By Andrew A. Turner, J.D.
“Bank holding companies may have outlived their practical business value in our financial system and may, in fact, be obsolete,” according to First Deputy Comptroller of the Currency Keith Noreika. While bank holding companies may continue to serve a purpose for large companies that conduct complex activities, he sees less value for more traditional banking firms.
Speaking before the American Enterprise Institute on the day of his resignation from government service after serving as Acting Comptroller until a permanent agency head was in place, Noreika said that the holding company structure is not necessary as a tool to manage systemic risk. Evolving regulatory changes have diminished the value of bank holding companies, while costs have increased with duplicative regulation, in his opinion.
Noreika gave the case of the Bank of the Ozarks as an example of why smaller banking companies are eliminating their holding companies. Bank of the Ozarks, a state non-member bank, merged its holding company into the bank citing benefits through consolidated governance and organizational structure.
Noting that for most bank holding companies, the bank usually makes up the vast majority of the company’s assets and activities, Noreika observed that “many community and regional banking organizations are realizing that the extra and duplicative costs of maintaining a holding company make little business and economic sense.” In addition to the trend limiting bank holding companies to activities that are financial in nature, he also pointed to costly prudential requirements under the Dodd-Frank Act as impediments to bank holding company flexibility.
Noreika contended that Congress could reduce regulatory redundancy by giving the regulator of the depository institution sole examination and enforcement authority when a depository institution constitutes a substantial portion of its holding company’s assets. Another suggested approach to the problem of multiple regulators would be to eliminate statutory impediments for firms that want to operate without a holding company, such as modernizing corporate governance requirements for national banks.
For more information about the regulation of bank holding companies, subscribe to the Banking and Finance Law Daily.
Thursday, November 30, 2017
Tuesday, November 28, 2017
Debt collectors can’t take over consumer’s fair debt collection suit
By Richard Roth, J.D.
The Fair Debt Collection Practices Act preempted debt collectors’ use of state execution procedures to eliminate their potential liability for FDCPA violations by levying on and selling the consumer’s cause of action, the U.S. Court of Appeals for the Ninth Circuit has determined. Using state execution laws in that way would frustrate the purposes of the FDCPA, the court said (Arellano v. Clark County Collection Service, LLC).
Clark County Collection Service and its law firm, Borg Law Group, secured a $793.39 state court default judgment against a consumer for an unpaid medical treatment bill. The consumer counterattacked by filing a federal court FDCPA suit, claiming that they had misled her by deadlines included in the complaint and summons. The complaint included the required FDCPA notice that the debt would be assumed to be valid if it was not disputed within 30 days, but the summons allowed only 20 days to file an answer to the suit, she said.
Clark County Collection and the Borg Law Group responded with what the court termed “a bold gambit.” They obtained a writ of execution from the state court that gave them the authority to levy on the consumer’s personal property to satisfy the default judgment. Using that authority, they levied on the FDCPA claim and, at a sheriff’s sale, bought the suit for $250. Then, claiming they now owned the suit, they convinced the federal judge to dismiss it.
Preemption. Federal law preempts state law if the state law erects an obstacle to the federal law’s ability to accomplish its purpose, the court pointed out. This is referred to as “conflict preemption.”
The purpose of the FDCPA is to protect consumers from abuse, harassment, and deceptive debt collection practices. The Act includes an express preemption section that says state debt collection practices that are inconsistent with the FDCPA are preempted to the extent of the inconsistency (15 U.S.C. §1692n).
It was irrelevant that the FDCPA includes no explicit provisions that address state execution laws, the court then said. Conflict preemption relies on the existence of an actual conflict, not an express claim of preemption. Using the state law execution procedure in this manner not only would eliminate the liability of the law firm and the debt collector, it actually would allow them to use the FDCPA to collect the debt. That clearly would thwart the purposes of the Act.
“[F]ederal law preempts a private party’s use of state execution procedures to acquire and destroy a debtor’s FDCPA claims against it,” the court explicitly said. As a result, Clark County Collection Service and Borg Law Group cannot assimilate the consumer’s FDCPA claim.
For more information about fair debt collection, subscribe to the Banking and Finance Law Daily.
The Fair Debt Collection Practices Act preempted debt collectors’ use of state execution procedures to eliminate their potential liability for FDCPA violations by levying on and selling the consumer’s cause of action, the U.S. Court of Appeals for the Ninth Circuit has determined. Using state execution laws in that way would frustrate the purposes of the FDCPA, the court said (Arellano v. Clark County Collection Service, LLC).
Clark County Collection Service and its law firm, Borg Law Group, secured a $793.39 state court default judgment against a consumer for an unpaid medical treatment bill. The consumer counterattacked by filing a federal court FDCPA suit, claiming that they had misled her by deadlines included in the complaint and summons. The complaint included the required FDCPA notice that the debt would be assumed to be valid if it was not disputed within 30 days, but the summons allowed only 20 days to file an answer to the suit, she said.
Clark County Collection and the Borg Law Group responded with what the court termed “a bold gambit.” They obtained a writ of execution from the state court that gave them the authority to levy on the consumer’s personal property to satisfy the default judgment. Using that authority, they levied on the FDCPA claim and, at a sheriff’s sale, bought the suit for $250. Then, claiming they now owned the suit, they convinced the federal judge to dismiss it.
Preemption. Federal law preempts state law if the state law erects an obstacle to the federal law’s ability to accomplish its purpose, the court pointed out. This is referred to as “conflict preemption.”
The purpose of the FDCPA is to protect consumers from abuse, harassment, and deceptive debt collection practices. The Act includes an express preemption section that says state debt collection practices that are inconsistent with the FDCPA are preempted to the extent of the inconsistency (15 U.S.C. §1692n).
It was irrelevant that the FDCPA includes no explicit provisions that address state execution laws, the court then said. Conflict preemption relies on the existence of an actual conflict, not an express claim of preemption. Using the state law execution procedure in this manner not only would eliminate the liability of the law firm and the debt collector, it actually would allow them to use the FDCPA to collect the debt. That clearly would thwart the purposes of the Act.
