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Financial Services Law Insights and Observations


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  • FTC confirms continuing need for Holder Rule

    Agency Rule-Making & Guidance

    On May 2, the FTC announced it completed its review of the Holder Rule (the Rule)—formally called the “Trade Regulation Rule Concerning Preservation of Consumers’ Claims and Defenses”—which is applicable when consumers purchase personal goods or services with money loaned by a merchant or a lender that works with a merchant. The Rule, aimed at preventing businesses from using financing mechanisms to collect debts from consumers in situations where the merchant failed to deliver the goods or services or engaged in fraud or other misconduct, preserves consumers’ right to assert the same legal claims and defenses against anyone who purchases the credit contract as they would have against the seller who originally provided the credit. In 2015, as part of a systematic review of all its rules and guides, the FTC sought public comment on the Rule and received 19 comments in response. All comments urged retaining the Rule, and after review, the Commission determined there was a continuing need for the Rule and the record did not warrant a rulemaking to modify the Rule. As reflected in the notice published in the Federal Register, the FTC’s action confirming the Rule took effect May 2 and is applicable as of April 23.

    Agency Rule-Making & Guidance FTC Consumer Finance

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  • CFPB issues fact sheet on TRID disclosures with assumption transactions

    Agency Rule-Making & Guidance

    On May 1, the CFPB released a factsheet addressing when loan estimates and closing disclosures are required for assumption transactions under the TILA-RESPA Integrated Disclosure Rule (TRID Rule). The factsheet includes a flowchart and a narrative summary to demonstrate when the disclosures would be required. According to the factsheet, as a threshold matter, the new transaction must be within the TRID Rule’s scope of coverage (e.g., the transaction is a closed-end consumer credit transaction secured by real property or a cooperative unit and is not a reverse mortgage subject to § 1026.33). The creditor must then determine if the transaction is an “assumption” as defined in Regulation Z (under § 1026.20(b) an assumption “occurs when a creditor expressly agrees in writing to accept a new consumer as a primary obligor on an existing residential mortgage transaction.”) The factsheet includes three elements the transaction must meet in order to qualify as an assumption under Regulation Z: (i) the creditor must expressly accept the new consumer as a primary obligor; (ii) a written agreement must be executed, which includes the creditor’s express acceptance of the new customer; and (iii) it must be a “residential mortgage transaction” as to the new customer—specifically, the new customer must be financing the acquisition or initial construction of his or her principal dwelling. If the creditor determines the transaction is an assumption, based on the outlined factors, it must provide a loan estimate and closing disclosure required by the TRID Rule, unless the transaction is otherwise exempt from the requirements.

    Agency Rule-Making & Guidance TRID CFPB TILA RESPA Mortgages

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  • CFPB proposes permanent HMDA thresholds

    Agency Rule-Making & Guidance

    On May 2, the CFPB issued a Notice of Proposed Rulemaking (NPRM), which would permanently raise coverage thresholds for collecting and reporting data about closed-end mortgage loans and open-end lines of credit under the HMDA rules. Specifically, the proposal would permanently raise the reporting threshold for closed-end mortgage loans from 25 loans in each of the two preceding calendar years to either 50 or 100 closed-end loans in each of the preceding two calendar years. As previously covered by InfoBytes, the CFPB temporarily increased the threshold for open-end lines of credit from 100 loans to 500 loans for calendar years 2018 and 2019. The current proposal would extend that temporary threshold to January 1, 2022, and then permanently lower the threshold to 200 open-end lines of credit after that date. Lastly, the proposal incorporates, with minor adjustments, the interpretive and procedural rule issued in August 2018 (2018 Rule), which implemented and clarified the HMDA amendments included in Section 104(a) of the Economic Growth, Regulatory Relief, and Consumer Protection Act (previously covered by InfoBytes here). The proposal includes additional interpretive information related to the partial exemptions in the 2018 Rule, including how the partial exemption rules apply after a merger or acquisition. The Bureau is proposing that these changes take effect January 1, 2020. Comments on the NPRM must be received within 30 days of publication in the Federal Register.                    

