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  • GSEs must seek FHFA preapproval for new products

    Agency Rule-Making & Guidance

    On December 20, FHFA announced a final rule requiring Fannie Mae and Freddie Mac to provide advance notice of new activities and to obtain prior approval before launching new products. (See also fact sheet here.) Among other things, the final rule establishes that FHFA will determine which new activities merit public notice and comment and would be treated as new products subject to prior approval. Specifically, the final rule establishes that once a Notice of New Activity is deemed received, FHFA has 15 calendar days to determine if the new activity is a new product that merits public notice and comment. Additionally, the final rule establishes a public disclosure requirement for FHFA to publish its determinations on new activity and new product submissions. Among other things, if the agency “determines that a new activity is a new product, the final rule requires FHFA to publish a public notice soliciting comments on the new product for a 30-day period.” The final rule is effective 60 days after publication in the Federal Register.

    Agency Rule-Making & Guidance Federal Issues FHFA GSEs Fannie Mae Freddie Mac Federal Register

  • HUD seeks public input on disaster recovery funds

    Agency Rule-Making & Guidance

    On December 20, HUD released two new requests for information (RFIs) seeking public input on how to simplify, modernize, and more equitably distribute critical disaster recovery funds. According to HUD, the RFIs are a broader element of HUD’s newly published Climate Action Plan, “which emphasizes both equity and resilience in disaster recovery, as well as the Biden-Harris Administration’s commitment to strengthening low- and moderate-income communities.” HUD noted that the Community Development Block Grant Disaster Recovery and Mitigation focus on long-term recovery and resilience efforts, targeted to families with low- and moderate-incomes in the most impacted and distressed areas. HUD also noted that both funds are “unique” from other federal disaster assistance programs by FEMA and the SBA, as well as private insurance, because it is the only federal resource with the primary purpose of benefiting low- and moderate-income communities. HUD further noted that the RFIs will inform the policy that will tear down barriers and eliminate unnecessary administrative burden, as to provide better and quicker assistance to those affected.

    Agency Rule-Making & Guidance Federal Issues HUD Disaster Relief SBA

  • Agencies release 2021 CRA data

    On December 15, members of the FFIEC with Community Reinvestment Act responsibilities (Federal Reserve Board, FDIC, and the OCC) released 2021 Community Reinvestment Act data on small business, small farm, and community development lending. (See also fact sheet here.) The 685 reporting banks reported that they originated or purchased 9.4 million small-business loans totaling $371 billion, with the total number of loans originated by reporting banks increasing by approximately 12.6 percent from 2020. The dollar amount of these small business loans decreased by 21 percent, the report found. Additionally, roughly 47.1 percent of the reported small business loan originations and 59.3 percent of reported farm loans were made to firms with less than $1 million in revenue. With respect to community development lending activity, the agencies reported that based on data compiled from 618 banks, lending activity decreased by 10.1 percent from the amount reported in 2020.

    Bank Regulatory Federal Issues CRA FFIEC Federal Reserve OCC Small Business Lending

  • Agencies release annual CRA asset-size threshold adjustments

    On December 19, the Federal Reserve Board, FDIC, and OCC announced (see here and here) joint annual adjustments to the CRA asset-size thresholds used to define “small bank” and “intermediate small bank,” which are not subject to the reporting requirements applicable to large banks unless they choose to be evaluated as one. A “small bank” is defined as an institution that, as of December 31 of either of the prior two calendar years, had less than $1.503 billion in assets. An “intermediate small” bank is defined as an institution that, as of December 31 of both of the prior two calendar years, had at least $376 million in assets, and as of December 31 of either of the past two calendar years, had less than $1.503 billion in assets. The joint final rule takes effect on January 1, 2023.

    Bank Regulatory Federal Issues Agency Rule-Making & Guidance CRA FDIC Federal Reserve Supervision

  • States have their say on CFPB funding

    Courts

    Recently, a coalition of state attorneys general from 22 states, including the District of Columbia, filed an amicus brief supporting the CFPB’s petition for a writ of certiorari, which asked the U.S. Supreme Court to review whether the U.S. Court of Appeals for the Fifth Circuit erred in holding that the Bureau’s funding structure violates the Appropriations Clause of the Constitution. A separate coalition of 16 state attorneys general filed an amicus brief opposing the Bureau’s position and supporting the 5th Circuit’s decision, however these states also urged the Supreme Court to grant the Bureau’s petition to address whether the 5th Circuit’s conclusion was correct.

