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Financial Services Law Insights and Observations


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  • FinCEN, IRS issue alert on Covid-19 employee retention credit fraud schemes

    Financial Crimes

    On November 22, FinCEN and the IRS issued an alert to financial institutions regarding Covid-19 Employee Retention Credit (ERC)-related fraud schemes. Authorized by the CARES Act, the ERC is a tax credit aimed at incentivizing businesses to retain employees on payroll during the Covid-19 pandemic, through which fraud and scams have been carried out, FinCEN explained. The alert offers insights into typologies linked to ERC fraud and scams, emphasizes specific warning signs to aid financial institutions in detecting and reporting suspicious activities, and reinforces these institutions' obligations to report under the Bank Secrecy Act (BSA).

    According to the alert, “[d]uring the 2023 tax season, the IRS noted various scammers appeared throughout the [U.S.] using the false pretense of being tax credit experts to convince businesses to file for the ERC.” Third-party ERC promoters misled taxpayers about eligibility, aiming to profit from filing ERC claims without verifying qualifications, FinCEN added. As a result, the alert mentioned that victims risk claim denial or repayment, while scammers profit regardless of the claim's outcome, involving both willing and unaware businesses in these schemes. FinCEN added that businesses must meet specific ERC requirements, and those who received PPP loans cannot use the same wages counted in the PPP loan for the ERC application. Despite this, some may file amended tax returns misrepresenting their eligibility for the ERC by falsifying staff wages or claiming their operations were partially or fully suspended during the pandemic. FinCEN listed “red flags” indicative of ERC fraud that financial institutions should be cognizant of, including, among others, (i) a business account that receives multiple ERC check deposits over several days; (ii) small business accounts that receive ERC check deposits disproportionate to their size, employee count, and transaction volume; and (iii) a new account for an established business that only receives ERC deposits, suggesting possible identity theft using the business as a front for fraudulent claims. The alert also reminds financial institutions of their obligation to file suspicious activity reports and to keep a copy of the reports for five years from the date of the filing. 

    Financial Crimes FinCEN PPP Consumer Finance Loans CARES Act Patriot Act Bank Secrecy Act IRS Covid-19

  • CFPB releases education ombudsman’s annual report

    Federal Issues

    On October 20, the CFPB Education Loan Ombudsman published its annual report on consumer complaints submitted between September 1, 2022, and August 31, 2023. The report is based on approximately 9,284 student loan complaints received by CFPB regarding federal and private student loans.  Roughly 75 percent of complaints were related to federal student loans while the remaining 25 percent concerned private student loans. Overall, the report found underlying issues in student loan servicing that threaten borrowers’ ability to make payments, achieve loan cancellation, or receive other protections to which they are entitled under federal law.  The report indicated that challenges and risks facing federal student loan borrowers include customer service problems, errors related to basic loan administration, and problems accessing loan cancellation programs.  Similarly, private borrowers face issues accessing loan cancellation options, misleading origination tactics, and coercive debt collection practices related to private student loans.

    The Ombudsman’s report advised policymakers, law enforcement, and industry participants to consider several recommendations: (i) ensuring that federal student loan borrowers can access all protections intended for them under the law; (ii) ensuring that loan holders and servicers of private student loans do not collect debt where it may no longer be legally owed or previously discharged; and (iii) using consumer complaints to develop policies and procedures when they reveal systemic problems.

    Federal Issues CFPB Student Lending Student Loan Servicer Consumer Finance Debt Collection Covid-19

  • FHFA revises policies for Covid-19 forbearance on GSE mortgages

    Agency Rule-Making & Guidance

    On October 16, the Federal Housing Finance Agency (FHFA) announced it will revise how Fannie Mae and Freddie Mac (GSE) single-family mortgages are treated for borrowers who have entered Covid-19 forbearance under the GSEs’ representations and warranties framework. Under the revised policies, loans for which borrowers elected Covid-19 forbearance will be treated similarly to loans for which borrowers obtained forbearance due to a natural disaster. The GSEs’ current representations and warranties framework for natural disaster forbearance allows for consideration of the period during which a borrower is in forbearance as part of their demonstrated satisfactory payment history for the initial 36 months after the loan's origination. This framework will now be extended to loans with Covid-19 forbearance. FHFA Director Sandra L. Thompson said, "Servicers went to great lengths to implement forbearance quickly amid a national emergency, and the loans they service should not be subject to greater repurchase risk simply because a borrower was impacted by the pandemic."

    The updates will be effective on October 31.

