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Financial Services Law Insights and Observations

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  • California DBO reports installment consumer lending by California nonbanks increased 68 percent in 2019

    State Issues

    On September 9, the California Department of Business Oversight (CDBO) released its annual report covering the 2019 operations of finance lenders, brokers, and Property Assessed Clean Energy program administrators licensed under the California Financing Law. Key findings of the report include (i) “installment consumer lending by nonbanks in California increased more than 68 percent” from $34 billion to $57 billion, largely due to real estate-secured loans, which more than doubled to $47.3 billion; (ii) consumer loans under $2,500 accounted for 40.2 percent of the total number of consumer loans made in 2019, with unsecured loans making up 98.7 percent of these loans; and (iii) online consumer loans increased by 69.1 percent with the total principal amount of these loans increasing by 134 percent. CDBO also noted in its release that 58 percent of loans ranging from $2,500 to $4,999—the largest number of consumer loans—carried annual percent rates of 100 percent or higher. “This report reflects the final year in which there are no state caps on interest rates for loans above $2,500,” CDBO Commissioner Manual P. Alvarez stated. He further noted that “[b]eginning this year, the law now limits permissible interest rates on loans of up to $10,000. Next year’s report will reflect the [CDBO’s] efforts to oversee licensees under the new interest caps.”

    State Issues CDBO Installment Loans Nonbank Consumer Lending

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  • Special Alert: CFPB takes first-ever agency redlining action against nonbank lender

    Federal Issues

    On July 15, the Consumer Financial Protection Bureau filed a complaint against a Chicago-based nonbank mortgage company alleging fair lending violations predicated, in part, on statements made by the company’s owner and other employees during radio shows and podcasts from 2014 through 2017. The complaint, filed in federal court in Illinois, marks the first instance in which a federal regulator has taken a public enforcement action against a nondepository institution based on allegations of redlining.  

    According to the CFPB, the mortgage company violated the Equal Credit Opportunity Act and the Consumer Financial Protection Act by engaging in discriminatory marketing and applicant outreach practices that allegedly:

    Federal Issues CFPB Enforcement Mortgages Fair Lending ECOA CFPA Nonbank Redlining Special Alerts

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  • California small business sues nonbank lender over PPP prioritization

    Federal Issues

    On May 6, a small California business filed a proposed class action against a nonbank lender, accusing the lender of a “scheme to enrich itself at the expense of small businesses in connection with the federal government’s Paycheck Protection Program (PPP),” in violation of California’s Unfair Competition Law. In the complaint, the plaintiff alleges she submitted an application for less than $25,000 to the lender on March 28 and received an email response that same day acknowledging receipt of her application. On March 29, the plaintiff received another email from the lender, which asked her to gather documentation and stated that she would receive an invitation to a secure portal in the next “48 business hours.” According to the complaint, however, by April 13, the plaintiff had not yet received a link to the portal, but the lender had sent an email acknowledging the delay. The complaint states that the plaintiff “informed and believes, and on that basis alleges” that the lender “chose to prioritize higher loans that would yield higher fees,” and did not disclose to the public that “it was prioritizing loans not on a first come, first served basis, but on criteria relating to the value of the loan.” The plaintiff alleges she would have chosen a different lender had she known the lender was going to prioritize larger loans. The complaint seeks injunctive relief, restitution, as well as compensatory and punitive damages.

    Federal Issues Covid-19 Courts SBA Small Business Lending Fintech Nonbank State Issues California

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  • Fintechs can now apply to be lenders under the PPP

    Federal Issues

    The Small Business Administration (SBA) and the Treasury Department released a lender agreement for non-bank and non-insured depository institution lenders seeking to make SBA-guaranteed financing under the Paycheck Protection Program (PPP) as part of the CARES Act. The agreement sets forth attestation requirements for two subsets of eligible lenders. Group A attestation requirements relate to depository or non-depository financing providers who have, among other things, “originated, maintained, and serviced more than $50 million in business loans or other commercial financial receivables during a consecutive 12 month period in the past 36 months.” Group B attestation requirements relate to service providers of insured depository institutions, who among other things: (i) must have a contract to support an insured depository institution’s lending activities; and (ii) within the past three years, must have been subject to an examination by the Federal Reserve, OCC, or FDIC in connection with that role. Unless an earlier termination occurs, lenders under the agreement will have “authority to make covered loans” until July 1, 2020.

