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Senator Brown Requests Funding for Dodd-Frank Small Dollar Loan Programs
On January 6, U.S. Senator Sherrod Brown, who serves on the Senate Committee on Banking, Housing, and Urban Affairs, sent a letter to President Obama requesting that the FY 2017 budget proposal prioritize funding for programs outlined in Title XII – Improving Access to Mainstream Financial Institutions of the Dodd-Frank Act, which has yet to be implemented. According to Senator Brown, resources are needed in order to implement Title XII, which would, among other things, (i) allow the Treasury to establish partnerships with certain eligible entities to help low and moderate income individuals access accounts at banks and credit unions; and (ii) foster partnerships with non-profits, federally insured depository institutions, community development financial institutions (CDFIs), or State, local, or tribal governments to provide low-cost, small dollar loans to traditionally unbanked or underbanked Americans as a more affordable option to the more costly alternative financial services (AFS), such as payday loans, money orders, cash checking, remittances, and auto title loans.
CFPB Issues Report Summarizing Fiscal Year 2015
On December 31, the CFPB issued a report to the Senate and House Committees on Appropriations to fulfill its statutory responsibility under Section 1017(e)(4) of the Dodd-Frank Act. The report covers the CFPB’s 2015 fiscal year (FY), spanning from October 1, 2014 through September 30, 2015, and provides an overview of the Bureau’s operations and finances. In its report, the Bureau highlights that, during FY 2015, among other things, the CFPB (i) began to publish consumer complaint narratives in the Consumer Complaint Database and launched monthly reports to highlight trends in the complaints submitted to the Bureau; (ii) brought supervisory actions and announced orders through enforcement efforts for $209 million and $5.819 billion in consumer redress, respectively; (iii) released three editions of Supervisory Highlights Report; (iv) published new examination procedures, supervisory guidance documents and studies; and (v) published several proposed rules, final rules, and requests for information, as well as plain-language compliance guides and video presentations summarizing certain Bureau rules. During FY 2015, the Bureau collected more than $183 million in civil money penalties, and more than $108 million in Bureau Administered Redress funds. Looking ahead, the report identifies potential rulemaking initiatives, as reflected in its Fall 2014 and Spring 2015 regulatory agendas.
GAO Publishes Report Regarding the Impact of Dodd-Frank Regulations on Community Banks, Credit Unions, and Systemically Important Institutions
On December 30, the United States Government Accountability Office (GAO) released its fifth report mandated by Section 1573(a) of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (Act), which amended Dodd-Frank, and requires the GAO to annually review financial services regulations, including those of the CFPB. The report reviews 26 Dodd-Frank rules that became effective from July 23, 2014 through July 22, 2015 to examine whether the agencies conducted the required regulatory analyses and coordination. In addition, it examines nine Dodd-Frank rules that were effective as of October 2015 to determine their impact on community banks and credit unions. Finally, the report assesses Dodd-Frank’s impact on large bank holding companies. The GAO found that the agencies conducted the required regulatory analyses for rules issued under Dodd-Frank and reported required coordination. In addition, surveys of community banks and credit unions suggest that the Dodd-Frank rules under review have resulted in an increased compliance burden, a decline in certain business activities in some cases (e.g., loans that are not qualified mortgages), and moderate to minimal initial reductions in the availability of credit. Although “regulatory data to date have not confirmed a negative impact on mortgage lending,” “these results do not necessarily rule out significant effects or the possibility that effects may arise in the future.” Finally, the GAO concluded that the full impact of Dodd-Frank on large bank holding companies remains uncertain, but summarized the results of certain analyses in the report.
FINRA Releases 2016 Regulatory and Examination Priorities Letter
On January 5, FINRA released a letter regarding its regulatory and examination priorities for 2016. The letter focuses on the following three broad issues within the securities industry: (i) culture, conflicts of interest and ethics; (ii) supervision, risk management and controls; and (iii) liquidity. Regarding FINRA’s assessment of firm culture, the letter notes that FINRA “will focus on the frameworks that firms use to develop, communicate, and evaluate conformance to their culture,” assessing five specific indicators of a firm’s culture, including (among others) whether policy or control breaches are tolerated. In connection with supervision and risk management, FINRA will focus its examination efforts on the following four areas that continue to affect firms’ business conduct and market integrity: (i) management of conflicts of interest; (ii) technology; (iii) outsourcing; and (iv) anti-money laundering. Finally, in connection with liquidity, FINRA plans to review firms’ contingency funding plans as they relate to their business models, noting that the framework for FINRA’s reviews will be driven by the effective practices contained in Regulatory Notice 15-33. Additional areas of regulatory and examination focus for FINRA in 2016 will include but are not limited to: (i) protecting seniors and vulnerable investors from fraud, sales practice abuse, and financial exploitation; (ii) private placements and Regulation A+ public offerings; (iii) financial and operational controls concerning exchange-traded funds and fixed-income prime brokerage; and (iv) market integrity.
FTC Announces New Enforcement Actions Under the Operation Collection Protection Initiative
On January 7, the FTC announced four separate actions under its Operation Collection Protection initiative against collectors allegedly engaging in abusive and deceptive debt collection practices. It also announced that other federal and state law enforcement officials have taken 12 more actions as part of the initiative. The FTC’s actions targeted the following practices: (i) impersonating investigators, law enforcement agencies, or process servers; (ii) threatening consumers with arrest, lawsuits, or wage garnishment for nonpayment; (iii) failing to inform consumers of the amount of debt and the creditor’s name, as well as their right to dispute the alleged debt, as required by the FDCPA; and (iv) collecting on debts that consumers did not owe. The four actions, each with a separate set of defendants, include the following:
- A preliminary injunction prohibiting the use of illegal collection tactics, pending litigation;
- A stipulated order for permanent injunction banning debt collection activities and imposing a judgment of over $2 million;
- A proposed stipulated order for permanent injunction prohibiting misrepresentation of material facts while collecting debts and imposing a judgment of $194,888, which is suspended due to the defendants’ inability to pay; and
- A summary judgment granting a permanent injunction against an individual defendant, banning him from debt collection activities and ordering him to pay more than $565,000.
