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Financial Services Law Insights and Observations


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  • OCC proposes partial assessment fee refunds

    Agency Rule-Making & Guidance

    On March 20, the OCC published in the Federal Register proposed revisions to its assessment rules to provide partial assessment refunds to banks under OCC jurisdiction that exit OCC jurisdiction within the prescribed timeframe by the rule. In addition to technical and conforming changes, the proposed rule would maintain semiannual assessment fee payments, but would provide refunds equal to the prospective half of the assessment to banks that leave the OCC’s jurisdiction between the date of the applicable Call Report and the date of collection. Comments on the proposal are due by April 19, 2019.

    Agency Rule-Making & Guidance OCC Assessments

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  • FDIC rescinds disclosure requirements for insured state nonmember banks

    Agency Rule-Making & Guidance

    On March 18, the FDIC published a final rule to rescind and remove 12 CFR Part 350, Disclosure of Financial and Other Information By FDIC-Insured State Nonmember Banks. Effective April 17, all insured state nonmember banks and insured state-licensed branches of foreign banks will no longer be subject to the annual disclosure statement requirement set out in the existing regulations. The FDIC’s rescission and removal is an attempt by the FDIC to simplify its regulations and “remov[e] unnecessary or redundant regulations.” The FDIC concluded that Part 350 is “outdated and no longer necessary” because information technology advancements now provide the public with direct access to information on the condition and performance of individual banks.

    Agency Rule-Making & Guidance FDIC Disclosures Of Interest to Non-US Persons

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  • OCC updates recovery planning threshold in Comptroller’s Handbook

    Agency Rule-Making & Guidance

    On March 15, the OCC announced an update to the Recovery Planning booklet of the Comptroller’s Handbook. Among other things, the revised booklet explains the purpose of effective recovery planning and provides guidance for OCC examiners to use when assessing the “appropriateness and adequacy of [a] covered bank’s recovery planning process and the integration of that process into the covered bank’s overall risk governance framework.” The updates reflect revisions made to the agency’s rule on enforceable guidelines, published December 27, 2018, which increased the average total consolidated assets threshold from $50 billion to $250 billion for covered insured national banks, federal savings associations, and federal branches that are required to comply, unless determined otherwise. Additionally, a bank must now comply with the guidelines within 12 months after it first becomes subject to the guidelines.

    Agency Rule-Making & Guidance OCC Comptroller's Handbook Examination

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  • Democratic AGs threaten legal action over proposed Payday Rule compliance delay

    Federal Issues

    On March 18, a coalition of 25 Democratic state Attorneys General urged the CFPB not to delay the August 19, 2019 compliance date for any aspect of the Payday, Vehicle Title, and Certain High-Cost Installment Loans rule (Rule) and warned that they would consider taking legal action if the Bureau does so. (CFPB’s Notice of Proposed Rulemaking, which announced the proposed delay in the effective date, was covered by InfoBytes here.) The AGs assert that the Bureau did not provide enough legal justification for delaying the underwriting provisions until November 2020 because the 2017 Rule already provided affected lenders ample time to comply. Moreover, the AGs emphasize that the Bureau cannot use the related proposal of future rescission of the underwriting requirements as a justification for the compliance delay; the delay “must be justified on its own merits.” As for the merits of the Bureau’s justification, among other things, the AGs reject the Bureau’s conclusion that “it should not assign the weight that it did in the 2017 [Rule] to ‘the interest of enacting protections for consumers as soon as possible,’” arguing that diminishing the weight assigned to consumer protection is in opposition to the Bureau’s statutory mandate. The AGs also raise concern about the ambiguity in the compliance date for the payment-related provisions of the Rule and stress that the August 19, 2019 date should stay in effect because “lenders will have had 21 months to prepare.” The AGs conclude that they “will closely examine whether to take action to address any unlawful action by CFPB” should the proposed delay be finalized.

