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Financial Services Law Insights and Observations


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  • FTC approves five FCRA rule changes for auto dealers

    Agency Rule-Making & Guidance

    On September 8, the FTC announced it approved final revisions to rules that would implement parts of the FCRA in line with the Dodd-Frank Act. As previously covered by InfoBytes, the agency sought comment on the proposed rule changes in 2020. In separate notices, the FTC approved largely technical, non-substantive changes, clarifying five FCRA rules enforced by the FTC, which apply only to motor vehicle dealers. The changes affect the following rules:

    • Address Discrepancy Rule, which requires users of consumer reports to implement policies and procedures for, among other things, handling notices of address discrepancy received from a nationwide consumer reporting agency (CRA) and furnishing an address for a consumer that a “user has reasonably confirmed as accurate to the CRA from whom it received the notice.”
    • Affiliate Marketing Rule, which provides consumers the right to restrict a person from using certain information received from an affiliate to make solicitations.
    • Furnisher Rule, which requires entities to implement policies and procedures regarding the accuracy and integrity of the consumer information they provide to a CRA. 
    • Pre-screen Opt-Out Notice Rule, which outlines requirements for those who use consumer reports to make unsolicited credit or insurance offers to consumers.
    • Risk-Based Pricing Rule, which requires that persons who use information from a consumer report to offer less favorable terms are required to provide a risk-based pricing notice to consumers about the use of such data.

    Agency Rule-Making & Guidance FTC FCRA Dodd-Frank Auto Finance

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  • CFPB proposes collection of small business lending data

    Federal Issues

    On September 1, the CFPB released a notice of proposed rulemaking (NPRM) and request for public comment on a proposed rule to implement Section 1071 of the Dodd-Frank Act, which requires the agency to collect and disclose data on lending to women and minority-owned small businesses. The NPRM would create a new subpart B to existing Regulation B, the implementing regulation for ECOA, in order to increase transparency in the lending marketplace. Covered financial institutions would be required to collect and report to the Bureau a broad set of data points relating to applications for several small business credit products with the stated goal of facilitating the enforcement of fair lending laws and enabling the identification of business and community development needs and opportunities for women-owned, minority-owned, and other small businesses.

    The NPRM defines a covered “financial institution” as an entity that meets a specific origination threshold where at least 25 “covered credit transactions” are originated to small businesses in each of the two preceding calendar years. A “covered credit transaction” under the NPRM would include transactions that meet the definition of business credit under Regulation B, as well as loans, lines of credit, credit cards, merchant cash advances, credit transactions for agricultural purposes, and transactions covered by HMDA. The definition of a small business would be one that had less than $5 million in gross annual revenue for the preceding fiscal year. Additionally, the NPRM defines a “covered application” as “an oral or written request for a covered credit transaction that is made in accordance with procedures used by a financial institution for the type of credit requested.” Data points that covered financial institutions would be required to collect on a calendar-year basis to be reported by June 1 of the following year are also provided.

    The Bureau proposes that an eventual final rule would become effective 90 days after publication in the Federal Register; however, compliance would not be required until approximately 18 months after publication. Additionally, the Bureau proposes certain transitional provisions that would allow covered financial institutions to begin collecting data prior to the compliance date and would permit covered financial institutions to “use either the two calendar years immediately preceding the effective date or the second and third years preceding the compliance date to determine coverage.” (See also the Bureau’s summary on the NPRM here.) Comments on the NPRM will be received for 90 days following publication in the Federal Register.

    “This data will be used to support business and community development and foster fair lending,” acting Director Dave Uejio noted in a statement following the announcement of the NPRM. He added that the “rule is about providing greater transparency into which small businesses get credit and which ones do not.”

    A Buckley Special Alert is forthcoming.

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

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  • CFPB to issue Section 1071 NPRM by September 30

    Federal Issues

    On August 23, the CFPB filed its sixth status report in the U.S. District Court for the Northern District of California as required under a stipulated settlement reached in February 2020 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. The newest status report follows a July court order, which requires the Bureau to issue a notice of proposed rulemaking on small business lending data by September 30 (covered by InfoBytes here). Among other things, the Bureau notes in its status report that it expects to meet the September deadline and that it “is continuing to work on the significant legal and policy issues that must be resolved to implement the Section 1071 regulations.”

    Find continuing Section 1071 coverage here.

