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Federal Reserve Supplements Recovery And Resolution Preparedness For Large Banks
On January 24, the Federal Reserve Board issued SR 14-1, which attached new guidance for certain large banks titled Principles and Practices for Recovery and Resolution Preparedness. The document outlines additional expectations for the recovery and resolution preparedness of eight large domestic bank holding companies. The guidance stresses the importance of robust systems to manage collateral, information, and payments, clearing, and settlement activities. It also highlights the importance of adequate liquidity and funding arrangements during times of stress, and robust arrangements for the provision of shared or outsourced services necessary for critical operations. The Federal Reserve will incorporate the guidance into its ongoing recovery and resolution preparedness assessments of large bank holding companies subject to the guidance.
CFPB Proposes To Supervise Larger Nonbank International Money Transmitters
On January 23, the CFPB proposed a rule that would allow the agency to supervise nonbank “larger participants” in the international money transfer market. The proposed rule defines “larger participant” to include any entity that provides one million or more international money transfers annually, which the CFPB estimates will extend oversight to roughly 25 of the largest providers in the market. Providers that do not meet the million-transfer threshold may still be subject to the CFPB’s supervisory authority if the Bureau has reasonable cause to determine they pose risk to consumers. Although the CFPB proposes to use aggregate annual international money transfers as the criterion for establishing which entities are “larger participants” of the international money transfer market, the CFPB also considered and has requested comment on use of annual receipts from international money transfers and annual transmitted dollar volume as potential alternatives.
The CFPB suggests that examinations of such providers will focus on compliance with the Remittance Rule—particularly with respect to new requirements addressing disclosures, cancellation options, and error corrections—and that the agency will “coordinate [examinations] with appropriate State regulatory authorities.” The CFPB released examination procedures for use in assessing compliance with the remittance transfer requirements last year.
Dodd-Frank granted the CFPB authority to supervise “larger participants” in the consumer financial space, as defined by rule. The agency has already finalized similar rules covering “larger participants” in student loan servicing, debt collection, and consumer reporting markets. The proposal, if finalized, would be the fourth larger-participant rule adopted by the CFPB.
A CFPB factsheet on the proposal is available here. The CFPB will accept comments for 60 days from publication of the proposed rule in the Federal Register.
Regulators Alter Volcker Rule On TruPS CDOs
On January 14, the Federal Reserve Board, the CFTC, the SEC, the OCC, and the FDIC issued an interim final rule to permit banking entities to retain interests in certain collateralized debt obligations backed primarily by trust preferred securities (TruPS CDOs) from the investment prohibitions of section 619 of the Dodd-Frank Act, known as the Volcker rule. The change allows banking entities to retain interest in or sponsorship of covered funds if (i) the TruPS CDO was established, and the interest was issued, before May 19, 2010; (ii) the banking entity reasonably believes that the offering proceeds received by the TruPS CDO were invested primarily in Qualifying TruPS Collateral; and (iii) the banking entity’s interest in the TruPS CDO was acquired on or before December 10, 2013, the date the agencies finalized the Volcker Rule. With the interim rule, the Federal Reserve, the OCC, and the FDIC released a non-exclusive list of qualified TruPS CDOs. The rule was issued in response to substantial criticism from banks and their trade groups after the issuance of the final Volcker Rule, and followed the introduction of numerous potential legislative fixes. On January 15, the House Financial Services Committee held a hearing on the impact of the Volcker rule during which bankers raised concerns beyond TruPS CDOs, including about the rule’s potential impact on bank investments in other CDOs, collateralized mortgage obligations, collateralized loan obligations, and venture capital. Committee members from both parties expressed an interest in pursuing further changes to the rule, including changes to address the restrictions on collateralized loan obligations.
Federal Reserve Board Seeks Comment On Designated Utilities' Risk Management Standards, Payment System Risk Policy
On January 10, the Federal Reserve Board proposed revisions to the Regulation HH risk-management standards for certain financial market utilities that have been designated as systemically important by the Financial Stability Oversight Council, and for which the Federal Reserve Board is the Supervisory Agency pursuant to Title VIII of the Dodd-Frank Act. The Board also requested comment on related revisions to part I of the Federal Reserve Policy on Payment System Risk (PSR policy), which applies to financial market infrastructures more generally, including those operated by the Federal Reserve Banks. The Federal Reserve states that both sets of proposed changes are based on and generally are consistent with the April 2012 Principles for Financial Market Infrastructures developed jointly by the international standard-setting bodies, the Committee on Payment and Settlement Systems and the Technical Committee of the International Organization of Securities Commissions. Among other things, the revisions: (i) establish separate standards to address credit risk and liquidity risk, (ii) add a standard on general business risk, and (iii) heighten requirements on transparency and disclosure. Comments on both proposals must be submitted by March 31, 2014.