    Federal Issues CFPB Agency Rule-Making & Guidance Payday Lending Payday Rule State Attorney General

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  • Agencies adopt interim final rule facilitating transfers of legacy swaps

    Agency Rule-Making & Guidance

    On March 15, five federal agencies—the FDIC, FHFA, Federal Reserve Board, OCC, and Farm Credit Administration (collectively, the “Agencies”)—adopted an interim final rule amending the agencies’ regulations that require swap dealers and security-based swap dealers under the Agencies’ respective jurisdictions to exchange margin with their counterparties for swaps that are not centrally cleared (Swap Margins Rule). The interim final rule seeks to address the situation where the United Kingdom withdraws from the European Union without a negotiated agreement and entities located in the U.K. transfer existing swap portfolios that face counterparties located in the E.U. over to affiliates located in the U.S. or the E.U. Specifically, the interim final rule provides that certain swaps under this situation will not lose their “legacy” status—will not trigger the application of the Swap Margin Rule—if carried out in accordance with the conditions of the rule. The interim final rule is effective immediately and the Agencies are accepting comments for 30 days after publication in the Federal Register.

    Agency Rule-Making & Guidance Of Interest to Non-US Persons FDIC FHFA OCC Federal Reserve Farm Credit Administration UK

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  • CFPB does not request lift of compliance date stay for payment-related provisions of Payday Rule


    On March 8, the CFPB and two payday loan trade groups filed a joint status report with the U.S. District Court for the Western District of Texas in the litigation over the Bureau’s final rule on payday loans, vehicle title loans, and certain other installment loans (Rule). As previously covered by InfoBytes, the two payday loan trade groups initiated the suit against the Bureau in April 2018, asking the court to set aside the Rule on the grounds that, among other reasons, the Bureau is unconstitutional and the rulemaking failed to comply with the Administrative Procedures Act. In June 2018 and November 2018, the court stayed the litigation and the compliance date of the Rule, after the Bureau’s announcement that it intended to issue a proposed rulemaking to reconsider parts of the Rule. In February 2019, the Bureau issued a proposal, which seeks to rescind certain provisions of the Rule related to the ability-to-repay underwriting standards and delay the compliance date of those affected provisions until August 2020. The proposal does not reconsider the payment-related provisions of the Rule, leaving the compliance date for those provisions at August 19, 2019. (Covered by InfoBytes here.)

    In the joint status report, both parties agree that the court’s stay of compliance date and stay of litigation should remain with regard to the underwriting provisions until the Bureau concludes the rulemaking process. As for the payment-related provisions, the payday loan trade groups request the court maintain both the litigation stay and compliance stay of payment provisions until the Bureau completes the underwriting rulemaking process, because the Bureau acknowledged in the proposals that it intends to examine issues related to the payment provisions and “and if the Bureau determines that further action is warranted, the Bureau will commence a separate rulemaking initiative,” which may ultimately moot the litigation. Moreover, the trade groups believe lifting the stays would lead to “piecemeal and potentially wasteful litigation.”

    The Bureau also does not seek a lift to the stay of the litigation or compliance date for the payment-related provisions, but for separate reasons. The Bureau argues that the stay of the litigation should be “more limited,” at least until the 5th Circuit issues a decision on the Bureau’s constitutionality in a pending action (covered by InfoBytes here). As for the compliance date stay for the payment-related provisions, the Bureau believes it is not an issue the court needs to decide at this time, but acknowledges that should it request the court lift the stay in the future, the trade groups and the Bureau would have an opportunity to address whether lifting the stay should be delayed to “allow companies to come into compliance with the payments provisions.”

    In response to the joint status report, on March 19, the court entered an order continuing the stay of the litigation and the compliance date for both the Rule’s underwriting provisions and its payment-related provisions.

    Courts CFPB Payday Rule Federal Issues Agency Rule-Making & Guidance Fifth Circuit Appellate

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  • OCC identifies key data fields for HMDA reporters

    Agency Rule-Making & Guidance

    On March 7, the OCC released Bulletin 2019-12, which identifies the key HMDA data fields for full and partial reporters. Specifically, the Bulletin highlights the 37 key data fields for banks required to report all of the data set forth in the CFPB’s October 2015 and August 2017 HMDA amendments, as well as, the 21 key data fields required for banks that qualify for the partial HMDA exemption pursuant to the May 2018 Economic Growth, Regulatory Relief, and Consumer Protection Act. According to the Bulletin, OCC examiners will focus on the identified key data fields during transaction testing pursuant to HMDA for data collected on or after January 1, 2018. The Bulletin rescinds OCC Bulletin 2017-41, “Home Mortgage Disclosure Act: Interagency Key Fields.”

