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Financial Services Law Insights and Observations


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  • CFPB grants financial services company’s request to end no action letter

    Federal Issues

    On June 8, the CFPB announced an order to end a “no-action letter” (NAL) issued to a consumer lending platform in 2020 in response to the NAL recipient’s request to shorten the term of the letter, which the company noted was necessary in order to be able to keep its underwriting models accurate and up-to-date during a period of significant economic change. As previously covered by InfoBytes, the Bureau first issued a NAL to the company in 2017, as part of the CFPB’s Project Catalyst initiative, relating to the Equal Credit Opportunity Act and the company’s loan underwriting and pricing model. Under the NAL, the company was immunized “from being charged with fair lending law violations with respect to its underwriting algorithm, while the ‘no-action letter’ remained in force.” In November 2020, the Bureau issued a second NAL after the first one expired (covered by InfoBytes here).

    Federal Issues CFPB No Action Letter ECOA Fair Lending Underwriting

  • FinCEN issues ANPRM on no-action letter process

    Financial Crimes

    On June 3, FinCEN issued an Advance Notice of Proposed Rulemaking (ANPRM) soliciting comments on questions related to implementing a no-action letter process at the agency. The ANPRM is part of FinCEN’s implementation of the Anti-Money Laundering Act of 2020, which directed the agency to conduct an assessment of a no-action letter process concerning how anti-money laundering or countering the financing of terrorism laws may apply to specific conduct. The ANPRM follows FinCEN’s June 2021 report to Congress (covered by InfoBytes here), which concluded that the agency should undertake rulemaking to establish a process for issuing no-action letters that will supplement its current forms of regulatory guidance and relief. FinCEN noted in its announcement that the addition of a no-action letter process (“generally understood to be a form of enforcement discretion where an agency states by letter that it will not take an enforcement action against the submitting party for the specific conduct presented to the agency”) could overlap with and “affect other forms of regulatory guidance and relief that FinCEN already offers, including administrative rulings and exceptive or exemptive relief.” The agency is seeking public input on whether the process should be implemented and, if so, how the process should work. Included in the ANPRM are questions concerning, among other things, FinCEN jurisdiction (specifically “[w]hat is the value of establishing a FinCEN no-action letter process if other regulators with jurisdiction over the same entity do not issue a similar no-action letter”), whether there should be limitations on which factual circumstances could be considered, and whether the scope of a no-action letter should be limited so that requests may not be submitted during a Bank Secrecy Act examination. The ANPRM also asked questions related to changes in circumstances, revocations, denials and withdrawals, confidentiality and consultation concerns, and criteria for distinguishing no-action letters from administrative rulings or exceptive/exemptive relief.

    Comments on the ANPRM are due August 5.

    Financial Crimes Agency Rule-Making & Guidance Of Interest to Non-US Persons FinCEN No Action Letter Anti-Money Laundering Act of 2020 Anti-Money Laundering Combating the Financing of Terrorism Bank Secrecy Act

  • CFPB urged to regulate fee-based EWA products as credit subject to TILA

    Federal Issues

    On October 12, CFPB Director Rohit Chopra received a letter from “96 consumer, labor, civil rights, legal services, faith, community and financial organizations and academics,” which urged the Bureau to rescind its earned wage access (EWA) advisory opinion and sandbox approval, and requested that the Bureau regulate fee-based EWA products as credit subject to TILA. As previously covered by InfoBytes, last November the Bureau issued an advisory opinion on EWA products to address the uncertainty as to whether EWA providers that meet short-term liquidity needs that arise between paychecks “are offering or extending ‘credit’” under Regulation Z, which implements TILA. The advisory opinion stated that ““a Covered EWA Program does not involve the offering or extension of ‘credit,’” and noted that the “totality of circumstances of a Covered EWA Program supports that these programs differ in kind from products the Bureau would generally consider to be credit.” In December, the Bureau approved a compliance assistance sandbox application, which confirmed that a financial services company’s EWA program did not involve the offering or extension of “credit” as defined by section 1026.2(a)(14) of Regulation Z. The Bureau noted that various features often found in credit transactions were absent from the company’s program, and issued a two-year approval order, which provides the company a safe harbor from liability under TILA and Regulation Z, to the fullest extent permitted by section 130(f) as to any act done in good faith compliance with the order. (Covered by InfoBytes here).