“[F]ederal law preempts a private party’s use of state execution procedures to acquire and destroy a debtor’s FDCPA claims against it,” the court explicitly said. As a result, Clark County Collection Service and Borg Law Group cannot assimilate the consumer’s FDCPA claim.
For more information about fair debt collection, subscribe to the Banking and Finance Law Daily.
Monday, November 27, 2017
CFPB orders Citibank to pay $6.5M for alleged student loan servicing failures
By J. Preston Carter, J.D., LL.M.
Charging Citibank, N.A., with deceiving student borrowers about tax benefits, incorrectly charging late fees and interest, and sending misleading monthly bills and incomplete notices, the Consumer Financial Protection Bureau has ordered the bank to end its allegedly illegal servicing practices and pay $3.75 million in redress to consumers and a $2.75 million civil money penalty. Citibank consented to the order without admitting or denying the Bureau’s findings.
“Citibank’s servicing failures made it more costly and confusing for borrowers trying to pay back their student loans,” said CFPB Director Richard Cordray. “We are ordering Citibank to fix its servicing problems and provide redress to borrowers who were harmed.”
Loan servicing. For years, Citibank, based in Sioux Falls, S.D., has made private student loans to consumers and also serviced the loans. As a loan servicer, Citibank manages and collects payments and provides customer service for borrowers. The bank also provides borrowers with periodic account statements and supplies year-end tax information. It also keeps track of the borrower’s in-school enrollment status and is responsible for granting and maintaining deferments when appropriate.
For the student loan accounts that Citibank was servicing, the Bureau found that Citibank misrepresented important information on borrowers’ eligibility for a valuable tax deduction, failed to refund interest and late fees it erroneously charged, overstated monthly minimum payment amounts in monthly bills, and sent faulty notices after denying borrowers’ requests to release a loan cosigner.
The Dodd-Frank Act grants authority to the CFPB to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices.
Restitution. The CFPB’s order requires Citibank to:
“Citibank’s servicing failures made it more costly and confusing for borrowers trying to pay back their student loans,” said CFPB Director Richard Cordray. “We are ordering Citibank to fix its servicing problems and provide redress to borrowers who were harmed.”
Loan servicing. For years, Citibank, based in Sioux Falls, S.D., has made private student loans to consumers and also serviced the loans. As a loan servicer, Citibank manages and collects payments and provides customer service for borrowers. The bank also provides borrowers with periodic account statements and supplies year-end tax information. It also keeps track of the borrower’s in-school enrollment status and is responsible for granting and maintaining deferments when appropriate.
For the student loan accounts that Citibank was servicing, the Bureau found that Citibank misrepresented important information on borrowers’ eligibility for a valuable tax deduction, failed to refund interest and late fees it erroneously charged, overstated monthly minimum payment amounts in monthly bills, and sent faulty notices after denying borrowers’ requests to release a loan cosigner.
The Dodd-Frank Act grants authority to the CFPB to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices.
Restitution. The CFPB’s order requires Citibank to:
Charging Citibank, N.A., with deceiving student borrowers about tax benefits, incorrectly charging late fees and interest, and sending misleading monthly bills and incomplete notices, the Consumer Financial Protection Bureau has ordered the bank to end its allegedly illegal servicing practices and pay $3.75 million in redress to consumers and a $2.75 million civil money penalty. Citibank consented to the order without admitting or denying the Bureau’s findings.
“Citibank’s servicing failures made it more costly and confusing for borrowers trying to pay back their student loans,” said CFPB Director Richard Cordray. “We are ordering Citibank to fix its servicing problems and provide redress to borrowers who were harmed.”
Loan servicing. For years, Citibank, based in Sioux Falls, S.D., has made private student loans to consumers and also serviced the loans. As a loan servicer, Citibank manages and collects payments and provides customer service for borrowers. The bank also provides borrowers with periodic account statements and supplies year-end tax information. It also keeps track of the borrower’s in-school enrollment status and is responsible for granting and maintaining deferments when appropriate.
For the student loan accounts that Citibank was servicing, the Bureau found that Citibank misrepresented important information on borrowers’ eligibility for a valuable tax deduction, failed to refund interest and late fees it erroneously charged, overstated monthly minimum payment amounts in monthly bills, and sent faulty notices after denying borrowers’ requests to release a loan cosigner.
The Dodd-Frank Act grants authority to the CFPB to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices.
Restitution. The CFPB’s order requires Citibank to:
- pay $3.75 million in restitution to harmed consumers who were charged erroneous interest or late fees, paid an overstated minimum monthly payment, or received inadequate notices as a result of Citibank’s faulty servicing;
- provide accurate information regarding student loan interest paid, implement a policy to reverse erroneously assessed interest or late fees, and provide borrowers who were denied a cosigner release with their credit scores, the phone number of the credit reporting agency that generated the credit report, and disclosure language confirming that the credit reporting agency did not make the decline decision; and
- pay a $2.75 million penalty to the CFPB’s Civil Penalty Fund.
“Citibank’s servicing failures made it more costly and confusing for borrowers trying to pay back their student loans,” said CFPB Director Richard Cordray. “We are ordering Citibank to fix its servicing problems and provide redress to borrowers who were harmed.”
Loan servicing. For years, Citibank, based in Sioux Falls, S.D., has made private student loans to consumers and also serviced the loans. As a loan servicer, Citibank manages and collects payments and provides customer service for borrowers. The bank also provides borrowers with periodic account statements and supplies year-end tax information. It also keeps track of the borrower’s in-school enrollment status and is responsible for granting and maintaining deferments when appropriate.
For the student loan accounts that Citibank was servicing, the Bureau found that Citibank misrepresented important information on borrowers’ eligibility for a valuable tax deduction, failed to refund interest and late fees it erroneously charged, overstated monthly minimum payment amounts in monthly bills, and sent faulty notices after denying borrowers’ requests to release a loan cosigner.