    The Bureau also issued an Advance Notice of Proposed Rulemaking (ANPR) seeking information on the costs and benefits of reporting certain data points under HMDA. Additionally, the ANPR also seeks information about the requirement that institutions report certain commercial-purpose loans made to a non-natural person and secured by a multifamily dwelling. Comments on the ANPR must be received within 60 days of publication in the Federal Register.

    Agency Rule-Making & Guidance HMDA CFPB Mortgages

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  • CFPB updates Prepaid Small Entity Compliance Guide

    Agency Rule-Making & Guidance

    On April 26, the CFPB released version 3.1 of its Prepaid Small Entity Compliance Guide to incorporate previously issued submission instructions for issuers submitting account agreements pursuant to the prepaid account rule through the electronic submission system “Collect.” (See previous InfoBytes coverage here.)

    Agency Rule-Making & Guidance CFPB Small Entity Compliance Guide Prepaid Rule Compliance

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  • CFPB issues RFI on Remittance Rule

    Agency Rule-Making & Guidance

    On April 25, the CFPB issued a Request for Information (RFI) on two aspects of the Remittance Rule, which took effect in 2013, and requires financial companies handling international money transfers, or remittance transfers, to disclose to individuals transferring money information about the exact exchange rate, fees, and the amount expected to be delivered. The RFI seeks feedback on (i) whether to propose changing the number of remittance transfers a provider must make to be governed by the rule, as well as the possible introduction of a small financial institution exception; and (ii) a possible extension of a temporary exemption to the Rule set to expire July 21, 2020, that allows certain insured institutions to estimate exchange rates and certain fees they are required to disclose (the RFI states that the EFTA section 9191 expressly limits the length of the temporary exemption and does not authorize the CFPB to extend the term beyond the July 21 expiration date unless Congress changes the law). The RFI also seeks feedback on the Rule’s scope of coverage, including whether the Bureau should change a safe harbor threshold that allows persons providing 100 or fewer remittance transfers in the previous and current calendar year to be outside of the Rule’s coverage. Additionally, the RFI includes a consideration of issues discussed in the Bureau’s assessment of the Rule, which examined if the Rule had been effective in achieving its goals. Comments on the RFI are due 60 days after publication in the Federal Register.

    Separately, on April 24, the CFPB released a revised assessment report of its Remittance Rule to “correct an understatement of the dollar volume of remittance transfers by banks in the original report,” which increases the share of the remittance dollars transferred by banks. The Bureau notes that the correction does not affect the report’s conclusions. (See previous InfoBytes coverage of the October 2018 assessment report here.)

    Agency Rule-Making & Guidance CFPB Remittance RFI Compliance Of Interest to Non-US Persons

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  • OCC to clarify OREO regulations

    Agency Rule-Making & Guidance

    On April 24, the OCC published a notice of proposed rulemaking (NPRM) and request for comment on a proposal to clarify and to streamline its other real estate owned (OREO) regulations for supervised national banks and to apply the same regulatory framework to federal savings associations. Specifically, the OCC seeks public comment on questions relating to its proposals regarding OREO holding periods, OREO disposition, and permissible OREO expenditures. The NPRM also addresses OREO appraisal requirements. Finally, the NPRM proposes technical amendments to remove certain outdated capital rules for national banks and federal savings associations, including provisions relating to treatment of OREO held by Federal savings associations that are no longer in effect. According to the OCC, this proposal would be the first significant revision to OREO regulations in more than 20 years. Comments on the NPRM are due by June 24.