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

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  • CFPB releases TILA and CARD Act specifications

    Federal Issues

    On August 20, the CFPB released new technical specifications regarding credit card agreement and data submission compliance requirements under TILA and the CARD Act (Regulation Z).  Credit card issuers will utilize the Bureau’s website to submit: (i) Terms of Credit Card Plans (TCCP) Survey data (for the deadline of February 14, 2022); (ii) quarterly credit card agreement submissions (for the deadline of January 31, 2022); and (iii) annual reports connected to college credit card marketing agreements and data (for the deadline of March 31, 2022). According to the announcement, for the most recent TCCP Survey cycle that started on January 31, 83 percent of TCCP Survey submissions were made via the Bureau’s “Collect” website on a voluntary basis, which simplified the Survey submission process in a number of ways, including by minimizing confusing, irrelevant, or duplicative questions and providing an “audit trail” to track submissions. In addition, the Bureau understands Collect to be faster both for issuers and for Bureau processing, which “has led to the faster posting of the TCCP Survey results” and enhances the “public’s ability to use the data in a timely manner.” The Bureau believes that these benefits “would be increased if all TCCP Survey respondents used Collect, and that any additional burden on Survey respondents as a result of using Collect would be minimal.” As previously covered by InfoBytes, the CFPB released the final rule revising the dollar amounts for provisions implementing the TILA and amendments to TILA, including CARD Act, the Home Ownership and Equity Protection Act of 1994, and Dodd-Frank’s ability-to-repay and qualified mortgage provisions. The recently released rule took effect upon publication in the Federal Register.

    Federal Issues CFPB Regulation Z TILA CARD Act Dodd-Frank Ability To Repay Qualified Mortgage

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  • CFPB releases HMDA data report

    Federal Issues

    On August 19, the CFPB released a Data Point report titled, 2020 Mortgage Market Activity and Trends, which finds that the total number of closed-end originations, as well as applications, increased substantially between 2019 and 2020. The 2020 HMDA data encompasses the third year of data that incorporates amendments to HMDA by Dodd-Frank. The changes include new data points, revisions to some existing data points, and authorizing the CFPB to require new data points. As covered by a Buckley Special Alert, the CFPB issued a final rule that implemented significant changes that reflected the needs of homeowners and the evolution in the mortgage market.

    According to the report, trends in mortgage applications and originations found in the 2020 HMDA data point include:

    • 4,472 financial institutions reported at least one closed-end record in 2020, which is a decrease from 5,505 in 2019;
    • “The number of home-purchase loans secured by site-built, one-to-four-family properties increased by about 387,000, whereas the number of refinance loans increased by 149.1 percent from 3.4 million in 2019 to 8.4 million in 2020”;
    • In 2020, the number of open-end line-of-credit originations, besides reverse mortgages, fell by 16.6 percent to 869,000, from 1.04 million in 2019;
    • “The share of loans secured by closed-end home-purchase loans for site-built, one-to-four-family, first lien, principal-residence properties for Black borrowers increased in 2020 and the share of refinance loans for Asian borrowers increased in 2020”; and
    • In 2020, the refinance boom largely continued the trends since the second quarter of 2019.

    According to CFPB Acting Director Dave Uejio, “initial observations about the nation’s mortgage market in 2020 are welcome news, with improvements in the overall volume of home-purchase and refinance loans compared to 2019.” He also noted that “Black and Hispanic borrowers continued to have fewer loans, [are] more likely to be denied than non-Hispanic White and Asian borrowers, and pay higher median interest rates and total loan costs. It is clear from that data that our economic recovery from the COVID-19 pandemic won’t be robust if it remains uneven for mortgage borrowers of color.”

