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FDIC and OCC critique Madden in amicus brief
On September 10, the FDIC and the OCC filed an amicus brief in the U.S. District Court for the District of Colorado, supporting a bankruptcy judge’s ruling, which refused to disallow a claim for a business loan that carried a more than 120 percent annual interest rate, concluding the interest rate was permissible as a matter of federal law. After filing bankruptcy in 2017, a Denver-based business sought to reject the claim under Section 502 of the Bankruptcy Code, and sought equitable subordination under Section 510 of the Code, arguing that the original promissory note, executed by the debtor and a Wisconsin state chartered bank, and subsequently assigned to a nonbank lender, was invalid under Colorado’s usury law. The bankruptcy judge disagreed, declining to follow Madden v. Midland Funding, LLC (covered by a Buckley Special Alert here). The judge concluded that the promissory note was valid under Wisconsin law when executed as that state imposes no interest rate cap on business loans, and the assignment to the nonbank lender did not alter this, stating “[i]n the Court’s view, the ‘valid-when-made’ rule remains the law.” The debtor appealed the ruling to the district court.
In support of the bankruptcy judge’s opinion, the FDIC and the OCC argue that the valid-when-made rule is dispositive. Specifically, the agencies assert that the nonbank assignee may lawfully charge the 120 percent annual rate, because the interest rate was non-usurious at the time when the loan was made by the Wisconsin state chartered bank. Moreover, the agencies state that it is a fundamental rule of contract law that “an assignee succeeds to all the assignor’s rights in the contract, including the right to receive the consideration agreed upon in the contract—here, the interest rate agreed upon.” Hence, the nonbank lender inherited the same contractual right to charge the annual interest rate. The agencies also argue that the Federal Deposit Insurance Act’s provisions regarding interest rate exportation (specifically 12 U.S.C. § 1831d) requires the same result, noting that “Congress intended to confer on banks a meaningful right to make loans at the rates allowed by their home states, which necessarily includes the ability to transfer those rates.” The agencies conclude that the bankruptcy judge correctly rejected Madden, calling the 2nd Circuit’s decision “unfathomable” for disregarding the valid-when-made doctrine and the “stand-in-the-shoes-rule” of contract law.
District Court again dismisses CSBS suit over OCC fintech charter
On September 3, the U.S. District Court for the District of Columbia again dismissed the Conference of State Bank Supervisors’ (CSBS) lawsuit against the OCC over its decision to allow non-bank institutions, including fintech companies, to apply for a Special Purpose National Bank Charter (SPNB). As previously covered by InfoBytes, the court dismissed the original complaint in April 2018 on standing and ripeness grounds. Then, after the OCC announced last July that it would welcome non-depository fintech companies engaging in one or more core-banking functions to apply for a SPNB, CSBS renewed its legal challenge. (See previous InfoBytes coverage here.) In dismissing the case again, the court held that CSBS “continues to lack standing and its claims remain unripe,” adding that “not much has happened since [the original dismissal] that affects the jurisdiction analysis.” Specifically, the court noted its previous holding that CSBS’s alleged harms was “contingent on whether the OCC charters a [f]intech,” but CSBS “does not allege that any [fintech company] has applied for a charter, let alone that the OCC has chartered a [f]intech.” In addition, the court reiterated its prior conclusion that the dispute remains “neither constitutionally nor prudentially ripe for determination.”
The court further acknowledged a contrasting decision issued in May by the U.S. District for the Southern District of New York allowing a similar challenge filed by NYDFS to survive (previous InfoBytes coverage here), stating that it “respectfully disagrees” with that court’s decision “to the extent that its reasoning conflicts” with either of the dismissal decisions in the CSBS cases. Finally, the court denied CSBS’s request for jurisdictional discovery because it will lack jurisdiction “at least until a [f]intech applies for a charter,” which will be publicly disclosed.
