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Financial Services Law Insights and Observations


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  • VA establishes VAPCP requirements

    Federal Issues

    On May 28, the Department of Veterans Affairs (VA) published a final rule in the Federal Register, which establishes the “COVID–19 Veterans Assistance Partial Claim Payment” (VAPCP) program to help veterans resume making normal loan payments on VA-guaranteed loans after exiting forbearance due to the Covid-19 pandemic. The final rule incorporates several revisions in response to comments submitted by veterans, lenders, servicers, consumer groups, and trade associations on the VA’s proposed rule published last December (covered by InfoBytes here). Under the final rule, the partial claim maximum limit is increased from the proposed 15 percent to 30 percent of the unpaid principal balance of the guaranteed loan as of the date the veteran entered into a Covid-19 forbearance. The timeframe for servicers to submit partial claim payment requests to the VA also was increased from 90 to 120 days. Additionally, the final rule will allow servicers to use the Covid-VAPCP program “even if other home retention options are feasible, provided the partial claim payment option is in the veteran’s financial interest.” For a loan to qualify for a Covid-VAPCP, among other things, (i) the guaranteed loan must have been either current or less than 30 days past due on March 1, 2020, or made on or after March 1, 2020; (ii) the veteran must have received a Covid-19 forbearance and missed at least one scheduled monthly payment; (iii) at least one unpaid scheduled monthly payment must remain that the veteran did not make while under a Covid-19 forbearance; (iv) the veteran must indicate the ability to “resume making scheduled monthly payments, on time and in full, and that the veteran occupies, as the veteran’s residence, the property securing the guaranteed loan for which the partial claim is requested”; and (v) the veteran must timely execute all necessary loan documents in order to establish an obligation to repay the partial claim payment.

    Notably, the final rule strikes the following requirements that were included in the proposed rule: (i) veterans will not be required to repay the partial claim within 120 months; (ii) interest will not be charged on the Covid-VAPCP; and (iii) servicers will not have to complete financial evaluations of veterans in the program.

    The rule is effective July 27.

    Federal Issues Department of Veterans Affairs Mortgages Covid-19 Agency Rule-Making & Guidance CARES Act Loss Mitigation Forbearance

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  • Maine to establish program to assist homeowners impacted by Covid-19

    State Issues

    On May 28, Maine’s Bureau of Consumer Protection announced the Maine Homeowner Assistance Fund (HAF) Program to mitigate financial hardship for certain homeowners resulting from the Covid-19 pandemic. The details of the program are still in development as the superintendent holds meetings with stakeholders.

    State Issues Covid-19 Maine Mortgages

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  • House subcommittee explores fintech companies’ role in PPP loan processing


    On May 27, the House Select Subcommittee on the Coronavirus Crisis sent letters to two banks and two fintech companies seeking information on the companies’ handling of loan applications under the Paycheck Protection Program (PPP). According to a press release announcing the launch of the subcommittee’s investigation, the letters (available here, here, here, and here) were sent to four companies that facilitated PPP loans but may have allegedly failed to adequately screen PPP loan applications for fraud. The subcommittee notes that recent reports lend “credence to reports that criminal actors sought out [fintechs] for fraudulent PPP loans because of the speed with which the [fintech] companies processed the loans—which in some cases could be approved in ‘as little as an hour’—and the fact that the [fintech] loan application process appeared to include very little scrutiny of its applicants.” The letters request documents and information to assist the Subcommittee in understanding the fraud controls and compliance systems that the companies applied to their PPP loan programs.

    Fintech U.S. House SBA CARES Act Small Business Lending Covid-19

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  • Six largest U.S. banks testify on pandemic responses and banking programs

    Federal Issues

    On May 27, the House Financial Services Committee held a hearing entitled “Holding Megabanks Accountable: An Update on Banking Practices, Programs and Policies.” During the hearing, chief executive officers from the six largest U.S. banks testified on their banks’ activities during the Covid-19 pandemic, as well as various issues related to safety and soundness, consumer protection, diversity and inclusion, risk management, compensation, climate risk, and the use of emerging technology. Several proposed bills containing provisions that would impact the banks if enacted were also discussed, including those that would (i) require the banks to publicly disclose and pay damages to harmed consumers within a short timeframe when more than 50,000 consumers are affected or potential remediation exceeds $10 million; and (ii) require federal regulators to design strategic plans to hold the banks accountable for compliance failures resulting in extensive consumer harm. The Committee’s memorandum focused on several areas discussed during the hearing including the following:

