InfoBytes Blog
Filter
Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
CFPB settles with auto loan company over deceptive sales practices
On November 20, the CFPB announced a settlement with a Florida-based nonbank and the nonbank’s founder (collectively, “defendants”), resolving allegations that the defendants violated the Consumer Financial Protection Act by making misleading statements in disclosures and advertisements for their auto loan payment accelerator program. According to the Bureau, the defendants’ program automatically deducts partial payments on a bi-weekly basis from consumers’ bank accounts and then forwards those payments every month to consumers’ lenders or servicers. As a result, enrolled consumers end up making the equivalent of 13 monthly payments each year instead of 12. While the program is marketed as an opportunity for consumers to save money, the Bureau claimed that the defendants misrepresented the amount consumers would save by not disclosing a $399 enrollment fee in the savings calculations presented to consumers. Due to the enrollment fee, the program’s costs “ordinarily exceed[ed] any savings,” the Bureau alleged, noting that the defendants had no basis for claiming that thousands of consumers saved money by enrolling in the program.
The consent order requires the defendants to pay a $1 civil money penalty and $9.3 million in consumer redress, which is suspended upon payment of $900,000 based on the defendants’ demonstrated inability to pay the full judgment. The Bureau noted in its press release that harmed consumers may be eligible to receive additional relief from the Bureau’s Civil Penalty Fund. The defendants are also prohibited from making any deceptive misrepresentations about the payment program or any other payment accelerator programs.
OCC releases recent enforcement actions
On November 19, the OCC released a list of recent enforcement actions taken against national banks, federal savings associations, and individuals currently and formerly affiliated with such entities. Included among the actions is an October 9 consent order to resolve the OCC’s claims that a Washington, D.C.-based branch of a Caribbean bank (bank) engaged in Bank Secrecy Act/Anti-Money Laundering (BSA/AML) compliance program violations. According to the consent order, the OCC identified “critical deficiencies” in certain elements of the bank’s BSA/AML compliance program, including failure to implement a compliance program that “adequately covered the required BSA/AML program elements,” and failure to timely file Suspicious Activity Reports (SARs). Among the compliance program failures, the consent order states that the bank had (i) “systemic deficiencies in its transaction monitoring systems and alert management processes, which resulted in monitoring gaps”; (ii) “systemic deficiencies in its customer due diligence, enhanced due diligence, and customer risk rating processes”; and (iii) “an inadequate system of internal controls, ineffective independent testing, a weak BSA Officer function, and insufficient staffing and training.” The consent order requires the bank to pay a $5 million civil money penalty as a result of the deficiencies.
Fed extends some Covid-19 lending facilities through March 2021
On November 30, the Federal Reserve Board announced the extension of the Commercial Paper Funding Facility (CPFF), the Money Market Liquidity Facility (MMLF), the Primary Dealer Credit Facility (PDCF), and the Paycheck Protection Program Liquidity Facility (PPPLF) through March 31, 2021, while many other Covid-19 lending facilities will terminate at the end of the year.
Earlier this month, Treasury Secretary Steven T. Mnuchin sent a letter to Federal Reserve Board Chairman Jerome Powell stating that he intends to let several Covid-19-related lending facilities that rely on Coronavirus Aid, Relief, and Economic Security (CARES) Act funding expire at the end of the year, while requesting a 90-day extension for facilities that do not rely on Treasury’s funding. Specifically, Mnuchin stated that the lending facilities that used CARES Act funding—the Primary Market Corporate Credit Facility (PMCCF), the Secondary Market Corporate Credit Facility (SMCCF), the Municipal Liquidity Facility (MLF), the Main Street Lending Program (MSLP), and the Term Asset-Back Securities Loan Facility (TALF)—“have clearly achieved their objective,” noting that “[b]anks have the lending capacity to meet the borrowing needs of their corporate, municipal, and nonprofit clients.” Mnuchin stated that while portions of the economy are still in need of fiscal support, “financial conditions have responded” and the use of the CARES Act-reliant facilities “has been limited.” Thus, Mnuchin requested that the Federal Reserve return the unused facility funds to Treasury so that Congress can “re-appropriate $455 billion, consisting of $429 billion in excess Treasury funds for the Federal Reserve facilities and $26 billion in unused Treasury direct loan funds.” Mnuchin, however, in “an abundance of caution,” requested a 90-day extension on facilities that do not require Treasury funding—the CPFF, MMLF, PDCF, and the PPPLF.
In response, the Federal Reserve Bank of Boston updated the Main Street Lending Program For-Profit Business and Nonprofit Organization FAQs to address the Main Street facilities at the end of this year. The update advises that (i) lender registration should be initiated by December 4; (ii) eligible loans should be submitted to the Main Street Portal for participation by December 14, and the Fed “will make efforts to process the loans submitted [] by December 14, 2020, in order to effect the purchase of eligible participation interests in advance of the termination date”; and (iii) the Main Street Special Purpose Vehicle will cease issuing commitment letters as of December 23.
