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Financial Services Law Insights and Observations

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  • Agencies release 2019 list of distressed, underserved communities

    Federal Issues

    On June 17, the OCC, together with the Federal Reserve and the FDIC, released the 2019 list of distressed or underserved communities where revitalization or stabilization efforts by financial institutions are eligible for Community Reinvestment Act (CRA) consideration. According to the joint release from the agencies, the list of distressed nonmetropolitan middle-income geographies and underserved nonmetropolitan middle-income geographies are designated by the agencies pursuant to their CRA regulations and reflect local economic conditions, including changes in unemployment, poverty, and population. For any geographies that were designated by the agencies in 2018 but not in 2019, the agencies apply a one-year lag period, so such geographies remain eligible for CRA consideration for another 12 months.

    Similar announcements from the Federal Reserve and the FDIC are available here and here.

    Federal Issues OCC FDIC Federal Reserve CRA

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  • FDIC encourages release for Arkansas and South Dakota borrowers

    Federal Issues

    On June 17, the FDIC issued Financial Institution Letters FIL-32-2019 and FIL-33-2019 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Arkansas and South Dakota affected by severe weather. FIL-32-2019 covers severe storms and flooding caused significant property damage in areas of Arkansas from May 21 through the present and FIL-33-2019 covers severe winter storm, snowstorm, and flooding caused significant property damage in areas of South Dakota from March 13 through April 26.

    The FDIC is encouraging institutions to consider, among other things, extending repayment terms and restructuring existing loans to borrowers affected by the severe weather. Additionally, the FDIC notes that institutions may receive favorable Community Reinvestment Act (CRA) consideration for community development loans, investments, and services in support of disaster recovery.

    Find continuing InfoBytes coverage on disaster relief guidance here.

    Federal Issues FDIC Disaster Relief CRA Consumer Finance

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  • Agencies finalize streamlined small-institution reporting

    Agency Rule-Making & Guidance

    On June 17, the FDIC, the OCC, and Federal Reserve issued the final rule to streamline regulatory reporting for qualifying small institutions to implement Section 205 of the Economic Growth, Regulatory Relief, and Consumer Protection Act. The agencies adopted the final rule as proposed in November 2018 (covered by InfoBytes here). The final rule permits depository institutions with less than $5 billion in assets—previously set at $1 billion—that do not engage in certain complex or international activities to file the FFIEC 051 Call Report, the most streamlined version of the Call Reports. Additionally, the rule reduces the existing reportable data items in the FFIEC 051 Call Report by approximately 37 percent for the first and third calendar quarters. The rule also includes similar provisions for uninsured institutions with less than $5 billion in total consolidated assets that are supervised by the Federal Reserve and the OCC. The rule notes that the agencies are also committed to “exploring further burden reduction and are actively evaluating further revisions to the FFIEC 051 Call Report, consistent with guiding principles developed by the FFIEC.” The rule will take effect 30 days after it is published in the Federal Register.

    Agency Rule-Making & Guidance OCC FDIC Federal Register Federal Reserve Call Report EGRRCPA

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  • FDIC issues first Consumer Compliance Supervisory Highlights

    Federal Issues

    On June 13, the FDIC released a new publication, Consumer Compliance Supervisory Highlights, intended to provide information and observations related to the FDIC’s consumer compliance supervision activities in 2018. Specifically, the report covers approximately 1,200 consumer compliance examinations conducted by the FDIC in 2018. Overall, the FDIC noted that, “supervised institutions demonstrated strong and effective management of consumer compliance responsibilities.” The report identifies some of the most salient compliance issues identified by the FDIC during 2018, including (i) overdraft programs, which were found to be potentially unfair or deceptive when an institution used an “available balance method,” sometimes resulting in more overdraft fees than were appropriate because the institution assessed a fee when the transaction did not overdraw the account; (ii) RESPA anti-kickback violations, which concerned payments “disguised as above-market payments for lead generation, marketing services, and office space or desk rentals” or as marketing and advertising agreements; and (iii) Regulation E, where certain institutions were found to have incorrectly calculated consumer liability for unauthorized transfers, failed to resolve errors properly, or discouraged consumers from filing error resolution requests. The report also covers issues with skip-a-payment loan programs and the calculation of finance charges and disclosures related to lines of credit.

