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Financial Services Law Insights and Observations


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  • Basel Committee updates global systemically important bank assessment methodology and framework

    Federal Issues

    On July 5, the Basel Committee on Banking Supervision (BCBS), the primary global standard setter for the prudential regulation of banks, released an updated version of its Global systemically important banks: revised assessment methodology and the higher loss absorbency requirement. The BCBS conducted a review of the original framework—first published in 2011 and updated in 2013—and noted that, based on its review, member jurisdictions’ experience, and feedback received during a public consultation last year, “the framework is meeting its primary objective by requiring [global systemically important banks (G-SIBs)] to hold higher capital buffers and providing incentives for such firms to reduce their systemic importance.” BCBS further stated that the core elements of the framework will be maintained to enhance the stability of the regulatory environment following the finalization of the Basel III post-crisis reforms.

    Among other enhancements, the framework provides the following updates:

    • amends the definition of cross-jurisdictional indicators consistent with the definition of Bank for International Settlements consolidated statistics;
    • introduces a trading volume indicator and modifies the weights in the substitutability category;
    • extends the scope of consolidation to insurance subsidiaries;
    • revises disclosure requirements;
    • provides further guidance on bucket migration and associated higher loss absorbency surcharge when a G-SIB moves to a lower bucket; and
    • adopts a transitional schedule for the implementation of these enhancements.

    The framework is expected to be implemented in member jurisdictions by 2021.

    Federal Issues Basel Committee Bank Regulatory

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  • CFPB Succession: Leandra English steps down, seeks to dismiss appeal; Mulvaney selects close advisor to be new deputy

    Federal Issues

    On July 9, Leandra English filed a motion for voluntary dismissal with the U.S. Court of Appeals for the D.C. Circuit, effectively ending her eight-month legal battle over the appointment of Mick Mulvaney as acting director of the CFPB. The motion follows an announcement released via Twitter on July 6 that English will be stepping down from her position as deputy director of the Bureau “in light of the recent nomination of a new Director.” (As previously covered by InfoBytes, President Trump nominated Kathy Kraninger, currently serving as the associate director for general government at the Office of Management and Budget (OMB), to be the director of the Bureau for a five-year term.) In April, the D.C. Circuit heard oral arguments in English’s litigation. Unlike previous arguments, which focused on the president’s authority to appoint Mulvaney under the Federal Vacancies Reform Act (FVRA), the court spent considerable time discussing Mulvaney’s concurrent role as head of the OMB, and whether that dual role is inconsistent with the Bureau’s independent structure as established by the Dodd-Frank Act. A decision was pending at the time English submitted her dismissal of the case.

    Following English’s resignation, Mulvaney announced the selection of Brian Johnson as the Bureau’s acting deputy director. Johnson was Mulvaney’s first advisor hire at the Bureau, and he currently serves as a principal policy director. Prior to joining the Bureau, Johnson was a senior counsel at the House Financial Services Committee.

    Federal Issues CFPB Succession CFPB FVRA Dodd-Frank English v. Trump Appellate D.C. Circuit

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  • New York Attorney General announces settlement with auto dealership over deceptive practices targeting non-English speakers

    State Issues

    On July 5, the New York Attorney General announced a settlement with an auto dealership to resolve allegations that it engaged in deceptive practices targeted towards non-English speakers. The auto dealership allegedly misled consumers about the actual cost of their purchases and offered false refinancing promises. According to the announcement, the dealership allegedly (i) provided English documents to non-English speaking consumers containing loan terms and aftermarket items different from those discussed during the actual sale, including “supplemental service contracts, gap insurance policies, or special protections for tires, fabric, glass, or paint that added thousands of dollars to the auto sale or lease contracts”; and (ii) told consumers it would refinance their loans at a lower rate after receiving complaints of overcharges and unwanted aftermarket items. However, the Attorney General asserts that the dealership failed to honor the refinancing promises. Under the terms of the settlement, the dealership is required to reform its business practices, refrain from engaging in the alleged deceptive business practices, modify its employee training and complaint handling process, and produce sales and lending documents in languages for non-English speakers prior to the signing of any documentation in English. The dealership must also pay over $423,000 to cover restitution, penalties, fees, and costs to the state.

