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Financial Services Law Insights and Observations

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  • FDIC announces West Virginia disaster relief

    Federal Issues

    On June 1, the FDIC issued FIL-38-2021 to provide regulatory relief to financial institutions and help facilitate recovery in areas of West Virginia affected by severe storms. 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.

    Federal Issues FDIC West Virginia Disaster Relief Consumer Finance CRA

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  • OCC modifies exception to CIF withdrawal period extensions

    Agency Rule-Making & Guidance

    On May 27, the OCC announced the publication of a final rule that adopts one change to the interim final rule published last August. As previously covered by InfoBytes, the interim final rule clarified, among other things, that under the OCC’s fiduciary activities regulation (12 CFR 9.18 (b)(5)(iii)), a bank that is administering a collective investment fund (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. The interim final rule codified the OCC’s interpretation of the notice requirement as “requiring the bank to withdraw an account within the prior notice period or, if permissible under the CIF’s written plan, within one year after prior notice was required” (known as “the standard withdrawal period”). An exception allows banks to extend the withdrawal period (with opportunities for further extensions) under certain conditions and with OCC approval. While the final rule adopts the interim final rule’s framework, it revises one of the criteria necessary for OCC approval of an extension. Specifically, in order to qualify for an extension, a “bank must ‘represent’ rather than ‘commit’ that it will act upon the withdrawal request as soon as practicable.” The final rule took effect May 26.

    Agency Rule-Making & Guidance OCC Federal Issues

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  • FTC to release closing letters on investigations

    Federal Issues

    On May 24, the FTC announced that it will be releasing closing letters—letters from FTC staff telling a company or individual that the FTC is closing its investigation into their conduct—which “may supplement law enforcement with other methods, including consumer education, business guidance, warning letters, national workshops, reports.” However, the text in the letters make it clear that the “FTC reserves the right to take further action as the public interest may require.” The FTC also notes that although the closing letters “serve a narrow purpose,” they often include a guide that can help other companies with their own compliance efforts.

    Federal Issues FTC Consumer Finance Consumer Protection

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  • FDIC releases April enforcement actions

    Federal Issues

    On May 28, the FDIC released a list of administrative enforcement actions taken against banks and individuals in March. During the month, the FDIC issued 10 orders consisting of “two Orders to Pay Civil Money Penalties, one Section 19 Application, one Order Terminating Consent Order, and one Order of Prohibition from Further Participation.” Among the orders is a civil money penalty imposed against a Washington-based bank related to alleged violations of the Flood Disaster Protection Act (FDPA) for “failing to obtain adequate flood insurance on buildings and/or the buildings’ contents securing designated loans at the time the Bank made, increased, extended, or renewed the loans.” The order requires the payment of a $17,000 civil money penalty.

    The FDIC also imposed a civil money penalty against a California-based bank related to alleged violations of the FDPA. Among other things, the FDIC claims that the bank (i) failed to notify the borrower to obtain flood insurance; and (ii) failed to purchase flood insurance on the borrower’s behalf. The order requires the payment of a $281,000 civil money penalty.
     

    Federal Issues FDIC Enforcement Flood Insurance Flood Disaster Protection Act Mortgages

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  • FHA clarifies eligibility of nonpermanent residents

    Federal Issues

    On May 28, FHA announced the publication of Mortgagee Letter (ML) 2021-12, which clarifies the eligibility of FHA-insured financing for Deferred Action for Childhood Arrivals (DACA) recipients and amends employment documentation requirements for citizens of the Freely Associated States and individuals with H-1B status. ML 2021-12 also updates requirements for certain non-permanent residents seeking to obtain insured mortgage financing under FHA’s Single Family Title I and Title II forward mortgage insurance programs. FHA notes that while the guidance may be implemented immediately, it must be implemented for mortgages with case numbers assigned on or after July 26, 2021.

    Federal Issues FHA Mortgages DACA

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  • Cordray streamlines process for student loan information requests

    Federal Issues

    On May 28, Richard Cordray, Chief Operating Officer of Federal Student Aid (FSA) at the Department of Education, issued a memorandum to FSA vendors revising guidance related to handling outside requests for Department records and data. In 2017, the Department instructed loan servicers working for FSA to avoid responding directly to inquiries from third parties, including state and federal regulators, and required state attorneys general and regulators to submit requests for information directly to the Department. However, according to a blog post announcing the revised guidance, Cordray noted that FSA usually rejected the requests, thus forcing states to file lawsuits against FSA and student loan servicers in order to obtain the information. Cordray further emphasized that states and regulators need access to company policies and procedures, handbooks, consumer complaints, and other information should they think a student loan servicing company might be violating a law or regulation. The revised guidance supersedes the Department’s 2017 guidance and creates a “streamlined and expedited process” for reviewing information requests made by any state or federal authority for information pertaining to companies engaged in student loan lending or collections. Instructions are provided for vendors that receive information requests seeking to obtain Department records or data.

