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Financial Services Law Insights and Observations

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  • OCC: Banks may hold stablecoins in reserve accounts

    Federal Issues

    On September 21, the OCC released Interpretive Letter 1172, stating that national banks may hold stablecoin in reserve accounts as a service to bank customers and may engage in activity incidental to receiving the deposits. According to the OCC, issuers of stablecoins—a type of cryptocurrency backed by an asset such as a fiat currency—have a desire to place assets in reserve accounts with national banks to “provide assurance that the issuer has sufficient assets backing the stablecoin in situations where there is a hosted wallet.” Hosted wallet, as defined by the OCC, is “an account-based software program for storing cryptographic keys controlled by an identifiable third party.” Because national banks are authorized to receive deposits and provide “permissible banking services to any lawful business they choose,” they may provide these services to issuers of stablecoins, as long as they comply with applicable laws and regulations. (In Interpretive Letter 1170, the OCC approved the holding of cryptocurrency on behalf of customers, covered by InfoBytes here.) Specifically, the OCC noted that national banks should ensure that deposit activities comply with the Bank Secrecy Act and anti-money laundering regulations. Moreover, a national bank must also “identify and verify the beneficial owners of legal entity customers opening accounts.” Lastly, the OCC emphasized that stablecoin reserves “could entail significant liquidity risks,” and national banks may consider entering into contractual agreements with stablecoin issuers to “verify and ensure that the deposit balances held by the bank for the issuer are always equal to or greater than the number of outstanding stablecoins issued by the issuer.” This guidance does not apply to stablecoin transactions involving un-hosted wallets.

    Federal Issues OCC Cryptocurrency Fintech Compliance

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  • CSBS announces single exam for money transmitters

    State Issues

    On September 15, the Conference of State Bank Supervisors (CSBS) announced the launch of a single, streamlined examination for money transmitters operating nationwide (i.e., in 40 or more states), known as “MSB Networked Supervision.” The single exam—which will apply to “78 of the nation’s largest payments and cryptocurrency companies”—will be led by one state overseeing a group of examiners sourced from around the country. MSB Networked Supervision is a result of recommendations from the CSBS Fintech Industry Advisory Panel and CSBS Vision 2020 (covered by InfoBytes here).

    State Issues Money Service / Money Transmitters State Regulator Examination Supervision Vision 2020 Licensing CSBS Fintech

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  • CDBO releases proposed commercial financing disclosure regulations

    State Issues

    On September 11, the California Department of Business Oversight (CDBO) initiated the formal rulemaking process with the Office of Administrative Law (OAL) for the proposed regulations implementing the requirements of the commercial financing disclosures required by SB 1235 (Chapter 1011, Statutes of 2018). In September 2018, California enacted SB 1235, which requires non-bank lenders and other finance companies to provide written consumer-style disclosures for certain commercial transactions, including small business loans and merchant cash advances (covered by InfoBytes here). In July 2019, California released the first draft of the proposed regulations (covered by InfoBytes here) to consider comments prior to initiating the formal rulemaking process with the OAL.

    The new proposed regulations, which have been modified since the July 2019 draft, provide general format and content requirements for each disclosure, as well as specific requirements for each type of covered transaction. Additionally, the proposed regulations provide information on calculating the annual percentage rate (APR), including additional details for calculating the APR for factoring transactions, as well as calculating the estimated APR for sales-based financing transactions, among other things. Additional details about the proposed regulations can be found in the CDBO’s initial statement of reasons. Comments on the proposed regulations will be accepted through October 28.

    State Issues Small Business Lending Fintech Disclosures APR Commercial Finance Nonbank CDBO

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  • CFPB gives details on e-disclosure tech sprint

    Federal Issues

    On September 1, the CFPB issued new details on its first Tech Sprint, which will cover innovative approaches to adverse action e-disclosures. As previously covered by InfoBytes, the CFPB announced in September 2019 its intention to use Tech Sprints—which had been used by the U.K.’s Financial Conduct Authority seven times since 2016 and resulted in a pilot project on digital regulatory reporting—to encourage regulatory innovation and requested comments from stakeholders on the plan.

    The adverse action e-disclosure Tech Sprint will be held October 5-9, 2020 and will ask participating teams to focus on three goals to improve the notices: accuracy, anti-discrimination, and education. More details on the event are available in the CFPB’s problem statement. A link to an application to participate can be found in the problem statement and will be accepted between September 1 through September 11.

    Federal Issues CFPB Fintech Disclosures ESIGN

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  • Texas Office of Consumer Credit updates guidance for regulated lenders

    State Issues

    On August 20, the Texas Office of the Consumer Credit Commissioner issued updated guidance, previously covered here, for regulated lenders navigating the Covid-19 crisis. The guidance: (1) encourages lenders to work with consumers, including by working out modifications to assist with payments, waiving fees and charges, suspending charged-off accounts, and suspending repossessions of collateral or foreclosure of real property, among other things; (2) reminds lenders of legal requirements for using electronic signatures; and (3) permits lenders to conduct regulated lending activity from unlicensed locations, subject to certain conditions.  The guidance is in effect through September 30, 2020, unless withdrawn or revised.

