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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.
Ginnie Mae VA loan eligibility requirements amended
On July 25, President Trump signed the “Protecting Affordable Mortgages for Veterans Act of 2019,” Public Law No. 116-33, which amends the National Housing Act to revise Ginnie Mae loan seasoning requirements for Department of Veterans Affairs (VA) housing loans. Section 306(g)(1) now requires that, in order to be eligible for Ginnie Mae securities, the date of the VA refinance loan must be the later of (i) “the date on which the borrower has made at least six consecutive monthly payments on the loan being refinanced; and” (ii) “the date that is 210 days after the first payment due date of the loan being refinanced.” The amendment is effective immediately.
Agencies complete living will evaluations, extend next filing deadline
On July 26, the FDIC and the Federal Reserve Board announced several resolution plan actions, including completing their evaluations of the 2018 resolution plans for 82 foreign banks and 15 domestic banks. Additionally, the agencies extended the deadline for the next resolution plans (known as living wills) from those firms until July 1, 2021. The agencies note that the deadline extension is to help mitigate the uncertainty around the filing requirements during the pendency of the agencies’ April proposal, which considers three changes: (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. (Previously covered by InfoBytes here.)
The agencies’ evaluations did not identify shortcomings or deficiencies in the 2018 resolution plans of the 82 foreign banks and are requesting additional information in the next resolution plans from seven firms.
FDIC encourages relief for Missouri and Texas borrowers
On July 26, the FDIC issued Financial Institution Letters FIL-44-2019 and FIL-45-2019 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Missouri and Texas affected by severe weather. FIL-44-2019 covers severe storms, tornadoes, and flooding causing significant property damage in areas of Missouri from April 29 through the present. FIL-45-2019 covers severe storms and flooding causing significant property damage in areas of Texas from June 24 to June 25. The regulatory guidance notes that certain areas in Texas and Missouri were designated federal disaster areas.
The FDIC is encouraging institutions to consider, among other things, extending repayment terms, restructuring existing loans, or easing terms for new loans to borrowers affected by the severe weather. Additionally, the FDIC notes that institutions may receive favorable Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery.
Find continuing InfoBytes coverage on disaster relief guidance here.
Special Alert: CFPB issues Advance Notice of Proposed Rulemaking to end GSE patch
On July 25, the CFPB issued an Advance Notice of Proposed Rulemaking (ANPR) that is intended as a first step in an orderly expiration of the so-called GSE patch, which confers Qualified Mortgage status for loans purchased or guaranteed by Fannie Mae and Freddie Mac while those entities operate under FHFA conservatorship. The patch expires in January 2021, or when Fannie and Freddie exit their conservatorships, whichever comes first. The ANPR solicits feedback on amending Regulation Z and the Ability to Repay/Qualified Mortgage Rule (ATR/QM Rule) to minimize disruption from the patch’s expiration. Comments are due 45 days after the ANPR’s publication in the Federal Register, which has not occurred as of the publication of this Special Alert.
The Bureau has previously solicited comments on the ATR/QM Rule, including the GSE Patch — first through a request for information relating to its adopted regulations in March 2018, and then in its ATR/QM Rule Assessment Report in January 2019.
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Click here to read the full special alert.
If you have questions about the GSE Patch and potential changes to the Ability to Repay/Qualified Mortgage Rule, please visit our Consumer Financial Protection Bureau practice page or contact a Buckley attorney with whom you have worked in the past.CFPB seeks comments on “QM patch” ahead of expiration
On July 25, the CFPB issued an Advance Notice of Proposed Rulemaking (ANPR) seeking feedback on potential revisions to the Ability to Repay/Qualified Mortgage (ATR/QM) Rule related to the expiration in 2021 of the “GSE patch,” a temporary provision granting Qualified Mortgage status to mortgages that are eligible for purchase or guarantee by Fannie Mae and Freddie Mac, including loans with higher debt-to-income (DTI) ratios than are allowed under the general QM requirements. The GSE patch (also referred to as the “QM patch”) is set to expire no later than January 10, 2021, or when Fannie and Freddie exit their government conservatorship, whichever comes first, with the Bureau stating that it currently plans to allow the GSE patch to expire as scheduled or “after a short extension” to facilitate a smooth transition. As previously covered by InfoBytes, the Bureau issued an assessment report on the ATR/QM Rule, in which it reported, among other things, that the GSEs have persistently maintained a high share of the market.
