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FDIC highlights inaccurate reporting of uninsured deposits by IDIs
On July 24, the FDIC released a letter reporting that some insured depository institutions (IDIs) are not accurately reporting their estimated uninsured deposits as per the instructions on the Call Report. According to the letter, some IDIs are wrongly decreasing the reported amount based on the collateralization of uninsured deposits, even though the presence of collateral does not affect the portion covered by federal deposit insurance. The FDIC also noted that by excluding intercompany deposit balances of their subsidiaries, some IDIs are incorrectly reducing the reported amount of deposits on Schedule RC-O. The FDIC stated that “in reporting uninsured deposits, if an IDI has deposit accounts with balances in excess of the federal deposit insurance limit that it has collateralized by pledging assets…the IDI should make a reasonable estimate of the portion of these deposits that is uninsured using the data available from its information systems.” IDIs should refer to the general instructions for Call Reports on how to accurately submit data. The FDIC recommended that IDIs that have incorrectly reported uninsured deposits make appropriate changes to the data and submit a revised data file to the Central Data Repository.
FDIC announces Vermont disaster relief
On July 19, the FDIC issued FIL-36-2023 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Vermont affected by severe storms and flooding from July 7 through the present. The FDIC acknowledged the unusual circumstances faced by affected institutions and encouraged those institutions to work with impacted borrowers to, among other things: (i) extend repayment terms; (ii) restructure existing loans; or (iii) ease terms for new loans, provided the measures are done “in a manner consistent with sound banking practices.” Additionally, the FDIC noted that institutions “may receive favorable Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery.” The FDIC will also consider regulatory relief from certain filing and publishing requirements and instructed institutions to contact the New York Regional Office if they expect delays in making filings or are experiencing difficulties in complying with publishing or other requirements.
FDIC releases May enforcement actions
On June 30, the FDIC released a list of administrative enforcement actions taken against banks and individuals in May. The FDIC made public four orders including “two orders of prohibition, one consent order and combined personal consent order, and one to order to pay a civil money penalty.” Included is a cease and desist/consent order against a New York-based bank related to alleged deficiencies and weaknesses in the bank’s anti-money laundering/countering the financing of terrorism program (AML/CFT Program), among other things. Also, among other things, the FDIC required that the bank must ensure it has designated individual(s) with qualifications, who can ensure the bank’s compliance with the AML/CFT Program.
New Hampshire amends rules for interest on escrow accounts
On June 20, New Hampshire enacted HB 520 (the “Act”) to amend provisions relating to escrow accounts maintained by licensed nondepository mortgage bankers, brokers, and servicers. The Act amends guidelines surrounding interest payments to escrow accounts maintained for the payment of taxes or insurance premiums related to loans on single family homes in New Hampshire and property secured by real estate mortgages. For both (single family homes and property) accounts, payments must be at a rate no less than the National Deposit Rate for Savings Accounts. Further, interest payments during the six-month period beginning on April 1 of each year, must be no less than the FDIC published rate in January of the same year, whereas interest payments during the six-month period beginning on October 1 of each year, must be no less than the FDIC published rate in July of the same year.
The Act was effective upon its passage.
Agencies put out policy on CRE workouts
On June 29, the FDIC, OCC, Federal Reserve Board, and NCUA, in consultation with state bank and credit union regulators, jointly issued a final policy statement addressing prudential commercial real estate loan accommodations and workouts for borrowers experiencing financial difficulty. The policy statement applies to all supervised financial institutions and supersedes previous guidance issued in 2009. Building on existing supervisory guidance, the policy statement advises financial institutions “to work prudently and constructively with creditworthy borrowers during times of financial stress.” The policy statement (i) updates interagency supervisory guidance on commercial real estate loan workouts; (ii) adds a new section on short-term loan accommodations (for purposes of the policy statement, “an accommodation includes any agreement to defer one or more payments, make a partial payment, forbear any delinquent amounts, modify a loan or contract, or provide other assistance or relief to a borrower who is experiencing a financial challenge”); (iii) addresses relevant accounting standard changes on estimating loan losses; and (iv) provides updated examples on how to classify and account for loans modified or affected by loan accommodations or loan workout activity. The policy statement takes effect upon publication in the Federal Register.
Agencies release 2023 list of distressed, underserved communities
On June 23, the FDIC, Federal Reserve Board, and the OCC released the 2023 list of distressed or underserved nonmetropolitan middle-income geographies where revitalization or stabilization activities are eligible to receive Community Reinvestment Act (CRA) consideration. According to the joint release, the list of distressed nonmetropolitan middle-income geographies and underserved nonmetropolitan middle-income geographies are designated by the agencies under their CRA regulations and reflect local economic conditions such as unemployment, poverty, and population changes. Under CRA, banks are encouraged to help meet the credit needs of the local communities listed. For any geographies that were designated by the agencies in 2022 but not in 2023, the agencies apply a one-year lag period, so such geographies remain eligible for CRA consideration for another 12 months.
