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Federal Reserve issues FAQs on recent Regulation D changes
On May 13, the Federal Reserve published updated frequently asked questions (FAQs) regarding savings deposits under the recent changes to Regulation D. On April 23, the Federal Reserve issued an interim final rule amending Regulation D, which we previously covered here. Among other things, the interim rule deleted restrictions on transfers to address financial disruptions related to Covid-19. The FAQs clarify the definition of a savings deposit under the regulation, requirements for reporting savings deposits, reservation rights, and whether amendments to Regulation D impact Regulation CC.
Wisconsin Supreme Court strikes down state’s stay-at-home order
On May 13, the Wisconsin Supreme Court ruled that the state’s stay at home order was invalid and unenforceable. In a 4-3 decision, the court held that the state’s health services secretary exceeded her authority when issuing the order because she did not follow guidelines in place for emergency rule procedures when issuing the rule. The court further concluded that, even if emergency rulemaking were not required, the order’s requirements for all people to stay in their homes and the closure of businesses exceeded the secretary’s statutory authority. The ruling took immediate effect, lifting the state’s stay-at-home order.
FinCEN renews GTOs covering 12 metropolitan areas
On May 8, the Financial Crimes Enforcement Network (FinCEN) reissued the renewal of its Geographic Targeting Orders (GTOs). The GTOs require U.S. title insurance companies to identify the natural persons behind shell companies that pay “all cash” (i.e., the transaction does not involve external financing) for residential real estate in the 12 major metropolitan areas covered by the orders. The renewed GTOs are identical to the November 2019 GTOs (covered by InfoBytes here). The purchase amount threshold for the beneficial ownership reporting requirement remains set at $300,000 for residential real estate purchased in the covered areas. The GTOs do not require reporting for purchases made by legal entities that are U.S. publicly-traded companies.
The renewed GTOs take effect May 10, will extend until November 5, 2020, and cover certain counties within the following areas: Boston; Chicago; Dallas-Fort Worth; Honolulu; Las Vegas; Los Angeles; Miami; New York City; San Antonio; San Diego; San Francisco; and Seattle.
FinCEN FAQs regarding GTOs are available here.
Agencies finalize policy changes to CECL
On May 8, the FDIC, Federal Reserve Board, OCC, and NCUA finalized an interagency policy statement on allowances for credit losses and interagency guidance on credit risk review systems. As previously covered by InfoBytes, the proposed policy statement and interagency guidance were released in October 2019.
The final policy statement describes the measurement of expected credit losses under the current expected credit losses (CECL) methodology. The CECL methodology determines allowances for credit losses applicable to financial assets measured at amortized cost, loans held-for-investment, net investments in leases, held-to-maturity debt securities, and certain off-balance-sheet credit exposures. The policy statement also stipulates financial assets for which the CECL methodology is not applicable, and includes supervisory expectations for designing, documenting, and validating expected credit loss estimation processes. The final policy statement becomes applicable to an institution upon that institution’s adoption of a CECL methodology.
The interagency credit risk review systems guidance—which is relevant to all institutions supervised by the agencies—updates the 2006 Interagency Policy Statement on the Allowance for Loan and Lease Losses to reflect the CECL methodology. The guidance “discusses sound management of credit risk, a system of independent, ongoing credit review, and appropriate communication regarding the performance of the institution's loan portfolio to its management and board of directors.” Furthermore, the guidance stresses that financial institution employees involved with assessing credit risk should be independent from an institution’s lending function.
See also FDIC FIL-54-2020 and FIL-55-2020 and OCC 2020-49 Bulletin and 2020-50 Bulletin.
Texas regulator extends reporting deadlines for property tax lenders, urges working with borrowers
On May 13, the Texas Office of Consumer Credit Commissioner revised an advisory bulletin (previously discussed here) for property tax lenders, which sets forth guidance regarding annual report deadlines, electronic signatures, activity from unlicensed locations, and working with borrowers, including by increasing communications, working out modifications, waving late charges, and suspending foreclosures, among other things.
SBA issues IFR extending PPP Safe Harbor
The Small Business Administration (SBA) recently issued an interim final rule (IFR) to supplement the CARES Act and extend the Paycheck Protection Program (PPP) safe harbor for repayment from May 7 to May 14. Borrowers who received a PPP loan prior to April 24 but determined that the funds were “obtained based on a misunderstanding or misapplication of the required certification standard” will be deemed by the SBA to have made the borrower certification on a loan application in good faith if they repay the loans in full by May 14. Additional guidance on the safe harbor extension is forthcoming. (The SBA first announced the repayment extension last week in updated Frequently Asked Questions, covered by InfoBytes here.) Due to the safe harbor extension, the IFR also extends the deadline to May 22 for PPP lenders to file yet-to-be released Form 1502 in order to receive their lender processing fees. As previously covered by InfoBytes, the SBA stated that PPP lenders must disburse each loan and submit SBA Form 1502 within 20 days of loan approval. The IFR takes effect upon publication in the Federal Register, with comments due within 30 days.
