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Financial Services Law Insights and Observations

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  • Federal banking agencies amend capital rules to encourage support of recovery

    Federal Issues

    On October 8, the OCC, FDIC and Federal Reserve Board finalized two rules intended to encourage depository institutions to utilize their capital buffers, which must be maintained in order to avoid having restrictions placed on capital distributions, for lending and other financial intermediation activities. The agencies amended rules governing risk-based capital and leverage ratio requirements for U.S. banking organizations, to make limitations on capital distributions more gradual in nature. The agencies also amended rules governing the total loss-absorption capacity of the largest U.S. bank holding companies and U.S. operations of the largest foreign banking organizations.

    Federal Issues OCC FDIC Federal Reserve FRB Deposits

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  • Federal Reserve Board extends temporary actions on intraday credit availability

    Federal Issues

    On October 1, the Federal Reserve Board extended certain temporary actions that are designed to increase the availability of intraday credit to mitigate the impact of Covid-19.  The temporary actions were previously announced on April 23 (previously covered here), and include: (1) suspending uncollateralized intraday credit limits and waiving overdraft fees for eligible institutions; (2) permitting a streamlined procedure to request collateralized intraday credit; and (3) suspending two collections of information that are used to calculate net debit caps.  The actions are extended to March 31, 2021.

    Federal Issues Covid-19 Federal Reserve FRB Consumer Credit Overdraft Fees Debit Cards

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  • Federal Reserve Board extends measures to ensure high level of resilience among large banks

    Federal Issues

    On September 30, the Federal Reserve Board announced it would extend measures previously instituted to ensure that large banks maintain a high level of capital resilience in light of uncertainty introduced by the Covid-19 outbreak. The measures were extended for an additional quarter. Large banks (i.e. banks with more than $100 billion in total assets) will be prohibited from making share repurchases. Additionally, dividend payments will be capped and tied to a formula based on recent income. The announcement notes that the Board will conduct a second stress test later this year to further test the resiliency of large banks.

    Federal Issues Covid-19 Federal Reserve FRB Bank Compliance

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  • Federal agencies and CSBS to hold webinar on PPP

    Federal Issues

    On August 20, the FDIC, Federal Reserve Board, OCC, NCUA, and the Conference of State Bank Supervisors  announced that a webinar will be held with SBA officials discussing the loan forgiveness process and recent changes in the Paycheck Protection Program on Thursday, August 27 from 11:00 a.m. to 12:00 p.m. (EDT). Participants must preregister for the webinar and are encouraged to email questions in advance to asktheregulators@stls.frb.org. An archive of the webinar materials will be available here, a few hours after the webinar ends.

    Federal Issues CSBS SBA FDIC FRB OCC NCUA

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  • Federal Reserve Board announces revised pricing for its Municipal Liquidity Facility

    Federal Issues

    On August 11, the Federal Reserve Board announced revised pricing for its Municipal Liquidity Facility. The revised pricing reduces the interest rate spread on tax-exempt notes for each credit rating category by 50 basis points and reduces the amount by which the interest rate for taxable notes is adjusted relative to tax-exempt notes. The MLF, originally covered here, was one of several facilities intended to support the flow of credit in the economy.

    Federal Issues Covid-19 Federal Reserve FRB Interest Rate Credit Ratings

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  • Bank Regulators Signal Changes to Capital Holding Requirements

    Federal Issues

    On September 8, the Federal Reserve Board (FRB) released a policy statement providing details regarding its Countercyclical Capital Buffer Framework (Framework). The FRB explained that the Framework is designed to implement requirements under the Basel III International bank capital rules, and will generally raise capital holding requirements for internationally active banks when there is an elevated risk of systemic credit losses. In responding to comments, the FRB used the policy statement to clarify that when the systemic threat is reduced, banks would be allowed to release excess capital into the economy to further create financial stability. Meanwhile, the Group of Central Bank Governors and Heads of Supervision (Group) that oversees the Basel Committee on Banking Supervision (Committee) cautioned the Committee to avoid significant increases in overall bank capital requirements as the Committee creates a final rule to address excessive variability in risk-weighted assets. The Group expressed its desire that the Committee focus on improving and harmonizing the methods through which banks determine their own risks. The Committee’s final rule is due by year’s end.