    As previously covered by a Buckley Special Alert, the 5th Circuit’s October 19 holding found that although the Bureau spends money pursuant to a validly enacted statute, the structure violates the Appropriations Clause because (i) the Bureau obtains its funds from the Federal Reserve (not the Treasury); (ii) the agency maintains funds in a separate account; (iii) the Appropriations Committees do not have authority to review the agency’s expenditures; and (iv) the Bureau exercises broad authority over the economy. The case involves a challenge to the Bureau’s Payday Lending Rule, which prohibits lenders from attempting to withdraw payments for covered loans from consumers’ accounts after two consecutive withdrawal attempts have failed due to insufficient funds. As a result of the 5th Circuit’s decision, lenders’ obligation to comply with the rule (originally set for August 19, 2019, but repeatedly delayed) will be further delayed while the constitutional issue winds its way through the courts. The Bureau’s petition also asked the court to consider the 5th Circuit’s decision to vacate the Payday Lending Rule on the premise that it was promulgated at a time when the Bureau was receiving unconstitutional funding. (Covered by InfoBytes here.)

    • Amicus brief supporting CFPB’s position. The 22 states urged the Supreme Court to review the 5th Circuit’s decision, arguing that the Bureau’s funding is lawful and that even if the Supreme Court were to find a constitutional defect in the funding scheme, vacating otherwise lawfully-promulgated regulations is neither justified nor compelled by law. “Left undisturbed, the court of appeals’ reasoning could jeopardize many of the CFPB’s actions from across its decade-long existence, to the detriment of both consumers protected by those actions and financial-services providers that rely on them to guide their conduct,” the states said. In their brief, the states argued, among other things, that the Supreme Court should grant the petition “to review at least the question of whether the court of appeals erred in vacating a regulation promulgated during a time when the CFPB received allegedly unconstitutional funding.” The states asserted that the decision “threatens substantial harm” to the states because the states and their residents “could stand to lose the benefits of the CFPB’s critical enforcement, regulatory, and informational functions if the decision [] stands and is interpreted to impair the CFPB’s ongoing operations.” With respect to questions related to the Bureau’s funding structure, the states claimed that it is altogether speculative as to whether the Bureau would have behaved differently if its funding had come from the Treasury rather than the Federal Reserve. Former Director Kraninger’s ratification and reissuance of the Payday Lending Rule “is strong evidence that the CFPB would have issued the same regulation once again, after any constitutional defect was corrected,” the states said.
    • Amicus brief opposing CFPB’s position. The 16 opposing states argued, however, that the Supreme Court should grant the Bureau’s petition to provide states with “certainty over their role” in regulating the financial system, and should affirm the 5th Circuit’s decision to “restore the CFPB’s accountability to the states.” In their brief, the states asked the Supreme Court “to resolve this issue quickly” and to “reinvigorate the protections of the Appropriations Clause, not weaken them.” The states maintained that if the Supreme Court does not quickly resolve the dispute, states “will have to litigate the same issue in other districts and circuits over and over,” and “[a]ny continuing confusion could seriously impede the growth of the consumer-financial services market at a time when the economy is already strained.” According to the brief, congressional oversight “ensures a level of state participation that ordinary administrative processes don’t allow.” In summary, the states’ position is that the 5th Circuit’s decision on the funding question is correct and that the court “was right to vacate a rule enacted without constitutional funding.”

    Courts Federal Issues State Issues CFPB Constitution State Attorney General Appellate Fifth Circuit Enforcement Payday Lending Payday Rule Funding Structure

  • Senate Banking holds hearing on crypto

    Federal Issues

    On December 14, the Senate Banking Committee held a hearing to hear from witnesses about how customer and investor protections should apply to cryptocurrencies, among other topics. Committee Chairman Sherrod Brown (D-OH) opened the hearing by emphasizing that it is the committee’s job “to keep learning more about the collapses” of crypto firms, and that there should be collaboration with regulators to put consumers—not the crypto industry—first. Brown warned that crypto has “ushered in a whole new dimension of fraud and threats to national security.” Senator Elizabeth Warren (D-MA) expressed similar concerns, stating that the “dark underbelly of crypto is its critical link to financing terrorism and human trafficking and drug dealing and helping rogue nations like North Korea and Iran.” Warren went on to describe her bipartisan bill, the Digital Asset Anti-Money Laundering Act, noting that it “requires crypto to follow the same money laundering rules” that every bank and every broker are subjected to. Senator Cynthia Lummis (R-WY) also advocated for the regulation of digital asset trading, and providing consumers with adequate bankruptcy protection, disclosures, and stable coin regulation. Ranking Member Pat Toomey (R-PA) expressed openness to the possibility of regulations tailored to crypto, including more disclosure from issuers and oversight of secondary market trading. Toomey argued against pausing cryptocurrency before legislation. Additionally, some witnesses discussed drafting potential cryptocurrency legislation. One witness told the committee that when crypto assets are made from thin air, they can be “used to obscure financial realities.” Another witness said cryptocurrencies are “at best a vehicle for speculation, an exercise in a zero-sum game of chance, much like online poker,” but, “at worst, they are an instrument of crime.”

