Financial Services Weekly Roundup - September 2018

by Goodwin


Editor's Note

No Rest for the Regulators.   While many in the financial services industry used the last few weeks of August to enjoy additional time with family and friends before the back-to-school crunch, federal financial regulators remained hard at work. Between August 22 and September 10, the Board of Governors of the Federal Reserve System (Federal Reserve), the Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) (together, the Federal Banking Agencies), along with the Consumer Financial Protection Bureau (CFPB), proposed rules implementing several key regulatory relief provisions of S. 2155, the Economic Growth, Regulatory Relief, and Consumer Protection Act (Regulatory Relief Act), which was enacted on May 24, 2018. Specifically, federal financial regulators proposed rules which would:

  • Grant national bank powers to covered federal savings associations;
  • Triple the total consolidated asset threshold of the Federal Reserve’s Small Bank Holding Company and Savings and Loan Holding Company Policy Statement from $1 billion to $3 billion;
  • Implement certain requirements related to the partial exemption from the Home Mortgage Disclosure Act;
  • Classify municipal obligations satisfying certain criteria as high-quality liquid assets for purposes of the liquidity coverage ratio regulations; and
  • Expand the examination cycle for qualifying insured depository institutions (generally those that are well capitalized and well managed) with under $3 billion in total assets from 12 to 18 months.

Separately from the requirements of the Regulatory Relief Act, the Federal Banking Agencies also extended the comment period on the proposed overhaul of the Volcker Rule, the OCC solicited public comment on possible revisions to its regulations implementing the Community Reinvestment Act, and the Financial Crimes Enforcement Network (FinCEN) made certain exceptive relief from its Beneficial Ownership Rule permanent. These and other developments are discussed below. Most years, the financial industry enjoys the regulators’ August vacation. This year, the industry enjoyed their lack of one.

Regulatory Developments

OCC Invites Comment on Proposed Rule Giving National Bank Powers to Covered Federal Savings Associations

On September 10, the OCC issued a proposed rule that would implement Section 206 of the Regulatory Relief Act, which required the OCC to issue regulations to allow federal savings associations with total consolidated assets of $20 billion or less as of December 31, 2017, to elect to operate with national bank powers without having to change their charters. Federal savings associations that make the election generally would have the same rights and privileges as a national bank and be subject to the same duties, restrictions, penalties, liabilities, conditions, and limitations that apply to national banks. Under the proposed rule, covered federal savings associations would be required to divest, conform or discontinue nonconforming subsidiaries, assets and activities that would not be permissible for national banks, but would be permitted to keep their existing charter and governance processes. To reduce unnecessary burden, the proposed rule also would allow covered savings associations to continue to use federal savings association procedures rather than national bank procedures where the application of those procedures would not result in substantively different outcomes. Comments are due 60 days after the proposed rule is published in the Federal Register.

Extension of Comment Period on Volcker Rule Overhaul Proposal

On September 4, the Federal Reserve, the FDIC, the OCC, the Commodity Futures Trading Commission, and the Securities and Exchange Commission (SEC) provided notice of their intent to extend the comment period for a proposed rule to simplify compliance requirements for the Volcker Rule until October 17, 2018. The comment period was set to expire on September 17, 2018, and has been extended at the request of the public. As discussed in the June 6 edition of the Roundup, the proposed amendments aim to provide banking entities with clarity regarding prohibited activities and to improve supervision and implementation of Section 13 of the Bank Holding Company Act. The joint press release can be found here and the Notice of Extension can be found here.

Federal Reserve Issues Interim Final Rule Expanding Small Bank Holding Company Policy Statement

On August 28, the Federal Reserve issued an interim final rule (Rule) tripling the total consolidated asset threshold of the Federal Reserve’s Small Bank Holding Company and Savings and Loan Holding Company Policy Statement from $1 billion to $3 billion, greatly expanding the number of bank holding companies and savings and loan holding companies not subject to Basel III capital rules and granting such institutions more flexibility to incur debt to make acquisitions. The Rule would also effectuate certain conforming changes to related regulations. As previously reported in the Roundup in November 2017 and March 2018, promulgation of the Rule was required by the Regulatory Relief Act.  Comments on the Rule must be received no later than October 29, 2018.

