Weekly RoundUp
October 18, 2017

Financial Services Weekly News

Swimming Against the Tide. As discussed below, the Trump administration’s plans for financial regulatory reform are beginning to take shape, especially in agencies, such as the Securities and Exchange Commission (SEC) and Office of the Comptroller of the Currency (OCC), where leadership changes have already occurred. However, the Consumer Financial Protection Bureau (CFPB) continues to swim against the rising tide of regulatory relief. On October 5, five years after beginning its work on the rule, the CFPB finalized its controversial rule regulating small dollar loans, or payday loans (Small Dollar Loan Rule). The Small Dollar Loan Rule, 12 CFR Part 1041, which the CFPB first proposed in June and received more than one million comments, is set to become effective in 21 months from the date it is published in the Federal Register. The most significant change from the proposed rule will require lenders to determine a borrower’s ability to repay various types of small-dollar loans, including covered payday loans, auto title loans, deposit advance products and longer-term loans with balloon payments. While the rule’s future remains cloudy, the failure of Congress to take promised action on the CFPB’s controversial arbitration rule over three months after it became final would seem to make it less likely that the Small Dollar Loan Rule will be repealed using the Congressional Review Act. Nevertheless, by the time the Small Dollar Loan Rule becomes effective, current CFPB Director Richard Cordray will have been replaced by a new director, appointed by President Trump, who may be less aggressive in his or her regulatory goals and could reverse course on the rule. View the LenderLaw Watch blog post.

Regulatory Developments

FINRA Receives SEC Approval to Streamline Competency Exams

On October 5, the Financial Industry Regulatory Authority (FINRA) announced the SEC’s approval of FINRA’s proposal to streamline and consolidate competency exams. The changes, explained in detail in Regulatory Notice 17-30, are intended to expand opportunities for prospective securities professionals and align with FINRA’s organizational improvement initiative (FINRA360) to ensure effective operation as a self-regulatory organization. With an effective date of October 1, 2018, the changed rules eliminate duplicative testing of general securities knowledge, requiring that all representative-level applicants pass the new general knowledge examination (the Securities Industry Essentials (SIE)) and a tailored examination testing knowledge relevant and appropriate to their specific job functions at the firm with whom they are associating. The changes also eliminate several outdated or limited utility representative-level registration categories.

House Financial Services Committee Approves 22 Financial Regulatory Reform Bills

On October 12, the House Financial Services Committee approved 22 financial regulatory reform bills. According to Committee Chairman Jeb Hensarling (R-TX), the bills will promote access to capital, reduce the regulatory burden “that slows our economy and makes it harder for people on Main Street to get ahead,” and provide community financial institutions “with desperately needed regulatory relief as we know we are still regrettably losing one a day in America.” The bills passed by the committee included the Tailor Act (H.R. 1116), which would require regulators to tailor their actions to meet the diverse characteristics of different banks and passed on a 39-21 vote, and the Systemic Risk Designation Improvement Act (H.R. 3312), which would replace the $50 billion asset threshold to be designated a systemically important financial institution with a more nuanced and customized measurement and passed on a 41-19 vote. Bills that would provide relief for smaller banks from new Home Mortgage Disclosure Act reporting (H.R. 2954), offer relief for smaller lenders with respect to escrow practices (H.R. 3791) and provide technical clarifications on privacy notices (H.R. 2396) also passed with significant bipartisan support. Measures that would address custody bank issues (H.R. 2121) and ensure Operation Choke Point is never repeated (H.R. 2706) passed on near unanimous votes. A bill that would repeal the Department of Labor’s fiduciary rule (H.R. 3857) passed on a party-line vote. No timetable for consideration of the bills by the full House of Representatives has been announced.

Treasury Releases Report Detailing How to Streamline and Reform the U.S. Regulatory System for the Capital Markets

On October 6, the U.S. Department of the Treasury (Treasury) released a report and summary fact sheet detailing how to streamline and reform the U.S. regulatory system for the capital markets. The Treasury’s evaluation of current capital market regulations found that there are significant reforms that can be undertaken to promote growth and vibrant financial markets while maintaining strong investor protections. The report was released in response to Executive Order 13772— which was issued by President Trump on February 3, and called on the Treasury to identify laws and regulations that are inconsistent with a set of core principles of financial regulation— could become a blueprint for the Trump administration’s efforts to reform U.S. regulation of the capital markets to reduce the regulatory burden and promote economic growth.