    Agency Rule-Making & Guidance OCC Examination

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  • Federal Reserve proposes new structure for determining bank control

    Agency Rule-Making & Guidance

    On April 23, the Federal Reserve Board issued a notice of proposed rulemaking (NPRM) and request for comment to simplify and increase transparency of existing rules for determining if a company has control over a banking organization under the Bank Holding Company Act and the Home Owners’ Loan Act. Among other things, the NPRM will “provide a series of presumptions of control for use by the Board in control proceedings and other control determinations,” and will create a tiered structure premised on the level of voting ownership—5 percent, 10 percent, and 15 percent—of one company in another company. The Board noted it will also consider several additional factors, such as (i) the size of a company’s voting and total equity investment; (ii) rights to director and committee representation; (iii) use of proxy solicitations; (iv) individuals serving as management, employees, and directors at both companies; (v) agreements permitting influence or restrictions on management or operational decisions; and (vi) the scope of business relationships between the companies. The NPRM also contains a new proposed presumption of “noncontrol,” which will apply in instances where a company owns less than 10 percent of the voting securities of a second company and does not trigger any of the presumptions of control. According to a statement issued by Vice Chairman for Supervision Randal Quarles, the NPRM is designed to address concerns that “it has been difficult for banking firms and investors in banking firms to determine whether a particular proposed investment could give rise to control.” Comments on the NPRM are due 60 days after publication in the Federal Register.

    Agency Rule-Making & Guidance Federal Reserve Bank Holding Company Act Home Owners' Loan Act

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  • CFPB updates CID policy

    Agency Rule-Making & Guidance

    On April 23, the CFPB announced updates to its policy on Civil Investigative Demands (CIDs). According to the Bureau, the new policy is consistent with comments received in response to a 2018 Request for Information, which solicited public feedback on “how best to achieve meaningful burden reduction or other improvement to the CID processes while continuing to achieve the Bureau’s statutory and regulatory objectives” (previously covered by InfoBytes here). Going forward, CIDs will (i) provide additional information on potentially applicable provisions of law that may have been violated; (ii) specify business activities subject to Bureau authority; and (iii) “[i]n investigations where determining the extent of the Bureau’s authority over the relevant activity is one of the significant purposes of the investigation, staff may specifically include that issue in the CID in the interests of further transparency.”  

    Agency Rule-Making & Guidance CFPB CIDs

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  • FDIC considers modifying living will requirements

    Agency Rule-Making & Guidance

    On April 16, the FDIC issued an advance notice of proposed rulemaking (ANPR) and request for comment on modifications to its resolution planning framework (known as living wills) for insured depository institutions with over $50 billion in assets. According to the FDIC, the ANPR is considering three changes to streamline the process: (i) creating tiered planning requirements for living wills based on an institution’s size, complexity, and other factors; (ii) revising the frequency and required content of resolution plan submissions, including eliminating living will submission requirements for certain smaller and less complex institutions; and (iii) improving communication between the FDIC and banks on resolution planning. According to a statement issued by FDIC Chairman Jelena McWilliams, the ANPR also proposes two alternative concepts for consideration: “Broadly, either approach would require large, complex institutions to continue to submit periodic resolution plans, streamlined compared to the existing plans. Institutions that are relatively smaller and less complex but still subject to the rule would no longer need to submit actual plans, but would still be subject to periodic engagement and capabilities testing.” Comments on the ANPR are due 60 days after publication in the Federal Register.

    Agency Rule-Making & Guidance Federal Reserve FDIC Living Wills Supervision

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  • Kraninger’s focus is preventing consumer harm, clarifying “abusive”

    Federal Issues

    On April 17, Kathy Kraninger, Director of the CFPB, spoke before the Bipartisan Policy Center where she reiterated the Bureau’s focus on prevention of harm and announced a symposium that will explore the meaning of “abusive acts or practices” under Section 1031 of the Dodd-Frank Act. In her remarks, Kraninger touched on the four “tools” the Bureau has at its disposal to execute its mission: education, rulemaking, supervision, and enforcement.