    State Issues Covid-19 Texas Consumer Credit Consumer Finance Lending Mortgages Foreclosure ESIGN Auto Finance Fintech

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  • Texas Office of Consumer Credit updates guidance urging motor vehicle sales finance licensees to work with borrowers

    State Issues

    On August 20, the Texas Office of the Consumer Credit Commissioner updated its advisory bulletin urging motor vehicle sales finance licensees to work with consumers during the Covid-19 crisis (previously covered herehere, here, and here). Among other measures, the regulator urges licensees to increase consumer communication regarding the effects of Covid-19 for licensees, work out modifications for payment difficulties, waive certain charges, and suspend repossessions. The guidance also reminds licensees of legal requirements for using electronic signatures, and continues to permit licensees to conduct activity from unlicensed locations, subject to certain conditions. The guidance is in effect through September 30, 2020, unless withdrawn or revised.

    State Issues Covid-19 Texas Consumer Credit Auto Finance Licensing Repossession ESIGN Fintech Consumer Finance

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  • U.S.-UK Financial Innovation Partnership reports on progress

    Federal Issues

    On August 6, the U.S. Treasury Department provided an overview of a recent meeting of the U.S.-UK Financial Innovation Partnership (FIP) where Regulatory and Commercial Pillars participants exchanged views on “deepening U.S.-UK ties in financial innovation.” As previously covered by InfoBytes, the FIP was created in 2019 as a way to expand bilateral financial services collaborative efforts, study emerging fintech innovation trends, and share information and expertise on regulatory practices. Topics discussed included digital payments, cross-border testing of innovative financial services, regulatory and supervisory technology, connections between financial technology firms and financial institutions, and the upcoming 2021 U.S. financial services trade mission to the UK. Participants recognized “the importance of the ongoing partnership in monitoring and analyzing trends in global financial innovation, as well as being an integral component of the U.S.-UK financial services cooperation.”

    Federal Issues Of Interest to Non-US Persons Fintech UK Department of Treasury

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  • CSBS: OCC’s proposed “non-branch” provisions undermine dual banking system

    Federal Issues

    On August 3, the Conference of State Bank Supervisors (CSBS) issued its comment letter to the OCC’s Notice of Proposed Rulemaking (NPR) on national bank and savings association activities concerning “non-branch” offices. Specifically, CSBS wrote that the “non-branch” provisions in the NPR make “far-reaching” revisions without legal authority, undermine the dual banking system, conflict with National Bank Act (NBA) preemption limits, and would allow national banks to operate branches without complying with related Community Reinvestment Act (CRA) obligations. Additionally, CSBS contended that the OCC’s rulemaking process is “truncated and flawed,” and afforded a particularly brief period for public comments during the Covid-19 pandemic.

    According to CSBS, the NPR, announced in June (covered by InfoBytes here), would “expand the scope of activities that may occur at non-branch offices purportedly without regard” to state restrictions.  These activities include: (i) performing loan approval and origination functions at a single, publicly accessible office; (ii) disbursing loan proceeds through an operating subsidiary; and (iii) establishing drop boxes and other unstaffed facilities. CSBS also contended that the NPR’s non-branch provisions would undermine Congressional intent and give national banks competitive advantages over state-charted banks. CSBS further argued that the non-branch provisions conflict with Congress’ clear intention that “NBA preemption does not apply to agents, affiliates or subsidiaries of national banks.” Finally, CSBS highlighted a distinction between the proposed non-branches (but de facto branches) and actual branch offices, arguing that the NPR creates a legal loophole allowing non-branch national banks to avoid CRA obligations associated with licensed branches.

    Federal Issues OCC CSBS Agency Rule-Making & Guidance Fintech National Bank Act CRA

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  • OCC grants first national bank charter to fintech company

    Federal Issues

    On July 31, the OCC presented its first full-service national bank charter to a fintech company permitting the establishment of a new national bank. The new bank received conditional approval from the agency in 2018, as well as regulatory approval from both the FDIC and the Federal Reserve according to a press release issued by the company. According to the press release, the charter will allow the bank to offer FDIC-insured nationwide banking services, including traditional loan and deposit products, through mobile, online, and phone-based banking. The bank will be located in Utah but will have no branches, deposit-taking ATMs, or offices open to the public. Acting Comptroller of the Currency Brian P. Brooks issued a statement noting that the opening of the bank “represents the evolution of banking and a new generation of banks that are born from innovation and built on technology intended to empower consumers and businesses.”

    Federal Issues OCC Fintech Bank Charter

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  • Maryland secretary of state provides updated guidance on remote notarizations

    State Issues

    On July 31, the Maryland’s secretary of state provided updated guidance regarding the waived in-person notarization requirement as part of the state’s Covid-19 response (see here for previous coverage). The guidance provides requirements for performing remote notarizations, lists remote notary vendors, and provides a brief set of FAQ pertaining to remote notary practices in general. The temporary waiver of the in-person notarization requirement was ordered by Governor Hogan on March 30, and is set to expire when the declared state of emergency lifts.

    State Issues Covid-19 Maryland Notary Fintech Vendor Management Vendors

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