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Financial Services Law Insights and Observations


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  • CFPB examining impact of overdraft programs

    Federal Issues

    On June 16, the CFPB published a blog post outlining recent efforts taken by the agency to collect key metrics concerning the consumer impact of certain supervised institutions’ overdraft and non-sufficient fund (NSF) practices. The Bureau asked more than 20 institutions to provide data on several “consumer-impact metrics,” including: (i) the “[t]otal annual dollar amount consumers receive in overdraft coverage compared to the amount of fees charged”; (ii) the annual amount of overdraft fees charged for each active checking account; (iii) the annual amount of NSF fees charged per active checking account; (iv) “the share of active checking accounts with more than 6 and more than 12 overdraft and/or NSF fees per year”; and (v) the “[s]hare of active checking accounts that are opted into overdraft programs for ATM and one-time debit transactions.” The Bureau stated that it plans to “use this information for further examination and review” and to provide feedback to each institution. The Bureau also plans to “share this information with other regulators,” but will not make the supervisory information public. Additionally, the Bureau noted that while it is “encouraged that some banks and credit unions are competing for consumers’ business by changing their overdraft and NSF programs,” many banks still need to improve their practices.

    Federal Issues CFPB Consumer Finance Overdraft NSF Fees Supervision

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  • FFIEC releases 2021 HMDA data

    Federal Issues

    On June 16, the Federal Financial Institutions Examinations Council (FFIEC) released the 2021 HMDA data on mortgage lending transactions at 4,338 covered institutions (a decline from the 4,475 reporting institutions in 2020). Available data products include: (i) the Snapshot National Loan-Level Dataset, which contains national HMDA datasets as of May 1, 2022; (ii) the HMDA Dynamic National Loan-Level Dataset, which is updated on a weekly basis to reflect late submissions and resubmissions; (iii) the Aggregate and Disclosure Reports, which provide summaries on individual institutions and geographies; (vi) the HMDA Data Browser where users can customize tables and download datasets for further analysis; and (v) the Modified Loan/Application Register for filers of 2021 HMDA data.

    The 2021 data includes information on 23.3 million home loan applications, of which 21.1 million were closed-end and 1.8 million were open-end. The Snapshot revealed that an additional 350,000 records were from financial institutions making use of the Economic Growth, Regulatory Relief, and Consumer Protection Act’s partial exemptions that did not designate whether the records were closed-end or open-end. Observations from the data relative to the prior year include: (i) the percentage of mortgages originated by non-depository, independent mortgage companies increased, accounting for “63.9 percent of first lien, one- to four-family, site-built, owner-occupied home-purchase loans, up from 60.7 percent in 2020”; (ii) the percentage of closed-end home purchase loans for first lien, one- to four-family, site-built, owner-occupied properties made to Black or African American borrowers increased from 7.3 percent in 2020 to 7.9 percent in 2021, while the share of these loans made to Hispanic-White borrowers increased slightly from 9.1 percent to 9.2 percent and the share made to Asian borrowers jumped from 5.5 percent to 7.1 percent; and (iii) “Black or African American and Hispanic-White applicants experienced denial rates for first lien, one- to four-family, site-built, owner-occupied conventional, closed-end home purchase loans of 15.7 percent and 9.8 percent respectively, while the denial rates for Asian and non-Hispanic-White applicants were 7.5 percent and 5.6 percent respectively.”

    Federal Issues Bank Regulatory CFPB Mortgages HMDA Consumer Finance FFIEC EGRRCPA

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  • Special Alert: DOJ settles claims of algorithmic bias

    Federal Issues

    On June 21,  the United States Department of Justice announced that it had secured a “groundbreaking” settlement resolving claims brought against a large social media platform for allegedly engaging in discriminatory advertising in violation of the Fair Housing Act. The settlement is one of the first significant federal actions involving claims of algorithmic bias and may indicate the complexity of applying “disparate impact” analysis under the anti-discrimination laws to complex algorithms in this area of increasingly intense regulatory focus.