Agencies issue Hurricane Dorian guidance
On August 29, Fannie Mae, Freddie Mac, and HUD issued disaster relief guidance related to Hurricane Dorian. Fannie Mae reminded servicers of available mortgage assistance options for homeowners impacted by the hurricane: (i) qualifying homeowners are eligible to stop making mortgage payments for up to 12 months without incurring late fees and without having delinquencies reported to the credit bureaus; (ii) servicers may immediately suspend or reduce mortgage payments for up to 90 days without any contact with homeowners believed to have been affected by a disaster; and (iii) foreclosures and other legal proceedings for homeowners believed to be impacted by a disaster are temporarily suspended. Freddie Mac similarly reminded servicers of these mortgage relief options.
The same day, HUD released Mortgagee Letter ML 2019-14 (ML 2019-14), which updates Handbook 4000.1 and expands its “Disaster Standalone Partial Claim” loss mitigation option which “allow[s] borrowers in Presidentially Declared Major Disaster Areas (PDMDAs) with delinquent FHA-insured mortgages to bring their mortgages current without increasing their interest rates or principal and interest payments.” The mitigation option, introduced last year, “covers missed mortgage payments up to 30 percent of Unpaid Principal Balance” through an interest-free second loan on the mortgage without a required trial payment plan. The second loan will become payable only when the borrower sells the home or refinances. Additionally, the loss mitigation option will streamline income documentation and other requirements to expedite relief to eligible borrowers struggling to pay their mortgages while recovering from disasters.
Separately on August 30, the OCC issued a proclamation permitting OCC-regulated institutions, to close offices affected by Hurricane Dorian’s severe weather conditions at their discretion “for as long as deemed necessary for bank operation or public safety.” In issuing the proclamation, the OCC noted that it expects that only those bank offices directly affected by potentially unsafe conditions will close and that they should make every effort to reopen as quickly as possible to address the banking needs of their customers. The proclamation directs institutions to OCC Bulletin 2012-28 for further guidance on natural disasters and other emergency conditions.
OCC finalizes assessment fee refunds
On August 21, the OCC published in the Federal Register a final rule providing partial assessment refunds to banks under OCC jurisdiction that exit the OCC’s jurisdiction within the prescribed timeframe. As previously covered by InfoBytes, in March, the OCC proposed to maintain semiannual assessment fee payments, but allow for partial refunds equal to the prospective half of the assessment for banks that leave the OCC’s jurisdiction between the date of the applicable Call Report and the date of collection. The final rule was adopted without substantive changes to the proposed rule and is effective as of September 20.
Federal agencies update host state loan-to-deposit ratios
On August 9, 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. Banks that do not meet the compliance requirements are subject to sanctions by the OCC. Notably, Section 109 is not applicable to federal savings associations or community banks with covered interstate branches.
OCC issues guidance on CRA designations
On July 31, the OCC issued Bulletin 2019-40, which provides guidelines for requesting designation as a wholesale or limited purposes bank for Community Reinvestment Act (CRA) purposes, or requesting confirmation of exemption as a special purposes bank under the CRA. The guidelines summarize the process for requesting or confirming designation, including (i) information that a bank should provide to substantiate its request; (ii) instructions on how to submit requests; and (iii) the review and approval process. Among other things, the OCC encourages banks seeking confirmation or designation to request an informal consultation with the bank’s supervisory office. As for such a request, the OCC notes that it is customary to include a description on how the bank satisfies the definition for a wholesale bank, limited purposes bank, or special purposes bank, including facts and data sufficient to describe the nature of the bank's current and prospective business, the credit products offered, and the market area served. Within 60 days of receiving a complete designation or confirmation request, the OCC will notify the bank of its decision to approve or deny the request. For designations as wholesale or limited purpose, the designation will remain in effect until the bank requests revocation or one year after the OCC notifies the bank it has revoked the designation. For special purpose confirmations, the exemption remains in effect until the OCC is informed the exemption no longer applies. Designation and confirmation requests may be made available to the public under the Freedom of Information Act (FOIA), but a bank may request confidential treatment for information that would normally be exempt from FOIA disclosure requirements.