The Dodd-Frank Act grants authority to the CFPB to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices.
Restitution. The CFPB’s order requires Citibank to:
- pay $3.75 million in restitution to harmed consumers who were charged erroneous interest or late fees, paid an overstated minimum monthly payment, or received inadequate notices as a result of Citibank’s faulty servicing;
- provide accurate information regarding student loan interest paid, implement a policy to reverse erroneously assessed interest or late fees, and provide borrowers who were denied a cosigner release with their credit scores, the phone number of the credit reporting agency that generated the credit report, and disclosure language confirming that the credit reporting agency did not make the decline decision; and
- pay a $2.75 million penalty to the CFPB’s Civil Penalty Fund.
Tuesday, November 21, 2017
Court rejects bank's, bankers association's 'FAST Act' lawsuit challenging reduced dividends
By Thomas G. Wolfe, J.D.
The U.S. Court of Federal Claims recently dismissed the proposed class-action lawsuit brought by a national bank, Washington Federal, N.A., and the American Bankers Association (ABA) against the United States government challenging the funding of the 2015 Fixing America’s Surface Transportation (FAST) Act. As part of legislation to fund the FAST Act, the Federal Reserve Act was amended, bringing about a reduction of the historic, statutory 6-percent dividend paid to certain member banks on their Federal Reserve stock.
In American Bankers Association v. United States, the federal court first determined that, as a threshold matter, the ABA lacked jurisdictional standing in the case. Next, the court determined that Washington Federal and other similarly situated national banks had no contractual or statutory entitlement to a dividend at any specific rate nor a property interest in which to assert a “Taking Clause” claim under the Fifth Amendment to the U.S. Constitution. According to the court, “the remedy for the understandable grievances alleged in this case lies within the exclusive jurisdiction of the Congress.”
In 2015, Congress enacted the FAST Act to provide $2.7 billion over five years for “national transportation infrastructure,” and the funding efforts included the Federal Reserve Act amendment. The ABA and Washington Federal contended that the 6-percent annual dividend had been guaranteed to member bank stockholders “since the Federal Reserve Act was enacted in 1913, and it is memorialized in contracts between the Federal Reserve Banks and their member bank stockholders.” Among other things, the ABA’s and Washington Federal’s amended complaint alleged that a valid contract existed between the federal government and member banks for the banks to receive the expected 6-percent dividends.
In response, in May 2017, the government asked the U.S. Court of Federal Claims to dismiss the amended complaint, maintaining that there was no express or implied contract between the parties and that there was no “compensable taking” of any cognizable property right in a specified dividend rate.
ABA lacks standing. Noting its jurisdiction in the case under the Tucker Act, the Court of Federal Claims outlined the necessary showing by the plaintiffs to demonstrate that the source of substantive law on which they relied could be fairly interpreted as “mandating compensation by the Federal Government.” While Washington Federal met the standard for establishing standing in the case, the ABA did not, the court decided.
Although the ABA had alleged that 66 member banks had a contract with the Federal Reserve Bank, the court noted that each “owns a different amount of Federal Reserve Bank stock and experienced different amounts of monetary loss, as a result of the implementation of the FAST Act.” The ABA argued that individualized proof was not needed because each member bank “had an equal reduction in dividend receipts.” While the court recognized that the net decrease in dividend receipts differed because each ABA member purchased a different amount of stock when it joined the Federal Reserve System, the court emphasized that the amended complaint did not allege the ABA suffered individual monetary injury nor did it allege that any member bank assigned to the ABA a right to recover damages on its behalf.
Court’s decision. The court observed that the parties to the litigation spent much of their time arguing about whether Washington Federal had a contractual relationship with the Federal Reserve Bank and, if so, whether Congress could change the terms of that contract by legislation. However, from the court’s perspective, the parties “overlooked the dispositive fact” that a particular section of the Federal Reserve Act provides that “the right to amend, alter, or repeal this act is hereby expressly reserved.” According to the court, the Federal Reserve Act “conferred no right to Washington Federal or any other holder of Federal Reserve Bank stock to receive a dividend at any rate certain that Congress could not amend, change, or even eliminate.”
Moreover, the Federal Reserve Act did not convey a contractual or statutory right to a 6-percent dividend, the court stressed. If Washington Federal did not have a right to a 6-percent dividend, then the bank could not be viewed as having a “property interest” in a 6-percent dividend rate as well. At most, Washington Federal had “only a mere unilateral expectation” of a 6-percent dividend, the court determined. Further, the court pointed out that Federal Reserve Bank stock could not be sold or transferred and that the U.S. Court of Appeals for the Federal Circuit has considered that facet as an important factor in determining whether a property right is present.
Further, based on its analysis of Washington Federal’s lack of a contractual right, statutory right, or property interest in an annual 6-percent dividend, the court had little trouble also determining that the bank did not have any recognizable interest in the dividend that could form a viable claim under the “Taking Clause” of the Fifth Amendment to the Constitution.
For more information about litigation affecting the banking industry, subscribe to the Banking and Finance Law Daily.
The U.S. Court of Federal Claims recently dismissed the proposed class-action lawsuit brought by a national bank, Washington Federal, N.A., and the American Bankers Association (ABA) against the United States government challenging the funding of the 2015 Fixing America’s Surface Transportation (FAST) Act. As part of legislation to fund the FAST Act, the Federal Reserve Act was amended, bringing about a reduction of the historic, statutory 6-percent dividend paid to certain member banks on their Federal Reserve stock.
In American Bankers Association v. United States, the federal court first determined that, as a threshold matter, the ABA lacked jurisdictional standing in the case. Next, the court determined that Washington Federal and other similarly situated national banks had no contractual or statutory entitlement to a dividend at any specific rate nor a property interest in which to assert a “Taking Clause” claim under the Fifth Amendment to the U.S. Constitution. According to the court, “the remedy for the understandable grievances alleged in this case lies within the exclusive jurisdiction of the Congress.”
