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Basel Committee updates global systemically important bank assessment methodology and framework
On July 5, the Basel Committee on Banking Supervision (BCBS), the primary global standard setter for the prudential regulation of banks, released an updated version of its Global systemically important banks: revised assessment methodology and the higher loss absorbency requirement. The BCBS conducted a review of the original framework—first published in 2011 and updated in 2013—and noted that, based on its review, member jurisdictions’ experience, and feedback received during a public consultation last year, “the framework is meeting its primary objective by requiring [global systemically important banks (G-SIBs)] to hold higher capital buffers and providing incentives for such firms to reduce their systemic importance.” BCBS further stated that the core elements of the framework will be maintained to enhance the stability of the regulatory environment following the finalization of the Basel III post-crisis reforms.
Among other enhancements, the framework provides the following updates:
- amends the definition of cross-jurisdictional indicators consistent with the definition of Bank for International Settlements consolidated statistics;
- introduces a trading volume indicator and modifies the weights in the substitutability category;
- extends the scope of consolidation to insurance subsidiaries;
- revises disclosure requirements;
- provides further guidance on bucket migration and associated higher loss absorbency surcharge when a G-SIB moves to a lower bucket; and
- adopts a transitional schedule for the implementation of these enhancements.
The framework is expected to be implemented in member jurisdictions by 2021.
District Court rules South Dakota banking regulator exceeded authority in revoking payday lender’s license
On May 29, the U.S. District Court for the District of South Dakota denied a motion to dismiss filed by the director of the South Dakota Division of Banking (defendant), ruling that the defendant exceeded his authority when he revoked a payday lender’s (plaintiff) operating license instead of initiating a cease and desist order, and that he failed to provide sufficient opportunities for the plaintiff to respond. According to the court, the defendant “had good cause to revoke [the plaintiff’s] money lending licenses,” having determined that late fees on the plaintiff’s loan product violated the 36 percent finance charge cap in the state’s 2017 payday lending law. But the court also held that the defendant committed a “procedural error” when he chose to “revoke the licenses rather than afford[] a hearing or [give the plaintiff] an opportunity to bring its practices into compliance. . . .”
The court further granted the plaintiff’s motion for partial summary judgment “on the violation of procedural due process” for a period from September 13 through September 28, 2017—the date that the defendant issued a limited stay on the license revocation allowing the company to collect on loans issued before the South Dakota payday lending law went into effect. “In short, [the defendant’s] Order did not meaningfully advance the interests of the state (and indeed contravened state law), and the ‘substitute procedures’ sought by [the plaintiff] (and required under state law) would have accommodated the competing interests, provided due process, and not needlessly compromised the private interests of [the plaintiff],” the court wrote.
VA issues policy guidance on VA refinance loans in response to the Economic Growth, Regulatory Relief and Consumer Protection Act
On May 25, the Department of Veterans Affairs (VA) issued Circular 26-18-13 discussing the impact of “The Protecting Veterans from Predatory Lending Act of 2018” (the Act), which was included in the recently enacted bipartisan regulatory relief bill, Economic Growth, Regulatory Relief and Consumer Protection Act, S. 2155, previously covered by InfoBytes here. The Act addresses “loan churning” of VA-guaranteed refinance loans and sets out new requirements for VA eligibility. As of May 25, a lender (broker or agent included), a servicer, or issuer of an Interest Rate Reduction Refinance Loan (IRRRL) must, among other things:
- Recoup Fees. Certify that certain fees and costs of the loan will be recouped on or before 36 months after the loan note date;
- Establish a Net Tangible Benefit. Establish that when the previous loan had a fixed interest rate (i) the new fixed interest rate is at least 0.5 percent lower or (ii) if the new loan has an adjustable rate, that the rate is at least 2 percent lower than the previous loan. In each instance, the lower rate cannot be produced solely from discount points except in certain circumstances; and
- Apply a Seasoning Period. Follow a seasoning requirement for all VA-guaranteed loans. A loan cannot be refinanced by an IRRRL or a VA cash-out refinance (if the new principle amount is less than the loan being refinanced) until (i) 210 days after the date of the first payment made on the loan and (ii) the date of the sixth monthly payment is made on the loan.
The circular is rescinded on January 1, 2020.
OCC highlights key risks affecting the federal banking system in spring 2018 semiannual risk report
On May 24, the OCC released its Semiannual Risk Perspective for Spring 2018, identifying and reiterating key risk areas that pose a threat to the safety and soundness of national banks and federal savings associations. Priorities focus on credit, operational, compliance, and interest risk, and while the OCC commented on the improved financial performance of banks from 2016 to early 2018, in addition to the “incremental improvement in banks’ overall risk management practices,” the agency also noted that risks previously highlighted in its Fall 2017 report have “changed only modestly.” (See previous InfoBytes coverage here.)