    Federal Issues CFPB HMDA Dodd-Frank Mortgages Consumer Finance

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  • SEC, ECB sign MOU concerning security-based swap entity oversight


    On August 16, the SEC and the European Central Bank (ECB) entered into a Memorandum of Understanding (MOU) intended to facilitate the consultation, cooperation, and exchange of information connected with the supervision, enforcement, oversight, and inspection of certain security-based swap dealers and major security-based swap entities in EU member states registered with the SEC and supervised by the ECB. These include SEC-registered security-based swap entities participating in the Single Supervisory Mechanism (SSM), the EU’s system of banking supervision, which “is composed of the ECB and the relevant national competent authorities of participating EU Member States.” Among other things, the MOU will “support the SEC’s oversight of the operation of substituted compliance orders that the Commission has issued for security-based swap entities in France and Germany, as well as any future substituted compliance orders for such firms in other EU Member States that participate in the SSM,” to enable an entity to comply with certain Dodd-Frank Act requirements by complying with comparable EU and EU Member State laws. The MOU, which is intended to “foster cooperation” and exchange information between the authorities, states that at the date of execution, “no bank secrecy, blocking laws, or other regulations or legal barriers, should prevent an Authority from providing assistance to the other Authority pursuant to this MOU, or otherwise adversely affect or hinder the operation of this MOU.”

    Securities Swaps Of Interest to Non-US Persons MOUs EU Dodd-Frank

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  • CFPB appeals decision on Prepaid Accounts Rule


    On August 16, the CFPB filed its opening brief in the agency’s appeal of a district court’s December 2020 decision, which granted a payment company’s motion for summary judgment and vacated two provisions of the Bureau’s Prepaid Account Rule: (i) the short-form disclosure requirement “to the extent it provides mandatory disclosure clauses”; and (ii) the 30-day credit linking restriction. As previously covered by InfoBytes, the Bureau claimed that it had authority to enforce the mandates under federal regulations, including the EFTA, TILA, and Dodd-Frank, but the district court disagreed, concluding, among other things, that the Bureau acted outside of its statutory authority with respect to the mandatory disclosure clauses of the short-form requirement in 12 CFR section 1005.18(b) by presuming that “Congress delegated power to the Bureau to issue mandatory disclosure clauses just because Congress did not specifically prohibit them from doing so.” In striking the mandatory 30-day credit linking restriction under 12 CFR section 1026.61(c)(1)(iii), the district court determined that “the Bureau once again reads too much into its general rulemaking authority,” and that neither TILA nor Dodd-Frank vest the Bureau with the authority to promulgate substantive regulations on when consumers can access and use credit linked to prepaid accounts. Moreover, the court deemed the regulatory provision to be a “substantive regulation banning a consumer’s access to and use of credit” under the disguise of a disclosure, and thus invalid. 

    In its appeal, the Bureau urged the U.S. Court of Appeals for the D.C. Circuit to overturn the district court’s ruling, arguing that both the EFTA and Dodd-Frank authorize the Bureau to promulgate rules governing disclosures for prepaid accounts. “The model-clause provision simply ensures that institutions will always have a surefire way of complying with the statute, even when the Bureau’s regulations do not specify how information should be disclosed,” the CFPB said, stressing that “[n]either that provision nor anything else forecloses—let alone unambiguously forecloses—rules requiring disclosures to present specified content in a specified format so that consumers are better able to find, understand, and compare products’ terms.” The decision to adopt such rules, the Bureau added, is entitled to deference. According to the Bureau, the Prepaid Account Rule “does not make any specific disclosure clauses mandatory,” and companies are permitted to use the provided sample disclosure wording or use their own “substantially similar” wording. Additionally, the Bureau argued, among other things, that “[b]y mandating optional model clauses while remaining silent about content and formatting requirements, Congress did not ‘circumscribe[] the [agency’s] discretion’ to adopt such requirements.” Instead, the Bureau contended, “whether to adopt content and formatting requirements is left ‘to agency discretion.’” Moreover, the disputed requirements “fit comfortably” within its power to regulate disclosure standards under EFTA and Dodd-Frank, the Bureau argued, adding that the law “authorizes the Bureau to ‘prescribe rules to ensure that the features of any consumer financial product or service … are fully, accurately, and effectively disclosed to consumers.’”

    Courts CFPB Appellate Prepaid Rule D.C. Circuit Fees Disclosures Prepaid Cards EFTA TILA Dodd-Frank

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  • Fed, OCC report on health of MDIs

    Federal Issues

    Recently, the Federal Reserve Board and the OCC issued reports pursuant to Section 367 of the Dodd-Frank Act generally detailing the health of Minority Depository Institutions (MDIs) and the agencies’ efforts taken to assist MDIs as the Covid-19 pandemic disproportionately affected low- and moderate-income communities and racial and ethnic minorities. The Fed’s report, “Promoting Minority Depository Institutions,” discussed, among other things, extra steps taken by the agency to support and assist MDIs over the past year, which included conducting individualized outreach on several topics like how to access the discount window and the Paycheck Protection Program Liquidity Facility (covered by InfoBytes here and here). The report also examined efforts taken by the Fed to preserve and promote MDIs through its Partnership for Progress program—“a national outreach effort to help MDIs confront unique business-model challenges, cultivate safe banking practices, and compete more effectively in the marketplace”—and covered the Fed’s unanimous approval last September to approve an Advance Notice of Proposed Rulemaking on modernizing the Community Reinvestment Act (covered by InfoBytes here).