In 2015, Congress enacted the FAST Act to provide $2.7 billion over five years for “national transportation infrastructure,” and the funding efforts included the Federal Reserve Act amendment. The ABA and Washington Federal contended that the 6-percent annual dividend had been guaranteed to member bank stockholders “since the Federal Reserve Act was enacted in 1913, and it is memorialized in contracts between the Federal Reserve Banks and their member bank stockholders.” Among other things, the ABA’s and Washington Federal’s amended complaint alleged that a valid contract existed between the federal government and member banks for the banks to receive the expected 6-percent dividends.
In response, in May 2017, the government asked the U.S. Court of Federal Claims to dismiss the amended complaint, maintaining that there was no express or implied contract between the parties and that there was no “compensable taking” of any cognizable property right in a specified dividend rate.
ABA lacks standing. Noting its jurisdiction in the case under the Tucker Act, the Court of Federal Claims outlined the necessary showing by the plaintiffs to demonstrate that the source of substantive law on which they relied could be fairly interpreted as “mandating compensation by the Federal Government.” While Washington Federal met the standard for establishing standing in the case, the ABA did not, the court decided.
Although the ABA had alleged that 66 member banks had a contract with the Federal Reserve Bank, the court noted that each “owns a different amount of Federal Reserve Bank stock and experienced different amounts of monetary loss, as a result of the implementation of the FAST Act.” The ABA argued that individualized proof was not needed because each member bank “had an equal reduction in dividend receipts.” While the court recognized that the net decrease in dividend receipts differed because each ABA member purchased a different amount of stock when it joined the Federal Reserve System, the court emphasized that the amended complaint did not allege the ABA suffered individual monetary injury nor did it allege that any member bank assigned to the ABA a right to recover damages on its behalf.
Court’s decision. The court observed that the parties to the litigation spent much of their time arguing about whether Washington Federal had a contractual relationship with the Federal Reserve Bank and, if so, whether Congress could change the terms of that contract by legislation. However, from the court’s perspective, the parties “overlooked the dispositive fact” that a particular section of the Federal Reserve Act provides that “the right to amend, alter, or repeal this act is hereby expressly reserved.” According to the court, the Federal Reserve Act “conferred no right to Washington Federal or any other holder of Federal Reserve Bank stock to receive a dividend at any rate certain that Congress could not amend, change, or even eliminate.”
Moreover, the Federal Reserve Act did not convey a contractual or statutory right to a 6-percent dividend, the court stressed. If Washington Federal did not have a right to a 6-percent dividend, then the bank could not be viewed as having a “property interest” in a 6-percent dividend rate as well. At most, Washington Federal had “only a mere unilateral expectation” of a 6-percent dividend, the court determined. Further, the court pointed out that Federal Reserve Bank stock could not be sold or transferred and that the U.S. Court of Appeals for the Federal Circuit has considered that facet as an important factor in determining whether a property right is present.
Further, based on its analysis of Washington Federal’s lack of a contractual right, statutory right, or property interest in an annual 6-percent dividend, the court had little trouble also determining that the bank did not have any recognizable interest in the dividend that could form a viable claim under the “Taking Clause” of the Fifth Amendment to the Constitution.
For more information about litigation affecting the banking industry, subscribe to the Banking and Finance Law Daily.
Wednesday, November 15, 2017
Senators approve proposal to ease financial regulatory requirements
By Andrew A. Turner, J.D.
Meanwhile, the U.S. Chamber of Commerce’s Center for Capital Markets Competitiveness, offered a series of recommendations to revitalize small business lending. The “Financing Main Street Agenda” includes five core recommendations: replace asset thresholds with multifactor risk assessments; reduce the burden of stress testing and capital planning while preserving benefits; harmonize U.S. capital and liquidity rules with international standards; reassess the Volcker Rule; and improve the regulatory process.
For more information about financial regulatory reform, subscribe to the Banking and Finance Law Daily.
Senate
Banking Committee members have reached bipartisan agreement on proposed legislation
that would change the financial regulatory framework by raising the threshold for applying
enhanced prudential standards to bank holding companies from $50 billion to
$250 billion. “The package is
targeted toward helping community banks, credit unions, mid-sized banks,
regional banks and custody banks,” according to the press release announcing the agreement. The regulatory
relief package also includes consumer protections for veterans, senior citizens, and victims of fraud.
The
agreement was announced by Senate Banking Committee Chairman Mike Crapo
(R-Idaho) and Banking Committee members Joe Donnelly (D-Ind), Heidi Heitkamp
(D-ND), Jon Tester (D-Mont), and Mark Warner (D-Va). Crapo said
that the proposals would “foster
economic growth by right-sizing regulation.” The legislative proposal includes provisions intended to:
- improve consumer access to mortgage credit;
- provide regulatory relief for small financial institutions and protect consumer access to credit;
- provide protections for veterans, consumers, and homeowners; and
- tailor regulation for banks to better reflect their business models.
Tailoring regulations. Bank
holding companies with total consolidated assets between $50 billion and $100
billion would be exempt from enhanced prudential standards immediately, and
bank holding companies with total consolidated assets between $100 billion and
$250 billion would be exempt 18 months after the effective date. The proposed
legislation would also require changes to the supplementary leverage ratio for
custodial banks and the treatment of municipal obligations.
Mortgage credit. Mortgage
loans that are originated and retained in portfolio by an insured depository
institution or an insured credit union with less than $10 billion in total
consolidated assets would be deemed qualified mortgages. A tailored exemption
from appraisal requirements would be applied to mortgage loans with a balance
of less than $400,000 if the originator is unable to find a state-certified or
state-licensed appraiser.
The
bill would also provide regulatory relief to small depository institutions from
disclosure requirements under the Home Mortgage Disclosure Act. Other
provisions target barriers to jobs for
loan originators; access to manufactured homes; real property retrofit loans;
escrow requirements for consumer credit transactions; and the wait period for
lower mortgage rates.