    As previously covered by InfoBytes, in December 2018, the Federal Reserve Board, the FDIC, and the OCC issued joint guidance regarding the same key data fields that Federal Reserve examiners would use to evaluate the accuracy of HMDA data collected since January 1, 2018.

    Agency Rule-Making & Guidance Federal Issues OCC HMDA CFPB FDIC Federal Reserve EGRRCPA Mortgages

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  • FFIEC issues new policy statement on examination reports

    Agency Rule-Making & Guidance

    On March 6, the Federal Financial Institutions Examinations Council (FFIEC) announced it adopted a Policy Statement on the Report of Examination, which documents the findings and conclusions of an examination conducted by a FFIEC member agency. The Policy Statement is a principles-based approach for completing the report of examination (ROE) in order to promote consistency among the FFIEC members while allowing flexibility for individual supervisors to document exam assessments of financial institutions of different sizes, risk profiles, and other conditions. The policy provides a short outline that instructs all ROEs to, among other things: (i) include identifying information; (ii) convey that the ROEs contain confidential supervisory information; (iii) present conclusions and issues in order of importance; and (iv) document the institution’s risk profile and discuss the institution’s risk management practices. The new policy statement rescinds an interagency policy statement from 1993.

    Agency Rule-Making & Guidance FFIEC Supervision Examination

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  • Federal Reserve to phase out Comprehensive Capital Analysis and Review (CCAR) “qualitative objection”

    Agency Rule-Making & Guidance

    On March 6, the Federal Reserve Board (Fed) announced plans to limit the use of the “qualitative objection” in its Comprehensive Capital Analysis and Review (CCAR) exercise. Effective for the 2019 cycle, large U.S. bank holding companies and U.S. intermediate holding companies of foreign banking organizations that participate in four CCAR exercises and successfully pass the qualitative evaluation in the fourth year will no longer be subject to the evaluation under the final rule, which measures firms’ ability on a forward-looking basis to determine capital needs. Firms that fail to pass in the fourth year, the Fed noted, will continue to be subject to a possible qualitative objection until they pass. Moreover, all firms’ capital planning processes will still be evaluated, and firms will be required to pass the quantitative evaluation, which evaluates their ability to maintain minimum levels of capital under hypothetical stress scenarios. Furthermore, the Fed stated that it plans to no longer issue qualitative objections to any firms effective January 1, 2021, with the exception of firms who receive a qualitative objection the preceding year. Along with the final rule, the Fed released instructions for this year’s CCAR exercise, confirming that five of the 18 firms subject to this year’s CCAR exercises will possibly be subject to a qualitative objection.

    Agency Rule-Making & Guidance Federal Reserve CCAR Stress Test Of Interest to Non-US Persons

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  • CFPB seeks comments on PACE financing

    Agency Rule-Making & Guidance

    On March 4, the CFPB issued an Advance Notice of Proposed Rulemaking (ANPR) on Property Assessed Clean Energy (PACE) financing, which often takes the form of loans to facilitate residential solar energy and other home improvement projects. The ANPR was issued in response to Section 307 of the Economic Growth, Regulatory Relief, and Consumer Protection Act, which amended TILA to mandate the CFPB propose regulations related to PACE financing. Specifically, the regulations are required to carry out the purposes of TILA’s ability-to-repay requirements and apply TILA’s general civil liability provisions for violations, accounting for the “unique nature” of the transaction. In addition to seeking feedback on the unique features of PACE financing and the general implications of regulating PACE financing under TILA, the ANPR also requests commenters (i) provide samples of any written materials used in PACE financing transactions; (ii) describe the current standards and practices in PACE financing origination, including application information obtained and underwriting standards used; and (iii) identify parties in a PACE financing transaction to whom civil liabilities may apply, including information related to any rescission rights and loss mitigation programs available upon borrower default. Comments must be submitted within 60 days after publication in the Federal Register.

    Agency Rule-Making & Guidance CFPB PACE Programs ANPR Federal Register TILA EGRRCPA

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