This brings the Operation Collection Protection initiative to a total of 130 actions with more than 70 law enforcement agencies participating in the last year.
FTC Reveals Auto Distribution Workshop Agenda
On January 6, the FTC released the full agenda for its upcoming one-day workshop, “Auto Distribution: Current Issues and Future Trends,” scheduled to take place in Washington, D.C. on January 19. As previously covered in InfoBytes, the panel discussions will examine current issues and future trends related to the distribution of motor vehicles in the U.S., with presentations on the regulation of dealer location, laws relating to reimbursement for warranty services, restrictions on manufacturers’ ability to engage in direct sales to consumers, and new developments affecting auto distribution.
FASB Issues New Guidance on the Recognition and Measurement of Financial Instruments
On January 5, the Financial Accounting Standards Board (FASB) issued a new accounting standard which “‘is intended to provide users of financial statements with more useful information on the recognition, measurement, presentation, and disclosure of financial instruments.’” The new Accounting Standards Update (ASU) impacts public and private companies, not-for-profit organizations, and employee benefit plans that hold financial assets or owe financial liabilities. The new guidance is intended to make targeted improvements to existing GAAP by, among several other things, generally only requiring that changes in the fair value of equity investments be recorded in net income and requiring public business entities to use the exit price notion when measuring the fair value of financial instruments for disclosure purposes. The ASU will take effect for public companies for fiscal years beginning after December 15, 2017 (including interim periods within those fiscal years), and for private companies, not-for-profit organizations, and employee benefit plans for fiscal years beginning after December 15, 2018 (and for interim periods within fiscal years beginning after December 15, 2019). Early adoption of certain provisions is permitted.
FTC Announces Settlements with Online Payday Lenders Over Alleged Violations of TILA and EFTA
On January 5, the FTC announced separate settlements with two online payday lenders to resolve charges dating back to April 2012 that the defendants violated TILA, the Federal Trade Commission Act (FTC Act), and the Electronic Fund Transfer Act (EFTA). According to the FTC, the defendants (i) violated TILA by failing to accurately disclose information regarding the loan terms, such as the finance charge, annual percentage rate, payment schedule, and the total of payments; (ii) violated the FTC Act’s prohibition on deceptive acts or practices by misrepresenting how much loans would cost consumers; and (iii) violated the EFTA by conditioning extension of credit to consumers on the consumers’ repayment by preauthorized debits from their bank accounts. In addition to prohibiting the defendants from engaging in practices that violate the TILA and EFTA, the FTC’s final orders require the defendants to each pay $2.2 million and collectively waive $68 million in uncollected fees to consumers. Combined with other settlements, the FTC has recovered approximately $25.5 million in connection with its case against several payday lending companies and related individuals.
OFAC Publishes Cyber-Related Sanctions Regulations
On December 31, OFAC issued regulations to implement Executive Order 13694 of April 1, 2015, “Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities.” Effective immediately, the regulations prohibit all transactions prohibited by Executive Order 13694, including dealing in the property or interests in property, that come within the United States, of blocked persons. Among other things, under Executive Order 13694, a party may be blocked if the U.S. government finds the party “to be responsible for or complicit in, or to have engaged in, directly or indirectly, cyber-enabled activities originating from, or directed by persons located, in whole or in substantial part, outside the United States that are reasonably likely to result in, or have materially contributed to, a significant threat to the national security, foreign policy, or economic health or financial stability of the United States” and that have one of the purposes or effects enumerated in the Order. More information on the Executive Order is available here. OFAC’s Specially Designated Nationals (SDN) List will include persons blocked pursuant to the Executive Order and regulation. OFAC intends to supplement the new regulations with a more comprehensive set of regulations, “which may include additional interpretive and definitional guidance, regarding ‘cyber-enabled’ activities, and additional general licenses and statements of licensing policy.”
Special Alert: CFPB Director Opines on TRID Liability
On December 29, 2015, CFPB Director Richard Cordray issued a letter in response to concerns raised by the Mortgage Bankers Association regarding violations of the CFPB’s new TILA-RESPA Integrated Disclosure (“TRID”) rule, also known as the Know Before You Owe rule. In an effort to address concerns that technical TRID violations are resulting in extraordinarily high rejection rates by secondary market purchasers of mortgage loans, Director Cordray acknowledged that, “despite best efforts, there inevitably will be inadvertent errors in the early days.” However, he suggested that rejections based on “formatting and other minor errors” are “an overreaction to the initial implementation of the new rule” and that the risk to private investors from “good-faith formatting errors and the like” is “negligible.” He expressed hope that this issue “will dissipate as the industry gains experience with closings, loan purchases, and examinations.”
Click here to view the full Special Alert.
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Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.
- Clinton R. Rockwell, (310) 424-3901
- Jeffrey P. Naimon, (202) 349-8030
- John P. Kromer, (202) 349-8040
- Joseph M. Kolar, (202) 349-8020
- Jeremiah S. Buckley, (202) 349-8010
- Amanda Raines Lawrence, (202) 349-8089
- Melissa Klimkiewicz, (202) 349-8098
- Steven vonBerg, (202) 524-7893