Specific areas of concern noted by the OCC include: (i) easing of commercial credit underwriting practices; (ii) increasing complexity and severity of cybersecurity threats; (iii) use of third-party service providers for critical operations; (iv) compliance challenges under the Bank Secrecy Act; (v) challenges in risk management involving consumer compliance regulations; and (vi) rising market interest rates, including certain risks associated with the “potential effects of rising interest rates, increasing competition for retail and commercial deposits, and post-crisis liquidity regulations for banks with total assets of $250 billion or more, on the mix and cost of deposits.” Additionally, concerns related to integrated mortgage disclosure requirements under TILA and RESPA previously considered a key risk have been downgraded to an issue to be monitored.
House passes two bipartisan bills to increase transparency for regulatory appeals process and tailor regulations based on size and complexity
On March 15, the House passed H.R. 4545, the “Financial Institutions Examination Fairness and Reform Act,” which would amend the Federal Financial Institutions Examination Council Act of 1978 to increase transparency and accountability for financial institutions. Among other things, the bill will require federal financial regulatory agencies to comply with deadlines established in the bill to improve the timeliness of examination reports and exit interviews, and will establish the Office of Independent Examination Review to adjudicate financial institutions’ appeals and complaints concerning examination reports. The bill further “requires the establishment of an independent internal agency appellate process at the CFPB for the review of supervisory determinations made at institutions supervised by the CFPB.”
Separately, on March 14, the House passed H.R. 1116, the “Taking Account of Institutions with Low Operation Risk Act of 2017” (TAILOR Act), which would require federal financial regulatory agencies to tailor regulations to a financial institution’s size and complexity. The TAILOR Act would apply not only to future regulatory guidance and rulemaking but also to regulations adopted seven years prior from February 16, 2017. According to a press release issued by the House Financial Services Committee, the TAILOR Act “moves financial regulatory agencies away from the current one-size-fits-all approach to instead consider additional factors such as an institution's risk profile, unintended potential impact of implementation of such regulations, and underlying policy objectives of the statutory scheme which led to the regulation.” In registering her opposition to the bill, Ranking Member of the Committee, Representative Maxine Waters, D-CA, argued that it would “weaken important safeguards established since the financial crisis” and “provide all financial institutions, including the largest banks, with opportunities to challenge any and every regulation in court if they felt it was not 'uniquely tailored' to their business needs.”
Senate passes bipartisan financial regulatory reform bill
On March 14, by a vote of 67-31, the Senate passed the Economic Growth, Regulatory Relief, and Consumer Protection Act (S. 2155) (the bill)—a bipartisan regulatory reform bill crafted by Senate Banking, Housing, and Urban Affairs Committee Chairman Mike Crapo, R-Idaho—that would repeal or modify provisions of Dodd-Frank and ease regulations on all but the biggest banks. (See previous InfoBytes coverage here.) The bill’s highlights include:
- Improving consumer access to mortgage credit. The bill’s provisions state, among other things, that: (i) banks with less than $10 billion in assets are exempt from ability-to-repay requirements for certain qualified residential mortgage loans; (ii) appraisals will not be required for certain transactions valued at less than $400,000 in rural areas; (iii) banks and credit unions that originate fewer than 500 open-end and 500 closed-end mortgages are exempt from HMDA’s expanded data disclosures (the provision would not apply to nonbanks and would not exempt institutions from HMDA reporting altogether); (iv) amendments to the S.A.F.E. Mortgage Licensing Act will provide registered mortgage loan originators in good standing with 120 days of transitional authority to originate loans when moving from a federal depository institution to a non-depository institution or across state lines; and (v) the CFPB must clarify how TRID applies to mortgage assumption transactions and construction-to-permanent home loans, as well as outline certain liabilities related to model disclosure use.
- Regulatory relief for certain institutions. Among other things, the bill simplifies capital calculations and exempts community banks from Section 13 of the Bank Holding Company Act if they have less than $10 billion in total consolidated assets. The bill also states that banks with less than $10 billion in assets, and total trading assets and liabilities not exceeding more than five percent of their total assets, are exempt from Volcker Rule restrictions on trading with their own capital.
- Protections for consumers. Included in the bill are protections for veterans and active-duty military personnel such as: (i) permanently extending the protection that shields military personnel from foreclosure proceedings after they leave active military service from nine months to one year; and (ii) adding a requirement that credit reporting agencies provide free credit monitoring services and credit freezes to active-duty military personnel. The bill also addresses general consumer protection options such as expanded credit freezes and the creation of an identity theft protection database. Additionally, the bill instructs the CFPB to draft federal rules for the underwriting of Property Assessed Clean Energy loans (PACE loans), which would be subject to TILA consumer protections.