    • Pandemic response. The Committee expressed concerns over allegations that some of the banks prioritized Paycheck Protection Program (PPP) loans for wealthier clients over smaller borrowers, including small and minority-owned businesses, and that certain banks allegedly inappropriately charged overdraft fees.
    • Banking deserts. The Committee reported that the number of branches in the U.S. is down from ten years ago, noting that the existence of communities lacking adequate access to a bank branch makes it more difficult to reduce the number of unbanked and underbanked consumers.
    • Diversity and inclusion. The Committee suggested that lack of diversity within the banks continues to be an issue, pointing out that shareholder proposals at certain banks for racial equality audits were not supported by the banks. However, the Committee noted that all six banks made commitments in 2020 to invest millions into supporting minority depository institutions and community development financial institutions to support communities of color during the pandemic.
    • Fintech. The Committee discussed the increased use of artificial intelligence and machine learning to assist in digital banking, customer relations, fraud detection, and underwriting. Some of the banks, the Committee noted, have “acknowledged the competitive threat of fintech’s growth” and have asked regulators to “create a level playing field.” With respect to cryptocurrency custody services and the use of distributed ledger technology to perform payment activities, the Committee observed that while the banks do not yet provide these services, a few of them recently announced that they are considering the idea of offering funds to select investors allowing bitcoin ownership, while others may offer bitcoin investments in the near future. 

    Earlier in the week, the same CEOs discussed pandemic responses during the Senate Banking Committee’s hearing on the “Annual Oversight of Wall Street Firms.” The CEOs addressed challenges with building out digital platforms to facilitate PPP loan applications and forgiveness programs, as well as challenges to distributing funds quickly and in a manner that would prevent fraud from entering the system. The CEOs also emphasized their continued commitment to helping borrowers still facing financial hardships as federal foreclosure and eviction moratoriums begin to expire. One CEO noted during the hearing that his bank intends to continue to assist borrowers find loan modifications “irrespective of the deadline passing.”


    Federal Issues House Financial Services Committee Covid-19 Diversity Fintech Consumer Finance

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  • CFPB hosts 5th Research Conference

    Federal Issues

    On May 27, the CFPB published a blog post discussing the Bureau’s 5th Research Conference held earlier in the month. During the conference, academics and policymakers presented research covering several consumer finance areas, addressing topics including (i) racial disparities in homeownership, bankruptcy outcomes, and access to credit; (ii) the need to improve the industry’s understanding of the Community Reinvestment Act; (iii) the evolution of credit scores across economic cycles; (iv) the impact of the Covid-19 pandemic on consumer finances and credit markets; (v) credit use and spending patterns among the economically vulnerable—one of the areas where the Bureau hopes to expand its research and policy agenda; and (vi) disclosures and consumer decision-making. Recorded videos of the event as well as links to most of the research papers are available on the blog post.

    Federal Issues CFPB Covid-19 Consumer Finance

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  • Colorado sues PSLF student loan servicer

    State Issues

    On May 26, the Colorado attorney general filed a complaint against a Pennsylvania-based student loan servicer that handles the Public Service Loan Forgiveness (PSLF) program, alleging the servicer failed to comply with state law when asked to provide certain documentation. Under the Colorado Student Loan Servicers Act (SLSA), the state is “authorized to conduct examinations and investigations of student loan servicers that are servicing student education loans owned by residents of Colorado.” The SLSA also allows the state to enforce compliance by bringing a civil action to prevent servicers from violating the SLSA and to obtain other appropriate relief. According to the AG’s press release, the state requested information related to the servicer’s handling of the PSLF program during the Covid-19 pandemic. The servicer allegedly refused to produce the requested materials and only provided certain limited documents regarding non-government owned loans related to its business line. The complaint seeks a preliminary and permanent injunction compelling the servicer to comply with the AG’s oversight authority and provide the requested documentation.

    State Issues State Attorney General Student Lending Courts Student Loan Servicer Consumer Protection Covid-19

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  • New York to make $3 billion available to assist renters and small businesses

    State Issues

    On May 25, New York’s Governor Cuomo announced that up to $2.7 billion in emergency rental assistance and $800 million in small business recovery grants will be available to New Yorkers impacted by Covid-19. The rental assistance program will prioritize the unemployed, those with income at or below 50% of the area median income, and other vulnerable populations for the first 30 days and then be open to other applicants so long as funds remain available. 

    State Issues Covid-19 New York Mortgages Small Business

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  • OCC examines effects of Covid-19 on federal banking system

    Federal Issues

    On May 18, the OCC released its Semiannual Risk Perspective for Spring 2021, which reports on key risk areas posing a threat to the safety and soundness of national banks and federal savings associations. While, overall, banks maintained sound capital and liquidity levels throughout 2020, the OCC noted that bank profitability remains stressed as a result of low interest rates and low loan demand.