OCC consolidates supervision support
On July 31, the OCC announced two new units, which consolidates bank supervision support, risk analysis, and oversight of national trust banks and significant service providers. One hundred and fifty staff members were realigned to create the news units, the OCC reported, with the intention of eliminating redundancies and “presenting a single voice to supervised institutions.” The OCC additionally noted that the agency’s Committee on Bank Supervision “will provide strategic direction and oversight to both units, and will review and approve strategic plans and initiatives, annual business plans or operating plans, and major projects and initiatives.”
The first unit, Supervision System and Analytical Support, consists of OCC supervisory and policy unit teams that oversee supervisory information systems, data management, business intelligence, risk analysis, and supervision risk management. The second unit, Systemic Risk Identification Support and Specialty Supervision, includes lead experts from Large Bank Supervision and Midsize Bank Supervision, in addition to teams responsible for supervising trust companies from the Northeastern District National Trust Banks team and significant service providers from Bank Supervision Policy.
The OCC further noted that Midsize and Community Bank Supervision and Large Bank Supervision will retain primary responsibility for overseeing the banks, savings associations, and federal branches and agencies of foreign banks that compose the federal banking system.
OCC outlines fraud risk management principles
On July 24, the OCC issued Bulletin 2019-37 to provide fraud risk management principles for all OCC-supervised institutions. The Bulletin supplements previously issued notices addressing corporate and risk governance, and focuses on fraud risk, operational risk, and the need for strong governance and sound risk management principles. According to the OCC, strong governance is vital to managing an institution’s exposure to fraud and must include a strong corporate culture that discourages imprudent risk-taking. However, the OCC noted that fraud risk management should be commensurate with the bank’s risk profile. The Bulletin highlights several preventative and detective controls, including (i) developing anti-fraud policies and procedures, such as ethics policies, codes of conduct, and identity theft programs; (ii) creating anti-fraud awareness campaigns; (iii) establishing fraud risk management training programs for employees and contractors and educating customers on preventative measures; (iv) implementing a system of controls intended to prevent employees and third parties from conducting fraudulent transactions, such as opening or closing of bank accounts; (v) conducting background investigations for new employees and periodic checks for existing employees and third parties; (vi) providing sound training and information security programs; and (vii) establishing processes for customer identification, customer due diligence, and beneficial ownership identification and verification. Additionally, the OCC stated that senior management should understand the institution’s exposure to fraud risk and associated losses.
OCC updates risk governance and audit booklets
On July 25, the OCC announced the issuance of a fully revised “Corporate and Risk Governance” booklet for the Comptroller’s Handbook, as well as limited updates to the “Internal and External Audits” booklet for examiners completing core assessments affected by audit functions. Among other things, the revised “Corporate and Risk Governance” booklet is intended to provide examiners with a summary of corporate and risk governance, related risks, the board’s role and responsibilities in corporate and risk governance, strategic planning, and examination procedures. The revised booklet identifies the following as the primary risk categories associated with corporate and risk governance: (i) strategic; (ii) reputation; (iii) compliance; and (iv) operational. Updates to both booklets incorporate references to relevant OCC issuances and auditing standards published since the booklets were last issued, reflect the integration of federal savings associations into certain regulations, and make clarifying edits regarding supervisory guidance, sound risk management practices, legal language, and the roles of the bank’s board and management.
OCC releases asset dissipation underwriting guidance
On July 23, the OCC issued Bulletin 2019-36 reminding banks to follow safety and soundness standards and guidelines when using asset dissipation underwriting (ADU)—also known as “asset depletion underwriting or asset amortization underwriting”—to originate mortgage loans. Specifically, the OCC states banks should develop and implement policies and processes for ADU in a manner consistent with existing regulatory real estate and mortgage lending standards and guidelines. Banks should also align ADU activities with their overall business plans and strategies, including “working with consumers who have a capacity to repay a mortgage loan even though they do not meet traditional income-based underwriting repayment standards.” The OCC additionally expects bank management to “develop and maintain risk governance processes that are commensurate with the credit risk of ADU, particularly if the offering constitutes a deviation from the bank’s existing mortgage lending business activities.” With regard to Fannie Mae and Freddie Mac loans, the OCC states that lenders may use ADU to underwrite mortgage loans based on certain assets, including employment-related retirement assets, for applicants who are near retirement.