Credit
access. Capital simplification for qualifying
community banks would establish a community bank leverage ratio
of tangible equity to average consolidated assets of not less than 8 percent
and not more than 10 percent. Banks with less than $10 billion in total
consolidated assets that maintain tangible equity in an amount exceeding the
community bank leverage ratio would be deemed to be in compliance with capital
and leverage requirements.
Community
bank relief would exempt banking entities from the Bank Holding Company Act if
they have (1) less than $10 billion in total consolidated assets, and (2) total
trading assets and trading liabilities that are not more than 5 percent of
total consolidated assets.
Reporting
requirements would be reduced for depository institutions with less than $5
billion in total consolidated assets that satisfy other appropriate criteria.
Federal savings associations with less than $15 billion in total consolidated
assets would be permitted to operate with the same powers and duties as
national banks without being required to convert their charters. The
consolidated asset threshold would be raised from $1 billion to $3 billion for
well managed and well capitalized banks to qualify for an 18-month examination
cycle.
Protections. Credit
bureaus would be required to include in a consumer’s file fraud
alerts for at least a year under certain circumstances, provide consumers one
free freeze alert and one free unfreeze alert per year, and provide further
protections for minors. Other sections are aimed at protecting veterans’ credit
and aiding senior protection.
Senator reaction. Senator
Sherrod Brown
(D-Ohio), Ranking Member of the Senate Banking Committee, questioned
the wisdom of legislation “rolling back so many of Dodd-Frank’s
protections” while banks made “record profits last year.” Senator Bob Corker (R-Tenn), a member of the Senate Banking
Committee, countered
that the reforms will ease the regulatory burden that Dodd-Frank created for community banks. Similarly, Sen. Thom Tillis (R-NC) commented
that “Dodd-Frank’s harmful
one-size-fits-all model” has restricted access to capital with burdensome
regulations.
Senator
Tom Cotton
(R-Ark) applauded
the agreement, which includes the
PACE Act, legislation Cotton introduced earlier this year that requires Truth
in Lending Act disclosure for Property Assessed Clean Energy (PACE) loans that
target low-income and elderly Americans with predatory home loans.
Industry comments. Marcus
Stanley, policy director at Americans
for Financial Reform,
worried that the proposal strips away mandates to maintain
regulatory oversight and “opens the door for Trump-appointed regulators
to severely weaken the rules applying to large regional banks.” On the other
hand, Rob Nichols, American Bankers
Association president and CEO, welcomed
the regulatory reform legislation for including mortgage rule changes, longer
examination cycles for community banks, charter flexibility for federal savings
associations, and stress test relief.
While
urging Congress to continue working
toward policies which consider risk rather than arbitrary asset thresholds, the Consumer
Bankers Association and Financial
Services Roundtable saw the agreement as an
important step forward by
giving the Federal Reserve Board flexibility to make a more complete assessment
when designating certain institutions systematically important.
The
Independent Community Bankers of America expressed its support
for a legislative agreement that included ICBA-advocated provisions to increase
exemption thresholds for Home Mortgage Disclosure Act reporting, provide
“qualified mortgage” status for portfolio mortgage loans at most community
banks, expand eligibility for the 18-month regulatory examination cycle, and
ease appraisal requirements to facilitate mortgage credit in local communities.
Meanwhile, the U.S. Chamber of Commerce’s Center for Capital Markets Competitiveness, offered a series of recommendations to revitalize small business lending. The “Financing Main Street Agenda” includes five core recommendations: replace asset thresholds with multifactor risk assessments; reduce the burden of stress testing and capital planning while preserving benefits; harmonize U.S. capital and liquidity rules with international standards; reassess the Volcker Rule; and improve the regulatory process.
For more information about financial regulatory reform, subscribe to the Banking and Finance Law Daily.
Tuesday, November 14, 2017
Supreme Court rejects chance to consider concrete injury, but another opportunity arises
By Richard A. Roth
The Supreme Court has rejected a request by a prospective employer that it review whether combining a disclosure required by the Fair Credit Reporting Act and a job applicant’s waiver in the same document gave the applicant standing to sue under Article III of the Constitution. According to the U.S. Court of Appeals for the Ninth Circuit, the applicant would have suffered an injury in fact due to the employer’s failure to put the waiver in a separate document (Syed v. M-I, LLC).
The FCRA requires an employer that wants to look at a job applicant’s consumer report to disclose that intent in advance in a document that contains nothing but the disclosure. The sole statutory exception to the separate document requirement is that the employer may include a place for the applicant to give his consent on the same document. However, the employer added to the document a waiver of the applicant’s right to sue for any FCRA violations.
Concrete injury. According to the Ninth Circuit, the applicant had described more than a “bare procedural violation” of the FCRA. The requirement that a job applicant affirmatively consent to allowing an employer to review his consumer report created a right to privacy, the court said, and depriving an applicant of a meaningful ability to permit, or refuse to permit, the use of his consumer report violated that right.
The appeal was filed as M-I, LLC v. Syed (No. 16-1524).
Job applicant’s appeal. However, a petition for certiorari filed by a job applicant on Oct. 30, 2017, raises precisely the same issue. In Groshek v. Time Warner, the applicant asks the Court to review whether two employers’ inclusion of liability releases in the FCRA disclosure documents created an injury in fact. Contrary to the Ninth Circuit, the U.S. Court of Appeals for the Seventh Circuit decided there was no concrete injury.
According to the Seventh Circuit, the goal of the FCRA disclosure provision is to ensure that job applicants do not unknowingly consent to an employer’s use of a consumer report. An employer’s addition of extraneous material, such as a waiver of liability, would not create a concrete injury as long as it did not confuse the applicant about his rights (see Groshek v. Time Warner).
Syed distinguished. The Seventh Circuit considered but rejected the Ninth Circuit’s opinion in Syed. According to the Seventh Circuit, the two cases were different because, unlike Syed, Groshek conceded that he had not been confused about his right to prevent the employers from reviewing his consumer report.
The appeal was filed as Groshek v. Time Warner (No. 17-688).
