Nutter Bank Report, July 2017

by Nutter McClennen & Fish LLP
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Headlines
1. CFPB Arbitration Rule Will Prevent Firms From Blocking Class Action Lawsuits
2. Courts Split on Whether Mortgage Underwriters Entitled to Overtime Pay
3. FDIC Broadens Banks’ Ability to Appeal Exam Findings
4. Task Force Proposes Roadmap to Achieve Near Real Time Payments System
5. Other Developments: Affordable Mortgage Lending, HMDA Reporting and Appraisals

1. CFPB Arbitration Rule Will Prevent Firms From Blocking Class Action Lawsuits

The CFPB has approved a new rule that will prohibit banks and other covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties as a means of barring the consumer from filing or participating in a class action concerning the covered consumer financial product or service. The final rule announced on July 10 applies only to agreements for consumer financial products and services entered into after the end of the 180-day period beginning on the effective date of the final rule. The final rule also requires covered providers that are involved in an arbitration under a pre-dispute arbitration agreement to submit certain records of the arbitration to the CFPB, including initial claims and counterclaims, answers to these claims and counterclaims, and awards issued in arbitration. Under the final rule, covered providers may still include arbitration clauses in their contracts. However, the final rule also requires covered providers to insert specified terms into a consumer agreement containing an arbitration clause that explain the consumer’s rights to join a class action under the rule. The final rule becomes effective on September 18, 2017, and restrictions on pre-dispute arbitration agreements will apply to agreements entered into on or after March 19, 2018. Click here for a copy of the final rule.

     Nutter Notes: Section 1028(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) directed the CFPB to study pre-dispute arbitration agreements. The CFPB’s 2015 report to Congress on the study concluded that pre-dispute arbitration agreements are being used to prevent consumers from seeking relief from legal violations on a class basis, and that consumers rarely file individual lawsuits or arbitration cases to obtain such relief. The Dodd-Frank Act authorized the CFPB, after completing the study, to issue regulations restricting or prohibiting the use of arbitration agreements if the CFPB found that such rules would be in the public interest and for the protection of consumers. The CFPB plans to use the arbitral and court records required to be submitted under the final rule to continue monitoring arbitral and court proceedings to determine whether there are developments that raise consumer protection concerns that may warrant further regulatory action. The CFPB also plans to publish the materials it collects on its website, with appropriate redactions, to provide greater transparency into the arbitration of consumer disputes. The U.S. House of Representatives voted on July 25 to repeal the CFPB’s final rule. The final rule will become effective unless the U.S. Senate also votes to repeal it under the Congressional Review Act.

2. Courts Split on Whether Mortgage Underwriters Entitled to Overtime Pay

A federal appeals court has ruled that banks must pay overtime pay to mortgage underwriters who work more than 40 hours a week, deepening a split among the federal circuits that likely will need to be resolved by the Supreme Court. The July 5 decision by the U.S. Court of Appeals for the Ninth Circuit involved a lawsuit brought under the Fair Labor Standards Act (“FLSA”) by mortgage underwriters against the bank that employed them in which the federal trial court ruled that the mortgage underwriters were not entitled to overtime pay. The Ninth Circuit Court of Appeals reversed the lower court, holding that because the mortgage underwriters’ primary job duty was not related to management or general business operations, the administrative employee exemption to the FLSA’s overtime requirements did not apply. According to the ruling, the mortgage underwriters’ primary duties do not involve the “exercise of discretion” or “independent judgment” that is required to qualify as exempt administrative employees. Click here for a copy of the court’s decision.

     Nutter Notes: Two federal appeals courts were already split on this issue before the Ninth Circuit’s recent decision.  The Second Circuit Court of Appeals has previously ruled that mortgage underwriters are nonexempt employees, and therefore entitled to overtime pay. The Sixth Circuit Court of Appeals has previously ruled that they are exempt employees.  Until the split among the circuits is resolved by the Supreme Court, banks and other mortgage lenders should carefully consider whether their mortgage underwriters’ duties and salary qualify them as exempt employees and ensure they are properly classified under the FLSA. To determine whether employees qualify for the FLSA’s administrative exemption, the Department of Labor’s (“DOL”) overtime rule imposes a three-part test. A qualifying employee must be compensated not less than $455 per week, perform as his or her primary duty “office or non-manual work related to the management or general business operations of the employer or the employer's customers,” and have as his or her primary duty “the exercise of discretion and independent judgment with respect to matters of significance.” The DOL amended the overtime rule last year to increase the standard salary component from $455 per week to $913 per week, but the DOL has been enjoined from implementing and enforcing the amended rule. The DOL issued a request for information on July 25 that indicates that it may be reconsidering the changes to the overtime rule.

3. FDIC Broadens Banks’ Ability to Appeal Exam Findings

The FDIC has issued revised Guidelines for Appeals of Material Supervisory Determinations that expand banks’ rights to appeal material supervisory determinations and to improve consistency with the appeal processes of the other federal banking agencies. The revised guidelines issued on July 18 broaden the avenues for appeal by permitting the appeal of the level of compliance with an existing formal enforcement action, the decision to initiate an informal enforcement action and matters requiring board attention (“MRBA”), and make additional opportunities for appeal available under certain circumstances. The revised guidelines provide that the initiation of formal enforcement-related action or decision does not affect an appeal of any material supervisory determination that is pending. The revised guidelines also provide more transparency of reviews conducted by FDIC Division Directors by requiring the publication of annual reports on Division Directors’ decisions about material supervisory determinations. The revised guidelines became effective on July 18. Click here for a copy of the revised guidelines.