    State Issues State Attorney General Fair Lending Settlement Auto Finance

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  • Florida Supreme Court: Lender may file second suit for deficiency claim provided foreclosure court has not adjudicated the claim


    On July 5, the Florida Supreme Court held that Section 702.06, Florida Statutes (2014), allows a lender pursuing a deficiency claim in a foreclosure action in one court to bring a separate action against the homeowner in another court provided the foreclosure court that has reserved jurisdiction has not yet adjudicated the deficiency claim. Section 702.06 provides in part that, “In all suits for the foreclosure of mortgages . . . . [t]he complainant shall also have the right to sue at common law to recover for such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.” At issue was a residential property that was foreclosed by final judgment. In the judgment, the foreclosure court expressly reserved jurisdiction to rule on any future deficiency claim, although no one tried to adjudicate the claim in that forum. The mortgage loan purchaser filed a separate action against the homeowner in a different court and obtained a deficiency judgment. On appeal from that action, the First District Court of Appeal disagreed with several other Florida appellate courts and concluded that the trial court lacked subject-matter jurisdiction because the original foreclosure court had previously reserved jurisdiction. The high court unanimously disagreed, holding that a “reservation of jurisdiction is not a grant or denial of the claim. The foreclosure court would have only ‘granted or denied’ the deficiency judgment if it had adjudicated the claim. Therefore, [§ 702.06, Fla. Stat.] plainly precludes the separate action only where the foreclosure court has actually ruled on the claim—as held by the Second, Third, Fourth and Fifth District Courts of Appeal.” In issuing its ruling, the high court quashed the decision of the First District Court of Appeal and approved the certified conflict decisions of the four other appellate courts.

    Courts State Issues Foreclosure Lending Deficiency Claim

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  • International bank must maintain $500 million bond securing $806 million RMBS judgment


    On July 5, the U.S. District Court for the Southern District of New York issued a memorandum opinion and order stating that an international bank must maintain the $500 million bond it had filed in 2015 to secure $806 million in damages owed to the Federal Housing Finance Agency for selling allegedly faulty residential mortgage-backed securities to Fannie Mae and Freddie Mac. The court had stayed execution of the judgment pending appeal, and the stay expired on July 5, following the Supreme Court’s denial without comment of the bank’s petition for writ of certiorari. (See previous InfoBytes coverage here.) According to the district court opinion and order, the bank maintained that the stay order required the bond to remain in effect only through July 5, even though the bank was not required to pay the final judgment until July 20. The court disagreed, explaining that a “more natural reading of the [s]tay [o]rder and the [b]ond together is that the [b]ond must remain in place until two conditions are met: (1) the stay of execution ends and (2) the [f]inal [j]udgment is satisfied. Condition 1 has now been met, but not condition 2.” The court added that the bank is free to satisfy the final judgment prior to its July 20 due date, at which point the bond could be dissolved prematurely.

    Courts FHFA RMBS Bond U.S. Supreme Court Fannie Mae Freddie Mac

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  • Court preliminarily approves $11.2 million settlement for post-payment interest charges on FHA mortgages


    On July 5, the U.S. District Court for the Southern District of Iowa preliminarily approved a $11.2 million settlement in a proposed class action against a national bank for allegedly improperly charging interest on pre-paid FHA-insured mortgages. According to the complaint filed in 2016, the bank charged post-payment interest on FHA-insured mortgages without providing the proper disclosures required by FHA. Specifically, the complaint alleges that the bank did not use the FHA-approved form to provide the disclosures to consumers. The settlement requires the bank to place $11.2 million in an escrow account for class distributions; settlement expenses; and attorneys’ fees, which, according to settlement documents, will not exceed 28 percent. The court found that the settlement fell “within the range of reasonableness” and met the requirements for preliminary approval.

