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Financial Services Law Insights and Observations

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  • OCC to establish Office of Financial Technology

    On October 27, the OCC announced it intends to establish an Office of Financial Technology early next year that will build on and incorporate the agency’s Office of Innovation (established in 2016 and covered by InfoBytes here). Intended to strengthen the OCC’s expertise and ability to adapt to a rapidly evolving banking landscape, the Office of Financial Technology will provide strategic leadership, vision, and perspective for the agency’s financial technology activities and related supervision. The new office will be led by a chief financial technology officer who will be a deputy comptroller reporting to the senior deputy comptroller for bank supervision policy. “Financial technology is changing rapidly and bank-fintech partnerships are likely to continue growing in number and complexity. To ensure that the federal banking system is safe, sound, and fair today and well into the future, we need to have a deep understanding of financial technology and the financial technology landscape,” acting Comptroller of the Currency Michael J. Hsu said. “The establishment of this office will enable us to be more agile and to promote responsible innovation, consistent with our mission.”

    Bank Regulatory Federal Issues Fintech OCC Innovation Supervision

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  • CFPB seeks additional public input on big tech payment platforms

    Federal Issues

    On October 31, the CFPB announced it will reopen the public comment period for 30 days on a 2021 notice and request for comment related to the Bureau’s inquiry into big tech payment platforms. In October 2021, the Bureau issued orders to six large U.S. technology companies seeking information and data on their payment system business practices to inform the agency as to how these companies use personal payments data and manage data access to users (covered by InfoBytes here). The Bureau is inviting additional comments to broaden its understanding of the risks consumers face and potential policy solutions on topics related to, among other things, “companies’ acceptable use policies and their use of fines, liquidated damages provisions, and other penalties.” A notice will be published in the Federal Register with additional details on the public comment period in the coming days.

    Federal Issues CFPB Payments Consumer Finance Privacy, Cyber Risk & Data Security Payment Systems

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  • DOE announces final rules for targeted debt relief programs

    Federal Issues

    On October 31, the Department of Education (DOE) announced final rules to streamline and improve targeted debt relief programs. (See DOE fact sheet here.) The final rules implement several changes to protect student borrowers, including:

    • Borrower defense to repayment and arbitration. The final rules establish a strong framework for borrowers to raise a defense to repayment if their post-secondary institution misleads or manipulates them. Claims pending on or received on or after July 1, 2023, can be decided individually or as a group, and may be based on one of the following categories of actionable circumstances: substantial misrepresentation, substantial omission of fact, breach of contract, aggressive and deceptive recruitment, or judgments or final secretarial actions. The final rules will only provide full relief (partial discharges will not be considered), with approved claims requiring “that the institution committed an act or omission which caused the borrower detriment of such a nature and degree that warrant full relief” based upon a preponderance of the evidence. Additionally, the final rules establish certain recoupment processes for DOE to pursue institutions for the cost of approved claims, and will allow borrowers to litigate their case “by preventing institutions that participate in the Direct Loan program from requiring borrowers to engage in pre-dispute arbitration or sign class action waivers.”
    • Closed school discharges. The final rules provide an automatic discharge of a borrower’s loan “one year after a college’s closure date for borrowers who were enrolled at the time of closure or left 180 days before closure and who do not accept an approved teach-out agreement or a continuation of the program at another location of the school.” Borrowers who accept but do not complete a teach-out agreement or program continuation will receive a discharge one year after the last date of attendance.
    • Total and permanent disability discharge. The final rules include new options for borrowers who have had a total and permanent disability to receive a discharge, including borrowers (i) who receive additional types of disability review codes from the Social Security Administration (SSA); (ii) who later aged into retirement benefits and are no longer classified by one of SSA’s codes; (iii) who have an established disability onset date determined by SSA to be at least 5 years in the past; and (iv) whose first continuing disability review is scheduled at three years. The final rules also eliminate a three-year income monitoring requirement.
    • Interest capitalization. Under the final rules, “interest will no longer be added to a borrower’s principal balance the first time a borrower enters repayment, upon exiting a forbearance, and leaving any income-driven repayment plan besides Income-Based Repayment.” Specifically, the final rules eliminate all instances where interest capitalization—which occurs when a borrower has outstanding unpaid interest added to the principal balance—is not required by law.
    • Public Service Loan Forgiveness. As previously covered by InfoBytes, the final rules will provide benefits for borrowers seeking Public Service Loan Forgiveness, including providing credit toward the program for borrowers who have qualifying employment.
    • False certification. The final rules will provide borrowers with an easier path to discharge when a college falsely certifies a borrower’s eligibility for a student loan. This includes expanding allowable documentation, clarifying applicable discharge dates, and allowing for the consideration of group discharges.