    The letter asserted that “[r]egardless of how they are structured, the essence of virtually all of these programs is that a third party advances funds to the consumer before the consumer’s regular payday and is repaid later in some fashion out of the paycheck. That is a loan. Methods to verify that the consumer has earned wages coming to them are simply a form of underwriting or security. . . . Similarly, the involvement of the employer or the use of payroll deduction does not mean that an advance is not a loan.” The letter raised several concerns, including that the Bureau’s position which views EWA products “as something other than loans leads to evasions of federal credit laws, such as [TILA], and of state laws, in particular usury laws.” Moreover, the letter stressed that this reasoning could have an impact on fair lending laws and “could be used in an attempt to weaken the scope of ECOA and its protections against discrimination against communities of color and other protected classes.” The letter stressed that asking for EWA products to be treated as credit does not mean they should not exist, but rather that the Bureau should examine fee-based EWA providers under its payday lending supervisory authority.

    Federal Issues CFPB Earned Wage Access Regulatory Sandbox No Action Letter TILA Regulation Z

  • FinCEN plans to undertake future no-action letter rulemaking

    Agency Rule-Making & Guidance

    On June 30, the Financial Crimes Enforcement Network (FinCEN) announced the completion of a report on whether to establish a process for issuing no-action letters in response to inquiries concerning the application of the Bank Secrecy Act (BSA) and other anti-money laundering and countering the financing of terrorism laws to specific conduct, “including a request for a statement as to whether FinCEN or any relevant Federal functional regulator intends to take an enforcement action with respect to such conduct.” As required pursuant to Section 6305 the Anti-Money Laundering Act of 2020 (included as part of the National Defense Authorization Act for Fiscal Year 2021 and covered by InfoBytes here), FinCEN submitted its no-action letter assessment to Congress. The assessment involved consultation with the Attorney General and other entities including the federal functional regulators, state bank and credit union supervisors, and other federal agencies.

    The agency analyzed various issues when conducting its assessment, including “whether a formal no-action process would help to mitigate or accentuate illicit finance risks in the United States.” Among other things, the report concluded that the majority of the consulting parties agreed that FinCEN should implement a no-action letter policy. “The primary benefits identified by those in favor of a no-action letter process are that it could promote a robust and productive dialogue with the public, spur innovation among financial institutions, and enhance the culture of compliance and transparency in the application and enforcement of the BSA,” FinCEN stated. According to FinCEN acting Director Michael Mosier, the agency concluded “that a no-action letter process would be a useful complement to its current forms of regulatory guidance and relief.” The agency stated it intends to undertake a future rulemaking “subject to resource limitations and competing priorities” to establish a process for issuing no-action letters that will supplement its current forms of regulatory guidance and relief. However, FinCEN noted that the no-action letter process would be most effective and workable if it were limited to the agency’s exercise of its own enforcement authority, instead of also addressing other regulators’ exercise of their own enforcement authorities.

    Agency Rule-Making & Guidance FinCEN Of Interest to Non-US Persons Bank Secrecy Act Anti-Money Laundering Combating the Financing of Terrorism No Action Letter Financial Crimes

  • CFPB issues two new CAS approval orders

    Federal Issues

    On December 30, the CFPB issued two compliance assistance sandbox (CAS) approval orders covering a dual-feature credit card and an earned wage access product. The first approval was issued to a federal savings bank regarding its proposal to develop a “dual-feature credit card,” which would be offered to consumers with limited or damaged credit history to help reestablish more favorable credit history. According to the approval order, the consumer would be required to provide a security deposit to be used with the secured credit card feature and after “at least one year” and meeting certain eligibility requirements, the consumer would be offered to “graduate” to unsecured use of the credit card. The three-year approval order, by operation of TILA section 130(f), provides the bank a safe harbor from liability under TILA and Regulation Z, to the fullest extent permitted by section 130(f), as to any act done in good faith compliance with the order.