    Agency Rule-Making & Guidance Federal Issues FHFA Covid-19 Forbearance GSEs Mortgages Consumer Finance Fannie Mae Freddie Mac

  • Split 9th Circuit: Nevada’s medical debt collection law is not preempted


    The U.S. Court of Appeals for the Ninth Circuit recently issued a split decision upholding a Nevada medical debt collection law after concluding the statute was neither preempted by the FDCPA or the FCRA, nor a violation of the First Amendment. SB 248 took effect July 1, 2021, in the wake of the Covid-19 pandemic, and requires debt collection agencies to provide written notification to consumers 60 days “before taking any action to collect a medical debt.” Debt collection agencies are also barred from taking any action to collect a medical debt during the 60-day period, including reporting a debt to a consumer reporting agency.

    Plaintiffs, a group of debt collectors, sued the Commissioner of the Financial Institutions Division of Nevada’s Department of Business and Industry after the bill was enacted, seeking a temporary restraining order and a preliminary injunction. In addition to claiming alleged preemption by the FDCPA and the FCRA, plaintiffs maintained that SB 248 is unconstitutionally vague and violates the First Amendment. The district court denied the motion, ruling that none of the arguments were likely to succeed on the merits.

    In agreeing with the district court’s decision, the majority concluded that SB 248 is not unconstitutionally vague with respect to the term “before taking any action to collect a medical debt” and that any questions about what constitute actions to collect a medical debt were addressed by the statute’s implementing regulations. With respect to whether SB 248 violates the First Amendment, the majority held that debt collection communications are commercial speech and thus not subject to strict scrutiny. As to questions of preemption, the majority determined that SB 248 is not preempted by either the FDCPA or the FCRA. The majority explained that furnishers’ reporting obligations under the FCRA do not include a deadline for when furnishers must report a debt to a CRA and that the 60-day notice is not an attempt to collect a debt and therefore does not trigger the “mini-Miranda warning” required in a debt collector’s initial communication stating that “the debt collector is attempting to collect a debt.”

    The third judge disagreed, arguing, among other things, that the majority’s “position requires setting aside common sense” in believing that the FDCPA does not preempt SB 248 because the 60-day notice is not an action in connection with the collection of a debt. “The only reason that a debt collector sends a Section 7 Notice is so that he can later start collecting a debt,” the dissenting judge wrote. “It is impossible to imagine a situation where a debt collector would send such a notice except in pursuit of his goal of ultimately obtaining payment for (i.e., collecting) the debt.” The dissenting judge further argued that by delaying the reporting of unpaid debts, SB 248 conflicts with the FCRA’s intention of ensuring credit information is accurately reported.

    Courts State Issues Appellate Ninth Circuit Debt Collection Medical Debt Nevada FDCPA FCRA Covid-19 Credit Reporting Agency

  • SBA clarifies PPP eligibility of payroll costs

    Federal Issues

    On June 13, the SBA added question #72 to its Paycheck Protection Program (PPP) Frequently Asked Questions clarifying whether “the amounts paid by a borrower to a third-party payer for the third-party payer’s employees to operate the borrower considered eligible payroll expenses for the purpose of calculating the maximum loan amount.” Previous guidance released in 2020 (FAQ #10) relayed that “payroll documentation provided by the payroll provider that indicates the amount of wages and payroll taxes reported to the IRS by the payroll provider for the borrower’s employees will be considered acceptable PPP loan payroll documentation.” However, because FAQ #10 was issued three days after the PPP began accepting applications and there have been conflicting interpretations of the guidance, the SBA administrator determined additional clarification was necessary.

    After reviewing a September 2022 decision issued by the SBA Office of Hearings and Appeals, the administrator published FAQ #72, stating “payroll costs paid by a borrower to a third-party payer for the third-party’s employees to operate the borrower are eligible payroll costs for the purpose of calculating the borrower’s maximum loan amount, as long as the employees were not otherwise counted towards payroll costs on a PPP loan received by the third-party payer.” The administrator further explained that “payroll cost documentation which shows that a borrower paid a third-party payer for the employees of the third-party to operate the borrower will be permitted to support eligible payroll costs for the purpose of calculating the maximum loan amount as long as the employees were not otherwise counted towards payroll costs on another PPP loan, and all other PPP requirements are met, including the submission of payroll documentation that indicates the amount of wages and payroll taxes reported to the IRS by the third-party payer.”