    Federal Issues DOJ Special Alerts Fair Housing Act Algorithms Advertisement Enforcement Settlement Disparate Impact Discrimination

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  • CFTC Commissioner Romero discusses crypto regulation


    On June 14, CFTC Commissioner Christy Goldsmith Romero discussed cryptocurrency regulation in an interview. According to sources, Romero rejected suggestions that the agency would be laissez-faire on cryptocurrency regulation, saying that the CFTC is positioned to protect consumers if provided with more authority. Throughout the interview, Romero noted some similarities between the present market and the 2008 market, stating that there is a “pretty sizeable market that’s largely unregulated.” Noting that a “regulatory gap” exists because the CFTC does not have any regulatory authority over the cash spot market, Romero said that Congress should close that gap. She mentioned her support for a bill similar to the Responsible Financial Innovation Act that she expects will give the CFTC more authority and will be introduced by Senators Stabenow and Bozeman. When asked about the possibility of regulation slowing the crypto market, Romero responded that “companies can’t scale up the way they need to without a lot of the financial institutions investments,” and that “regulation is needed.” She further noted that “bringing credibility [and] bring[ing] customer protections [] are going to be really important for scaling up.” She also referred to the case-by-case philosophy of CFTC enforcement actions, explaining that the agency looks at “where the evidence lies" and that part of this approach is "send[ing] a message to deter future violations of the law.” She further expanded on that point by saying that “since the CFTC doesn’t have regulatory authority, it has to rely on victims and whistleblowers," among other things.

    Romero also mentioned that a difference between now and 2008 is that there are not a lot of financial institutions invested in cryptocurrency, as many are “waiting for a regulatory framework" and more regulation. As more financial institutions become invested in cryptocurrency, she said that she expects there to be “more interconnections” and more customer protections. She also noted that her biggest concern is that “if regulation fails to keep pace with technology, the most vulnerable people are going to be hurt.” In terms of areas needing more customer protections, Romero identified the need for segregation of accounts, settlement, custody, and reducing cybersecurity risk. She also expressed her support for customer education, calling it “very important.”

    Fintech Federal Issues Digital Assets CFTC Cryptocurrency

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  • FinCEN issues warning on elder financial exploitation

    Federal Issues

    On June 15, FinCEN issued an advisory alerting financial institutions about the increase of elder financial exploitation (EFE). EFE involves the illegal or improper use of an older adult’s funds, among other things, and is often perpetrated either through theft or scams. According to the advisory, financial institutions filed 72,000 suspicious activity reports in 2021 related to EFE—an increase of 10,000 reports from 2020. The advisory provides updated typologies since FinCEN issued its first advisory on the issue in 2011, and highlights behavioral and financial red flags to aid financial institutions with identifying, preventing, and reporting suspected EFE. The announcement also refers to the risk-based approach to compliance under the Bank Secrecy Act, which provides that “[f]inancial institutions should perform additional due diligence where appropriate and remain alert to any suspicious activity that could indicate that their customers are perpetrators, facilitators, or victims of EFE.”

    Federal Issues Financial Crimes FinCEN Elder Financial Exploitation SARs Bank Secrecy Act

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  • OCC seeks comments on BSA/AML risk assessment

    On June 8, the OCC issued a notice in the Federal Register seeking comments concerning its information collection titled, ‘‘Bank Secrecy Act/Money Laundering Risk Assessment,’’ also known as the Money Laundering Risk (MLR) System. According to the notice, the MLR System “enhances the ability of examiners and bank management to identify and evaluate Bank Secrecy Act/Money Laundering and Office of Foreign Asset Control (OFAC) sanctions risks associated with banks’ products, services, customers, and locations.” The notice stated that the agency will collect MLR information for OCC supervised community and trust banks, and explained that the annual Risk Summary Form (RSF), which collects data about different products, services, customers, and geographies (PSCs), will include three significant changes in 2022. The changes in the 2022 RSF are: (i) the addition of six new PSCs; (ii) the addition of three new customer types under the money transmitters category; and (iii) the deletion of four existing PSCs. Comments close on August 8.

    Bank Regulatory Agency Rule-Making & Guidance Federal Issues OCC Federal Register Bank Secrecy Act Anti-Money Laundering OFAC Risk Management Financial Crimes

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  • CFPB says BNPL needs standardized credit reporting

    Federal Issues

    On June 15, the CFPB published a blog post calling on the Buy Now Pay Later (BNPL) industry to establish standardized codes and formats for furnishing information to credit reporting agencies that take into account the unique characteristics of these short-term, no-interest consumer credit products. Citing to the rapid growth within the BNPL industry, the Bureau stressed the need for standardization in how BNPL debts are reported on consumers’ credit reports. According to the Bureau, the three major credit reporting agencies have different policies for handing positive and negative reports on BNPL transactions in consumers’ core credit files. Moving to a more standardized approach would “facilitate the consistent and accurate furnishing of BNPL payment information” the Bureau said, noting that the agency “believes that when BNPL payments are furnished it is important that lenders furnish both positive and negative data.” Consumers who pay on time and may be seeking to build credit should receive the benefits of making timely payments on their BNPL debts, the Bureau said, explaining that this may also impact lenders seeking to understand how much debt a consumer is carrying.