    Federal Issues Senate Banking Committee Digital Assets U.S. Senate Cryptocurrency Fintech

  • FTC proposes to permanently ban credit repair operation

    Federal Issues

    On December 15, the FTC announced proposed court orders to permanently ban a group of companies and their owners (collectively, “defendants”) from offering or providing credit repair services. In May the FTC filed a complaint against the defendants for allegedly violating the FTC Act, the Credit Repair Organizations Act, and the TSR, among other statutes, by making deceptive misrepresentations about their credit repair services and charging illegal advance fees (covered by InfoBytes here). At the time, the U.S. District Court for the Middle District of Florida granted a temporary restraining order against the defendants. The proposed court orders (see here and here) were agreed to by the defendants, and contain several requirements: (i) a permanent ban against the defendants from operating or assisting any credit repair service of any kind; (ii) a prohibition against making unsubstantiated claims “about the benefits, performance, or efficacy of any good or service without sufficient supporting evidence”; and (iii) the release of numerous possessions that will be liquidated by a court-appointed receiver and used by the FTC to provide refunds to impacted consumers. The proposed court orders also include a total monetary judgment of more than $18.8 million, which is partially suspended due to the defendants’ inability to pay.

    Federal Issues Courts FTC Enforcement Credit Repair FTC Act Telemarketing Sales Rule Credit Repair Organizations Act UDAP Deceptive Consumer Finance

  • OCC reports on third quarter mortgage performance

    On December 15, the OCC announced the release of OCC Mortgage Metrics Report, Third Quarter 2022, in which it reported that “97.2 percent of mortgages included in the report were current and performing at the end of the quarter, compared to 95.6 percent a year earlier.” As explained in the report, servicers initiated 9,835 new foreclosures in the third quarter of 2022—a decrease from the previous quarter but an increase from a year ago. The foreclosure volume in this reporting period is lower than pre-Covid-19 pandemic foreclosure volumes, the OCC said. Servicers also completed 16,160 mortgage modifications in the third quarter—a 42.5 percent decrease from the previous quarter. Of these modifications, 72.4 percent reduced a loan’s pre-modification monthly payment, and 93.1 percent consisted of a combination modification containing multiple actions such as interest rate reductions and term extensions. Additionally, the OCC found that during the reporting period, first-lien mortgages represented 22 percent of all outstanding residential mortgage debt (or approximately 12 million loans equaling $2.7 trillion in principal balances).

    Bank Regulatory Federal Issues OCC Mortgages Mortgage Servicing Covid-19 Consumer Finance

  • Fed issues final rule for LIBOR replacement

    On December 16, the Federal Reserve Board adopted a final rule to implement the Adjustable Interest Rate Act by identifying benchmark rates based on the Secured Overnight Financing Rate (SOFR) that will replace LIBOR in certain financial contracts after June 30, 2023. The final rule ensures that LIBOR contracts adopting a benchmark rate selected by the Fed will not be interrupted or terminated following LIBOR’s replacement. Among other things, the final rule identifies: (i) SOFR-based Fed-selected benchmark replacements for LIBOR contracts that will not mature prior to the LIBOR replacement date and do not contain clear and practicable benchmark replacements; (ii) different SOFR-based Fed-selected benchmark replacements for different categories of LIBOR contracts, including overnight, one-month, three-month, six-month, and 12-month LIBOR contracts subject to the Act; and (iii) certain benchmark replacement conforming changes related to the implementation, administration, and calculation of the Fed-selected benchmark replacement. The Fed noted that in response to comments, the final rule restates safe harbor protections contained in the Act for selection or use of the replacement benchmark rate selected by the Fed, and clarifies who would be considered a “determining person” able to choose to use the replacement benchmark rate.

    Bank Regulatory Federal Issues Federal Reserve LIBOR SOFR Interest Rate

  • OCC rescinds FDCPA section of booklet

    On December 15, the OCC announced that the Federal Financial Institutions Examination Council’s Task Force on Consumer Compliance adopted revised examination procedures for the FDCPA and its implementing regulation, Regulation F. Among other things, the revised interagency examination procedures incorporate the CFPB's 2020 and 2021 FDCPA that went into effect in November 2021. The announcement noted that the agency is rescinding the “Fair Debt Collection Practices Act” section of the “Other Consumer Protection Laws and Regulations” booklet of the Comptroller's Handbook. The revised interagency examination procedures address, among other things: (i) determinations of whether a bank is a debt collector under the FDCPA and Regulation F; (ii) prohibitions on certain communications with consumers in connection with debt collection; and (iii) requirements for a reasonable and simple method that consumers can use to opt out of additional communications and attempts to communicate.

    Bank Regulatory Federal Issues Agency Rule-Making & Guidance OCC FDCPA Regulation F CFPB Comptroller's Handbook Examination Debt Collection

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