    Courts Class Action Settlement FHA Prepayment Mortgages

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  • Agencies issue statement on the impact of the Economic Growth, Regulatory Relief, and Consumer Protection Act

    Federal Issues

    On July 6, the Federal Reserve Board, FDIC, and OCC issued an interagency statement regarding the impact of the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Act), S.2155/P.L. 115-174, which was signed into law by President Trump on May 24. The joint statement describes the interim positions the federal agencies will take with regard to amendments within the Act, including, among other things, (i) extending the deadline to November 25 for all regulatory requirements related to company-run stress testing for depository institutions with less than $100 billion in total consolidated assets; (ii) enforcing the Volcker Rule consistently with the Act’s narrowed definition of banking entity; and (iii) increasing the total asset threshold for well-capitalized insured depository institutions to be eligible for an 18-month examination cycle. The agencies intend to engage in rulemakings to implement certain provisions at a later date. The accompanying OCC and the FDIC releases are available here and here.

    The Federal Reserve Board also issued a separate statement describing how, in accordance with the Act, the Board will no longer subject certain smaller, less complex banking organizations to specified regulations, including stress test and liquidity coverage ratio rules. The Act raised the threshold from $50 billion to $100 billion in total consolidated assets for bank holding companies to be subject to Dodd-Frank enhanced prudential standards. The Board intends to collect assessments from all assessed companies for 2017 but will not collect assessments from newly exempt companies for 2018 and going forward. Additionally, the statement provides guidance on implementation of certain other changes in the Act, including reporting high volatility commercial real estate exposures.

    Federal Issues Federal Reserve FDIC OCC S. 2155 Volcker Rule Stress Test Trump

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  • Freddie Mac delays implementation of automated subsequent transfers of servicing

    Federal Issues

    On July 6, Freddie Mac released Guide Bulletin 2018-11, which announces a delay in the implementation of the automated Requests for Subsequent Transfers of Servicing (STOS) and intra-servicer portfolio moves. As previously covered by InfoBytes, Freddie Mac Guide Bulletin 2018-6 announced the automation of STOS and intra-servicer portfolio moves, which were originally scheduled to be effective on July 23. Freddie Mac has delayed the implementation date until August 13 and pushed the temporary STOS moratorium period from mid-July to July 30 through August 12.

    Federal Issues Freddie Mac Mortgage Servicing Servicing Transfers

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  • Global bank pays $76.7 million to settle hiring practices case

    Financial Crimes

    A global bank and its Hong Kong subsidiary reached a settlement with the DOJ and the SEC related to its alleged practice of “awarding employment to friends and family of Chinese officials” to win business. The subsidiary agreed to pay a $47 million criminal penalty as part of a non-prosecution agreement with the DOJ. It also agreed to continue to cooperate in any ongoing investigations. The DOJ noted that the subsidiary had not self-reported the conduct or properly disciplined the employees involved, although it did receive partial credit for cooperating with the investigation once it began. 

    The parent bank agreed to disgorge nearly $30 million in profits and prejudgment interest in an SEC administrative proceeding. The SEC noted the criminal fine imposed by the DOJ in deciding not to impose a civil penalty. 

    For prior coverage of the sons and daughters investigations into hiring practices in Asia, please see here

    Financial Crimes DOJ FCPA Sons and Daughters

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  • SEC settles with alcoholic beverage company for $8.2 million regarding India payments

    Financial Crimes

    On July 2, the SEC settled FCPA allegations with an alcoholic beverage company in an administrative proceeding stemming from alleged FCPA violations from 2006 through 2012. The company neither admitted nor denied any wrongdoing. The SEC alleged that the company’s subsidiary in India made illegal payments to Indian government officials through third-party sales promoters and distributers. The third parties then presented fabricated or inflated invoices to the subsidiary. These invoices and accounting entries were ultimately incorporated into the parent company’s books and records. The SEC also alleged that the company failed to maintain adequate internal controls.

    This is the third case the SEC has pursued related to conduct in India by alcoholic beverage companies, following a British alcoholic beverage company in 2011 and a Belgian alcoholic beverage in 2016.

    Financial Crimes SEC FCPA

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