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Financial Services Law Insights and Observations


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  • Federal Reserve publishes revised terms, other information regarding lending and liquidity facilities

    Federal Issues

    On May 12, the Federal Reserve Board issued additional information regarding the Term Asset-Backed Securities Loan Facility (TALF) and the Payment Protection Program Liquidity Facility (PPPLF). It issued a revised term sheet for TALF, indicating that eligible borrowers include businesses that (i) are created or organized in, or under the law of the United States; (ii) have significant operations in and a majority of their employees based in the United States; and (iii) maintain an account relationship with a primary dealer. The board also announced that, on a monthly basis, it will publicly disclose the name of each participant in the TALF and the PPPLF, as well as amounts borrowed and interest rate charged. In addition, the board issued FAQs regarding the TALF.

    Federal Issues Covid-19 Federal Reserve Broker-Dealer Lending Liquidity Interest Rate

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  • FINRA provides guidance on qualification examinations

    Federal Issues

    On May 12, FINRA added a new question to its frequently asked questions page regarding the availability of the waiver process for qualification examinations. FINRA has clarified that its waiver process is currently functional and FINRA may, in exceptional cases and where good cause is shown, waive the applicable qualification examinations and accept other standards as evidence of an applicant’s qualification for registration. Guidance is provided regarding how to submit a waiver request.

    Federal Issues Covid-19 FINRA Examination

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  • Federal regulators discuss Covid-19 responses during Senate hearing

    Federal Issues

    On May 12, the Senate Committee on Banking, Housing, and Urban Affairs held a hearing entitled “Oversight of the Financial Regulators,” which primarily focused on responses by the Federal Reserve Board (Fed), FDIC, OCC, and NCUA to the Covid-19 pandemic. Committee Chairman Mike Crapo (R-ID) opened the hearing by thanking the regulators for crafting regulatory responses to assist financial institutions in meeting the needs of affected borrowers, and encouraged the regulators to find ways to provide flexibility for financial institutions that lend to households and businesses. Crapo also stressed the importance of making sure the Fed’s Main Street Lending Program (covered by a Buckley Special Alert) and the Municipal Liquidity Facility (coved by InfoBytes here) are “up and running quickly,” and expressed continued concerns that the “inclusion of population thresholds for cities and states that were not a part of the CARES Act will still impede access to smaller and rural communities.” Ranking Member Sherrod Brown (D-OH) argued, however, that the regulators’ relief measures have not favored consumers.

    Fed Vice Chair for Supervision Randal K. Quarles provided an update on the Fed’s Covid-19 regulatory and supervisory efforts. When asked during the hearing when the Main Street Lending Program would be operational, he declined to give an exact date but emphasized it is the Fed’s “top priority,” and that he did not anticipate it will take months. When questioned about whether the Fed is taking measures to “ensure businesses are getting equitable access to the [lending] facilities,” Quarles stated that the Fed relies on banks to do the underwriting, but will supervise the banks to make sure the underwriting is done “safely and fairly.”

    OCC Comptroller Joseph M. Otting also discussed a range of actions taken by the agency in response to the pandemic and outlined additional OCC priorities and objectives, including its proposal to modernize the Community Reinvestment Act (CRA). Senator Menendez (D-NJ) asked whether the OCC should revisit the proposed CRA rewrite, citing the inability of some small businesses—particularly minority-owned businesses—to obtain relief under the Payroll Protection Program (PPP). In response, Otting argued that the rewrite (done in conjunction with the FDIC—see InfoBytes CRA coverage here) should actually be accelerated “because it will drive more dollars into low and moderate income communities” impacted by the pandemic. However, several Democrats on the Committee disagreed and called for a separate hearing to discuss the CRA proposal.

    FDIC Chairman Jelena McWilliams also addressed actions undertaken to maintain stability and to provide flexibility to both banks and consumers. Among other things, McWilliams stated that banks should rely on borrowers’ statements certifying that their economic need is legitimate when making PPP loans. “Our instruction to banks has been to make sure these loans are not being traditionally underwritten [and] to take a look at the certification that the borrower is providing,” McWilliams said during the hearing. She also emphasized that all banks must comply with fair lending laws when making PPP loans, whether or not specific guidance has been issued.

