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FinCEN updates AML/CFT deficiencies list
On March 11, the Financial Crimes Enforcement Network (FinCEN) issued an advisory identifying updates to the Financial Action Task Force’s (FATF) list of jurisdictions with strategic anti-money laundering and combating the financing of terrorism (AML/CFT) and counter-proliferation financing deficiencies. The advisory notes that in response to the Covid-19 pandemic, FATF “prioritized its review by focusing on jurisdictions with expired or expiring action plan deadlines,” and provided jurisdictions identified under “increased monitoring” the option to provide a status report. FinCEN’s advisory reminds members that its February 2020 statement High-Risk Jurisdictions Subject to a Call for Action remains in effect and urges “all jurisdictions to impose countermeasures on Iran and the Democratic People’s Republic of Korea (DPRK) to protect the international financial system from significant strategic deficiencies in their AML/CFT regimes.” The advisory also notes that last month FATF updated its Jurisdictions under Increased Monitoring document, adding Burkina Faso, Cayman Islands, Morocco, and Senegal. Further, the advisory provides AML program risk assessment considerations and suspicious activity report filing guidance.
DFPI reiterates “aggressive” enforcement during pandemic
On March 11, the California Department of Financial Protection and Innovation (DFPI) released a statement discussing the regulator’s expanded consumer protection efforts during the Covid-19 pandemic. Among other things, DFPI noted that it is “aggressively exercising its new authority to regulate a large group of newly covered financial services, including debt collectors, credit reporting and credit repair agencies, debt relief agencies and others,” and verifying compliance with state and federal laws protecting homeowners from “coronavirus-related foreclosures.” DFPI also stated it issued a cease-and-desist order filed against a student loan debt relief company (covered by InfoBytes here), and launched an investigation of lender efforts to evade state interest rate caps.
New York governor signs bill setting forth eviction and foreclosure protections for small businesses
On March 9, the New York governor signed the COVID-19 Emergency Protect Our Small Businesses Act of 2021 (S471A/A3207), which sets forth eviction and foreclosure protections for small businesses. Among other things, the act prohibits removal of a commercial tenant prior to May 1, 2021, except by eviction proceedings. The act also prohibits the initiation of eviction proceedings until May 1, 2021 and stays pending eviction proceedings for a certain period of time depending on whether an eviction warrant or judgment of possession or ejectment has been issued. The act further requires landlords to provide certain pre-eviction notices. The press release notes that the act builds on prior state moratoriums on residential and commercial evictions.
Treasury announces Emergency Capital Investment Program for CDFIs and MDIs
On March 4, the U.S. Treasury Department announced a new initiative to provide access to capital for communities traditionally excluded from the financial system that have significantly struggled during the Covid-19 pandemic. The Emergency Capital Investment Program (ECIP), established by the Consolidated Appropriations Act of 2021, will provide up to $9 billion in capital directly to Community Development Financial Institutions (CDFIs) and minority depository institutions (MDIs) to provide, among other things, “loans, grants, and forbearance for small and minority businesses and consumers in low income communities.” The ECIP will set aside $2 billion for CDFIs and MDIs with less than $500 million in assets, as well as $2 billion for CDFIs and MDIs with less than $2 billion in assets. Treasury notes that the program is intended to incentivize impactful lending, and states it is currently “developing additional ‘deep impact’ metrics to further incentivize targeted investments by participants in those communities most in need of capital.” Institutions seeking to participate in the ECIP can access application instructions and materials along with an application portal here.
To support the implementation of the ECIP, the FDIC, Federal Reserve Board, and the OCC issued an interim final rule to “revis[e] their capital rules to provide that Treasury’s investments under the program qualify as regulatory capital of insured depository institutions and holding companies.” The interim final rule is effective immediately upon publication in the Federal Register. Comments will be accepted for 60 days following publication.
Agencies update CRA Covid-19 FAQs
On March 8, the OCC, Federal Reserve Board, and the FDIC released updated Community Reinvestment Act (CRA) FAQs related to Covid-19. The FAQs, first issued last May (covered by InfoBytes here), provide guidance for financial institutions and examiners regarding CRA consideration for activities taken in response to the pandemic. Highlights of the five new FAQs include:
- Banks cannot receive CRA service test consideration for Paycheck Protection Program (PPP)-related activities; however, the agencies recognize that because the PPP loan program responds to community credit needs, PPP activities will be considered under the CRA lending test when evaluating flexible or innovative lending programs offered by a bank.
- Banks should not report PPP loans that have been rescinded or returned under the SBA’s safe harbor on their CRA loan register. Moreover, examiners will not consider these loans in their CRA evaluations of banks during the applicable time period.
- PPP loans over $1 million in low- or moderate-income geographies or in distressed or underserved nonmetropolitan middle-income geographies “will be considered an eligible community development activity.”
- As noted in a joint statement released by the agencies last year (covered by InfoBytes here), favorable CRA consideration will be given to banks providing retail banking services and retail lending activities that respond to the needs of affected low- and moderate-income (LMI) individuals, small businesses, and small farms consistent with safe and sound banking practices. These activities may include waiving ATM fees, overdraft fees, and early withdrawal penalties on certificates of deposit (CDs), or allowing LMI consumers to make draws from a HELOC during the repayment period. The agencies note that allowing LMI consumers “to make a withdrawal from an IRA as allowed under the CARES Act, or to draw on a HELOC during the draw period are routine banking services and, as such, are not eligible for CRA consideration.”