    The final rules are effective July 1, 2023.

    Federal Issues Agency Rule-Making & Guidance Department of Education Student Lending Consumer Finance Debt Relief PSLF Discharge

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  • Commissioner says CFTC should take a “same risk, same regulatory outcome” approach for addressing crypto risks

    Federal Issues

    On October 26, CFTC Commissioner Christy Goldsmith Romero spoke before the International Swaps and Derivatives Association’s Crypto Forum 2022, where she presented thoughts on the financial stability risks of cryptocurrency assets. Romero cautioned that the “rapidly developing crypto market” is facing similar financial stability risks as the traditional financial system, including parallel themes from the 2008 financial crisis. She highlighted events such as those that happened earlier in the year where an algorithmic stablecoin and related crypto-asset collapsed and triggered a broad sell off of cryptocurrency that spread losses to several institutions who abruptly cut off lending. These vulnerabilities serve as a warning for growing intra-market risks, Romero said, explaining that “[j]ust as regulators could not see the true exposures or risk in 2008 due to unregulated companies and products, [regulators] cannot see that today with unregulated crypto markets.” Moreover, without additional regulatory authority, the CFTC’s ability to monitor these risks is hampered, she said, adding that “[f]inancial stability risk will increase, and could rise to the level of systemic risk if in the future there are greater interconnections between the crypto industry and traditional finance players performing critical market functions.”

    Romero recognized that novel technologies bring novel risks, and said that the CFTC should address these risks by using its existing authority to follow a “same risk, same regulatory outcome” approach and establish customer protections and guardrails that investors and customers are familiar with and have come to expect from other regulated financial products and markets. She emphasized that financial institutions interested in entering the digital asset space “should undertake substantial due diligence to determine vulnerabilities” in areas such as cyber theft, money laundering, and sanctions evasion; fraud, scams, and market manipulation; customer asset segregation; and conflicts of interest.

    Federal Issues Digital Assets Cryptocurrency CFTC Risk Management Fintech

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  • DOE expands support for veterans/servicemembers and incarcerated individuals

    Federal Issues

    On October 27, the Department of Education (DOE) announced final rules cracking down on deceptive practices affecting veterans and servicemembers and expanding college access to incarcerated students. (See DOE fact sheet here.) The final rules, among other things, (i) implement a change to the “90/10 rule” made by the American Rescue Plan in 2021, which closed a loophole in the Higher Education Act that previously incentivized some for-profit colleges to aggressively recruit veterans and servicemembers in order to receive more DOE funding (going forward, these institutions may no longer count money from veteran and service member benefits toward a 10 percent revenue requirement); (ii) expand access to DOE’s Second Chance Pell Experimental Sites Initiative to allow incarcerated individuals in nearly all states to participate; (iii) provide incarcerated individuals with access to the FSA’s Fresh Start initiative, which will help borrowers with defaulted loans access income-driven low monthly payments as well as with access to Pell Grants; and (iv) clarify requirements and processes for post-secondary institutions when changing ownership, which may require institutions to provide additional financial protection or impose other conditions to protect against risks arising from the transaction.

    Federal Issues Agency Rule-Making & Guidance Department of Education Student Lending Servicemembers Consumer Finance

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  • CFPB launches rulemaking on consumers’ rights to their data

    Agency Rule-Making & Guidance

    On October 27, the CFPB released a 71-page outline of proposals and alternatives under consideration related to the Bureau’s Dodd-Frank Section 1033 rulemaking efforts. The outline describes proposals under consideration that “would specify rules requiring certain covered persons that are data providers to make consumer financial information available to a consumer directly and to those third parties the consumer authorizes to access such information on the consumer’s behalf, such as a data aggregator or data recipient (authorized third parties).” Emphasizing that “[c]lear data rights for consumers have the potential to give individuals more bargaining leverage,” the Bureau claimed that companies compiling vast amounts of personal data, including information about consumers’ use of financial products and services, are able to monopolize the use of this data, thereby blocking competition and stifling the development of competitors’ products and services.