    As previously covered by InfoBytes, the SBA, in consultation with the Treasury Department, recently updated PPP frequently asked questions to provide additional clarifications to lenders and borrowers.

    Please see Buckley’s dedicated SBA page, which includes additional SBA resources.

    Federal Issues Nonbank Fintech Non-Depository Institution SBA CARES Act Covid-19

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  • CSBS asks Fed and Treasury to create liquidity facility to support mortgage servicers

    Federal Issues

    On March 25, CSBS President and CEO John W. Ryan sent a letter to Federal Reserve Board Governor Jerome Powell and Treasury Secretary Steven Mnuchin encouraging the agencies to create a liquidity facility under Section 13(3) of the Federal Reserve Act to support mortgage servicers “in anticipation of widespread borrower payment forbearance.” According to the letter, CSBS members—state regulatory agencies responsible for regulating bank and nonbank financial companies—have expressed concerns regarding liquidity and solvency in the mortgage servicing sector, and are particularly focused on monitoring the financial condition of nonbank mortgage servicers. Without a liquidity facility, CSBS warned that “mortgage servicers will experience a severe liquidity shortage that may threaten their continued viability, and by extension, the health of the nation’s housing finance market.”

    Federal Issues CSBS State Regulators State Issues Nonbank Federal Reserve Department of Treasury Covid-19 Mortgages

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  • Proposed CARES Act allows fintechs to make federally backed small business loans

    Federal Issues

    On March 18, Senator Mitch McConnell (R-KY) proposed relief legislation which, among other things, would temporarily allow fintechs to offer “small business interruption loans” for as long as the Covid-19 national emergency is in effect. The “CARES Act” or Corornavirus Aid, Relief and Economic Security Act, would provide nearly $300 trillion in additional funds to the SBA in order to provide emergency government-backed loans. Under the proposal, small businesses eligible for the SBA Section 7(a) loans with 500 or fewer employees, could use the loans to fund, such things as (i) paid sick, medical, or family leave; (ii) group health care benefits; (iii) employee salaries; (iv) mortgage payments; and (v) utilities. In addition, the proposal provides for loan deferment for a year and loan forgiveness for loans used to cover payroll expenses.

    Federal Issues Fintech SBA Federal Legislation Nonbank Covid-19 CARES Act

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  • FDIC seeks input on modernization

    Agency Rule-Making & Guidance

    On February 19, the FDIC issued a notice and request for comment regarding modernizing “its signage and advertising requirements to better reflect how banks and savings associations currently operate and how consumers use banking services.” The Request for Information (RFI) solicits input on how the agency “can revise and clarify its sign and advertising rules related to FDIC deposit insurance.” Major changes to these rules have not been made since 2006, and the agency states that “the rules do not reflect evolving banking channels and operation.” Accordingly, the RFI also requests suggestions about how the FDIC can use technology or other solutions to help consumers distinguish FDIC-insured entities from nonbanks, and to prevent consumers from being harmed by non-insured entities’ potentially misleading or fraudulent representations. The RFI lists 21 questions to focus the public input. Comments must be received by March 19.