     

    Federal Issues FDIC Bank Supervision Examination RESPA Overdraft Regulation E

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  • FDIC encourages relief for Oklahoma borrowers

    Federal Issues

    On June 10, the FDIC issued Financial Institution Letter FIL-30-2019 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Oklahoma affected by severe weather from May 7 through the present. The FDIC is encouraging institutions to consider, among other things, extending repayment terms and restructuring existing loans to borrowers affected by the severe weather. Additionally, the FDIC notes that institutions may receive favorable Community Reinvestment Act (CRA) consideration for community development loans, investments, and services in support of disaster recovery.

    Find continuing InfoBytes coverage on disaster relief here.

     

    Federal Issues FDIC Disaster Relief CRA Consumer Finance

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  • FDIC fines banks for flood insurance, BSA violations

    Federal Issues

    On May 31, the FDIC announced its release of a list of administrative enforcement actions taken against banks and individuals in April. The list reflects that the FDIC issued 17 orders, which includes “two consent orders; three terminations of consent orders; five Section 19 orders; three removal and prohibition orders; and four orders to pay civil money penalty.” Among other actions, the FDIC assessed civil money penalties against three separate banks (see here, here, and here) for alleged violations of the Flood Disaster Protection Act, including failing to (i) obtain flood insurance coverage on loans at or before origination; (ii) maintain, increase, extend, renew, or provide written notification to borrowers concerning flood insurance coverage on loans secured by collateral located in special flood hazard areas; (iii) follow force-placement flood insurance procedures; or (iv) provide borrowers with notice of the availability of federal disaster relief assistance within a reasonable timeframe.

    The FDIC also assessed a civil money penalty against a New York-based bank related to alleged violations of the Bank Secrecy Act.

    Federal Issues FDIC Enforcement Flood Insurance Flood Disaster Protection Act Bank Secrecy Act Mortgages

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  • Federal agencies release host state loan-to-deposit ratios

    Agency Rule-Making & Guidance

    On May 28, the Federal Reserve Board, the FDIC, and the OCC released the current host state loan-to-deposit ratios for each state or U.S. territory, which the agencies use to determine compliance with Section 109 of the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994. Under the Act, banks are prohibited from establishing or acquiring branches outside of their home state for the primary purpose of deposit production. Branches of banks controlled by out-of-state bank holding companies are also subject to the same restriction. Determining compliance with Section 109 requires a comparison of a bank’s estimated statewide loan-to-deposit ratio to the yearly host state loan-to-deposit ratios. If a bank’s statewide ratio is less than one-half of the yearly published host state ratio, an additional review is required by the appropriate agency, which involves a determination of whether a bank is reasonably helping to meet the credit needs of the communities served by the bank’s interstate branches.

    Agency Rule-Making & Guidance OCC Federal Reserve FDIC Bank Compliance

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  • FDIC resolves Operation Chokepoint lawsuit

    Federal Issues

    On May 22, the FDIC announced it resolved a 2014 lawsuit brought by payday lenders that  alleged that the FDIC, the OCC and the Federal Reserve abused their supervisory authority during Operation Chokepoint, an Obama Administration DOJ initiative that formally ended in August 2017 (covered by InfoBytes here) and was designed to target fraud by investigating U.S. banks and certain of their clients perceived to be a higher risk for fraud and money laundering. As previously covered by InfoBytes, in 2014, payday lenders filed a lawsuit against the federal banking agencies alleging that they participated in Operation Chokepoint “to drive [the payday lenders] out of business by exerting back-room pressure on banks and other regulated financial institutions to terminate their relationships” with such lenders. The payday lenders argued, among other things, that the initiative resulted in over 80 banking institutions terminating their business relationships with law-abiding companies.