CFPB Issues Rule to Implement and Clarify New HMDA Amendments

On August 31, the CFPB issued a rule to implement certain requirements related to the partial exemption from the Home Mortgage Disclosure Act (HMDA) adopted in the Regulatory Relief Act. In conjunction with this rule, the CFPB updated the Filing Instructions Guide for HMDA data collected in 2018 to reflect the Regulatory Relief Act and the rule. This interpretative and procedural rule provides that institutions covered by a partial HMDA exemption have the option to report exempt data fields as long as they report all fields within any such exempt data points; clarifies that only loans and lines of credit that are otherwise HMDA-reportable count for purposes of assessing partial-exemption status; defines which data points in Regulation C are covered by partial exemptions; provides for the assignment of a non-universal loan identifier for partially exempt transactions; and details the availability of partial exemptions for institutions with negative Consumer Reinvestment Act examination histories. This interpretative and procedural rule is anticipated to be incorporated into Regulation C at a later date.

Federal Banking Agencies Issue Interim Final Rule Implementing Liquidity Coverage Ratio Adjustment

On August 22, the Federal Banking Agencies issued an interim final rule (Rule) classifying municipal obligations satisfying certain criteria as high-quality liquid assets (HQLAs) for purposes of the liquidity coverage ratio (LCR) regulations and others. As previously reported in the Roundup in November 2017 and March 2018, promulgation of the Rule was required by the Regulatory Relief Act. Section 403 of the Regulatory Relief Act, which the Rule implements, requires the Federal Banking Agencies to classify qualifying municipal securities as level 2B liquid assets under the LCR final rule. The LCR requires an institution to maintain a certain amount of HQLAs, which would be available to be monetized in a period of stress. The LCR divides HQLAs into three levels: 1, 2A, and 2B liquid assets. The levels correspond with quantitative limitations and weightings. Municipal securities were omitted from classification as HQLA in the 2014 final interagency LCR rule. In 2016, the Federal Reserve permitted Federal Reserve-regulated institutions to treat certain municipal securities as level 2B liquid assets. Section 403 and the Rule generally mean that municipal securities held by FDIC- and OCC-regulated banks will get the same treatment, for purposes of LCR, as those held by Federal Reserve-regulated banks. To qualify, a municipal security must be “liquid readily-marketable” and “investment grade” (as defined in the Federal Banking Agencies’ regulations) as of the LCR calculation date. The Rule became effective on August 31, 2018, and comments on the Rule must be received no later than October 1, 2018.

Federal Banking Agencies Issue Interim Final Rules Implementing Expanded Examination Cycles

On August 29, the Federal Banking Agencies issued interim final rules implementing Section 210 of the Regulatory Relief Act. Section 210 of the Regulatory Relief Act amends Section 10(d) of the Federal Deposit Insurance Act to permit the Federal Banking Agencies to examine qualifying insured depository institutions (generally those that are well capitalized and well managed) with under $3 billion in total assets not less than once during each 18-month period. Prior to enactment of the Regulatory Relief Act and the interim final rules, only qualifying insured depository institutions with under $1 billion in total assets were eligible for an 18-month onsite examination cycle. In addition, the interim final rules make parallel changes to the Federal Banking Agencies’ regulations governing the onsite examination cycle for U.S. branches and agencies of foreign banks, consistent with the International Banking Act of 1978. The interim final rules became effective on August 29, 2018. Comments on the rules must be received by October 29, 2018.

Client Alert: OCC Seeks Comment on Ways to Modernize CRA Regulations

The OCC is soliciting public comment on possible revisions to its regulations implementing the Community Reinvestment Act (CRA). The OCC is seeking input on ways to better define the assessment areas in which it measures CRA performance to take into account changing bank business models, how to make the process of evaluating performance under the CRA more transparent and predictable, and the types of activities that should qualify for consideration under the CRA. For more information, read the client alert issued by Goodwin’s Financial Industry practice.

FinCEN Grants Exceptive Relief From Beneficial Ownership Rule for Rollovers, Renewals, Modifications or Extensions of Certain Financial Products

On September 7, FinCEN issued a ruling granting  exceptive relief to covered financial institutions (banks, brokers or dealers in securities, mutual funds, futures commission merchants, and introducing brokers in commodities) from the obligations of the Beneficial Ownership Requirements for Legal Entity Customers and its requirement to identify and verify the identity of the beneficial owner(s). This exceptive relief, which replaces and supersedes the previously granted 90-day limited exceptive relief and 30-day extension covered in the May 23 and August 15 editions of the Roundup, applies to rollovers, renewals, modifications or extensions of the following financial products occurring on or after May 11, 2018:

  • A rollover of a certificate of deposit;
  • A renewal, modification, or extension of a loan (e.g., setting a later payoff date) that does not require underwriting review and approval;
  • A renewal, modification, or extension of a commercial line of credit or credit card account (e.g., a later payoff date is set) that does not require underwriting review and approval; and
  • A renewal of a safe deposit box rental.