    FRB Capital Requirements Basel

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  • Federal Reserve Board Appoints Adviser To The Board for Monetary Policy

    Consumer Finance

    On October 8, the Federal Reserve Board announced the appointment of William English as an advisor to the Board for Monetary Policy in the Office of Board Members. Since July 2010, Mr. English has served as the director of the Board’s Division of Monetary Affairs and as secretary to the Federal Open Market Committee. Mr. English is expected to remain as secretary to the FOMC so that he can continue to contribute to the monetary policy process.

    FRB Federal Reserve

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  • Interagency Final Rule On Regulatory Capital, Revisions To The Supplementary Leverage Ratio

    Consumer Finance

    On September 26, the OCC, the FDIC, and the Federal Reserve Board released a final rule that revises the calculation of total leverage exposure to make it more consistent with the January 2014 revisions to the international leverage ratio framework published by the Basel Committee on Banking Supervision. Like the proposed rule, the final rule directs the total leverage exposure calculation to include a bank’s on-balance-sheet assets (less tier 1 capital) and a potential future exposure amount calculated for each derivative contract. The final rule on total leverage exposure differs from the proposed rule in that it: (i) includes in the calculation the amount of cash collateral received for derivative contracts and the notional amount of each credit derivative for which the bank acts as the credit protection provider; (ii) adjusts the treatment of certain repo-style transactions; and (iii) allows the use of the credit conversion factors set forth in the 2013 revised capital rule to calculate some off-balance-sheet exposures. This rule does not apply to community banks. Total leverage exposure is the denominator for the supplementary leverage ratio calculation, which divides a bank’s tier 1 capital against its total leverage exposure. Banks must comply with the new supplementary ratio requirements by January 1, 2018, but they must calculate and publicly report their supplementary ratios beginning January 1, 2015.

    FRB Basel

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  • Federal District Court Gives Federal Reserve Deadline to Decide Interchange Fee Rule

    Consumer Finance

    On August 14, the U.S. District Court for the District of Columbia reportedly gave the Federal Reserve Board (FRB) one week to determine whether it will write an interim final rule to replace the interchange fee rule recently voided by the court. During a status hearing, the court ordered the FRB’s general counsel to appear on August 21, 2013 to inform the court whether the FRB will rewrite the rule, suggesting that an interim rule would need to be in place by the end of August. The court also reportedly stated that the funds collected from retailers while the rule was in effect could be ordered to be refunded and asked the parties to provide further briefing on the issue.

    FRB

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  • CFPB, FRB, and DOJ Webinar on Fair Lending in Indirect Auto Finance

    Consumer Finance

    On August 6, 2013, the Federal Reserve sponsored a webinar entitled “Indirect Auto Lending – Fair Lending Considerations,” in which presentations were given by Patrice Ficklin, Fair Lending Director, Consumer Financial Protection Bureau (CFPB), Maureen Yap, Special Counsel/Manager, Fair Lending Enforcement, Federal Reserve Board (FRB), and Coty Montag, Deputy Chief, Housing and Civil Enforcement Section, Civil Rights Division, U.S. Department of Justice (DOJ). During the webinar, each of the speakers provided a perspective on the examination and enforcement activities of their respective organization, followed by a Question and Answer session.

    Ms. Ficklin began by providing a summary of the CFPB’s supervisory and enforcement authority, followed by a discussion of CFPB Bulletin 2013-02. In discussing the bulletin, Ms. Ficklin addressed the specific guidance provided in that Bulletin, with a particular emphasis on how the “standard practices” of indirect auto financial institutions “likely constitute participation in a credit decision” resulting in their being deemed “creditors” under the ECOA. That was followed by a discussion of the way in which the existence of dealer discretion and markup presents fair lending risk and ways in which financial institutions may comply with fair lending requirement.  Ms. Yap then presented the FRB’s authority for and purpose in examining for fair lending risk in indirect auto finance, making particular note of the FRB’s referral of the Nara Bank case to the DOJ. Ms. Yap emphasized that FRB personnel rely on the 2009 Interagency Fair Lending Examination Procedures in determining the scope of an examination, including indirect auto financing practices, including as it relates to pricing which presents the “area of highest risk”. After discussing some of the FRB’s key risk factors, Ms. Yap then discussed methods used by the FRB to code loans and test for disparities. Ms. Yap also provided additional resources that may be of value to indirect auto financial institutions, including the FRB’s “Step-by-Step Guide to Coding for Gender and Ethnicity,” “Example:   Hypothetical Loan Data with Lookups and Formulas,” and “Female and Hispanic Names List (U.S. Census).” The last two items may be found here. Ms. Yap concluded her remarks by discussing what to expect if the FRB finds evidence of pricing disparities, and ways that market participants may mitigate their fair lending risk.