    Along with the announcement of the tentative settlement between the parties, the FDIC released a statement summarizing the FDIC’s internal policies and guidance for FDIC recommendations to financial institutions to terminate customer deposit accounts. The statement also included a letter written to the plaintiffs’ counsel acknowledging that “certain employees acted in a manner inconsistent with FDIC policies with respect to payday lenders in what has been generically described as ‘Operation Choke Point,’ and that this conduct created misperceptions about the FDIC’s policies.” In the press announcement regarding the resolution of the case, the FDIC emphasized that neither the statement nor the letter represent a change in the FDIC’s policy and guidance, and that all “existing applicable regulations and guidance documents remain in full force and effect.” Further, while the May 21 joint status report filed in the case noted that FDIC senior leadership had not yet reviewed the agreement, the report noted that the FDIC does “not anticipate any objections.”

    Additionally, on May 23, the OCC acknowledged it had been dismissed from the litigation as part of the lawsuit’s resolution.

    Federal Issues FDIC OCC Payday Lending Operation Choke Point DOJ Courts

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  • FDIC fines banks for TCPA, BSA violations; releases March enforcement actions

    Federal Issues

    On April 26, the FDIC announced a list of administrative enforcement actions taken against banks and individuals in March. The 13 orders include “three consent orders; two orders terminating consent orders; four Section 19 orders; one removal and prohibition order; two voluntary terminations of insurance orders; and two orders to pay civil money penalty.” The FDIC assessed, among other things, a $200,000 civil money penalty against an Oklahoma-based bank for allegedly violating the FTC Act and the TCPA by (i) using telemarketers who misrepresented themselves as employees or affiliates of the federal government; and (ii) placing calls to consumers who appeared on the National Do Not Call Registry or who requested to be added to the bank’s internal Do Not Call List.

    The FDIC also assessed a consent order against an Illinois-based bank related to alleged weaknesses in its Bank Secrecy Act (BSA) compliance program. Among other things, the bank is ordered to (i) designate a senior official to enforce and take corrective action related to its BSA compliance policy; (ii) implement a revised, comprehensive written BSA compliance program and system of internal controls to address provisions, including currency transaction reporting, customer identification program, beneficial ownership, and information sharing requirements; (iii) adopt a written Customer Due Diligence Program to assure the reasonable detection of suspicious activity, specifically for money services businesses and privately-owned ATM customers; (iv) implement a process for account transaction monitoring; (v) implement a comprehensive BSA training program for appropriate personnel; (vi) conduct a look back review to ensure certain transactions were appropriately identified and reported; and (vii) revise its internal control programs to correct the identified deficiencies.

    Federal Issues FDIC Enforcement TCPA Bank Secrecy Act

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  • FDIC considers modifying living will requirements

    Agency Rule-Making & Guidance

    On April 16, the FDIC issued an advance notice of proposed rulemaking (ANPR) and request for comment on modifications to its resolution planning framework (known as living wills) for insured depository institutions with over $50 billion in assets. According to the FDIC, the ANPR is considering three changes to streamline the process: (i) creating tiered planning requirements for living wills based on an institution’s size, complexity, and other factors; (ii) revising the frequency and required content of resolution plan submissions, including eliminating living will submission requirements for certain smaller and less complex institutions; and (iii) improving communication between the FDIC and banks on resolution planning. According to a statement issued by FDIC Chairman Jelena McWilliams, the ANPR also proposes two alternative concepts for consideration: “Broadly, either approach would require large, complex institutions to continue to submit periodic resolution plans, streamlined compared to the existing plans. Institutions that are relatively smaller and less complex but still subject to the rule would no longer need to submit actual plans, but would still be subject to periodic engagement and capabilities testing.” Comments on the ANPR are due 60 days after publication in the Federal Register.

    Agency Rule-Making & Guidance Federal Reserve FDIC Living Wills Supervision

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