FDIC revises NSF guidance
On June 16, the FDIC updated its Supervisory Guidance on Multiple Re-Presentment NSF Fees to clarify its supervisory approach for addressing violations of law. This new guidance, FIL-32-2023, updates FIL-40-2022 (originally issued last August and covered by InfoBytes here), which warned supervised financial institutions that charging customers multiple non-sufficient funds (NSF) fees on re-presented unpaid transactions may increase regulatory scrutiny and litigation risk. The FDIC noted that since the issuance of FIL-40-2022, the agency has received additional data relating to the amount of consumer harm associated with NSF fees at particular institutions, as well as information regarding extensive, ongoing challenges institutions face to accurately identify re-presented transactions. Consequently, the FDIC made changes to its supervisory guidance to specify that it “does not intended to request an institution to conduct a lookback review absent a likelihood of substantial consumer harm.”
Agencies propose ROV guidance
On June 8, the CFPB joined the Federal Reserve Board, FDIC, NCUA, and the OCC to request comments on proposed interagency guidance relating to reconsiderations of value (ROV) for residential real estate valuations. The proposed guidance advises financial institutions on policies that would afford consumers an opportunity to introduce evidence that was not previously considered in the original appraisal. The proposal references the occurrence of “deficiencies” in real estate valuations, which can be due to errors or omissions, valuation methods, assumptions, or other factors. According to the proposed guidance, these kind of valuation deficiencies can “prevent individuals, families, and neighborhoods from building wealth through homeownership by potentially preventing homeowners from accessing accumulated equity, preventing prospective buyers from purchasing homes, making it harder for homeowners to sell or refinance their homes, and increasing the risk of default.” Also noted is the risk non-credible valuations pose to financial institutions, which may lead to loan losses, violations of law, fines, civil money penalties, damages, and civil litigation.
The proposed guidance (i) provides direction on how ROVs overlap with appraisal independence requirements and compliance with relative laws and regulations; (ii) identifies how financial institutions can implement and improve existing ROV policies while remaining compliant with regulations, preserving appraiser independence, and being responsive to consumers; (iii) explains how deficiencies can pose risk to financial institutions and describes how ROV policies should be factored into risk management functions; and (iv) provides examples of ROV policies, procedures, control systems, and complaint processes to address deficient valuations.
Comments on the proposed guidance are due within 60 days of publication in the Federal Register.
Agencies finalize guidance on managing third parties
On June 6, the OCC, Federal Reserve Board, and FDIC issued interagency guidance to aid banking organizations in managing risks related to third-party relationships, including relationships with financial technology-focused entities. (See also FDIC FIL-29-2023 and Federal Reserve Board memo here.) The joint guidance, final as of June 6, replaces each agency’s existing general guidance on third-party risk management and is directed to all supervised banking organizations. Designed to streamline government guidance on mitigating risks when working with third parties, the final guidance establishes principles for banking organizations to consider when implementing risks management practices. Banking organizations are advised to consider and account for the level of risk, complexity, and size of the institution, as well as the nature of the third-party relationship, when conducting sound risk management.
After considering public comments received on proposed guidance issued in July 2021 (covered by InfoBytes here), the final guidance provides directions and expectations for oversight at all stages in the life cycle of a third-party relationship, including topics relating to planning, due diligence and third-party selection, contract negotiations, ongoing monitoring, and termination. Guidance on conducting independent reviews, maintaining documentation, and reporting is also included. The agencies advised banking organizations, particularly community banks, to review illustrative examples to help align risk management practices with the scope and risk profile of their third-party relationships. Additionally, banking organizations should maintain a complete inventory of their third-party relationships, identify higher-risk and critical activities, periodically conduct reviews to determine whether risks have changed over time, and update risk management practices accordingly, the agencies said.
The final guidance emphasizes that the agencies will review a banking organization’s third-party risk management practices as part of the standard supervisory process. When assessing whether activities are conducted in a safe and sound manner and in compliance with applicable laws and regulations, examiners will, among other things, (i) evaluate a banking organization’s ability to oversee and manage third party relationships; (ii) assess the effects of those relationships on a banking organization’s risk profile and operational performance; (iii) perform transaction testing to evaluate whether activities performed by a third party comply with applicable laws and regulations; (iv) conduct conversations relating to any identified material risks and deficiencies with senior management and board of directors; (v) review how a banking organization remediates any deficiencies; and (vi) consider supervisory findings when rating a banking organization.
The agencies stressed that they may take corrective measures, including enforcement actions, to address identified violations or unsafe or unsound banking practices by the banking organization or its third party. The agencies further announced that they plan to immediately engage with community banks and will develop additional resources in the future to help these organizations manage relevant third-party risks.
FDIC announces Guam disaster relief
On June 2, the FDIC issued FIL-27-2023 to provide regulatory relief to financial institutions and facilitate recovery in areas of Guam affected by Typhoon Mawar. The FDIC acknowledged the unusual circumstances faced by affected financial institutions and encouraged those institutions to work with impacted borrowers to, among other things: (i) extend repayment terms; (ii) restructure existing loans; or (iii) ease terms for new loans, provided the measures are done “in a manner consistent with sound banking practices.” Additionally, the FDIC noted that financial institutions “may receive favorable Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery.” The FDIC will also consider regulatory relief from certain filing and publishing requirements and instructed financial institutions to contact their regional community affairs officer.