    Federal Issues SBA Covid-19 CARES Act Small Business Lending

  • OFAC clarifies impact of sanctions on humanitarian assistance and trade

    Financial Crimes

    On June 14, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued a Fact Sheet for “Provision of Humanitarian Assistance and Trade to Combat COVID-19.” The Fact Sheet, among other things, highlights Treasury’s humanitarian-related or other general licenses (GL) issued to support people impacted by Covid-19 across Iran, Venezuela, North Korea, Syria, Cuba, and Russia. Relatedly, OFAC issued Iran-related GL N-2, Venezuela-related GL 39B, and Syria-related GL 21B to authorize transactions and activities related to the prevention, diagnosis, or treatment of Covid-19, as well as several amended FAQs.

    Financial Crimes Of Interest to Non-US Persons Department of Treasury OFAC OFAC Designations OFAC Sanctions Iran Syria North Korea Cuba Russia Venezuela Covid-19

  • FHA reinstates HAMP loss mitigation for exempted transfers

    Agency Rule-Making & Guidance

    HUD recently released Mortgage Letter (ML) 2023-11 to update previously issued guidance on loss mitigation options for non-borrowers who acquire a title through an exempted transfer. The provisions apply to all FHA Title II Single Family forward mortgage programs and may be implemented immediately but no later than July 21. Previously, ML 2023-03 (which expanded Covid-19 recovery loss mitigation options) temporarily suspended the use of FHA Home Affordable Modification Program (HAMP) loss mitigation for all borrowers. As a result, mortgagees were no longer able to review non-borrowers who acquired a title through an exempted transfer for FHA-HAMP loss mitigation. With the issuance of ML 2023-11, FHA has reinstated FHA-HAMP loss mitigation to allow mortgagees to review non-borrowers who acquired a title through an exempted transfer and are in default or imminent default.

    Agency Rule-Making & Guidance Federal Issues HUD Mortgages Loss Mitigation Consumer Finance FHA Covid-19

  • Treasury awards $1.7 billion in CDFI grants

    Federal Issues

    On April 10, Vice President Kamala Harris and Deputy Secretary of the Treasury Wally Adeyemo announced that the U.S. Treasury Department’s Community Development Financial Institutions (CDFIs) Fund has awarded more than $1.73 billion in grants to 603 CDFIs to help low- and moderate-income communities recover from the Covid-19 pandemic. Financial institutions that received grants through the CDFI Equitable Recovery Program include banks, holding companies, and credit unions, as well as CDFI-designated non-depository loan funds and venture funds. Treasury noted that the recipients of the grants are “mission-driven financial institutions [that] specialize in delivering responsible capital, credit, and financial services to underserved communities.” The CDFI grants “may be used to support lending related to small businesses and microenterprises, community facilities, affordable housing, commercial real estate, and intermediary lending to nonprofits and CDFIs,” Treasury explained, adding that funds may also go towards financial and developmental services to support borrowers, as well as operational support for grant recipients.

    Federal Issues Department of Treasury Underserved Consumer Finance CDFI Covid-19

  • HUD extends Covid-19 forbearance through May

    Federal Issues

    On April 7, HUD issued Mortgagee Letter 2023-08, which extends through May 31 the final date for borrowers to request Covid-19 forbearance and home equity conversion mortgage (HECM) extensions. The extension is intended to allow ample time for affected borrowers to submit requests and for mortgagees to offer and process the requests in the event that the presidentially-declared national emergency ends earlier than originally expected. As stated in the letter, HUD determined that providing a short period beyond the expiration of the national emergency will be beneficial to both FHA borrowers and mortgagees. The extension will also align Covid-19 forbearance and HECM extension requests with the monthly billing cycle. The letter stated that no Covid-19 forbearance period may extend beyond November 30.

    Federal Issues HUD FHA Consumer Finance Covid-19 Mortgages Forbearance HECM

  • FHFA expands deferral policies for hardships

    Federal Issues

    On March 29, FHFA announced enhanced payment deferral policies for borrowers facing financial hardships. Under the newly enhanced policies, Fannie Mae and Freddie Mac will allow borrowers to defer up to six months of mortgage payments, enabling borrowers “to keep the same monthly mortgage payment by moving past-due amounts to the end of the loan as a non-interest bearing balance, due and payable at maturity, sale, refinance, or payoff.” Fannie and Freddie will work with servicers to implement the enhanced payment deferral policies, which carry a voluntary adoption date of July 1, and a mandatory adoption date of October 1.

    Recognizing that the more than one million Covid-19 payment deferrals completed by Fannie and Freddie during the pandemic helped borrowers stay in their homes, FHFA Director Sandra L. Thompson said the agency is making the payment deferral policies a key part of its standard loss mitigation toolkit that is available to all borrowers with eligible hardships.

    Federal Issues FHFA Consumer Finance Mortgages Covid-19 Loss Mitigation Fannie Mae Freddie Mac Mortgage Servicing


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