The exception only applies to rollovers, renewals, modifications or extensions and does not apply to the initial opening of such accounts. Notwithstanding this exception, covered financial institutions must continue to comply with all other applicable anti-money laundering requirements under the Bank Secrecy Act and its implementing regulations, including program, recordkeeping, and reporting requirements.

FinCEN Director Addresses Approach to Digital Currency and Financial Innovation

On August 9, FinCEN Director Kenneth A. Blanco delivered remarks at the 2018 (Legal) Tech Conference at Chicago-Kent College of Law at Illinois Institute of Technology. Director Blanco’s remarks focused on FinCEN’s approach with respect to digital currency and financial innovation. Several days later, on August 14, Director Blanco also discussed digital currency while speaking at the Annual Las Vegas Anti-Money Laundering Conference and Expo, in remarks addressed to the casino industry. View the Digital Currency & Blockchain Technology blog post.

SEC Announces Decreased Filing Fees for Fiscal Year 2019

On August 24, the SEC announced that the fees that public companies and other issuers (including mutual funds) pay to register their securities with the SEC will decrease approximately 2.7% from $124.50 per million dollars to $121.20 per million dollars. The change will be effective on October 1, 2018. The fee rate change will apply not only to registration fees payable under Section 6(b) of the Securities Act of 1933 but also to fees payable under Section 13(e) and Section 14(g) of the Securities Exchange Act of 1934 in connection with securities repurchases and certain proxy solicitations and statements in corporate control transactions, respectively. The Section 6(b) rate is also used to calculate fees payable with an Annual Notice of Securities Sold Pursuant to Rule 24f-2 under the Investment Company Act of 1940 (the 1940 Act). The SEC filing fee estimator is available here.

Senate Confirms Republican SEC Nominee; Sworn in by SEC Chairman Clayton

On September 5, the U.S. Senate confirmed Elad Roisman as an SEC Commissioner by an 85-14 vote.  Mr. Roisman was sworn into office as an SEC Commissioner by SEC Chairman Jay Clayton on September 11, 2018, replacing Michael S. Piwowar, who resigned from the SEC this summer. Mr. Roisman comes to the SEC from the Senate Banking Committee, where he served as Chief Counsel. He previously served as Counsel to SEC Commissioner Daniel Gallagher and prior to that, as a Chief Counsel at NYSE Euronext. He also worked as an attorney at the law firm of Milbank, Tweed, Hadley & McCloy LLP where he served as an associate in the New York office. His term expires on June 5, 2023.

Enforcement & Litigation

Federal Reserve Fines National Bank $8.6 Million Civil Penalty for Mortgage Servicing Related Deficiencies, Ends 2011 Enforcement Action

On August 10, the Federal Reserve announced that a national bank had consented to the assessment of a civil money penalty totaling $8.6 million pursuant to the Federal Deposit Insurance Act, as amended, 12 U.S.C. §§ 1818(b)(3) and 1818(i)(2)(B), for engaging in unsafe or unsound banking practices. View the Enforcement Watch blog post.

California Supreme Court Rules That Loans Can Be Unconscionable Due to High Interest Rates Despite Lack of Interest Rate Cap

On August 13, the California Supreme Court answered a question certified to it by the Ninth Circuit, holding that a loan with a high interest rate can be unconscionable, even if the legislature specifically declined to impose an interest rate cap on loans of that amount.  See De La Torre v. Cashcall, Inc. (No. S241434 (Cal. Aug. 13, 2018))  The Ninth Circuit certified the question to the California Supreme Court in De La Torre v. Cashcall, Inc. (No. 14-17571 (9th Cir. Dec. 30, 2014)), in considering an appeal from a Northern District of California ruling dismissing De La Torre’s case, based on a finding that a loan that is not subject to an interest rate cap cannot be unconscionable under California law. View the LenderLaw Watch blog post.

Ninth Circuit Affirms Dismissal and Summary Judgment in Default Servicing Class Actions

On August 28, the Ninth Circuit affirmed Judge Yvonne Gonzalez Rogers’ decisions in two putative class actions challenging Citibank’s and J.P. Morgan Chase’s default servicing practices. In Stitt v. Citibank, N.A. and Ellis v. J.P. Morgan Chase & Co., the Ninth Circuit concluded that Judge Rogers had correctly dismissed plaintiffs’ federal Racketeer Influenced and Corrupt Practices Act (RICO) claims and had correctly granted defendants summary judgment on plaintiffs’ state-law fraud and unjust enrichment claims. Stitt and Ellis were two of a slew of similar putative class actions filed against mortgage servicers related to default-servicing practices (such as property inspections). Mortgage servicers faced with similar claims should consider these decisions in plotting out their defensive strategies to such claims. View the LenderLaw Watch blog post.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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