Texas regulators update emergency-related home equity lending guidance
On November 30, the Texas Department of Banking, Department of Savings and Mortgage Lending, Office of Consumer Credit Commissioner, and Credit Union Department issued updated guidance on emergency measures for home equity lenders to consider in response to the COVID-19 pandemic. The guidance covers emergency measures in relation to the refinance and modification of home equity loans. The guidance also indicates that lenders are permitted to close loans in any area located at the permanent physical address of the lender, attorney, or title company, including outdoor settings such as parking lots.
Texas agencies issue revised emergency guidance for home equity lenders
On November 30, the Texas joint financial regulatory agencies (Department of Banking, Department of Savings and Mortgage Lending, Office of Consumer Credit Commissioner, and Credit Union Department) issued guidance to replace its April 22, 2020 guidance (previously discussed here) regarding emergency measures for home equity lenders to consider in response to the COVID-19 pandemic. The agencies encouraged lenders to work with borrowers to help borrowers recover and provide an opportunity to repay their debt. However, lenders must ensure that they comply with Texas law to have a valid home equity lien. The agencies reiterated guidance regarding authorized closing locations and noted that lenders should consider ways to close loans in accordance with social distancing recommendations.
HUD issues mortgage letters extending temporary guidance permitting endorsement despite forbearance and guidance on self-employment and rental income
On November 25, HUD issued Mortgage Letters 2020-39 and 2020-40 extending its temporary guidance for endorsement of mortgages where the borrower has been granted a Covid-related forbearance from ML 2020-16 (previously covered here) and for verification of self-employment, rental income, and 203(k) Rehabilitation Escrow Accounts from ML 2020-24 (previously covered here). The guidance is extended through December 31, 2020.
SBA must release PPP and EIDL borrower information by December 1
On November 24, the U.S. District Court for the District of Columbia denied the U.S. Small Business Administration’s (SBA) request for stay and ordered the release of the names, addresses, and precise loan amounts of all Paycheck Protection Program (PPP) and Economic Injury Disaster Loans (EIDL) by December 1. As previously covered by InfoBytes, the court ordered the SBA to supplement their July disclosure and release the “names, addresses, and precise loan amounts of all individuals and entities that obtained PPP and EIDL COVID-related loans by November 19, 2020,” concluding that the SBA’s claimed FOIA exemptions do not cover the requested information disclosures. The SBA moved to stay the order to “preserve [the] SBA’s right to appeal and to avoid irreparable harm to [the] SBA and to privacy and business confidentiality interests of the millions of individuals and businesses….” The court initially granted a temporary stay to review the motion (covered by InfoBytes here). Upon review, the court denied the stay, concluding that staying the disclosure through an appeal “would deprive the public of information critical to an ongoing national debate of considerable importance, as well as basic details surrounding an unprecedented federal relief effort financed by taxpayer dollars.” The SBA must release the supplemental information by December 1, however, the court noted that “nothing in this decision prevents SBA from seeking its desired relief in the Court of Appeals before that date.”
Updated PPP loan data available here.
Agencies provide regulatory relief to community banks
On November 20, the Federal Reserve Board, the OCC, and the FDIC issued an interim final rule providing temporary relief from certain regulation and reporting requirements for community banking organizations. Specifically, the interim final rule—which applies to community banking organizations and financial institutions with less than $10 billion in total assets as of December 31, 2019—gives community banks relief from expanded regulation and reporting requirements that may have been triggered due to participation in federal coronavirus response programs. The agencies note that programs, such as the Paycheck Protection Program and other lending facilities, may cause rapid and unexpected increases in the community bank’s size. The agencies expect these increases to be temporary and thus, the rule states that asset growth in 2020 or 2021 will not trigger new regulatory requirements for applicable community banking organizations until January 1, 2022, at the earliest. The rule is effective upon publication in the Federal Register.
Washington governor extends suspension of consumer garnishment
On November 20, the Washington governor issued a proclamation extending a previous moratorium on garnishment for consumer debts until the earlier of December 7, 2020 or the termination of Washington’s Covid-19 State of Emergency. See here, here and here for previous coverage. The suspension applies to garnishment of consumer bank accounts, wages and income to satisfy consumer debt judgments.
Treasury: Expenses paid from PPP loans are not deductible
On November 18, the U.S. Treasury Department and Internal Revenue Service (IRS) clarified the tax treatment of expenses where a Paycheck Protection Program (PPP) loan has not been forgiven by the end of the year the loan was received. According to the IRS revenue ruling, businesses are not taxed on the proceeds of a forgiven PPP loan, thus the business expenses paid from those proceeds are not deductible. The revenue ruling illustrates multiple taxpayer scenarios, which conclude that if the PPP loan has not yet been forgiven by the end of 2020, but the business reasonably believes the loan will be forgiven in the future, the expenses are not deductible. This applies whether the business has filed for forgiveness yet or not. However, if a PPP loan was expected to be forgiven, and was not, the expenses are deductible.