CFPB issues policy statement on billing error responsibilities, two sets of Covid-19 FAQs
On May 13, the CFPB released a policy statement and two FAQ documents outlining the responsibilities of financial firms during the Covid-19 pandemic. The policy statement covers Regulation Z’s billing error resolution timeframe in light of the operational disruptions faced by many merchants and small businesses, causing delays in responses to creditors’ inquiries and thus making it difficult for creditors to accurately and timely resolve consumers’ billing error notices. The statement emphasizes that the CFPB will be flexible with its supervisory and enforcement approach during the pandemic as it relates to billing error resolution set forth in §1026.13(c)(2), stating “the Bureau intends to consider the creditor’s circumstances and does not intend to cite a violation in an examination or bring an enforcement action against a creditor that takes longer than required by [Regulation Z] to resolve a billing error notice, so long as the creditor has made good faith efforts to obtain the necessary information and make a determination as quickly as possible, and complies with all other requirements pending resolution of the error.” The Bureau notes that creditors are still expected to fully comply with the other requirements of billing error disputes in Regulation Z.
The Bureau also released payment and deposit rule FAQs related to the Covid-19 pandemic, which state that financial or depository intuitions may change account terms due to the pandemic so long as they provide appropriate notice to consumers. However, if a change is favorable to the consumer, it can be implemented immediately without advance notice. Additionally, the Bureau released open-end (not home-secured) rule FAQs related to the Covid-19 pandemic, which state that creditors may change account terms in response to the pandemic but most changes will require advance notice. However, changes that may help a consumer in need—such as reducing a finance charge—do not require advance notice.
Fannie and Freddie offer new Covid-19 payment deferral
On May 13, the FHFA, Fannie Mae, and Freddie Mac, announced a new Covid-19 payment deferral option that will be available starting on July 1. According to Fannie Mae Lender Letter LL-2020-07 and Freddie Mac Bulletin 2020-15, the new Covid-19 payment deferral is “a new workout option specifically designed to help borrowers impacted by a hardship related to Covid-19 return their mortgage to a current status after up to 12 months of missed payments.”
The new option is for borrowers who (i) are on a Covid-19 related forbearance plan, or (ii) have a resolved financial hardship due to Covid-19. Specifically, the servicer is required to confirm that the borrower is now able to continue making the full monthly contractual payment of their loan but is unable to reinstate the mortgage loan or afford a repayment plan to cure the previous delinquency. If a borrower is eligible for the Covid-19 payment deferral, the servicer must allow the borrower to resume their contractual monthly payments; however, the delinquency amount (which includes up to 12 months of past-due principal and interest payments; out-of-pocket escrow advances paid to third parties; and servicing advances paid to third parties in the ordinary course of business) must be deferred as a non-interest bearing balance, due and payable at liquidation, refinance, or maturity. Among other requirements detailed by the Lender Letter and Bulletin, servicers must report the loan in accordance with the Fair Credit Reporting Act, as amended by the CARES Act, which requires lenders to report as current any loans subject to Covid-19 forbearance or other accommodation. Additionally, servicers must waive all late charges, penalties, and fees upon completing the Covid-19 payment deferral.
In addition to the new Covid-19 payment deferral, borrowers will continue to have other hardship options including repayment plans, lump-sum repayment, or permanent modification. Servicers must begin evaluating borrowers for the Covid-19 payment deferral beginning July 1.
SBA, Treasury won’t audit PPP loans beneath $2 million
On May 13, the Small Business Administration (SBA) in consultation with the Treasury Department updated the Paycheck Protection Program (PPP) Frequently Asked Questions (FAQs) to provide additional borrower guidance. Borrowers that submit PPP applications must certify, in good faith, that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” FAQ #46 establishes a safe harbor that “[a]ny borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.” According to SBA, this safe harbor is appropriate because borrowers with loans of less than $2 million are generally less likely to have access to other forms of liquidity than borrowers who are able to obtain larger loans. Also, the safe harbor will provide more certainty to PPP borrowers with more limited resources, and it will allow SBA to use its resources efficiently to prioritize reviews of larger loans, where compliance audits may yield higher returns.
SBA’s guidance noted, however, that borrowers with loans greater than the $2 million threshold “may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance.” Those loans will be subject to review by the SBA, and if the SBA determines a borrower lacks an adequate basis for certification, the borrower will not be eligible for loan forgiveness and must pay the outstanding balance. If a borrower repays a loan after receiving notification from the SBA, the SBA states that it will not pursue administrative enforcement or make referrals to other agencies based on its determination concerning the certification of necessity.
Additionally, in FAQ #47, the SBA extended until May 18 the PPP safe harbor repayment deadline for borrowers who received PPP loans but had access to other sources of capital. Borrowers who applied for a PPP loan and repay the loan in full by May 18 will be deemed by the SBA to have made the required certification regarding necessity of the loan request in good faith. The extension is intended to provide borrowers an opportunity to consider FAQ #46. The SBA’s interim final rule providing the safe harbor (covered by InfoBytes here) will be revised to reflect the extension.
New Jersey Department of Banking and Insurance issues bulletin regarding reductions in premiums
On May 12, the New Jersey Department of Banking and Insurance issued Bulletin No. 20-22 to certain insurance-related entities, including licensed, admitted, and surplus lines insurers transacting property and casualty insurance in New Jersey. In light of the reduced risk of loss for certain insurance as a result of Covid-19, the bulletin requires premium reductions for those lines of insurance. Where applicable, insurers are ordered to make an initial premium refund or other adjustment to adversely impacted New Jersey policy-holders, and for each month that the public health emergency is in effect. Instructions are provided for submitting the components of the refund program via the System for Electronic Rates and Forms Filing. Insurers that can demonstrate that their rates are not excessive, inadequate, or unfairly discriminatory, or that otherwise contend they should not be subject to the terms of the bulletin, may submit the basis for this position and supporting documentation by June 1, 2020.