SEC Proposes Rules to Implement FAST Act Mandate to Modernize and Simplify Disclosure

On October 11, the SEC voted to propose amendments based upon recommendations in the SEC Staff’s November 2016 report aimed at modernizing and simplifying the disclosure requirements for public companies, investment advisers and investment companies in Regulation S-K as mandated under the Fixing America’s Surface Transportation Act. The proposed amendments, among other things, would revise and simplify disclosures and the disclosure process by removing from the requirements the listed risk factor examples, updating the description of property requirement to emphasize the materiality threshold, changing exhibit filing requirements, streamlining the process for confidential treatment requests, and allowing for flexibility through changes to the Management’s Discussion and Analysis section. The proposed amendments would also update rules by eliminating requirements for certain undertakings in registration statements and integrate technology by requiring data tagging for items on the cover pages and the use of hyperlinks for information that is incorporated by reference. After publication of the proposed rules in the Federal Register, the SEC will seek public comment for 60 days.

OCC Rescinds Deposit Advance Product Guidance in Response to CFPB Small Dollar Loan Rule

On October 5, the OCC rescinded the agency’s Guidance on Supervisory Concerns and Expectations Regarding Deposit Advance Products that was published in the Federal Register on November 26, 2013, and accompanying OCC Bulletin 2013-40, effective immediately. The OCC indicated that it may consider issuing new guidance in the future. In his extraordinary statement announcing the action, Acting Comptroller Keith Noreika said that “the final rule regarding short-term, small-dollar loans submitted to the Federal Register by the Consumer Financial Protection Bureau necessitates revisiting the OCC guidance.” The Acting Comptroller went on to say that the “continuation of the OCC’s guidance would subject national banks and federal savings associations to potentially inconsistent regulatory direction and undue burden as they prepare to implement the requirements of the CFPB’s final rule. Moreover, in the years since the agency issued the guidance, it has become clear to me that it has become difficult for banks to serve consumers’ need for short-term, small-dollar credit. As a result, consumers who would rely on highly regulated banks and thrifts for these legitimate and well-regulated products to meet their financial needs turn to other, lesser regulated entities, which may result in consumer harm and expense. In ways, the guidance may even hurt the very consumers it is intended to help, the most marginalized, unbanked and underbanked portions of our society.”

Quarles Becomes Fed’s First Ever Vice Chair for Supervision

Randal K. Quarles took the oath of office and became a member of the Board of Governors of the Federal Reserve System (Fed) and its first Vice Chair for Supervision, a position established by the Dodd-Frank Act, for a term of four years. As Vice Chairman for Supervision, Mr. Quarles is responsible for developing “policy recommendations for the Fed regarding supervision and regulation of depository institution holding companies and other financial firms supervised by the Fed” and overseeing “the supervision and regulation of such firms.” He will likely play an important role shaping the scope of the post, which has never been officially filled. Former Fed governor Daniel Tarullo, who unofficially took on the role during the Obama administration, stepped down in February.

Federal Banking Regulators Release Designated Key HMDA Data Fields List

On October 17, the Fed, the Federal Deposit Insurance Corporation (FDIC), and the OCC issued a Financial Institutions Letter (FIL) designating key Home Mortgage Disclosure Act (HMDA) data fields to support the efficient and effective evaluation of financial institutions’ compliance with HMDA’s requirements. The FIL applies to all FDIC-supervised institutions subject to HMDA and Regulation C (institutions with assets at or below the thresholds specified in Regulation C are exempt from the FIL). Amendments to Regulation C effective January 1, 2018, (the HMDA Amendments) establish the data financial institutions will collect and report pursuant to HMDA requirements. The Federal Financial Institutions Examination Council (FFIEC) previously issued HMDA Examiner Transaction Testing Guidelines (the Guidelines) establishing procedures for examination staff to use when validating HMDA data. While the Guidelines included a data sampling process that involves prioritizing designated data fields for review, or reviewing all data fields within a sample, they did not themselves establish designated key data fields. The FIL identifies the Designated Key HMDA Data Fields, consistent with their traditional practice of designating key fields considered to be most important to ensuring the integrity of analyses of HMDA data. Compliance staff from each of the federal banking regulators will prioritize the Designated Key HMDA Data Fields in reviewing data that is collected by financial institutions in or after 2018 pursuant to the HMDA Amendments. 

CFPB Amends Mortgage Servicing Rule to Facilitate Communications With Borrowers

On October 4, the CFPB issued an interim final rule amending a provision of Regulation X regarding the timing for mortgage servicers to communicate with borrowers about foreclosure prevention alternatives. On the same date, the CFPB also issued a proposed rule regarding timing requirements for periodic statements provided to borrowers in bankruptcy. Both the interim final rule and the proposed rule relate to the 2016 Mortgage Servicing Final Rule, which effected several changes to the mortgage servicing rules under Regulation X, which implements the Real Estate Settlement Procedures Act, and Regulation Z, which implements the Truth in Lending Act. View the LenderLaw Watch blog post.

CFPB Updates HMDA Resource Tools

On October 16, the CFPB published a new chart, the Reportable HMDA Data: A Regulatory and Reporting Overview Reference Chart, which combines the Summary of Reportable Data chart, the filing instructions from the 2018 Filing Instructions Guide, and the Reporting “Not Applicable” chart. The updated chart serves as a consolidated source on the collection and reporting of HMDA information about ethnicity and race, and can be used as a reference for the data points that are required to be collected under Regulation C.