The ANPR requests comments on several potential amendments, including (i) whether the “qualified mortgage” definition should be revised in light of the upcoming expiration (currently, loans under the GSE patch generally qualify for safe harbor from legal liability under the ATR/QM Rule even if their DTI ratio exceeds 43 percent); (ii) whether the DTI ratio limit should remain at 43 percent or be increased or decreased, along with whether loans above the DTI ratio should be granted QM status if they have “certain compensating factors,” (iii) whether the QM definition should take into account possible alternatives to the DTI ratio for assessing a borrower’s ability-to-repay; and (iv) whether Appendix Q—which sets standards for calculating and verifying debt and income to determine the borrower’s DTI ratio—should be replaced, changed, or supplemented. Comments on the ANPR are due 45 days after publication in the Federal Register.
SEC awards $500,000 to overseas whistleblower
On July 23, the SEC announced a $500,000 award to an overseas whistleblower whose “expeditious reporting” on an important witness assisted the Commission in bringing a successful enforcement action. The SEC’s order noted that the whistleblower’s tip was the first information that the Commission received on the charged misconduct, and that without the information—which was substantiated by other witnesses—the violations would have been difficult to identify and prove partly because the misconduct happened abroad. The order does not provide any additional details regarding the whistleblower or the company involved in the enforcement action. Since the program’s inception in 2012, the SEC has awarded approximately $385 million to 65 whistleblowers.
OFAC amends several sanctions regulations
On July 22, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) released amendments to the Global Terrorism Sanctions Regulations (GTSR); Transnational Criminal Organizations Sanctions Regulations (TCOSR); and portions of the Hizballah Financial Sanctions Regulations (HFSR). Specifically, the GTSR and the TCOSR were amended to implement the Hizballah International Financing Prevention Amendments Act of 2018. The TCOSR was also amended to implement Executive Order 13863. OFAC also announced amendments to the GTSR to implement and reference the Sanctioning the Use of Civilians as Defenseless Shields Act of 2018. Finally, OFAC amended the HFSR to make various technical and conforming changes as well as update certain provisions. The amendments take effect July 23.
NYDFS creates fintech Research and Innovation Division
On July 23, NYDFS announced its newly created Research and Innovation Division, led by Matthew Homer as Executive Deputy Superintendent. “The financial services regulatory landscape needs to evolve and adapt as innovation in banking, insurance and regulatory technology continues to grow,” NYDFS Superintendent Linda Lacewell stated. “This new division and these appointments position [NYDFS] as the regulator of the future, allowing the Department to better protect consumers, develop best practices, and analyze market data to strengthen New York’s standing as the center of financial innovation.” The Research and Innovation Division, which will house NYDFS’ division responsible for supervising and licensing virtual currencies, will also assess technology efforts focusing on financial exclusion, consumer data protection rights, and financial services innovation. Among the appointees, NYDFS highlighted Homer’s recent experience as head of policy and research at a New York fintech company that provides open banking functionality for financial services providers, as well as his experience in emerging technology and financial inclusion at various federal agencies.
CFPB, New York AG settle lawsuit against debt collection network
On July 25, the CFPB and New York attorney general announced (see here and here) proposed settlements with a network of New York-based debt collectors (defendants) to resolve allegations that the defendants engaged in improper debt collection tactics in violation of the Consumer Financial Protection Act, the FDCPA, and various New York laws. As previously covered by InfoBytes, the CFPB and the New York AG filed a lawsuit in 2016, alleging the defendants established and operated a network of companies that harassed and/or deceived consumers into paying inflated debts or amounts they may not have owed. Among other things, the defendants allegedly (i) “misrepresented to consumers that they owed sums they did not owe, were not obligated to pay, or that the companies did not have a legal right to collect”; (ii) deceptively threatened consumers with lawsuits that the defendants did not plan on initiating; and (iii) impersonated law enforcement officials, government agencies, and court officers. Additionally, the New York AG claimed the defendants violated state laws related to the collection of consumer debt and the placement of consumer debt for collection.
The settlements were approved by the court on August 23 and permanently ban the defendants from acting as debt collectors and enjoin all defendants from engaging in the alleged unlawful conduct in the future and from making any misrepresentation or omission connected with any consumer financial product or service. The first stipulated final judgment and order for a group of the defendants imposes a $10 million civil money penalty (CMP) to both the CFPB and the New York AG, as well as $40 million in redress to harmed consumers. Under the terms of the second stipulated final judgment and order, the other group of defendants must pay CMPs of $1 million to both the CFPB and the New York AG and $4 million in consumer redress. However, based on the second group of defendants’ inability to pay, full payment is suspended subject to the defendants paying $10,000 in consumer redress and a $1 CMP to the Bureau.