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Class actions accuse banks of prioritizing existing customers and high-dollar loans
On April 23, a small business filed a class action lawsuit in the U.S. District Court for the Central District of California against a large bank for allegedly ignoring the CARES Act’s Paycheck Protection Program (PPP) “regulations for administering, processing, and handling” loan applications. The complaint claims that the bank disregarded a requirement to process loans in the order that they were submitted, and also contends that the bank made false and misleading statements to conceal the fact that high dollar loans were moved to the front of the processing queue in order for the bank to obtain higher fees. The class action seeks certification of the class, injunctive relief, disgorgement, and punitive and statutory damages, among other things.
On April 22 in a separate class action based on similar facts and allegations, a small business owner filed a motion for a temporary restraining order and preliminary injunction against a different large bank. The business owner filed the motion in the U.S. District Court for the Southern District of Texas, Houston Division to prevent the bank from applying “illegal eligibility requirement[s]” to the Small Business Administration-guaranteed PPP loans. The motion claims that the bank was only processing loan applications from the bank’s existing business customers in disregard for the CARES Act and Interim Final Rule instruction to administer the PPP loans to all customers, existing and new. In addition to the temporary restraining order and a preliminary injunction, the motion requests that the bank issue a public statement that their existing business customer eligibility requirement is no longer in effect. In an order issued on April 29, the court denied the business owner’s motion for a temporary restraining order and deferred ruling on the preliminary injunction until after a hearing.
Treasury, SBA weigh in on PPP loan certification and secondary market sales
On April 23, the Department of Treasury, and the Small Business Administration (SBA) updated their frequently asked questions (FAQs) list for the Paycheck Protection Program (PPP) to address whether a business owned by a large company is eligible for a PPP loan. A small business borrower must certify, in good faith, that at the time an application was submitted for a PPP loan, the borrower believed that the economic situation created by the Covid-19 pandemic made it necessary to apply for the loan in order “to support the ongoing operations” of the company. The FAQ instructs the borrower to consider other sources of liquidity other than PPP funds that could support the borrower’s current business activity. Though lenders may rely on the borrower certification of need, the guidance points out that a borrower must have a good faith basis necessitating the loan. Moreover, the guidance suggests that a public company with “substantial market value and access to capital markets” would likely not be able to make this good faith certification. For small businesses that applied for a PPP loan before the issuance of this FAQ, the SBA will find that the borrower certification was made in good faith if the borrower’s PPP loan is repaid by May 7, 2020.
Earlier on April 17, the SBA added FAQ number 30 to its FAQ list, which asked whether a PPP loan may be sold into the secondary market. The guidance provided by the SBA and the Department of Treasury reiterated information from the interim final rule issued on April 2, which implemented sections 1102 and 1106 of the CARES Act regarding sales into the secondary market:
- “A PPP loan may be sold into the secondary market at any time after the loan is fully disbursed.”
- “A secondary market sale of a PPP loan does not require SBA approval.”
- “A PPP loan sold into the secondary market is 100% SBA guaranteed.” and
- “A PPP loan may be sold on the secondary market at a premium or a discount to par value.”
States offer relief to student loan borrowers not covered by CARES Act
On April 23 and 21, nine states announced a multi-state initiative to provide student loan relief options for borrowers with privately held student loans not covered by the CARES Act. California, Colorado, Connecticut, Illinois, Massachusetts, New Jersey, Vermont, and Washington outlined within their announcements specific measures for borrowers with commercially-owned Federal Family Education Loan Program loans and borrowers with private student loans who are struggling to make payments due to the Covid-19 pandemic. The announcements also noted that Virginia is participating in the initiative as well. These relief options, offered in conjunction with the listed private student loan servicers, include (i) a minimum 90-days of forbearance relief; (ii) a waiver of late fees; (iii) no negative credit reporting; (iv) a 90-day moratorium on collection lawsuits; and (v) enrollment in applicable borrower assistance programs, such as income-based repayment. The states cautioned that enrollment in these relief options is not automatic, and recommended borrowers contact their student loan servicer to see what options best suit their needs.
In addition, California, Colorado, Connecticut, New Jersey, Vermont, and Washington recommended that regulated student loan servicers with limited ability to take these actions due to investor restrictions or contractual obligations “should instead proactively work with loan holders whenever possible to relax those restrictions or obligations.”
SEC announces EDGAR filing window extension for registered investment companies and business development companies
On April 22, the SEC Division of Investment Management announced that it is extending the EDGAR filing window on April 29, 2020, from 5:30 p.m. to 10:00 p.m. EDT for registered investment company and business development company filings. Ordinarily, a filing submitted after 5:30 p.m. EDT would be considered to be filed the next business day but the division is providing a one-day extension only. Any registered investment company or business development company requiring a subsequent filing window extension should submit a request.
Special Alert: OFAC encourages humanitarian aid, promises consideration of Covid-19 compliance challenges
The Department of the Treasury’s Office of Foreign Assets Control recently took two actions to address the impact of Covid-19. First, OFAC issued a fact sheet that consolidates existing authorizations and guidance permitting humanitarian, agricultural, and medical aid to six jurisdictions subject to sanctions. Second, OFAC encouraged companies facing compliance challenges due to Covid-19 to shift resources to higher-risk areas, noting that it would take this move into consideration if it leads to a violation during the pandemic. Companies facing compliance challenges may wish to consider such a shift, while documenting their risk-based rationale for doing so.