    Agency Rule-Making & Guidance Federal Issues FDIC Supervision Fintech Advertisement Marketing Fraud Nonbank

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  • CSBS technology platform will modernize state examinations

    Fintech

    On February 19, the Conference of State Bank Supervisors announced the launch of a technology platform called the State Examination System (SES) to increase transparency and collaboration with regulated entities. State regulators, who are the primary regulators of non-bank and fintech firms, can use the system for investigations, enforcement actions and complaints. According to the press release, “state regulators will be able to enhance supervisory oversight of nonbanks while making the process more efficient for regulators and companies alike.” Among other things, SES is designed to: (i) “[s]upport networked supervision among state regulators”; (ii) “[s]tandardize workflow, business rules and technology across states”; (iii) [f]acilitate secure collaboration between licensees and their regulators”; (iv) allow examiners to “focus…on higher risk cases”; and (v) promote efficiency by “[m]ov[ing] state supervision towards more multistate exams and fewer single-state efforts.” SES will be managed by the State Regulatory Registry, which also manages the Nationwide Multistate Licensing System.

    Fintech CSBS Examination Supervision Nonbank State Regulators State Issues

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  • FDIC introduces deposit insurance application for nonbanks

    Agency Rule-Making & Guidance

    On February 10, the FDIC issued FIL-8-2020, which incorporates Procedures for Deposit Insurance Applications from Applicants that are Not Traditional Community Banks into its Deposit Insurance Application Procedures Manual (manual). In addition to the updating the manual, the agency also issued a handbook, entitled Applying for Deposit Insurance – A Handbook for Organizers of De Novo Institutions (handbook), advising that the updated manual together with the handbook provide comprehensive instructions for completing deposit insurance applications. According to the letter, the updated manual and the handbook contain mostly “technical edits and clarifications” and are meant to “provide transparency and clarity” for applicants. The letter also supplies the definitions of “non-bank” and “non-community bank.”

    Agency Rule-Making & Guidance Deposit Insurance Nonbank Federal Issues Community Banks Supervision

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  • Brainard addresses FedNow and other payment issues

    Federal Issues

    On February 5, Federal Reserve Governor Lael Brainard spoke at the “Symposium on the Future of Payments” to discuss benefits and risks associated with the digitalization of payments and currency. Noting that some of the new players in this space are outside financial regulatory guardrails and offer new currencies that “could pose challenges in areas such as illicit finance, privacy, financial stability, and monetary policy transmission,” Brainard stressed the importance of assessing new approaches and redrawing existing parameters. Emphasizing, however, that no federal agency has broad authority over the payments systems, Brainard stated that Congress should review how retail payments are regulated in the U.S., given the growth in ways that money is able to move around without the need for a financial intermediary. Banking agencies may oversee nonbank payments “to the extent there is a bank nexus” or bank affiliation, Brainard noted, however, she cautioned that “this oversight will be quite limited to the extent that nonbank players reduce or eliminate the nexus to banks, such as when technology firms develop payments services connected to digital wallets rather than bank accounts and rely on digital currencies rather than sovereign currencies as the means of exchange.” According to Brainard, “a review of the nation’s oversight framework for retail payment systems could be helpful to identify important gaps.”

    Among other topics, Brainard stated that the Fed is currently reviewing nearly 200 comment letters concerning the proposed FedNow Service announced last summer, which would “facilitate end-to-end faster payment services, increase competition, and ensure equitable and ubiquitous access to banks of all sizes nationwide.” (Covered by InfoBytes here.) Brainard also discussed the possibility of creating a central bank digital currency (CBDC). While noting that the “prospect for rapid adoption of global stablecoin payment systems has intensified calls for central banks to issue digital currencies in order to maintain the sovereign currency as the anchor of the nation’s payment systems,” Brainard stressed the importance of taking into account private sector innovations and considering whether adding a new form of central bank liability would improve the payment system and reduce operational vulnerabilities from a safety and resilience perspective. She noted that the Fed is “conducting research and experimentation related to distributed ledger technologies and their potential use case for digital currencies, including the potential for a CBDC.”

    Federal Issues Federal Reserve Payments Digital Commerce Of Interest to Non-US Persons Nonbank Nonbank Supervision Virtual Currency Payment Systems Affiliated Business Relationship Fintech

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