    NCUA Chairman Rodney E. Hood also outlined agency measures in response to the pandemic. Among other things, Hood noted that the NCUA has issued guidance to support credit union industry participation in the PPP and approved several regulatory changes concerning the classification of PPP loans for regulatory capital and commercial underwriting purposes.

    The following day, the House Subcommittee on Consumer Protection and Financial Institutions also held a roundtable with the federal regulators to discuss Covid-19 responses.

    Federal Issues Senate Banking Committee Federal Reserve FDIC OCC NCUA Covid-19 SBA Small Business Lending CRA CARES Act

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  • Federal agencies launch joint housing assistance website

    Federal Issues

    On May 12, the CFPB, the Federal Housing Finance Agency (FHFA), and the Department of Housing and Urban Development (HUD) announced a new mortgage and housing assistance website, which consolidates the CARES Act mortgage and rent relief protections, tips to avoid Covid-19 related scams, and tools for homeowners and renters to determine if their property is federally backed. The release details the steps the CFPB has taken in response to the Covid-19 pandemic, including informing consumers of their protections under newly created programs and releasing a policy statement concerning the responsibilities of credit reporting companies and furnishers. The release also outlines efforts that FHFA’s regulated entities and HUD have taken to address the national emergency, including forbearance options for homeowners and eviction protections for renters who live in multifamily properties that are backed by Fannie Mae or Freddie Mac.

    Federal Issues CFPB Covid-19 CARES Act Mortgages Forbearance Credit Report FHFA Fannie Mae Freddie Mac GSE HUD

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  • FDIC’s proposal addresses deposit insurance assessment effects of PPP, PPPLF, and MMLF participation

    Federal Issues

    On May 12, the FDIC announced a proposed rulemaking that addresses the deposit insurance assessment effects of participating in the Small Business Administration’s (SBA) Paycheck Protection Program (PPP) and the Federal Reserve Board’s Paycheck Protection Program Lending Facility (PPPLF) and Money Market Mutual Fund Liquidity Facility (MMLF). The FDIC notes that because PPP loans are fully guaranteed by the SBA, and PPPLF and MMLF transactions are conducted with the Board on a non-recourse basis, the proposed rule ensures that participating banks are not subjected to “significantly higher deposit insurance assessments.”

    According to FDIC’s Financial Institution Letter, FIL-56-2020, the proposed rule would remove the effect of participating in the programs (i) on various risk measures used to calculate a bank’s assessment rate; (ii) on certain adjustments to a bank’s assessment rate; (iii) by providing an offset to a bank’s assessment for the increase to its assessment base attributable to participation in the MMLF and PPPLF; and (iv) when classifying banks as small, large, or highly complex for assessment purposes. The FDIC is proposing an effective date by June 30 with an application date of April 1 to ensure the changes cover assessments starting in the second quarter of 2020.

    Comments on the proposed rule will be accepted for seven days after publication in the Federal Register.

    Federal Issues FDIC SBA Federal Reserve Covid-19

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  • Federal Reserve published updates to the Municipal Liquidity Facility term sheet

    Federal Issues

    On May 11, the Federal Reserve Board issued a press release to publish updates to the Municipal Liquidity Facility (MLF) term sheet.   As previously covered by InfoBytes (here and here), the MLF was established to provide liquidity to state and local governments so they could continue to provide services for their citizens.  The Federal Reserve Board also published FAQs regarding the MLF and a Pricing Appendix.

