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Financial Services Law Insights and Observations

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  • Texas Revises Residential Mortgage Loan Originator and Mortgage Banker Regulations

    Lending

    Recently, the Texas Department of Savings and Mortgage Lending finalized revisions and updates to its regulations governing residential mortgage loan originators and mortgage bankers. The final rules took effect July 5, 2012 and mirror the rules as proposed on May, 4, 2012. In addition to clarifying and updating the regulations, the new rules alter disclosure forms for loans originated by mortgage companies or brokers. However, the department will not begin citing violations for use of an outdated form until September 1, 2012.

    Mortgage Origination

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  • Key Parts of California "Homeowner Bill of Rights" Signed Into Law

    Lending

    On July 11, California Governor Jerry Brown signed into law two bills that form part of the state’s proposed “Homeowner Bill of Rights.” Effective January 1, 2013, the two substantively identical bills will (i) codify a number of protections similar to those contained in the Multistate Servicer Settlement between 49 state attorneys general, the Federal Government, and the nation’s five largest mortgage servicers announced in February, (ii) amend the mechanics of California’s foreclosure processes, and (iii) provide borrowers with new private rights of action. Several other parts of the Homeowner Bill of Rights remain pending, as described in a fact sheet prepared by the California Attorney General.

    Foreclosure Mortgage Servicing

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  • Freddie Mac Names New General Counsel

    Lending

    On July 9, Freddie Mac named William H. McDavid as executive vice president, general counsel and corporate secretary beginning July 16, 2012. Mr. McDavid will replace Alicia Myara who has served as interim general counsel since November 2011. Mr. McDavid previously was general counsel and co-general counsel for JPMorgan Chase & Co.

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  • SEC Announces Additional Senior Appointments

    Securities

    On July 5, the SEC announced Norm Champ as the new Director of the SEC’s Division of Investment Management. Mr. Champ has been serving as Deputy Director of the SEC’s Office of Compliance Inspections and Examinations. Prior to joining the SEC in 2010, Mr. Champ was general counsel and a partner at investment management firm Chilton Investment Company. On July 9, the SEC announced that beginning August 6, 2012, Paula Drake will serve as Associate Director, Chief Counsel and Chief Compliance and Ethics Officer. Ms. Drake joins the SEC from Oechsle International Advisors, LLC, where she served as General Counsel and Chief Operating Officer.

    SEC

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  • U.S. Eases Sanctions on Burma to Allow U.S. Investment and Export of Financial Services

    Financial Crimes

    On July 11, President Obama announced that the U.S. is easing sanctions on Burma to allow U.S. companies to responsibly conduct business in Burma. The revised sanctions permit the first new U.S. investment in Burma in nearly 15 years and broadly authorize the exportation of financial services to Burma. Any person that engages in new investment in Burma pursuant to the revised sanctions that exceeds $500,000 is subject to new reporting requirements.

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  • Medical Device Manufacturer Resolves FCPA Violations Related to Conduct in Mexico

    Financial Crimes

    On July 10, medical device manufacture Orthofix International N.V. became the latest in a string of companies in the medical device sector to resolve an FCPA matter with the U.S. government. The settlement adds Orthofix to the list of device manufacturers that have settled FCPA matters in 2012, along with Smith & Nephew and Biomet, who settled in February and March 2012, respectively. The Orthofix FCPA resolution calls for the company to pay a criminal fine to the DOJ of $2.22 million, and a civil monetary sanction (including disgorgement and interest) of $5.2 million to the SEC. The DOJ resolved the matter through a Deferred Prosecution Agreement, which was attached to the company’s 8-K of July 10, 2012, reporting the resolution. According to the allegations in the SEC’s Complaint, Promeca S.A. de C.V, a subsidiary based in Mexico, paid bribes to employees of the government-operated health care system, referring to the payments as “chocolates” and booking inaccurate reimbursement requests as meals, car tires or training expenses. The Mexico subsidiary made approximately $317,000 in improper payments over a 7-year period, according to the SEC. The FCPA resolution follows a June 7, 2012 guilty plea by the U.S. subsidiary, Orthofix Inc., on a False Claims Act-related matter, resulting in $7.8 million fine and payment of over $34 million to resolve a civil action.

    FCPA SEC False Claims Act / FIRREA

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  • FinCEN Announces Public Hearing on Customer Due Diligence Proposal, Releases First Report on Real Estate Title and Escrow Industry SARs

    Financial Crimes

    On July 10, FinCEN announced the first in a series of public hearings to collect information related to its proposed rule on customer due diligence requirements for financial institutions. The public hearing, to be held July 31, 2012 at the Treasury Department, is designed to obtain input from the law enforcement and regulatory communities, as well as industry representatives.

    On July 11, FinCEN released its first targeted study analyzing Suspicious Activity Reports (SARs) involving the real estate and title escrow industry. As part of its efforts to better understand criminal risks impacting related those industries, FinCEN studied thousands of SARs involving title and escrow companies, often filed in connection with mortgage fraud. The FinCEN release notes that the agency does not currently require title and escrow companies themselves to file SARs, but many such companies have reported suspicious activities to FinCEN. The agency plans to use this and future studies to identify regulatory gaps and assess appropriate solutions to close those gaps and mitigate risk.

    FinCEN SARs

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  • NIST Proposes Update To Mobile Device Security Guidelines

    Fintech

    On July 11, the National Institute of Standards and Technology released a proposed update to its guidelines for securing mobile devices. Originally published as Guidelines on Cell Phone and PDA Security, the proposed Guidelines for Managing and Securing Mobile Devices in the Enterprise offer new recommendations for devices used by the federal government. The draft guideline provide recommendations for developing centralized device management systems, with specific guidance related to (i) developing system threat models, (ii) establishing mobile device security policies, and (iii) implementing and testing prototype mobile device solutions, among other topics.

    NIST Privacy/Cyber Risk & Data Security

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  • Senate Committee Explores Framework for Mobile Payments

    Fintech

    On July 10, the Senate Banking Committee held the second hearing in a two-part series on developing a framework for safe and efficient mobile payment systems. A panel comprised of economic and legal experts in the area of mobile payments updated the Committee on the state of the market and provided ideas for establishing an appropriate regulatory framework that balances innovation and consumer protection. Among other topics, the panelists and Senators discussed information collection and use and the related privacy and data security risks to consumers, as well as to merchants taking mobile payments. At the first hearing in the series, held in March, the Committee received testimony from regulatory experts from the Federal Reserve System. During that hearing the Committee sought information about the current roles of regulators with regard to mobile payments, and potential gaps in the regulatory structure. The House Financial Services Committee recently concluded a similar series in which it explored the regulatory structure for mobile payments and assessed the market impacts of mobile payment advances.

    Mobile Payment Systems

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  • House Subcommittee Presses CFPB on White House Ties

    Consumer Finance

    On July 2, the Chairman of a House Oversight and Government Reform Subcommittee, Representative McHenry (R-NC), sent a letter to CFPB Director Richard Cordray seeking information and documents regarding the CFPB’s contacts with the executive branch. As an independent federal agency, the letter explains, the CFPB should operate “free from executive control.” The letter catalogues meetings and other interactions between CFPB staff and executive branch personnel that Mr. McHenry believes “raise concerns about the [CFPB’s] commitment to regulatory independence.” Representative McHenry asks that the CFPB produce documents and information in response to a series of questions by July 16, 2012. For example, the letter seeks (i) information about requested or suggested actions originating from the Executive Office of the President (EOP), (ii) CFPB internal guidelines and procedures to ensure independence from the executive branch, and (iii) all documents and communications between the CFPB and any employee of the EOP.

    CFPB

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