- Changes for bank holding companies. Among other things, the bill raises the threshold for automatic designation as a systemically important financial institution from $50 billion in assets to $250 billion. The bill also subjects banks with $100 billion to $250 billion in total consolidated assets to periodic stress tests and exempts from stress test requirements entirely banks with under $100 billion in assets. Additionally, certain banks would be allowed to exclude assets they hold in custody for others—provided the assets are held at a central bank—when computing the amount such banks must hold in reserves.
- Protections for student borrowers. The bill’s provisions include measures to prevent creditors from declaring an automatic default or accelerating the debt against a borrower on the sole basis of bankruptcy or cosigner death, and would require the removal of private student loans on credit reports after a default if the borrower completes a loan rehabilitation program and brings payments current.
The bill now advances to the House where both Democrats and Republicans think it is unlikely to pass in its current form.
House passes several bills focused on regulatory relief
On March 6, the House passed H.R. 2226, the “Portfolio Lending and Mortgage Access Act,” amending TILA and expanding the safe harbor provisions provided to qualified residential mortgages held in portfolio by banks with less than $10 billion in assets. Under the bill, a mortgage lender would not be subject to civil liability for violating specified ability-to-repay requirements if, among other things, the loan was originated and held continuously in portfolio by a covered institution and complies with certain limitations and requirements related to prepayment penalties and points and fees..
On the same day, the House also passed H.R. 4725, the “Community Bank Reporting Relief Act,” to amend the Federal Deposit Insurance Act to reduce the regulatory reporting burden on community banks. Specifically, federal banking agencies would be required to issue regulations allowing qualified depository institutions with less than $5 billion in assets to submit abbreviated call reports (consolidated reports of condition and income) every other quarter rather than submitting full call reports every quarter.
Finally, by a vote of 264-143, the House passed H.R. 4607, the “Comprehensive Regulatory Review Act,” a measure to amend the Economic Growth and Regulatory Paperwork Reduction Act of 1996’s regulatory review process. Among other things, the bill requires federal financial regulators to perform a comprehensive review at least every seven years, instead of every ten years as currently required, to identify regulations that may be tailored to limit burdens on insured depository institutions.Federal Reserve blocks national bank’s growth, cites internal governance and risk management oversight failures
On February 2, the Federal Reserve Board (Fed) cited compliance breakdowns and widespread consumer abuses as the primary factors behind its decision to issue an order to cease and desist against a national bank. In addition to blocking the bank from growing beyond $1.95 trillion in assets until the Fed approves internal governance and risk management reforms, the order also requires the bank to take actions in the areas of board effectiveness, risk management program improvement, third party reviews of plans and improvements, and reports on progress. The bank must, among other things, (i) create “separate and independent reporting lines” to the chief risk officer and the board, and (ii) enhance risk management oversight and functions, which includes creating “an effective risk identification and escalation framework.” The bank concurrently agreed to replace four current board members in 2018, with three replaced by April. Notably, the order does not require the bank to cease current activities such as accepting customer deposits or making consumer loans.
The Fed also sent letters to the bank’s former lead independent director and former chair of the board of directors (see letters here and here) to address the “many pervasive and serious compliance and conduct failures” that occurred during their tenures. Citing ineffective oversight following awareness of alleged consumer abuses, the Fed stated that the former directors failed to initiate any serious inquiry or request that the board do so. Further, the Fed asserted that the former chair of the board continued to support the sales goals that were a major cause of the identified sales practice problems and failed to initiate a serious investigation or inquiry. A third letter sent to the current board of directors outlines steps the board must take to improve senior management reporting, maintain an effective risk management structure, and ensure compensation and other incentive programs are “consistent with sound risk management objectives and promote . . . compliance with laws and regulations.” (See here and here for previous InfoBytes coverage on the alleged improper sales practices.)
In response, the bank issued a press release stating it will commit to the Fed’s requirements and will provide a compliance plan for oversight, compliance, and operational risk management to the Fed within 60 days. The plan will also outline measures already completed by the bank, and if approved by the Fed, the bank will engage independent third parties to review its adoption and implementation of the plan.
House Financial Services Subcommittee conducts hearing on fintech opportunities and challenges
On January 30, the House Financial Services Subcommittee on Financial Institutions and Consumer Credit held a hearing entitled “Examining Opportunities and Challenges in the Financial Technology (“Fintech”) Marketplace.” The Subcommittee issued a press release following the hearing and presented the following key takeaways:
- “Modern developments in digital technology are changing the way in which many financial services are offered and delivered”; and
- “Congress and the federal prudential regulators must continue to examine this innovative marketplace to understand the opportunities and challenges it presents, and to ensure that financial services entities are allowed to use fintech to deliver new products and services while also protecting consumers.”