Humanitarian fact sheet
Last week, OFAC issued a fact sheet regarding the provision of Covid-19-related assistance under its Iran, Cuba, North Korea, Syria, Ukraine/Russia, and Venezuela sanctions regimes. The fact sheet made no changes to existing laws and guidance, but consolidated existing licenses, exemptions, authorizations, and related FAQs relevant to humanitarian aid and medical equipment for these regimes. The fact sheet should prove to be a valuable resource for financial institutions and other organizations confronting a wave of transactions to provide personal protective equipment to sanctions-targeted jurisdictions wracked by Covid-19, while complying with OFAC regulations.
FHFA: Fannie, Freddie to temporarily buy mortgages in forbearance due to Covid-19
On April 22, the Federal Housing Finance Agency (FHFA) announced that Fannie Mae and Freddie Mac (GSEs) will purchase “certain single-family mortgages in forbearance that meet specific eligibility criteria” for a limited period in an effort to provide liquidity to ensure continued lending. Current policies dictate that the GSEs do not purchase loans that are in forbearance; however, due to the economic effects of Covid-19, FHFA will begin allowing the GSEs to buy certain mortgages that enter forbearance within the first month after loan closing, prior to delivery to the GSEs. The temporary selling requirements in Freddie Mac Bulletin 2020-12 allow lenders to sell to the GSE mortgages in forbearance only on mortgages for home purchases or “no cash-out” mortgage refinances. Further, the mortgages must have note dates between February 1, 2020 and May 31, 2020, the dates of settlement must be after May 1, and the mortgages must not be more than 30 days delinquent. Fannie Mae Lender Letter 2020-06 follows most of the same guidelines provided in the Freddie Mac bulletin, but Fannie Mae will also buy mortgages for limited cash-out refinances. To limit losses, the GSEs will charge sellers loan-level price adjustments of 5 percent for loans to first-time homebuyers, and 7 percent for all others.
NCUA amends capital regulation to conform to CARES Act
On April 22, the NCUA approved an interim final rule (IFR) amending its capital adequacy regulation to align with the CARES Act. The NCUA amended its risk-based capital requirements to provide for a zero percent risk weight for Paycheck Protection Program (PPP) loans. Further, to neutralize the effect of the PPP loans on credit unions, the IFR will allow credit unions to omit covered loans from their total assets calculation when determining their net worth ratios. However, the covered loans must be “pledged as collateral for a non-recourse loan that is provided as part of the [Fed’s] PPP Lending Facility.” The IFR also amended “the definition of a commercial loan in the NCUA’s member business loans and commercial lending rule” to exclude PPP loans. This IFR is effective upon publication in the Federal Register, after which comments will be accepted for 30 days.
FHFA: Servicers obligated to advance only four months of payments on loans in forbearance
On April 21, the Federal Housing Finance Agency (FHFA) announced it has aligned Fannie Mae’s and Freddie Mac’s (GSEs) “policies regarding servicer obligations to advance scheduled monthly principal and interest payments for single-family mortgage loans.” The plan, which is applicable to all GSE servicers regardless of type or size, limits servicers’ obligations to advance scheduled principal and interest payments to mortgage-backed securities (MBS) investors after a servicer has advanced four months of missed borrower payments on a loan. FHFA further clarifies that loans in forbearance due to Covid-19 will not be purchased out of MBS pools by the GSEs, but will instead “be treated like a natural disaster event and will remain in the MBS pool,” reducing potential liquidity demands on the GSEs. FHFA notes that both the agency and the GSEs will continue to monitor Covid-19’s impact on the housing finance market and will make policy updates as necessary.
Fed issues enforcement actions for flood insurance violations
On April 16, the Federal Reserve Board announced enforcement actions against a New Jersey-based bank and a Virginia-based bank for alleged violations of the National Flood Insurance Act (NFIA) and Regulation H, which implements the NFIA. The consent order issued against the New Jersey-based bank assesses a $28,000 penalty for an alleged pattern or practice of violations of Regulation H, but does not specify the number or the precise nature of the alleged violations. A separate consent order issued against the Virginia-based bank assesses a $5,500 penalty and similarly does not describe the specific alleged allegations. The banks neither admitted nor denied the allegations. The maximum civil money penalty for a pattern or practice of violations of the NFIA is $2,000 per violation.
Data breach exposes SBA Emergency Injury Disaster Loan program applicants
On April 21, according to reports, the Small Business Association (SBA) acknowledged that it notified almost 8,000 applicants of the Economic Injury Disaster Loan (EIDL) program that their information may have been exposed as part of a data breach. Specifically, the agency stated that on March 25, the personal information of business owners applying for the EIDL program was potentially exposed to other applicants on the SBA’s website. The information exposed included names, social security numbers, birth dates, certain financial information, email addresses, and phone numbers. According to the SBA, there is no evidence that the exposed information has been misused. Notably, the breach only effected the applicants of the EIDL program, not the Paycheck Protection Program, which did not begin accepting applications until April 3.