    Federal Issues Covid-19 Federal Reserve

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  • District court grants preliminary injunction against PPP Ineligibility Rule

    Federal Issues

    On May 11, the U.S. District Court for the Eastern District of Michigan granted a preliminary injunction against the enforcement of the Small Business Administration’s (SBA) Paycheck Protection Program (PPP) Ineligibility Rule, concluding that the rule—which excludes “banks, political lobbying firms, certain private clubs with restrictive admissions practices, and sexually oriented businesses that present entertainment or sell products of a ‘prurient’ (but not unlawful) nature” from PPP loan eligibility—contravenes the purpose of the PPP. According to the opinion, a group of businesses that “provide lawful ‘clothed, semi-nude, and/or nude performance entertainment’” filed suit against the SBA seeking a preliminary injunction against the enforcement of the PPP Ineligibility Rule, after they were prevented from obtaining the loans and/or participating in the PPP because their businesses were deemed to be “of a ‘prurient sexual nature.’” The SBA argued that Congress could not have intended to support businesses that the SBA has historically denied financing, saying it would lead to “absurd results.” The court rejected this argument, stating, “these are no ordinary times, and the PPP is no ordinary legislation.” The court reasoned that because the intent of the CARES Act, which houses the PPP, is to protect workers in need, it is “not absurd to conclude” that in order to support workers from all businesses, Congress would temporarily permit SBA financial assistance to previously excluded business types. Finding that the Rule is in conflict with the Congressional purpose of the PPP, the court granted the preliminary injunction barring the SBA from enforcing the Rule.

    Federal Issues Courts SBA Small Dollar Lending CARES Act Covid-19

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  • Agencies jointly release fact sheets for services and consumers regarding CARES Act forbearance

    Federal Issues

    The Federal Housing Administration, the Department of Veterans Affairs, and the Rural Housing Service have jointly issued fact sheets for servicers and for consumers outlining certain requirements and obligations under CARES Act mortgage payment forbearance. The fact sheet for servicers provides guidance for assisting and educating borrowers and explains that loss mitigation options will vary based on the program under which the loan is insured or guaranteed. The fact sheet for consumers provides guidance on requesting forbearance and information on the forbearance program.

    Federal Issues Covid-19 FHA Department of Veteran Affairs CARES Act Consumer Finance Forbearance Mortgages Loss Mitigation

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  • Fed report discusses banking system, cancels non-critical examinations

    Federal Issues

    On May 8, the Federal Reserve Board (Fed) issued its Supervision and Regulation Report, which summarizes banking system conditions and the Fed’s supervisory and regulatory activities. The annual report discusses the safety and soundness of the banking industry, and explains the Fed’s response to Covid-19 pandemic. The report notes that actions taken by the Fed “use existing flexibility in the regulatory and supervisory framework and do not roll back the measures that allowed the banking sector to enter this crisis as a source of strength….” The report emphasizes that the banking system started 2020 in a healthy financial position, which helped enable institutions to “absorb higher credit losses will continuing to lend during times of stress.” The report notes that banks are facing significant operational challenges as a result of social distancing measures, and that during the first quarter of 2020, U.S. bank earnings declined sharply; however, strains in bank funding markets have somewhat eased since their stressed condition in March. As for the Fed’s supervisory activities, the report states that the Fed has deferred or cancelled non-critical examinations at large financial institutions for the remainder of the year. Specifically, the report notes that “examination activity will reflect operating conditions and will continue to target areas of heightened risk due to containment measure-related developments as well as known deficiencies that existed prior to the current crisis.”

    Federal Issues Covid-19 Federal Reserve Supervision Examination

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  • Agencies extend two resolution plan filing deadlines

    Agency Rule-Making & Guidance

    On May 6, the FDIC and Federal Reserve extended the following two upcoming resolution plan filing deadlines for certain banks in light of recent challenges arising from Covid-19:

    • September 29, 2020 (90 day extension). This extension applies to the four institutions required to submit plans to address previously identified shortcomings.
    • September 29, 2021 (90 day extension). This extension applies to the targeted resolution plans to be submitted by large foreign and domestic Category II and Category III banks under the agencies’ large bank regulatory framework.

    Resolution plans for the eight global systemically important banks are still due July 1, 2021, however the agencies noted that they “will monitor conditions and may adjust this deadline if warranted.”


    Federal Issues Agency Rule-Making & Guidance Covid-19 Living Wills Of Interest to Non-US Persons

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