    • Education. The Bureau wants to help consumers protect their own interests and choose the right products and service to help themselves. Specifically, the Bureau is focusing on ensuring that American consumers learn to save to be able to absorb a financial shock.
    • Rulemaking. The Bureau will comply with Congressional mandates to promulgate rules or address specific issues through rulemaking, but when the Bureau has discretion, it will focus on “preventing consumer harm by maximizing informed consumer choice, and prohibiting acts or practices which undermine the ability of consumers to choose the products and services that are best for them.” In the coming weeks, the Bureau will release its proposed rules to implement the FDCPA, which will include (i) bright line limits on the number of calls consumers can receive from debt collectors on a weekly basis; (ii) clarity on how collectors may communicate through new technology such as, email and text messages; and (iii) requiring more information at the outset of collection to help consumers better identify debts and understand payment and dispute options. Kraninger stated, “the CFPB must acknowledge that the costs imposed on regulated entities absolutely affect access to, and the availability of, credit to consumers.”
    • Supervision. This tool is the “heart of the agency,” according to Kraninger, as it helps to prevent violations of laws and regulations from happening in the first place. The Bureau will keep in mind that it is not the only regulator examining most entities and will focus on coordination and collaboration with the other regulators so as not to impose unmanageable burdens in examinations.
    • Enforcement. The Bureau will continue to enforce against bad actors that do not comply with the law, as enforcement is “an essential tool that Congress gave the Bureau.” The Bureau will have a “purposeful enforcement regime” to foster compliance and help prevent consumer wrongs. Kraninger is “committed to ensuring that enforcement investigations proceed carefully and purposefully to ensure a fair and thorough evaluation of the facts and law… [and ensuring they] move as expeditiously as possible to resolve enforcement matters, whether through public action or a determination that a particular investigation should be closed.”

    Kraninger also touched on how the Bureau plans to measure success going forward. Kraninger noted that in the past, the Bureau touted its outgoing statistics as a measurement, such as amount of consumer redress and number of complaints handled. However, according to Kraninger, if the Bureau succeeds in fostering a goal of prevention of harm, certain outputs like meritorious complaints would actually be lower. Therefore, the Bureau’s success should be based on how it uses all of its tools. Lastly, Kraninger announced a symposia series that would convene to discuss consumer protections in “today’s dynamic financial services marketplace.” The first will explore the meaning of “abusive acts or practices” under Section 1031 of the Dodd-Frank Act, specifically, to address issues with the “reasonableness” standard. There are no additional details on the date for the symposium but Kraninger noted that this would be the next step in exploring future rulemaking on the issue. The series will also have future events discussing behavioral law and economics, small business loan data collection, disparate impact and the Equal Credit Opportunity Act, cost-benefit analysis, and consumer authorized financial data sharing. 

    Additionally, on April 9, acting Deputy Director, Brian Johnson, spoke at the George Mason University Law & Economics Center's Ninth Annual Financial Services Symposium. In his prepared remarks, Johnson emphasized that regulatory rules should be “as simple as possible” when dealing with complex markets as they are easier for a greater portion of actors to understand and adapt to and also promote compliance, “which has the ancillary benefit of making it easier for consumers (not to mention regulators) to distinguish between good and bad actors.” Johnson argued that regulators should not try and dictate specific outcomes in rulemaking. Instead, Johnson stated that “financial regulators should recognize that complex market systems are not a means to accomplish their specific goals” and should “narrowly-tailor rules to address a discrete market failure.” Johnson also touched on the Bureau’s new Office of Innovation, noting that the Bureau’s proposed No Action Letter Program and Product Sandbox will offer firms “the opportunity to expand credit while still preserving important consumer protections,” while assisting the Bureau in learning about new technologies and potential consumer risks. As for the Bureau’s cost-benefit analysis, Johnson said that this activity will not be limited to future actions, but will also be used for “periodic retrospective analysis” because financial markets are “constantly changing, requiring constant reappraisal and verification of the rules that govern the system.”

    Federal Issues CFPB Supervision Enforcement Agency Rule-Making & Guidance Consumer Education Examination FDCPA Abusive UDAAP

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