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CFPB issues guidance on “junk fees”
On October 26, President Biden discussed guidance issued by the CFPB to help banks avoid charging illegal “junk fees” on deposit accounts. The Bureau’s Circular 2022-06 noted that overdraft fees can be considered an “unfair” practice and violate the Consumer Financial Protection Act (CFPA) even if such fees are in compliance with other laws and regulations. Specifically, the Circular noted that “overdraft fees assessed by financial institutions on transactions that a consumer would not reasonably anticipate are likely unfair.” The guidance further stated that unanticipated overdraft fees are likely to impose substantial injury on consumers that they cannot reasonably avoid and that are not outweighed by countervailing benefits to consumers or competition. The Bureau’s compliance bulletin on surprise depositor fees explained that a returned deposited item is a check that a consumer deposits into their checking account that is returned to the consumer because the check could not be processed against the check originator’s account. The bulletin stated that “blanket policies of charging returned deposited item fees to consumers for all returned transactions irrespective of the circumstances or patterns of behavior on the account are likely unfair under the [CFPA].” The Bureau further explained that indiscriminately charging depositor fees, regardless of circumstances, are likely illegal and noted that the bulletin is intended to put regulated entities on notice regarding how the agency plans to exercise its enforcement and supervisory authorities in the context of deposit fees. The bulletin urged financial institutions to charge depositor fees only in situations where a depositor could have avoided the fee, such as when a depositor repeatedly deposits bad checks from the same originator. The Bureau emphasized the guidance as part of its Junk Fee Initiative, noting that since it launched the initiative in January 2022, the CFPB has taken action to constrain “pay-to-pay” fees (covered by InfoBytes here), and has announced an advance notice of proposed rulemaking soliciting information from credit card issuers, consumer groups, and the public regarding late payments, credit card late fees, and card issuers’ revenue and expenses (covered by InfoBytes here).
FDIC finds 96% of U.S. households are banked
On October 25, the FDIC announced that approximately 96 percent of U.S. households had a depository institution account in 2021, according to the FDIC’s 2021 National Survey of Unbanked and Underbanked Households. According to the biennial survey, an estimated 4.5 percent of U.S. households (representing 5.9 million households) lacked a bank or credit union account, the lowest national unbanked rate since the FDIC survey began in 2009. The survey also found that approximately 1.2 million more households were banked since 2019. Nearly half of newly banked households that received government payments said these payments contributed to their decision to open an insured bank or credit union account. The survey also found that while unbanked rates were higher among some racial and ethnic minority groups, the gaps had shrunk since 2019, with the unbanked rate falling by 2.5 percentage points for Black households, 2.9 points for Hispanic households and 9.4 points for Native American and Alaska Native households, compared with a 0.4 point decrease for white households. According to the FDIC, other key findings include that: (i) 4.5 percent of U.S. households were “unbanked” in 2021; (ii) 2.1 percent of White households were unbanked, compared with 11.3 percent of Black households and 9.3 percent of Hispanic households; (iii) mobile banking use increased sharply among banked households between 2017 (15.1 percent) and 2021 (43.5 percent); (iv) 21.7 percent of unbanked households cited “don’t have enough money to meet minimum balance” as the main reason for not having an account; and (v) the use of some nonbank financial transaction services, such as check cashing, and nonbank credit products, including payday or pawn shop loans, continue to decrease. The FDIC noted that its #GetBanked (covered by InfoBytes here) was a way to inform consumers about how to open a bank account online and to facilitate the safe and timely distribution of Economic Impact Payments through direct deposit. The FDIC requested that community groups and government agencies “join the movement and help bring more people into the banking system.”
FDIC announces Illinois disaster relief
On October 25, the FDIC issued FIL-49-2022 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Illinois affected by severe storms and flooding from July 25-28. The FDIC acknowledged the unusual circumstances faced by institutions affected by the storms and suggested that institutions work with impacted borrowers to, among other things: (i) extend repayment terms; (ii) restructure existing loans; or (iii) ease terms for new loans to those affected by the severe weather, provided the measures are done “in a manner consistent with sound banking practices.” Additionally, the FDIC noted that institutions “may receive favorable Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery.” The FDIC will also consider regulatory relief from certain filing and publishing requirements.