    The OCC outlined actions taken to preserve and promote MDIs in its “2020 Annual Report,” including the launch of the Roundtable for Economic Access and Change known as Project REACh (covered by InfoBytes here). OCC subject matter experts also provided regulatory technical assistance to MDIs on topics including safety and soundness, cybersecurity, compliance with Bank Secrecy Act/anti-money laundering requirements, and current expected credit loss accounting methodology, among others. The OCC also noted that despite a seven-basis-points drop on the average return on assets for MDIs through the pandemic, the health of those institutions “remained satisfactory.”

    Federal Issues Minority Depository Institution Federal Reserve OCC Covid-19 CRA Dodd-Frank Compliance Bank Secrecy Act Anti-Money Laundering

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  • California court orders CFPB to issue Section 1071 NPRM by September 30


    On July 16, the U.S. District Court for the Northern District of California issued an order setting September 30 as the deadline for the CFPB to issue a notice of proposed rulemaking (NPRM) on small business lending data. As previously covered by InfoBytes, the Bureau is obligated to issue an NPRM for implementing Section 1071 of the Dodd-Frank Act, which requires the agency to collect and disclose data on lending to women and minority-owned small businesses. The requirement was reached as part of a stipulated settlement reached in 2020 with a group of plaintiffs, including the California Reinvestment Coalition (CRC), that argued that the Bureau’s failure to implement Section 1071 violated two provisions of the Administrative Procedures Act, and has harmed the CRC’s ability to advocate for access to credit, advise organizations working with women and minority-owned small businesses, and work with lenders to arrange investment in low-income and communities of color (covered by InfoBytes here).

    Find continuing Section 1071 coverage here.


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

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  • Biden orders federal agencies to evaluate banking, consumer protections

    Federal Issues

    On July 9, President Biden issued a broad Executive Order (E.O.) that includes provisions related to the financial services industry.

    • CFPB. The E.O. encourages the CFPB director to issue rules under Section 1033 of Dodd-Frank “to facilitate the portability of consumer financial transaction data so consumers can more easily switch financial institutions and use new, innovative financial products.” As previously covered by InfoBytes, last October, the Bureau issued an advanced notice of proposed rulemaking on Section 1033, seeking comments on questions related to consumers’ access to their financial records. The E.O. also instructs the Bureau to enforce Section 1031 of Dodd-Frank, which prohibits unfair, deceptive, or abusive acts or practices in consumer financial products or services, “to ensure that actors engaged in unlawful activities do not distort the proper functioning of the competitive process or obtain an unfair advantage over competitors who follow the law.”
    • Treasury Department. The E.O. calls on Treasury to submit a report within 270 days on the effects on competition of large technology and other non-bank companies’ entry into the financial services space.
    • FTC. The E.O. tasks the FTC with establishing rules to address concerns about “unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy.” The FTC already commenced that process on July 1, when it approved changes to its Rules of Practice to amend and simplify the agency’s procedures for initiating rulemaking proceedings. According to Commissioner Rebecca Kelly Slaughter, “[s]treamlined procedures for Section 18 rulemaking means that the Commission will have the ability to issue timely rules on issues ranging from data abuses to dark patterns to other unfair and deceptive practices widespread in our economy.”
    • Bank Mergers. The E.O. encourages the Attorney General, in consultation with the Federal Reserve Board, FDIC, and OCC, to “review current practices and adopt a plan, not later than 180 days after the date of this order, for the revitalization of merger oversight under the Bank Merger Act and the Bank Holding Company Act of 1956.”

    Federal Issues Biden CFPB FTC Dodd-Frank UDAAP Privacy/Cyber Risk & Data Security Consumer Finance Department of Treasury Federal Reserve FDIC OCC Agency Rule-Making & Guidance

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