For more information about constitutional standing, subscribe to the Banking and Finance Law Daily.
The Supreme Court has rejected a request by a prospective employer that it review whether combining a disclosure required by the Fair Credit Reporting Act and a job applicant’s waiver in the same document gave the applicant standing to sue under Article III of the Constitution. According to the U.S. Court of Appeals for the Ninth Circuit, the applicant would have suffered an injury in fact due to the employer’s failure to put the waiver in a separate document (Syed v. M-I, LLC).
The FCRA requires an employer that wants to look at a job applicant’s consumer report to disclose that intent in advance in a document that contains nothing but the disclosure. The sole statutory exception to the separate document requirement is that the employer may include a place for the applicant to give his consent on the same document. However, the employer added to the document a waiver of the applicant’s right to sue for any FCRA violations.
Concrete injury. According to the Ninth Circuit, the applicant had described more than a “bare procedural violation” of the FCRA. The requirement that a job applicant affirmatively consent to allowing an employer to review his consumer report created a right to privacy, the court said, and depriving an applicant of a meaningful ability to permit, or refuse to permit, the use of his consumer report violated that right.
The appeal was filed as M-I, LLC v. Syed (No. 16-1524).
Job applicant’s appeal. However, a petition for certiorari filed by a job applicant on Oct. 30, 2017, raises precisely the same issue. In Groshek v. Time Warner, the applicant asks the Court to review whether two employers’ inclusion of liability releases in the FCRA disclosure documents created an injury in fact. Contrary to the Ninth Circuit, the U.S. Court of Appeals for the Seventh Circuit decided there was no concrete injury.
According to the Seventh Circuit, the goal of the FCRA disclosure provision is to ensure that job applicants do not unknowingly consent to an employer’s use of a consumer report. An employer’s addition of extraneous material, such as a waiver of liability, would not create a concrete injury as long as it did not confuse the applicant about his rights (see Groshek v. Time Warner).
Syed distinguished. The Seventh Circuit considered but rejected the Ninth Circuit’s opinion in Syed. According to the Seventh Circuit, the two cases were different because, unlike Syed, Groshek conceded that he had not been confused about his right to prevent the employers from reviewing his consumer report.
The appeal was filed as Groshek v. Time Warner (No. 17-688).
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Monday, November 13, 2017
Noreika advocates intermingling of banking and commerce
By Stephanie K. Mann, J.D.
Mixing banking and commerce can generate efficiencies that deliver more value to customers and can improve bank and commercial company performance with little additional risk, argued Acting Comptroller of the Currency Keith Noreika at the Clearing House Annual Conference in New York City. Addressing what has been a “taboo” subject for banking regulators, the separation of banking and commerce in the United States, Noreika offered his alternative to the narrative.
Traditionally, banking and commerce have been separated to protect banks from the corruptive power of commercial ownership and protect the market from banks consolidating and wielding too much commercial power.
Exceptions. Under current federal law, exceptions are provided for some firms to mix banking and commerce more freely. However, said Noreika, these exceptions provide an unfair advantage. Namely, “well-lawyered and well-connected companies tend to gain and benefit from special exceptions, privileging them over the bulk of firms that must live under the weight of a general prohibition against mixing banking and commerce.” This results in the very consequences that the prohibition was intended to prevent: “advantaging and aggrandizing a few at the expense of the many.”
Inherently safer? Noreika then questioned whether separating banking and commerce makes the economy more secure, particularly following the recent financial crisis. “Even when separated, risk can build in one part of the system with less rigorous supervision and become a contagion spreading to infect the whole,” said the Acting Comptroller. He pointed to the recent examples of Bear Stearns and Lehman Brothers, who, because they were not banks, were not regulated with a system of checks and balances and not required to have a diversified and stable sources of liquidity and capital. Yet these companies played a significant role in the financial crisis.
By allowing banks and commerce to intermingle, Noreika believes that meaningful competition will emerge which could have a number of positive effects, including tempering the risk concentrated in having just a few mega banks. In addition, it could make more U.S. banks globally competitive and promote economic opportunity and growth domestically and the development of better banking services, greater availability, and better pricing. “If a commercial company can deliver banking services better than existing banks, we hurt consumers by making it hard for them to do so,” stated Noreika.
For more information about federal banking regulations, subscribe to the Banking and Finance Law Daily.
Mixing banking and commerce can generate efficiencies that deliver more value to customers and can improve bank and commercial company performance with little additional risk, argued Acting Comptroller of the Currency Keith Noreika at the Clearing House Annual Conference in New York City. Addressing what has been a “taboo” subject for banking regulators, the separation of banking and commerce in the United States, Noreika offered his alternative to the narrative.
Traditionally, banking and commerce have been separated to protect banks from the corruptive power of commercial ownership and protect the market from banks consolidating and wielding too much commercial power.
Exceptions. Under current federal law, exceptions are provided for some firms to mix banking and commerce more freely. However, said Noreika, these exceptions provide an unfair advantage. Namely, “well-lawyered and well-connected companies tend to gain and benefit from special exceptions, privileging them over the bulk of firms that must live under the weight of a general prohibition against mixing banking and commerce.” This results in the very consequences that the prohibition was intended to prevent: “advantaging and aggrandizing a few at the expense of the many.”
Inherently safer? Noreika then questioned whether separating banking and commerce makes the economy more secure, particularly following the recent financial crisis. “Even when separated, risk can build in one part of the system with less rigorous supervision and become a contagion spreading to infect the whole,” said the Acting Comptroller. He pointed to the recent examples of Bear Stearns and Lehman Brothers, who, because they were not banks, were not regulated with a system of checks and balances and not required to have a diversified and stable sources of liquidity and capital. Yet these companies played a significant role in the financial crisis.
By allowing banks and commerce to intermingle, Noreika believes that meaningful competition will emerge which could have a number of positive effects, including tempering the risk concentrated in having just a few mega banks. In addition, it could make more U.S. banks globally competitive and promote economic opportunity and growth domestically and the development of better banking services, greater availability, and better pricing. “If a commercial company can deliver banking services better than existing banks, we hurt consumers by making it hard for them to do so,” stated Noreika.