8th Circuit temporarily pauses Biden’s student debt relief plan
On October 21, the U.S. Court of Appeals for the Eighth Circuit issued an order granting an emergency motion filed by state attorneys general from Nebraska, Missouri, Arkansas, Iowa, Kansas, and South Carolina to temporarily prohibit the Biden administration from discharging any federal loans under its student debt relief plan (announced in August and covered by InfoBytes here). The states’ motion requested an administrative stay prohibiting President Biden from discharging any student loan debt under the cancellation plan until the appellate court issues a decision on the states’ motion for an injunction pending an appeal. The order follows an October 20 ruling issued by the U.S. District Court for the Eastern District of Missouri, which dismissed the states’ action for lack of Article III standing after concluding that the states—which attempted “to assert a threat of imminent harm in the form of lost tax revenue in the future”— failed to establish imminent and non-speculative harm sufficient to confer standing. “It should be emphasized that ‘standing in no way depends upon the merits of the Plaintiff[s’] contention that the particular conduct is illegal,’” the district court said. “While Plaintiffs present important and significant challenges to the debt relief plan, the current Plaintiffs are unable to proceed to the resolution of these challenges.” The 8th Circuit ordered an expedited briefing schedule on the states’ motion for an injunction pending appeal, which required both parties to file responses the same week the order was issued.
FHFA publishes new statistics on home valuations
On October 24, FHFA published a new Uniform Appraisal Dataset (UAD) Aggregate Statistics Data File, along with dashboards that provide visualizations of the newly available data related to home valuations. According to the press release, the UAD data file and dashboards provide stakeholders and the public access to a broad set of data points and trends found in appraisal reports that may be grouped by neighborhood characteristics and geographic levels. The data was compiled from 47.3 million UAD appraisal records collected from 2013 through the second quarter of 2022 on single-family properties. “As home valuations are a vital component of the mortgage process, publishing transparent, aggregate data on appraisals provides useful information to the public while protecting borrowers’ personally identifiable information,” FHFA Director Sandra L. Thompson said. “Today’s announcement exemplifies our commitment to the development of a more efficient and equitable valuation system that ultimately reduces appraisal bias.”
FHFA eliminates upfront fees for some borrowers
On October 24, FHFA announced the elimination of upfront fees for certain first-time homebuyers, low-income borrowers, and underserved communities as part of the agency’s ongoing review of Fannie Mae and Freddie Mac’s (GSEs) pricing framework. Specifically, upfront fees are eliminated for (i) first-time homebuyers who are at or below 100 percent of area median income (AMI) in most of the U.S. and below 120 percent of AMI in high-cost areas; (ii) HomeReady and Home Possible loans under the GSEs’ affordable mortgage programs; (iii) HFA Advantage and HFA Preferred loans; and (iv) single-family loans supporting the Duty to Serve program. These changes “will result in savings for approximately 1 in 5 borrowers of the [GSEs’] recent mortgage acquisitions,” FHFA Director Sandra L. Thompson said in the announcement, noting that the agency is working with the GSEs and will announce an implementation date shortly. The pricing updates also include targeted increases to upfront fees for most cash-out refinance loans. Implementation of these fees will start February 1, 2023, in order to minimize market and pipeline disruption.
Chopra previews Section 1033 rulemaking on consumers’ rights to data
On October 25, CFPB Director Rohit Chopra spoke before an industry event where he announced that the Bureau will soon release a discussion guide for small businesses to further the agency’s Section 1033 rulemaking efforts with respect to consumer access to financial records. As announced in the Bureau’s Spring 2022 rulemaking agenda, Section 1033 of Dodd-Frank provides that, subject to Bureau rulemaking, covered entities such as banks must make certain product or service information, including transaction data, available to consumers. The Bureau is required to prescribe standards for promoting the development and use of standardized formats for information made available to consumers under Section 1033. In 2020, the Bureau issued an advanced notice of proposed rulemaking seeking comments to assist in developing the regulations (covered by InfoBytes here).