    The Bureau stressed it will continue to monitor the progress of BNPL lenders, credit reporting agencies, and credit scoring companies, and said it plans to “revisit this issue as part of a broader report on the industry stemming from our market monitoring order and responses to a public request for comments.” The Bureau is currently conducting an industry review, which includes a series of orders sent last December to five companies seeking information on the risks and benefits of the BNPL credit model (covered by InfoBytes here).

    Federal Issues CFPB Consumer Finance Buy Now Pay Later Credit Reporting Agency Credit Scores

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  • CFPB looking at relationship banking at large institutions

    Federal Issues

    On June 14, the CFPB issued a request for information (RFI) seeking public comments “related to relationship banking and how consumers can assert the right to obtain timely responses to requests for information about their accounts from banks and credit unions with more than $10 billion in assets, as well as from their affiliates.” Section 1034(c) of the CFPA gives consumers the right to access information, including supporting written documentation, in a timely manner about their accounts from these large financial institutions. The Bureau noted in its announcement that to date, the agency “has not enforced or issued additional policy guidance under this legal provision.”

    The Bureau pointed out that many large financial institutions are shifting toward algorithmic banking and moving away from relationship banking. As a result of this decline, some consumers are unable to receive customized advice, basic information, or have their problems addressed in a timely fashion, the Bureau said. The RFI seeks input on, among other things, (i) the types of information requested by consumers, how they are using this information, and what information they are unable to obtain from their banks; (ii) differences in accessing information when consumers visit in person, call, or access information online; (iii) customer service representative compensation and incentives; (iv) customer service obstacles that may adversely impact consumers’ ability to bank; (v) obstacles consumers face that adversely affect their ability to bank; (vi) unique obstacles facing immigrants, rural communities, and older consumers; (vii) call center practices; and (viii) changes in customer engagement due to the Covid-19 pandemic.

    In addition to examining consumers’ relationships with their depository institutions, CFPB Director Rohit Chopra stated that the Bureau intends to closely examine methods to improve the bank merger process to ensure mergers are meeting the convenience and needs of communities.

    Comments on the RFI are due 30 days after publication in the Federal Register.

    Federal Issues CFPB Consumer Finance Agency Rule-Making & Guidance Federal Register CFPA

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  • Acting FDIC Chairman Gruenberg outlines CRA NPRM

    On June 13, acting FDIC Chairman Martin J. Gruenberg provided remarks before the National Community Reinvestment Coalition (NCRC) regarding the Community Reinvestment Act (CRA). In his remarks, Gruenberg discussed “ten important provisions” in the rule proposed by the Federal Reserve Board, FDIC, and OCC in May. As previously covered by InfoBtytes, the notice of proposed rulemaking (NPRM) updates how CRA activities qualify for consideration, where CRA activities are considered, and how CRA activities are evaluated. Calling the CRA “the foundation of responsible finance for low- and moderate-income communities in the United States,” Gruenberg noted that the “NPRM would significantly expand the scope and rigor of CRA and assure its continued relevance for the next generation.” To expand the scope of the CRA, he explained that the NPRM would “establish new retail lending assessment areas to allow for CRA evaluation in communities where a bank may be engaging in significant lending activity but where the bank does not have a branch.” He also noted that the NPRM would “raise the bar for CRA performance on the retail lending test in order for a bank to earn an outstanding or high satisfactory rating.” With respect to greater clarity for CRA evaluations, Gruenberg said that the NPRM would “clearly define community development activities by establishing eleven proposed categories of community development.” Regarding minority depository institutions, Gruenberg said that the NPRM “creates a specific community development definition for eligible activities, such as investments, loan participations, and other ventures conducted by all banks with these institutions.” Additionally, he noted that the NPRM would address credit or banking deserts, including rural areas, native lands, and areas of persistent poverty, and would encourage the retention or establishment of branches in low-to-moderate-income communities and low-cost transaction accounts.

    Bank Regulatory Federal Issues FDIC Federal Reserve OCC CRA MDI

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  • CFPB releases guide for accessing HMDA lending patterns

    Federal Issues

    On June 13, the CFPB published a guide to assist a range of stakeholders accessing publicly available HMDA data on lending patterns that may result in racial and economic inequality due to redlining practices or other “unjustified disparities.” Through the Beginner’s Guide to Accessing and Using Home Mortgage Disclosure Act Data, stakeholders can better understand the sources and meanings of various HMDA data types as well as the financial institutions that are required to maintain, report, and publicly disclose loan-level information about mortgage applications and loans. According to the Bureau, HMDA data can provide insights on whether lenders are serving the housing needs of their communities and help guide policy decisions.

    Federal Issues CFPB Mortgages HMDA Consumer Finance Redlining Discrimination

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