    Federal Issues Student Lending Department of Education Student Loan Servicer

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  • CFPB settles with company over misrepresenting deposit risks, loan APRs

    Federal Issues

    On May 27, the CFPB announced a settlement with a Florida-based lender and the CEO of the company (collectively, “defendants”) to resolve allegations that the defendants violated the Consumer Financial Protection Act by misrepresenting the risks associated with their deposit product and the annual percentage rate (APR) associated with their consumer loans. The settlement resolves a complaint against the defendants filed in the U.S. District Court for the Southern District of Florida in November 2020 (covered by InfoBytes here). The CFPB alleged that the company took deposits from consumers to fund loans, claiming their deposits would have a fixed and guaranteed 15 percent annual percentage yield and would be deposited at FDIC-insured institutions. However, according to the complaint, the representations were false in that the funds were not held in FDIC-insured accounts and the rate of return was not guaranteed. The CFPB also alleged that most deposited funds were used to fund short-term, high-interest personal loans that were deceptively marketed as having an APR of 440 percent when the actual APRs are alleged to have been more than 900 percent, well in excess of the rate permitted under Florida’s criminal-usury law, causing the loans to be uncollectable and creating risk that obligations could not be met to depositors who sought to withdraw their deposited funds. The complaint claimed that the defendants had loaned a total of more than $30 million to consumers since 2017. 

    Under the terms of the stipulated order, the defendants are (i) subject to a judgment for monetary relief and damages for the full amount defendants received from consumers who purchased their financial products and services, around $1 million, plus all interest due to consumers under the terms of the advertised products and services purchased; and (ii) required to pay a $100,000 civil money penalty. The order also permanently bans the defendants from engaging in deposit-taking activity and from making deceptive statements to consumers.

    Federal Issues CFPB CFPA Enforcement Usury Consumer Finance APR Deposits Courts

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  • CFPB releases report on manufactured housing financing

    Federal Issues

    On May 27, the CFPB released a report providing insights into manufactured housing financing, which is a source of lending for millions of manufactured housing homeowners. The report utilizes new information about manufactured housing that was added in 2018 to the list of HMDA data. The report also examines the differences between mortgage loans for site-built homes, mortgage loans for manufactured homes, and chattel loans for manufactured homes. The report found, among other things: (i) about 42 percent of manufactured home purchase loans are “chattel” loans, which are secured by the home but not the land; (ii) about 70 percent of the time, homeowners seeking a loan on a site-built home are approved, but about 30 percent of manufactured home loan applications are approved; (iii) the top five lenders account for over 40 percent of manufactured housing purchase loans and nearly 75 percent of chattel lending; and (iv) Hispanic, Black and African American, American Indian and Alaska Native, and elderly borrowers “are more likely than other consumers to take out chattel loans, even after controlling for land ownership.” The report also pointed out that “compared to mortgages for site-built homes, manufactured homes mortgages tend to have smaller loan amounts, higher interest rates, fewer refinances, and less of a secondary market, patterns that are even more acute for chattel loans.”

    Federal Issues CFPB HMDA Mortgages Consumer Finance

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  • CFPB updates status on women and minority-owned business data

    Federal Issues

    On May 24, the CFPB filed its fifth status report in the U.S. District Court for the Northern District of California as required under a stipulated settlement reached in February with a group of plaintiffs, including the California Reinvestment Coalition. The settlement (covered by InfoBytes here) resolved a 2019 lawsuit that sought an order compelling the Bureau to issue a final rule implementing Section 1071 of the Dodd-Frank Act, which requires the Bureau to collect and disclose data on lending to women and minority-owned small businesses.

    Among other things, the Bureau notes in the status report that it has satisfied the following required deadlines: (i) last September it released a Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) outline of proposals under consideration (InfoBytes coverage here); and (ii) it convened an SBREFA panel last October and released the panel’s final report last December (InfoBytes coverage here). The Bureau reports that its rulemaking staff continues to brief new Bureau leadership on significant legal and policy issues that must be resolved in order to prepare a notice of proposed rulemaking for the Section 1071 regulations, and states that the parties have met to discuss an appropriate deadline for issuing the NPRM. According to the status report, should the parties agree on a deadline they “will jointly stipulate to the agreed date and request that the court enter that deadline.”

    Find continuing Section 1071 coverage here.

     

    Federal Issues CFPB Courts Section 1071 Small Business Lending Dodd-Frank Agency Rule-Making & Guidance SBREFA

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  • VA updates loan repayment relief for Covid-19 borrowers

    Federal Issues

    On June 3, the Department of Veterans Affairs (VA) issued changes updating Circular 26-21-07 to address loan repayment relief for borrowers affected by Covid-19. The circular provides servicers with information regarding home retention options and foreclosure alternatives to use to assist borrowers affected by the pandemic. The guidance stems from the extended duration of the pandemic and developments in the VA’s program. According to the changes, “servicers should not require a borrower to make a lump sum payment to bring the loan current.” Additionally, the VA will allow “for Disaster Extend Modifications to extend the loan’s original maturity date for up to 18 months, in cases where the loan is modified not later than the date that is 18 months after the date on which the COVID-19 national emergency ends.” The circular is effective until April 1, 2022.

    Federal Issues Department of Veterans Affairs Covid-19 Mortgages Forbearance Consumer Finance

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