Chopra explained that, before issuing a proposed rule, the Bureau must first convene a panel of small businesses that represent their markets to solicit input on proposals the CFPB is considering. Chopra said the Bureau plans to “hear from small banks and financial companies who will be providers of data, as well as the small banks and financial companies who will ingest the data,” and will also gather input from intermediary data brokers that facilitate data transfers (“fourth parties”). He noted that a report will be published in the first quarter of 2023 based on comments received during the process, which will be used to inform a proposed rule that is slated to be issued later in 2023. Chopra said the Bureau hopes to finalize the rule in 2024, stating “[w]hile not explicitly an open banking or open finance rule, the rule will move us closer to it, by obligating financial institutions to share consumer data upon consumer request, empowering people to break up with banks that provide bad service, and unleashing more market competition.”
Chopra also expressed plans to propose requiring financial institutions that offer deposit accounts, credit cards, digital wallets, prepaid cards, and other transaction accounts to set up secure methods for data sharing. He stressed that doing so would “facilitate new approaches to underwriting, payment services, personal financial management, income verification, account switching, and comparison shopping.” He further noted that the Bureau is planning to assess ways to prevent incumbent institutions from improperly restricting access when consumers try to control and share their data, including by developing requirements for limiting misuse and abuse of personal financial data, fraud, and scams. Chopra said staff has been directed to consider alternatives to the “notice-and-opt out” regime that has been the standard for financial data privacy and to explore safeguards to prevent excessive control or monopolization by one or a handful of firms.
Fed releases study on racial bias in mortgage lending
Recently, the Federal Reserve Board published a study titled How Much Does Racial Bias Affect Mortgage Lending? Evidence from Human and Algorithmic Credit Decisions. Using confidential supervisory data collected under HMDA to estimate the extent of racial and ethnic discrimination in mortgage lending, the study found that racial bias has played “a limited role” in recent years in generating disparities seen in mortgage lending denials. The researchers acknowledged that as a self-reporting mechanism, HDMA reports may not reflect reality, “as a lender engaged in illegal discrimination would be unlikely to explicitly admit this.” The study also analyzed denial rates among fintech lenders, finding that by automating more of the application process, fintech firms have the potential to decrease racial discrimination. The study also found that excess denials are higher at fintech lenders, which is “the opposite result we would expect if excess denials reflect racially biased human judgment.” Additionally, the study found that group differences in risk characteristics drive most of the disparities in credit access. The study showed that Black and Hispanic applicants tend to be more leveraged and have much lower credit scores. Both groups of applicants are “less likely to receive algorithmic approval recommendations from government automated underwriting systems (AUS) than white applicants,” the study found. The study also noted caveats, such as that the researchers “only study discrimination in approval decisions conditional on formally applying.”
DOE announces PSLF changes
On October 25, the Department of Education (DOE) announced executive actions intended to bring loans managed by the DOE closer to forgiveness, including credit toward the Public Service Loan Forgiveness (PSLF) Program for borrowers who have qualifying employment. According to the DOE, these actions will provide borrowers with many of the same benefits already going to those who have applied for PSLF under temporary changes (known as the Limited PSLF Waiver), before its October 31, 2022 end date. The announcement further noted that borrowers with Direct Loans or DOE-managed Federal Family Education Loans (FFEL) will receive credit toward forgiveness on income-driven repayment (IDR) for all months spent in repayment, including payments prior to consolidation, regardless of whether they made partial or late payments or are on a repayment plan. Borrowers will also receive credit for specific periods in deferment and forbearance. Even with these actions, the DOE encouraged borrowers to take the necessary steps to apply for the Limited PSLF Waiver by October 31. The DOE also released a Fact Sheet outlining benefits for borrowers who have Direct or DOE-managed FFEL loans as well as Direct Loan borrowers seeking PSLF.
FHFA announces validation of FICO 10T and VantageScore 4.0 for GSE use
On October 24, FHFA announced the validation and approval of both the FICO 10T credit score model and the VantageScore 4.0 credit score model for use by Fannie Mae and Freddie Mac (GSEs). The agency also announced that the GSEs will require two credit reports from the national consumer reporting agencies, rather than three. According to the announcement, FHFA expects implementation of FICO 10T and VantageScore 4.0 to be a multiyear effort, but once in place, lenders will be required to deliver both FICO 10T and VantageScore 4.0 credit scores with each loan sold to the GSEs. FHFA noted that FICO 10T and VantageScore 4.0 are more accurate than the classic FICO model because they include payment history for factors like rent, utilities, and telecommunications. FHFA also released a Fact Sheet on the newly approved models, which “will improve accuracy, strengthen access to credit, and enhance safety and soundness.”