vigilant in identifying and addressing vulnerabilities within the global financial system to ensure its stability and, in turn, support the well-being of households, businesses, and the broader economy.

    Bank Regulatory Risk Management Federal Reserve

  • FTC sues fintech firm for deceiving users and making cancelations difficult

    On November 3, the FTC filed suit against a fintech firm within the U.S. Southern District Court of New York.  The FTC alleged the fintech mobile app misled customers, “violated Section 5 of the FTC Act[,] and made it hard to cancel services in violation of the Restore Online Shoppers’ Confidence Act (ROSCA).” However, the FTC and Defendant stipulated the entry of a proposed settlement order that includes a monetary judgment of $18 million for consumer refunds and requires Defendant to stop its deceptive marketing practices and end tactics that prevented customers from canceling services. The first time the FTC had collected civil penalties under ROSCA was in January 2023, as covered by InfoBytes here.

    The FTC’s complaint alleges that consumers were deceived into signing up for a $250 cash advance, but many users were unable to receive any money at all. Furthermore, consumers had to have first entered a $9.99 monthly membership––regardless of whether they qualified for the $250 or not. Further, if a user wished to cancel their monthly membership, the fintech firm employed “dark” and manipulative design tricks to “create a confusing and misleading cancellation process that prevented consumers from canceling their subscriptions.” The FTC’s proposed settlement order must first be approved by a federal judge before it can go into effect.

    Bank Regulatory FTC Consumer Finance Settlement

  • OCC releases commercial lending bulletin on venture loans

    On November 1, the OCC issued a bulletin on “commercial loans to early-, expansion-, and late-stage companies,” which it referred to as “venture loans.” The OCC explained that although “venture lending supports new business formation and can improve access to capital for growth companies… new business ventures have a high probability of failure.” Accordingly, the bulletin, which “applies to all OCC-regulated banks, including community banks, that engage in or are considering engaging in venture lending,” provides guidance on the agency’s expectations for risk management and risk-rating of venture loans. 

    The bulletin expressly exempts “[f]ully monitored and controlled asset-based loans (ABL) to early-, expansion-, and late-stage companies,” from the guidance.  In addition, the OCC does not categorize the following types of credit as venture loans:

    • Loans to businesses that primarily rely on internal cash flow, rather than equity investments, for their growth;
    • Loans made under government-backed lending support programs where federal, state, or local guarantees sufficiently reduce credit risk (e.g., SBA guarantees); and
    • Loans made under special purpose credit programs (SPCP).

    Bank Regulatory OCC Commercial Lending Venture Capital Risk Management

  • Fed’s Vice Chair remarks on payments innovation, CBDCs, and financial inclusion

    On October 27, Fed Vice Chair for Supervision, Michael Barr, delivered a speech at the Economics of Payments XII Conference discussing the Fed’s place in the payments system and highlighting its role as a bank supervisor and operator of key payment infrastructure. Emphasizing the Fed’s introduction of its FedNow instant payment service (covered by InfoBytes here), which was designed to enable secure instant payments in response to the increasing demand for secure and convenient payment options, Barr encouraged banks to build upon the new payment infrastructure. He also noted that ongoing experimentation with new payment technologies, such as stablecoins, creates a need for regulation, particularly where an asset is “pegged to government-issued currencies.” 

    Regarding central bank digital currencies (CBDCs), the Fed is engaged in research and in discussions with various stakeholders; however, it has not decided on whether to issue a CBDC. The Vice Chair stressed that any move in this direction would require “clear support” from the Executive Branch and authorization from Congress.

    Barr emphasized the Fed’s commitment to working with the international community to improve cross-border payment systems as well as the need for research into both traditional and emerging payment methods, noting that innovation should “promote broad access and financial inclusion.”  Finally, the remarks touched on the Fed’s proposed revisions to the interchange fee cap for debit card issuers, with a call for public input on the matter (covered by InfoBytes here).

    Bank Regulatory Fintech Federal Reserve Payments CBDC Financial Inclusion Stablecoins

  • Fed seeks comment on lowering the interchange fee for debit card issuers

    On October 25, the Fed announced a proposed rule that would lower the maximum interchange fee that a debit card issuer with at least $10 billion in total consolidated assets can receive for a debit card transaction and would also establish a regular process for updating the maximum fee amount every other year going forward. Moreover, the Board approved the release of its latest biennial report which sets forth data collected from larger debit card issuers on interchange fees, issuer costs, and fraud related to debit card transactions.

    Under the Dodd-Frank Act, the Fed is required to establish standards for assessing whether the amount of any interchange fee received by a debit card issuer is reasonable and proportional to the costs incurred by the issuer for the applicable transaction, which results in the Fed setting an interchange fee cap. The FRB developed the fee cap in 2011 using data provided by large debit card issuers with $10 billion or more in assets. But since that time, the Fed has found that certain costs incurred by such debit card issuers have declined dramatically, yet the interchange fee cap has remained the same. As such, the Fed (i) proposes to update the interchange fee cap based on the latest data reported to the Board by large debit card issuers, and (ii) proposes to update the fee cap every other year by linking the fee cap to data from the Fed’s biennial report of large debit card issuers.

    The comment period will close 90 days after the proposal is published in the Federal Register.

    Bank Regulatory Agency Rule-Making & Guidance Federal Reserve Fees Interchange Fees Dodd-Frank Fraud Federal Register


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