For more information about federal banking regulations, subscribe to the Banking and Finance Law Daily.
Sunday, November 12, 2017
CFPB sues largest debt settlement services provider for deceiving consumers
By Katalina M. Bianco, J.D.
The Consumer Financial Protection Bureau has filed charges against Freedom Debt Relief, LLC, the nation’s largest debt settlement services provider, and its co-CEO Andrew Housser for deceiving consumers about its "clout with creditors." The CFPB is seeking compensation for harmed consumers, civil penalties, and an injunction against Freedom and Housser to halt their "unlawful conduct."
"Freedom took advantage of vulnerable consumers who turned to the company for help getting out of debt," said CFPB Director Richard Cordray. "Freedom deceived consumers about its clout with creditors that it knows do not negotiate with debt-settlement companies, made some customers negotiate on their own, and misled consumers about its fees and their accounts."
Complaint. The Bureau filed this action against Freedom and Housser under the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6102(c), 6105(d)(2012)); the Telemarketing Sales Rule (16 CFR Part 310); and the unfair, deceptive or abusive acts and practices provisions of the Consumer Financial Protection Act (12 U.S.C. §§ 5531, 5536(a), 5564, 5565), in connection with the marketing and sale of debt-settlement or debt-relief services.
Specifically, the Bureau alleges that Freedom:
The complaint includes Housser because, according to the CFPB, Housser co-founded and continues to exercise managerial responsibility for Freedom. The co-CEO has the authority to approve Freedom’s policies and practices and to approve the content of the debt-resolution agreements that consumers sign with Freedom and on which his name and signature appear. The complaint alleges that Housser knows Freedom charges consumers even if it doesn’t negotiate settlements with creditors but allows the agreements to assure consumers they will be charged only if there’s a settlement and consumers make a payment.
For more information about Bureau enforcement actions, subscribe to the Banking and Finance Law Daily.
The Consumer Financial Protection Bureau has filed charges against Freedom Debt Relief, LLC, the nation’s largest debt settlement services provider, and its co-CEO Andrew Housser for deceiving consumers about its "clout with creditors." The CFPB is seeking compensation for harmed consumers, civil penalties, and an injunction against Freedom and Housser to halt their "unlawful conduct."
"Freedom took advantage of vulnerable consumers who turned to the company for help getting out of debt," said CFPB Director Richard Cordray. "Freedom deceived consumers about its clout with creditors that it knows do not negotiate with debt-settlement companies, made some customers negotiate on their own, and misled consumers about its fees and their accounts."
Complaint. The Bureau filed this action against Freedom and Housser under the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6102(c), 6105(d)(2012)); the Telemarketing Sales Rule (16 CFR Part 310); and the unfair, deceptive or abusive acts and practices provisions of the Consumer Financial Protection Act (12 U.S.C. §§ 5531, 5536(a), 5564, 5565), in connection with the marketing and sale of debt-settlement or debt-relief services.
Specifically, the Bureau alleges that Freedom:
- misleads consumers about creditors’ willingness to negotiate;
- fails to make clear to consumers that they may need to negotiate with creditors;
- deceives consumers about the extent of their services and their fees; and
- fails to disclose to consumers that they are entitled to a return of funds in their accounts if they leave the program.
For more information about Bureau enforcement actions, subscribe to the Banking and Finance Law Daily.
Tuesday, November 7, 2017
Consumer bankers say regulators’ proposal undermines Community Reinvestment Act’s purpose
By Thomas G. Wolfe, J.D.
Commenting on the Office of the Comptroller of the Currency’s, Federal Reserve Board’s, and Federal Deposit Insurance Corporation’s joint proposal to amend their respective Community Reinvestment Act (CRA) regulations, the Consumer Bankers Association (CBA) asserts that the proposed rulemaking runs counter to the CRA’s purpose and “will negatively impact our members as they work to provide products and services meeting the most pressing needs of lower income families and communities.” In particular, the CBA’s October 2017 comment letter to the OCC maintains that home equity loans should be kept separate from the “home mortgage loans” category; home improvement loans should not be lumped together with “other secured” and “other unsecured” loans; and financial institutions should not be required to produce their CRA Loan Application Register documents under the proposed changes to “public file” requirements.
In September 2017, the OCC, Fed, and FDIC proposed amendments to their respective CRA regulations to align them with recent revisions made by the Consumer Financial Protection Bureau to Regulation C—Home Mortgage Disclosure (12 CFR Part 1003). Since the Bureau’s Reg. C modifications are slated to take effect Jan. 1, 2018, the proposed CRA rule amendments by the OCC, Fed, and FDIC target the same effective date as well. In addition, the federal regulators requested public comment on the proposed modifications to their CRA regulations.
Comment highlights. In its comment letter, the CBA underscores that:
- as a general rule, home equity loans should not be included with “home mortgage loans” for CRA purposes;
- home equity loans should be included in the CRA analysis “only at the option of the financial institution,” and should be reported as a separate category—apart from home mortgage loans—for easier identification;
- financial institutions could benefit from having the option to combine certain traditional CRA mortgage categories, “i.e. home purchase, home improvement, and home refinance,” for purposes of the financial institution’s CRA examination;
- home improvement loans should not be lumped with “Other Secured” and “Other Unsecured” categories for loans, but should be listed instead as a “fifth category of consumer loans;” and
- because the regulators’ proposal would allow financial institutions to maintain only the pertinent notice required under Regulation C for their CRA public files and would not require including data from their “HMDA Loan Application Register” files, financial institutions should similarly not be required to produce their “CRA Loan Application Register” files.
For more information about regulators' actions affecting the consumer banking industry, subscribe to the Banking and Finance Law Daily.
Thursday, November 2, 2017
Risk management principles for bank products, fintech charters touted
By Andrew A. Turner, J.D.
