Senators approve proposal to ease financial regulatory requirements

By Andrew A. Turner, J.D.

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.

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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).

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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.

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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:

• 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.

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.

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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.

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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.

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.

1. Management should design an effective risk management system that identifies, measures, monitors, reports, and controls risks when developing and implementing new activities.
2. 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.
3. Management should conduct due diligence to fully understand the risks and benefits before implementing new activities.
4. Management should establish and implement policies and procedures that provide guidance on risk management of new activities.
5. 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.
6. 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.

Risk management of banks’ third-party relationships should include comprehensive oversight of those relationships, according to the bulletin. A third-party service provider’s inferior performance or service may result in loss of bank business, increased legal costs, and heightened risks in many areas, including credit, operational, compliance, strategic, and reputation.

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.”

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Fannie Mae misses two affordable housing goals in 2016, FHFA reports

By J. Preston Carter, J.D., LL.M.

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.

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