    Key risk themes identified in the report include:

    • Credit risk. The OCC reported that credit risk is evolving a year into the Covid-19 pandemic, specifically as the economic downturn continues to affect some borrowers’ ability to service debts and government assistance programs start to expire.
    • Strategic risk. Strategic risk associated with how bank manage net interest margin compressions and earnings is elevated. The OCC suggested that banks attempting to improve earnings could implement various measures, including cost cutting and increasing credit risk.
    • Operational risk. Elevated operational risk can be attributed to complex operating environments and increased cybersecurity threats. A flexible, risk-based approach, including surveillance, reporting, and managing third-party risk, is important for banks to be operationally resilient, the OCC stated.
    • Compliance risk. Compliance risk is also elevated due to the expedited implementation of a number of Covid-19-related assistance programs, including the CARES Act Paycheck Protection Program and federal, state, and bank-initiated forbearance and deferred payment programs. These programs, the OCC noted, require “increased compliance responsibilities, high transaction volumes, and new fraud typologies, at a time when banks continue to respond to a changing operating environment.”

    Federal Issues OCC Covid-19 SBA Compliance Risk Management Fintech Net Interest Margin

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  • OCC finalizes CIF withdrawal period extensions

    Federal Issues

    On May 21, the OCC issued an interim final rule, which finalizes a rule applicable to national banks and federal savings associations administering a collective investment fund (CIF) invested primarily in real estate or other assets that are not readily marketable. Specifically, under the OCC’s fiduciary activities regulation (12 CFR 9.18), a bank that is administering a CIF invested “primarily in real estate or other assets that are not readily marketable” may require a prior notice period of up to one year for withdrawals. As previously covered by Infobytes, in August 2020, the OCC issued an interim final rule which clarified rules regarding account withdrawals from CIFs in response to the Covid-19 pandemic. The recently released interim final rule codifies the August rule by allowing banks to request to extend the one-year redemption period by another year due to “unanticipated and severe market conditions for specific assets held by the fund,” subject to meeting certain conditions.

    The interim final rule will be effective upon publication in the Federal Register.

    Federal Issues OCC Covid-19 Agency Rule-Making & Guidance

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  • District Court denies TRO request to block CFPB’s eviction disclosure rule


    On May 14, the U.S. District Court for the Middle District of Tennessee denied a request for a temporary restraining order (TRO) to block a CFPB interim final rule (IFR), which requires all landlords to disclose to tenants certain federal protections put in place as a result of the ongoing Covid-19 pandemic. As previously covered by InfoBytes, the plaintiffs sued the CFPB asserting the IFR violates their First Amendment rights because it “mandates untrue speech and encourages plainly misleading speech” by requiring disclosures about a moratorium that has been challenged or invalidated by several federal courts, including a court in Tennessee where the complaint was filed, as well as the U.S. Court of Appeals for the Sixth Circuit. The Bureau urged the court to deny the temporary injunction, arguing, among other things, that “requiring debt collectors to provide routine, factual notification of rights or legal protections that consumers ‘may’ have, in jurisdictions where the CDC [o]rder applies, does not compel false speech and plainly passes First Amendment muster” (covered by InfoBytes here).

    In denying the plaintiffs’ request to block the enactment of the IFR, the court ruled that the IFR does not apply where courts have already blocked the CDC’s eviction order from being enforced.  Therefore, “[b]y its very terms, the [IFR] compels nothing at all—including disclosure of false speech—in jurisdictions where the CDC [o]rder does not apply (whether due to a court order declaring the [IFR] invalid, or to something else).” Additionally, the court noted that the plaintiffs’ First Amendment arguments did not suggest that they would suffer irreparable harm without a TRO, as “[p]laintiffs cannot be harmed by a rule where it does not apply.” The court also addressed the plaintiffs’ claim that the rule is unlawful under the Administrative Procedures Act because it requires disclosures not mandated under the FDCPA that could contain false, deceptive, or misleading representations. Because debt collectors in jurisdictions where the CDC order does not apply do not have to make the required disclosures, the IFR cannot be “unlawful on the grounds that it requires false disclosures.”

    The court did not opine as to the “wisdom or fairness” of the IFR or the CDC’s order, or whether the IFR is “likely unlawful for any reason other than the particular ones” put forth by the plaintiffs.

    Courts CFPB Agency Rule-Making & Guidance Debt Collection Consumer Finance Covid-19 FDCPA First Amendment

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