Arkansas Amends Fair Mortgage Lending Act Regulations
On January 10, the Arkansas Securities Department finalized amendments to certain sections of the rules that implement the Fair Mortgage Lending Act. The regulations were adopted as proposed. The regulations were amended to expand disclosure requirements for new and transferred loans to include: (i) any notice required under federal law; (ii) a schedule of the ranges and categories of the servicer’s costs and fees for its servicing-related activities; and (iii) a notice that the servicer is licensed in the state and that complaints can be submitted to the Securities Department. The rule also prohibits advertising that indicates a consumer’s ability or likelihood to obtain any new mortgage credit product or term, or a refinancing or modification, has been preapproved or guaranteed. Finally, the rule, among other things, (i) expands payment processing requirements to include payments made via electronic transfer; and (ii) amends record keeping rules to require licensees to maintain records in a format compatible with electronic examination software, and to expand the types of documents servicers must maintain. The new rules take effect February 9, 2014.
CFPB Extends Time To Respond To Debt Collection Proposal
On January 13, the CFPB issued a notice extending the comment period for its advance notice of proposed rulemaking related to debt collection practices. The notice states that the comment period, which was set to end on February 10, 2014, has been extended through February 28, 2014 in response to numerous formal and informal requests for additional time.
Prudential Regulators Address Impact Of QM Lending On CRA Ratings
On December 13, the Federal Reserve Board, the FDIC, the OCC, and the NCUA issued an interagency statement to clarify safety and soundness expectations and CRA considerations in light of the CFPB’s ability-to-repay/qualified mortgage rule. The statement emphasizes that institutions may originate both QM and non-QM loans based on their business strategies and risk appetites and that residential mortgage loans “will not be subject to safety-and-soundness criticism based solely on their status as QMs or non-QMs.” Acknowledging that some institutions may choose to originate only or predominantly QM loans, the agencies state that, consistent with recent guidance concerning the fair lending implications of QM-only lending, “the agencies that conduct CRA evaluations do not anticipate that institutions’ decision[s] to originate only QMs, absent other factors, would adversely affect their CRA evaluations.”
Banking Regulators Finalize Social Media Guidance
On December 11, the FFIEC, on behalf of the CFPB, the FDIC, the OCC, the Federal Reserve Board, the NCUA, and the State Liaison Committee, released final guidance on the applicability of consumer protection and compliance laws, regulations, and policies to activities conducted via social media by federally supervised financial institutions and nonbanks supervised by the CFPB. The guidance was finalized largely as proposed. However, in response to stakeholder comments, the regulators clarified certain provisions. For example, the final guidance clarifies that traditional emails and text messages, on their own, are not social media. The final guidance also explains that to the extent consistent with other applicable legal requirements, a financial institution may establish one or more specified channels that customers must use for submitting communications directly to the institution, and that a financial institution is not expected to monitor all Internet communications for complaints and inquiries, but should take into account the results of its own risk assessment in determining the appropriate approach regarding monitoring and responding to communications. The regulators also clarified that the guidance is not intended to provide a “one-size-fits-all” approach; rather financial institutions are expected to assess and manage the risks particular to the individual institution, taking into account factors such as the institution’s size, complexity, activities, and third party relationships. The final guidance also contains further discussion regarding the application of certain laws and regulations to social media activities, such as the Community Reinvestment Act. Finally, consistent with other recent regulatory initiatives, the final guidance clarifies that prior to engaging with a prospective third party an institution should evaluate and perform due diligence appropriate to the risks posed.
HUD Finalizes QM Rule, Manual Underwriting Standards
On December 11, HUD issued a final rule defining what constitutes a “qualified mortgage” (QM) for purposes of loans insured by the FHA. The final rule largely adopts HUD’s proposal, which was the subject of our October 2013 Special Alert. The final rule clarifies certain aspects of the HUD proposal. Among other things, it replaces provision in a CFPB’s QM rule that allows consumers to rebut the presumption of compliance based on residual income, with a provision that the consumer show that the creditor failed to underwrite consistent with HUD requirements. With the final rule, HUD also adopted new underwriting standards. The effective date for the underwriting standards will be set by a future Mortgagee Letter, but will be no earlier than March 11, 2014.
New York Proposes Shared Appreciation Mortgages For Underwater Borrowers
On December 10, the New York Department of Financial Services (DFS) proposed regulations that would authorize and encourage “shared appreciation” mortgage modifications in that state. The DFS explained that under a shared appreciation modification, banks and mortgage servicers reduce the amount of principal outstanding on a borrower’s mortgage in exchange for a share of the future increase in the value of the home. The program would be limited to borrowers who are 90 or more days past due on their loan, or whose loan is the subject of an active foreclosure action, and who are not eligible for existing federal and private foreclosure prevention programs. The proposed regulations detail the method for calculating a holder’s share of the appreciation, and limit the share to the lesser of: (i) the amount of the reduction in principal, plus interest; or (ii) 50% of the amount of appreciation in market value. In addition, banks and servicers would be required to provide specific disclosures to borrowers about the terms and nature of the shared appreciation mortgage modification. The proposed regulations also: (i) specify allowable fees, charges, and interest rates; (ii) detail the calculation of unpaid principal balance and debt-to-income ratio; and (iii) list certain prohibitions, including, among others, that the holder cannot require the borrower to waive any legal claims or defenses as a condition to obtaining shared appreciation modification.