    Ms. Montag opened her remarks with a review of ECOA’s framework and the DOJ’s recent enforcement activities in indirect auto finance, with particular attention given to both the 2009 partial Consent Decree and the recent “Agreed Order” with Union Auto and the default judgment against the final defendant. The Pacifico Ford, Inc. and Springfield Ford, Inc. cases were also discussed at some length, emphasizing the consent orders that limited the amount of dealer reserve in each matter and the circumstances under which the amount of such reserve may be modified. Finally, Ms. Montag provided an overview of ongoing enforcement efforts in the indirect auto market, with particular focus on (i) potential race-based targeting by “buy here, pay here” dealers; and (ii) discretionary dealer markups and fees, including “several” ongoing joint investigations with the CFPB.

    The presentations were followed by a Question & Answer session in which the panelists addressed particular requests submitted by attendees.  Of particular interest were the following:

    • To the extent exceptions are made to match competitive offers or otherwise, Ms. Yap suggested that all such instances should be “well documented” and include specific information that is maintained by the institution to help explain potential disparities as the need arises;

    • Ms. Ficklin stated that in general, when determining fair lending violations, the CFPB relies on statistical evidence at “the 95th per cent confidence level, or greater,” though she noted that the CFPB may look at data of a lower confidence level when providing supervisory guidance regarding potential fair lending risk or when acting in its supervisory capacity;

    • In discussing whether a dealer agreement should address the obligation of the dealer to ensure the accuracy of data submitted in an auto finance transaction, Ms. Yap opined that it is important to address this issue and any other fair lending risks within such an agreement.  Ms. Yap suggested that dealer agreements should be explicit about fair lending expectations and learning about and resolving complaints to help mitigate fair lending risk;

    • In discussing controlling for variables in analyzing whether disparities may be explained through permissible criteria, Ms. Yap acknowledged the FRB wants to look at “the variables that the bank actually uses”; but they nonetheless want to make clear distinctions between the “buy price” and any markup.   The “buy price” would take into consideration characteristics related to a borrower’s credit, such as credit score or income; but since markup is not usually based on such characteristics, they might take into consideration factors such as new car financing offers, or the month in which a purchase is made (based on any sensitivities related to purchases made in certain seasons); and

    • In response to whether the CFPB’s approach to indirect auto exams is the same as that of the FRB, Ms. Ficklin stated that the evaluation of whether an indirect auto lender is in compliance with the ECOA requires “multiple steps.” She advised that a typical CFPB examination would include: a review of credit denials, interest rates quoted by the lender to the dealer (“buy rates”), and any discretionary markup of the buy rate by the dealer. Ms. Ficklin further stated that determining whether discrimination has occurred is both case-specific and fact-intensive and like the FRB, the CFPB’s analysis “considers appropriate analytical controls” in reviewing data to determine if a specific policy results in unlawful differences, on a prohibited basis. Ms. Ficklin then added that “consistent with the approaches of other federal regulators” including the FRB, the Bureau has previously indicated that it uses surnames, and geographic location data “to estimate protected characteristics” where direct evidence of protected characteristics is unavailable. She explained that the CFPB conducts its proxy analysis by using publicly available data from the Social Security Administration, and the Census Bureau, and that the CFPB is aware that some lenders are currently using various forms of proxy analysis for their own internal fair lending analyses. Finally, she noted that Bulletin 2013-02 encourages lenders who are not doing such analysis to select “a reasonable proxy method that is suitable for their nature, size and complexity” and to monitor their data for “fair lending risk.”

    Though the webinar may not have covered a significant amount of new ground, it nonetheless provides some additional clarity around the expectations of the CFPB, FRB and DOJ when looking into fair lending matters in the indirect auto finance market as it relates to pricing and some useful resources from the FRB.  As such, institutions participating in the indirect auto finance market may be well served to listen to the archived copy of this presentation.

    FRB CFPB Auto Finance Fair Lending DOJ

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