- The agencies will consider community development services provided virtually by bank representatives on an individual level based on the event and the benefitted assessment area.
Fed extends PPP Liquidity Facility through June 30
On March 8, the Federal Reserve Board announced the extension of the Paycheck Protection Program Liquidity Facility (PPPLF) through June 30. The PPPLF was rolled out last year to provide liquidity to banks making loans to small businesses pursuant to the Small Business Administration’s Paycheck Protection Program at the start of the Covid-19 pandemic (covered by InfoBytes here). The Board noted, however, that the remaining Covid-19 lending facilities—the Commercial Paper Funding Facility, the Money Market Mutual Fund Liquidity Facility, and the Primary Dealer Credit Facility—will terminate March 31 as planned.
Illinois reissues and extends several Covid-19 executive orders
On March 5, Illinois Governor JB Pritzker issued Executive Order 2021-05, which extends several executive orders through April 3, 2021 (previously covered here, here, here, here, here, and here). Among other things, the order extends: (i) Executive Order 2020-07 regarding in-person meeting requirements, (ii) Executive Order 2020-23 regarding actions by individuals licensed by the Illinois Department of Financial and Professional Regulation engaged in disaster response, (iii) Executive Order 2020-25 regarding garnishment and wage deductions (previously covered here), (iv) Executive Order 2020-30 regarding residential evictions (previously covered here), and (v) Executive Order 2020-72 regarding the residential eviction moratorium (previously covered here and here).
SBA allows self-employed filers to use gross income to calculate PPP loan amounts
On March 4, the Small Business Administration (SBA) issued an interim final rule (IFR) to implement recent changes to the Paycheck Protection Program (PPP) calculation for IRS Form 1040, Schedule C filers. Self-employed individuals who file Schedule C will now be able to calculate their maximum loan amount using gross income. This calculation change only applies to loans approved after March 4, 2021, and borrowers that have already had their loans approved cannot increase their PPP loan amount based on the new maximum loan formula. SBA also notes that a previously provided safe harbor presumption of making “the statutorily required certification concerning the necessity of the loan request in good faith” will not apply to Schedule C filers that elect to calculate their First Draw PPP loan using gross income if they report more than $150,000 in gross income. These borrowers will be subject to additional SBA review as they will most likely have additional sources of liquidity to support business operations. The IFR further removes eligibility restrictions that prohibit businesses owned at least 20 percent by individuals (i) who have a non-financial fraud felony conviction in the last year, or (ii) who are delinquent or in default on their federal student loans. These changes apply to both First Draw and Second Draw PPP loans.
To assist borrowers, SBA released the following revised forms: First Draw application form and Schedule C gross income form, Second Draw application form and Schedule C gross income form, and lender applications for First Draw and Second Draw loans. The IFR takes effect March 4.
California extends commercial foreclosure and eviction moratorium
On March 4, the California governor issued Executive Order N-03-21 extending the protections against commercial foreclosures and evictions arising from the nonpayment of rent or mortgage payments due to a substantial decrease in income or increase in medical expenses caused by the Covid-19 pandemic (previously discussed here and here) to June 30, 2021.
CFPB proposes extending General QM Final Rule compliance date
On March 3, the CFPB released a notice of proposed rulemaking (NPRM) to delay the mandatory compliance date of the General Qualified Mortgage (QM) Final Rule from July 1, 2021 to October 1, 2022. As previously covered by InfoBytes, last December the Bureau issued the General QM Final Rule to amend Regulation Z and revise the definition of a “General QM” by eliminating the General QM loan definition’s 43 percent debt-to-income ratio (DTI) limit and replacing it with bright-line price-based thresholds. The new General QM definition became effective on March 1, 2021. The General QM Final Rule also eliminates QM status resulting solely from loans meeting qualifications for sale to Fannie or Freddie Mac (GSEs), known as the “GSE Patch.” In issuing the NPRM, the Bureau expressed concerns “that the potential impact of the COVID-19 pandemic on the mortgage market may continue for longer than anticipated at the time the Bureau issued the General QM Final Rule, and so could warrant additional flexibility in the QM market to ensure creditors are able to accommodate struggling consumers.” Extending the compliance date will allow lenders to offer QM loans based on either the old or new QM definitions, including the GSE Patch (unless the GSEs exit conservatorship), until October 1, 2022. Comments on the NPRM must be received by April 5.
The NPRM follows a statement issued last month (covered by InfoBytes here), in which the Bureau said it is considering whether to revisit final rules issued last year that took effect March 1 concerning the definition of a Qualified Mortgage and the establishment of a “Seasoned QM” category of loans. In the NPRM, the Bureau stated “this rulemaking does not reconsider the merits of the price-based approach adopted in the General QM Final Rule. . . . Rather, this proposal addresses the narrower question of whether it would be appropriate in light of the continuing disruptive effects of the pandemic to help facilitate greater creditor flexibility and expanded availability of responsible, affordable credit options for some struggling consumers” by keeping both the old and new rule until October 1, 2022.