    The second approval order covers certain aspects of an earned wage access (EWA) payment program, which allows employees access to their earned but unpaid wages prior to payday. According to the CAS application, an employee of a participating employer can download the company’s app and agree to the company’s terms prior to engaging in an EWA program. Among other things, the company notes that it will not engage in any debt collection activities related to the EWA program or submit reports to a consumer reporting agency regarding the transactions. The two-year approval order, by operation of TILA section 130(f), provides the company a safe harbor from liability under TILA and Regulation Z, to the fullest extent permitted by section 130(f) as to any act done in good faith compliance with the order.

    Federal Issues Fintech Regulatory Sandbox No Action Letter TILA Regulation Z CFPB

  • CFPB issues automated underwriting NAL to Fintech

    Federal Issues

    On November 30, the Bureau issued a no action letter (NAL) to a Fintech covering its automated underwriting and pricing model that facilitates the origination of unsecured, closed-end loans made by third party lenders. The NAL states that the Bureau will not bring supervisory or enforcement actions against the lender concerning alleged discrimination on a prohibited basis from its use of the automated model for unsecured, closed-end loans under (i) Section 701(a) of ECOA and Sections 1002.4(a) and (b) of Regulation B; or (ii) its authority to prevent unfair, deceptive, or abusive acts or practices. According to the lender’s application, after applicants meet initial eligibly requirements, the automated model, which uses artificial intelligence techniques and alternative data, is designed “to assess the individual risk profile of [eligible] applicants…and is responsible for assigning the maximum amount an applicant can borrow and the appropriate interest rate based on that risk assessment.” If the model’s assigned interest rate “falls within the parameters of a lending partner’s loan program,” the applicant will be approved. The NAL expires after 36 months.

    Federal Issues CFPB No Action Letter Fintech Artificial Intelligence Underwriting

  • Bank gets NAL from CFPB using small-dollar template

    Federal Issues

    On November 5, under the CFPB’s revised no-action letter (NAL) policy, the Bureau issued a NAL to a national bank regarding certain small-dollar credit products offered by the bank. As previously covered by InfoBytes, in May, the Bureau approved a template in response to a request by a nonpartisan public policy, research and advocacy group for banks that would assist depository institutions in offering a standardized, small-dollar credit product under $2,500 with a repayment term between 45 days and one year. The bank submitted its application using this template.

    Among other things, the NAL notes that the bank’s application includes (i) each of the “13 Guardrail Certifications” described in the template; (ii) a copy of the small-dollar credit product’s terms and conditions the bank intends to provide to consumers; (iii) marketing materials intended to be used to market the product; and (iv) substantially similar consumer benefits and consumer risks as described in the advocacy groups’ template application. A copy of the bank’s application is available here.

    Additionally, the Bureau released a Paperwork Reduction Act (PRA) notice, covering research efforts to “identify information that could be disclosed to consumers during the payday loan process to help them make better-informed decisions.”

    Federal Issues Small Dollar Lending CFPB No Action Letter

  • CFPB approves new automatic savings program under CAS Policy


    On July 17, the CFPB announced a new Compliance Assistance Statement of Terms Template (CAST Template) under its Compliance Assistance Sandbox (CAS) Policy issued to a company’s program designed to help employees build emergency savings. Specifically, under the approved template, known as “Autosave,” interested employers could help employees build emergency savings by directing a portion of the employee’s pay to an employee-designated account at a financial institution; or if an employee does not designate an account, directing the funds to an “Autosave” account at an employer-designated institution. The Bureau notes that a CAST Template is necessary for this program due to the legal uncertainty around the application of the “compulsory use” prohibition in the Electronic Fund Transfer Act (EFTA), and Regulation E. However, the applicants assert the Autosave program embodies a “reasonable default enrollment method,” which, according to the Bureau, can be consistent with the consumer choice requirements of the EFTA and Regulation E.