The Office of the Comptroller of the Currency has issued updated guidance (OCC Bulletin 2017-43) on how banks and thrifts should manage the risks that arise when they offer new, modified, or expanded financial products or services. Meanwhile, Acting Comptroller of the Currency Keith Noreika defended national bank charters for fintech companies in a speech discussing innovation and financial technology.
Risk management principles for banks. The guidance, which replaces a bulletin published in 2004, advises that new activities “should encourage fair access to financial services and fair treatment of consumers” and comply with applicable laws and regulations. It specifically considers strategic, reputation, credit, operational, compliance, and liquidity risk.
For more information about regulation of banking activities by the OCC, subscribe to the Banking and Finance Law Daily.
The Office of the Comptroller of the Currency has issued updated guidance (OCC Bulletin 2017-43) on how banks and thrifts should manage the risks that arise when they offer new, modified, or expanded financial products or services. Meanwhile, Acting Comptroller of the Currency Keith Noreika defended national bank charters for fintech companies in a speech discussing innovation and financial technology.
Risk management principles for banks. The guidance, which replaces a bulletin published in 2004, advises that new activities “should encourage fair access to financial services and fair treatment of consumers” and comply with applicable laws and regulations. It specifically considers strategic, reputation, credit, operational, compliance, and liquidity risk.
According to the OCC, technological advances like the
expanded use of artificial intelligence and cloud data storage, along with evolving
consumer preferences are “reshaping the financial services industry at an
unprecedented rate and are creating new opportunities to provide consumers,
businesses, and communities with more access to and options for products and
services.” The bulletin outlines ways of conducting effective risk management
to avoid strategic risk, reputation risk, credit risk, operational risk,
compliance risk, and liquidity risk.
As part of ongoing supervision, OCC examiners review new
activities consistent with the OCC’s risk-based supervision. The bulletin
stated that examiners will consider new activities’ effect on banks’ risk
profiles and the effectiveness of banks’ risk management systems, including due
diligence and ongoing monitoring efforts. New activities should be developed
and implemented consistently with sound risk management practices and should
align with banks’ overall business plans and strategies.
The bulletin outlines ways of conducting effective risk management to avoid strategic risk, reputation risk, credit risk, operational risk, compliance risk, and liquidity risk.
- Management should design an effective risk management system that identifies, measures, monitors, reports, and controls risks when developing and implementing new activities.
- Management and the board should clearly understand the rationale for engaging in new activities and how proposed new activities meet the bank’s strategic objectives.
- Management should conduct due diligence to fully understand the risks and benefits before implementing new activities.
- Management should establish and implement policies and procedures that provide guidance on risk management of new activities.
- Management should have effective change management processes to manage and control the implementation of new or modified operational processes, as well as the addition of new technologies into the bank’s existing technology architecture.
- Management should have appropriate performance and monitoring systems to assess whether the activities meet operational and strategic expectations and legal requirements and are within the bank’s risk appetite.
Charters
for financial technology companies. Providing assurance that a chartered
fintech company would be engaged in at least one of the core activities of
banking, Noreika
called concerns over an inappropriate mixing of banking and commerce
“exaggerated.” Speaking at Georgetown University’s Institute of
International Economic Law’s Fintech Week, Noreika said that commercial
companies should not be prohibited from applying for national bank charters if
they meet the criteria.
Many
fintech and online lending business models fit within the various categories of
charters, including special purpose national banks, according to Noreika, as he
observed interest in fintechs becoming full-service banks, trust banks, and
credit cards banks. “Chartering innovative de novo institutions through these
existing authorities enhances the federal banking system,” in his view.
The
initiative to charter nondepository fintech companies remains a work in
progress as Noreika noted that authority has been challenged in litigation
brought by Conference of State Bank Supervisors and the New York Department of
Financial Services.
Refuting assertions that the OCC is considering granting charters to nonfinancial companies as unwarranted fears, Noreika concluded with a call for “a constructive discussion of where commerce and banking coexist successfully today and where else it may make sense in the future.”
For more information about regulation of banking activities by the OCC, subscribe to the Banking and Finance Law Daily.
Wednesday, November 1, 2017
Fannie Mae misses two affordable housing goals in 2016, FHFA reports
By J. Preston Carter, J.D., LL.M.
For more information about the regulation of Fannie Mae and Freddie Mac, subscribe to the Banking and Finance Law Daily.
The Federal Housing Finance Agency, in its Annual Housing Report, has preliminarily determined that Fannie Mae failed to meet the very low-income home purchase goal and the low-income refinance goal for 2016. However, Fannie Mae did achieve the single-family low-income home purchase goal and the low-income areas home purchase goal. The FHFA has preliminarily determined that Freddie Mac achieved all of the multifamily goals for 2016.
The report describes the affordable housing activities of the Enterprises during 2016 and meets the reporting requirements of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as amended. Fannie Mae’s total business volume in 2016 was $637.4 billion and, as a result, the total affordable housing allocation transferred was $268 million. Freddie Mac’s total business volume in 2016 was $445.7 billion and the total affordable housing allocation transferred was $187.1 million.
Besides announcing the FHFA’s preliminary review of the Enterprises’ 2016 housing goals performance, the report also includes information about the distribution of single-family loans by race/ethnicity, gender, and census tract median income. In addition, the report includes a breakdown of the single-family mortgage product-types purchased by each Enterprise, as well as information on mortgage payment type (e.g., fixed-rate or adjustable-rate mortgage), loan-to-value ratios, and credit scores for 2016.
The report describes the status of several other activities related to affordable housing, including the FHFA’s Duty to Serve rule. The report also describes the affordable housing allocations made by each Enterprise, as well as the FHFA’s efforts to survey the mortgage markets and release loan-level data submitted by the Enterprises to the public. Finally, the report discusses subprime, nontraditional, and higher-priced mortgage loans.
For more information about the regulation of Fannie Mae and Freddie Mac, subscribe to the Banking and Finance Law Daily.
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