Opening statements were presented by several members of the Subcommittee, including Subcommittee Vice Chair Keith Rothfus, R-PA, who noted that online lending, mobile banking, and other products could bring capital back to areas deserted by traditional banks. Subcommittee Chairman Blaine Luetkemeyer, R-MO, highlighted that loan originations passed through marketplace lenders accounted for nearly $40 billion over the past ten years, with online lenders often able to offer better lending terms. Luetkemeyer also discussed the rise of mobile banking and lending and raised the question presented by some states of whether fintech companies should be required to comply with current laws that apply to similar products. He stressed that understanding fintech’s capabilities “can better create an environment that fosters certainty and responsible innovation while maintaining consumer protections.” A broad range of topics were discussed at the hearing, including the following highlights:
- Madden v. Midland / True Lender. Companies that have chosen to partner with banks have also run into regulatory and legal roadblocks, including the recent decision in Madden v. Midland Funding, which determined that a nonbank entity taking assignment of debts originated by a national bank is not entitled to protection under the National Bank Act from state-law usury claims. (See Buckley Sandler Special Alert here.) In prepared remarks, Andrew Smith, Partner at Covington and Burling, LLP, stated that because of varying outcomes in true lender court challenges, the lack of certainty means that “market participants will no longer be willing to enter into these types of transactions, thereby depriving consumers, banks, and the economy of the many benefits of bank partnerships with fintech providers while also hampering the liquidity necessary to support a robust lending market.” Smith went on to discuss H.R. 4439, the Modernizing Credit Opportunities Act, which was introduced to “reconfirm and reinforce existing federal law with respect to a bank’s identity as the true lender of a loan with the assistance of a third-party service provider.” Smith emphasized that the legislation would “resolve any uncertainty about a bank’s ability to use third-party service providers by confirming the principle that when a bank enters into a loan agreement, it is the bank that has made the loan.”
- Marketplace Lending. During his testimony, witness Nathaniel Hoopes, Executive Director at the Marketplace Lending Association, highlighted the role marketplace lending platforms (MPPs) have had in delivering products to underserved consumers, but emphasized that a lot of work still needs to happen for more of the “broad American ‘middle class’ to fully realize and benefit from the potential of MPPs specifically and fintech more broadly.” He also expressed support for the Special Purpose National Bank charter currently under consideration by the OCC.
- Regulatory Sandboxes. Witness Brian Knight, Director of the Program on Financial Regulation and Senior Research Fellow at the Mercatus Center at George Mason University, suggested in his prepared remarks various methods to improve the current regulatory environment, and opined that lawmakers could allow firms that participate in a regulatory sandbox program and comply with its requirements to avoid liability as long as the firm makes “customers whole if the firm causes harm owing to a violation of the law.” Knight added that states could be allowed to grant special non-depository charters similar to those offered by the OCC. And while witness Professor Adam J. Levitin of the Georgetown University Law Center agreed that sandboxes would allow companies to explore new ideas with the understanding that customers must be protected, he cautioned that the fragmentation of the regulatory system around fintech makes it hard for experimentation, and that risk would need to be regulated.
- Virtual Currencies. Knight discussed his concerns with initial coin offerings (ICOs) and commented that while ICOs “may enable firms to access capital more effectively than traditional methods, there are significant concerns that they are being used by both outright frauds and well-meaning but ignorant firms to obtain capital in contravention of existing laws governing the sales of securities, commodities futures contracts, and products and services.” However, Knight testified that despite the potential for risk, peer-to-peer payments, cryptocurrencies, and other innovations demonstrate potential, and that innovative lenders are replacing banks in communities where it is no longer profitable for those banks to serve.
- Inconsistent Regulations. During his testimony, witness Brian Peters, Executive Director at Financial Innovation Now, advocated for improved coordination among regulators and stressed that the “current structure is needlessly fragmented and inconsistent among federal regulators, and varies widely across state jurisdictions.” Peters also commented on the need to modernize the regulatory structure to keep pace with innovation and meet consumers’ needs.
Bank regulators share living will expectations with foreign banks operating in the U.S.
On January 29, the Federal Reserve Board and the FDIC sent letters to 19 foreign banks operating in the United States to outline and clarify resolution plan expectations. According to a joint release issued by the regulators, Dodd-Frank-mandated resolution plans—commonly known as living wills—require certain foreign banks to detail strategic plans for their U.S. operations “for rapid and orderly resolution under bankruptcy” should the banks fail or fall under material financial distress. Requested in the letters, among other things, are specifics on resolution strategies, capital calculations, management of liquidity, stress testing, and organizational structures. Banks are required to submit 2018 resolution plans no later than December 31, 2018. Refer here to access a list of banks and letters.