    Fintech CFPB Regulatory Sandbox No Action Letter EFTA Regulation E

  • CFPB seeking innovation in adverse action notices when using artificial intelligence


    On July 7, the CFPB released a blog post discussing the use of artificial intelligence (AI) and machine learning (ML), addressing the regulatory uncertainty that accompanies their use, and encouraging stakeholders to use the Bureau’s innovation programs to address these issues. The blog post notes that “AI has the potential to expand credit access by enabling lenders to evaluate the creditworthiness of some of the millions of consumers who are unscorable using traditional underwriting techniques,” but using AI may create or amplify risks, including unlawful discrimination, lack of transparency, privacy concerns, and inaccurate predictions.

    The blog post discusses how using AI/ML models in credit underwriting may raise compliance concerns with ECOA and FCRA provisions that require creditors to issue adverse action notices detailing the main reasons for the denial, particularly because AI/ML decisions can be “based on complex interrelationships.” Recognizing this, the Bureau explains that there is flexibility in the current regulatory framework “that can be compatible with AI algorithms.” As an example, citing to the Official Interpretation to Regulation B, the blog post notes that “a creditor may disclose a reason for a denial even if the relationship of that disclosed factor to predicting creditworthiness may be unclear to the applicant,” which would allow for a creditor to use AI/ML models where the variables and key reasons are known, but the relationship between them is not intuitive. Additionally, neither ECOA nor Regulation B require the use of a specific list of reasons, allowing creditors flexibility when providing reasons that reflect alternative data sources.

    In order to address the continued regulatory uncertainty, the blog post encourages stakeholders to use the Trial Disclosure, No-Action Letter, and Compliance Assistance Sandbox programs offered by the Bureau (covered by InfoBytes here) to take advantage of AI/ML’s potential benefits. The blog post mentions three specific areas in which the Bureau is particularly interested in exploring: (i) “the methodologies for determining the principal reasons for an adverse action”; (iii) “the accuracy of explainability methods, particularly as applied to deep learning and other complex ensemble models”; and (iii) the conveyance of principal reasons “in a manner that accurately reflects the factors used in the model and is understandable to consumers.”

    Fintech CFPB Alternative Data Underwriting Artificial Intelligence Machine Learning No Action Letter Regulatory Sandbox FCRA ECOA Regulation B Adverse Action

  • CFPB approves mortgage servicing and small-dollar lending NAL templates

    Federal Issues

    On May 22, the CFPB announced it issued two no-action letter (NAL) templates. The two templates approved by the Bureau are intended to support financial institutions to better assist struggling consumers during the Covid-19 pandemic. Details of the two approved templates include:

    • Mortgage servicing. The Bureau approved a template submitted by a mortgage software company that would enable mortgage servicers to use the company’s online platform—which is an online version of Fannie Mae Form 710—to implement loss mitigation practices for borrowers. A copy of the company’s application is available here.
    • Small-dollar lending. The Bureau approved a template, in response to a request by a nonpartisan public policy, research and advocacy group for banks, that would assist depository institutions in offering a standardized, small-dollar credit product under $2,500 with a repayment term between 45 days and one year. The template covers, among other things, a product structured as either (i) a fixed-term, installment loan, which the customer would pay back in fixed minimum payment amounts over the term of the loan; or (ii) an open-end line of credit, linked to the consumer’s deposit account, where any amounts drawn would be repaid by consumers in fixed minimum amounts over a fixed repayment period. An institution would need to certify that their product offering meets the product features—labeled as “guardrails” in the template—but the Bureau notes that the inclusion of “any particular guardrail should not be interpreted as a statement by the Bureau that small-dollar credit products must contain such guardrails to avoid violating the law.” A copy of the group’s application is available here.

    Federal Issues Covid-19 Small Dollar Lending CFPB Mortgages Fannie Mae No Action Letter Installment Loans


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