    Highlights from the outline include a series of discussion questions for small businesses and a list of topics, including:

    • Data providers subject to the proposals under consideration. The proposals, if finalized, would impact data providers, including “depository and non-depository financial institutions that provide consumer funds-holding accounts or that otherwise meet the Regulation E definition of financial institution, as well as depository and non-depository institutions that provide credit cards or otherwise meet the Regulation Z definition of card issuer.” Notably, “a financial institution would be a covered provider if it issues an ‘access device’ (as the term is defined in Regulation E § 1005.2(a)(1)), such as a digital credential storage wallet, and provides EFT services, even if it does not hold consumer accounts.” Additionally, “a card issuer would be a covered data provider if it issues a ‘credit card’ (as the term is defined in Regulation Z § 1026.2(a)(15)(i)), such as by issuing digital credential storage wallets, even if it does not hold consumer credit accounts.” The outline also defines covered accounts and states the Bureau is considering potential exemptions for certain data providers.
    • Recipients of information. To be considered an authorized third party under the proposals, a third party must: (i) provide an “authorization disclosure” informing consumers of key terms of access; (ii) obtain consumers’ informed, express consent to the key terms of access contained within the authorization disclosure; and (iii) certify to consumers that it will abide by certain obligations related to the collection, use, and retention of a consumer’s information. The Bureau is considering proposals that would address “a covered data provider’s obligation to make information available upon request directly to a consumer (direct access) and to authorized third parties (third-party access).”
    • Types of information covered data providers would need to make available. The outline proposes six categories of information data providers would have to make available with respect to covered accounts, including (i) periodic statement information; (ii) information on certain types of prior transactions and deposits that have not-yet-settled; (iii) information regarding prior transactions not typically shown on periodic statements or online account portals; (iv) online banking transactions that have not yet occurred; (v) account identity information; and (vi) other information, such as consumer reports, fees, bonuses, discounts, incentives, and security breaches that exposed a consumer’s identity or financial information.
    • Exceptions to the requirement to make information available. The outline provides four exceptions to the requirement for making information available: (i) confidential commercial information; (ii) information obtained to prevent fraud, money laundering, or other unlawful conduct; (iii) information that is required to be kept confidential; and (iv) information a “data provider cannot retrieve in the ordinary course of business.”
    • How and when information would need to be made available. The outline states the Bureau is considering ways to define the methods and the circumstances in which a data provider would need to make information available with respect to both direct access and third-party access.
    • Third party obligations. The Bureau is examining proposals to limit authorized third parties’ collection, use, and retention of consumer information to that which “is reasonably necessary to provide the product or service the consumer has requested.” This includes (i) limiting duration, frequency, and retention periods; (ii) providing consumers a simple way to revoke authorization; (iii) limiting a third party’s secondary use of consumer-authorized information; (iv) requiring third parties to implement data security standards and policies and procedures to ensure data accuracy and dispute resolution; and (v) requiring third parties to comply with certain disclosure obligations, including a mechanism for consumers to request information about the extent and purposes of a third party’s access to their data.
    • Record retention obligations. Proposals under consideration would establish requirements for data providers and third parties to demonstrate compliance with their obligations under the rule.
    • Implementation period. The Bureau is seeking feedback on time frames to ensure consumers are able to benefit from a final rule, while also considering implementation factors for data providers and third parties.

    An appendix to the highlights provides examples of ways the proposals would apply to hypothetical transactions involving consumer-authorized data access to an authorized third party.

    The Bureau’s rulemaking process will include panel convenings, as mandated under the Small Business Regulatory Enforcement Fairness Act of 1996, after which the panel will prepare a report for the Bureau to consider as it develops the proposed rule. “Dominant firms shouldn’t be able to hoard our personal data and appropriate the value to themselves,” CFPB Director Rohit Chopra said in announcing the rulemaking outline. Chopra further elaborated on the rulemaking’s purposes during an industry event earlier in the week (covered by InfoBytes here) where he said the Bureau 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 as a way to “facilitate new approaches to underwriting, payment services, personal financial management, income verification, account switching, and comparison shopping.”

    Agency Rule-Making & Guidance Federal Issues CFPB Section 1033 Small Business Dodd-Frank Consumer Finance Privacy, Cyber Risk & Data Security

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  • CFPB issues guidance on “junk fees”

    Federal Issues

    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). 

    Federal Issues Agency Rule-Making & Guidance CFPB Consumer Finance Biden Overdraft Junk Fees CFPA

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  • 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.”

    Bank Regulatory Federal Issues FDIC Unbanked Consumer Finance

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  • 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.

    Bank Regulatory Federal Issues FDIC Disaster Relief Consumer Finance Illinois CRA Mortgages

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  • FHFA publishes new statistics on home valuations

    Federal Issues

    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.” 

    Federal Issues FHFA Fannie Mae Freddie Mac GSEs Mortgages Consumer Finance Appraisal

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