     Nutter Notes: The FDIC has also updated its Risk Management Manual of Examination Policies to incorporate guidance to examiners regarding supervisory recommendations, including MRBA and deviations from safety and soundness principles underlying statements of policy, among other matters. The update released on July 26 also added instructions for new Report of Examination (“ROE”) schedules. The updated exam manual instructs examiners that Supervisory Recommendations must address meaningful concerns, be communicated clearly and in writing in an ROE or on official FDIC letterhead, and discuss corrective action. The updated manual also instructs examiners that Supervisory Recommendations in ROEs must be communicated on the Examination Conclusion and Comments, Risk Management Assessment or the MRBA schedules, as appropriate. According to the updated manual, Supervisory Recommendations related to deviations from the safety and soundness principles underlying statements of policy, guidance or guidelines that are not included as appendices to FDIC Rules and Regulations must be summarized on the Examination Conclusion and Comments schedule and discussed in more detail on other report schedules including the MRBA schedule, if appropriate. Click here for a copy of the updated exam manual and related information.

4. Task Force Proposes Roadmap to Achieve Near Real Time Payments System

The Federal Reserve’s Faster Payments Task Force has issued its final report, which presents possible solutions from 16 different proposers for achieving safe, ubiquitous, and faster payments and discusses the challenges related to implementing a faster payments system. The report released on July 24 also makes recommendations about regulatory and infrastructure changes needed to support a faster payments system and the need to address evolving security threats, meet changing end-user needs and encourage innovation. According to the report, the task force determined that its mission to “identify effective approach(es) for implementing a safe, ubiquitous, faster payments capability in the United States,” would best be accomplished by assessing each solution proposed against a comprehensive set of effectiveness criteria and then enabling the proposers to refine their solutions before sharing them with the public. The report encourages competition and interoperability among the various proposed solutions rather than endorsing a single approach. Click here for a copy of the report.

     Nutter Notes: The Faster Payments Task Force’s report recommends that the next step to achieve a faster payments system is to establish a voluntary, industry-led governance framework that will ultimately have responsibility for implementing many of the Task Force’s other recommendations, such as implementing rules, standards, and baseline requirements for payments solutions. The next step, according to the report, would be to develop, implement, and enforce cross-solution rules and standards that would include baseline requirements to enable payments to move securely and reliably between various payments solutions. The final report does not include specific recommendations for changes to the regulatory landscape necessary to support a faster payments system, but recommends that the Federal Reserve establish a working group to evaluate current laws with respect to faster payments, clarify the applicability of current regulations, and propose any necessary changes.

5. Other Developments: Affordable Mortgage Lending, HMDA Reporting and Appraisals

  • FDIC Issues Updated Affordable Mortgage Lending Program Guide

The FDIC on July 26 published an updated version of the Affordable Mortgage Lending Guide, Part II: State Housing Finance Agencies that reflects current information available about the mortgage programs offered through state housing finance agencies. The guide has been updated to add the Massachusetts Housing Partnership to the list of state housing finance agencies, and include alternative private mortgage insurance options on individual state sheets, among other changes.

     Nutter Notes: According to the FDIC, the guide is meant as a resource for community banks to gain an overview of a variety of products, compare different products and identify next steps to expand or initiate a mortgage lending program. The guide describes state programs that provide home purchase support, including down payment closing cost assistance, mortgage tax credit certificates, and homeownership education and counseling. Click here for a copy of the updated guide.

  • CFPB May Temporarily Raise HMDA Reporting Threshold for Smaller Institutions

The CFPB on July 14 issued a proposed rule to amend Regulation C, which implements the Home Mortgage Disclosure Act (“HMDA”), that would temporarily increase the threshold for collecting and reporting data with respect to home equity lines of credit for banks and other lenders from 100 to 500 open-end lines of credit in either of the preceding two years so that lenders originating fewer than 500 during the relevant period would not be required to begin collecting the required data until January 1, 2020. Public comments on the proposed rule are due by July 31.

     Nutter Notes: The CFPB stated that it is concerned that the open-end transactional coverage threshold, currently set at 100 transactions, is too low. The CFPB’s proposal to increase that threshold to 500 or more open-end lines of credit for two years (calendar years 2018 and 2019) would allow it time to reconsider the permanent level for the open-end transactional coverage threshold. Click here for a copy of the proposed rule.

  • Banking Agencies Consider Easing Commercial Real Estate Appraisal Requirements

The federal banking agencies on July 19 issued a proposal that would raise the threshold for commercial real estate transactions requiring an appraisal from $250,000 to $400,000. In the proposal, the agencies stated that they believe raising this threshold would significantly reduce the number of transactions that require an appraisal. Comments on the proposal are due within 60 days after it is published in the Federal Register, which is expected shortly.

     Nutter Notes:  Instead of an appraisal, the proposal would require that commercial real estate transactions at or below the threshold receive an “evaluation.” Evaluations are less detaileda than appraisals, do not require completion by a state licensed or certified appraiser, and provide a market value estimate of the real estate pledged as collateral. Click here for a copy of the proposal.

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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