OCC Releases Updated List of Permissible Activities

On October 13, the OCC released an updated Activities Permissible for National Banks and Federal Savings Associations, Cumulative. This updated document reflects applicable precedent for national banks, streamlines certain entries for readability, and includes applicable interpretive letters and corporate decisions issued by the OCC affecting national banks and federal savings associations. According to the OCC, national banks and federal savings associations should not rely solely on this updated document to determine the activities permissible for their institutions. Instead, national banks and federal savings associations should review the authorities cited in the publication and other relevant precedent before engaging in an activity. Any activity permissible for a national bank or federal savings association is also permissible for its operating subsidiary. The updated guidance may also be useful to banks chartered in states that permit their banks to engage in activities permissible for national banks.

Enforcement & Litigation

Update: CFPB’s $21.6 Million Settlement Concerning Student Loan Servicing and Debt Collection in Doubt

As Enforcement Watch reported in late September, the CFPB announced that it had filed a proposed consent judgment in the United States District Court for Delaware to resolve claims relating to the servicing and debt collection activities on a portfolio of about 800,000 student loans. Under the proposed settlement agreement, the student loan trusts and a servicer agreed to pay approximately $21.6 million in consumer restitution, disgorgement and civil money penalties, and consented to significant restrictions on the trusts’ ability to collect on loans going forward. That settlement agreement has since been challenged by the owner trustee, certain investors and other servicers of the $12 billion in student loans at issue. View the Enforcement Watch blog post.

Pennsylvania AG Files Suit Against Nationwide Student Loan Provider and Servicer

On October 5, the Pennsylvania Attorney General’s Office announced that it had filed suit against a federal student loan provider and servicer (and its subsidiary) in the U.S. District Court for the Middle District of Pennsylvania, alleging violations of the Consumer Financial Protection Act and Pennsylvania Unfair Trade Practices and Consumer Protection Law. The complaint asserts that the company harmed student loan borrowers by “peddling risky and expensive subprime loans that [it] knew or should have known were likely to default” and by “failing to perform core servicing duties.” View the Enforcement Watch blog post.

U.S. Chamber of Commerce Challenges CFPB Rule Immunizing Class Actions From Arbitration Clauses

On September 29, the United States Chamber of Commerce and various business and financial services groups (collectively, Plaintiffs) filed a complaint for declaratory and injunctive relief in the United States District Court for the Northern District of Texas, alleging that—for four independent reasons—the CFPB’s recently issued rule concerning mandatory arbitration clauses is both unconstitutional and illegal. See Complaint for Declaratory & Injunctive Relief, U.S. Chamber of Commerce v. CFPB, No. 3:17-cv-02670-D (N.D. Tex. Sept. 29, 2017). View the LenderLaw Watch blog post.

Goodwin News

ABA – Eighth Annual National Institute on Consumer Financial Services Basics – October 19 – 20

The evolution of consumer financial services (CFS) laws and regulations can leave even the experienced consumer finance lawyer feeling overwhelmed. This annual in-person educational Institute is designed to expose practitioners to key areas of CFS law. Sabrina Rose-Smith, partner in Goodwin’s Financial Industry and Consumer Financial Services Litigation practices, will be a speaker on the “UDAAP” panel. For additional information, please visit the event website.

Money 20/20 – October 22 – 25

The Money 20/20 Conference, one of the largest global events focused on payments and financial services innovation, attracts more than 1,500 CEOs from over 4,500 companies and 85 countries. Goodwin is a sponsor and is speaking on the panel, “Privacy & Data Security: Why It Matters & What To Do About It” on Sunday, October 22. For more information, please visit the event website.

The Knowledge Group: Navigating SEC’s Latest Custody Rule Guidance and Its Impact on Advisers Webcast – October 23

Earlier this year, the SEC Division of Investment Management released and provided a new custody rule guidance under the Investment Advisers Act of 1940. The new guidance addresses the three areas under the Custody Rule, which are the standing letters of authorization, client’s grant of authority to an adviser and the provisions in a separate custodial agreement. In this live webcast, a seasoned panel of thought leaders, professionals and advisers assembled by The Knowledge Group will provide and present to the audience the recent trends and developments related to the latest SEC Custody Rule guidance. Speakers will also identify how the new guidance impacts investment advisers. Jason Monfort is speaking at this webinar. For additional information, please visit the event website.

Expert Institute’s Best Legal Blog Contest: Voting Open Through November 3

Goodwin’s Enforcement Watch and Digital Currency + Blockchain Perspectives blogs were recently nominated for The Expert Institute’s Best Legal Blogs Hall of Fame. We want to thank all of our Roundup readers who participated in the nomination process. Each blog will now compete for rank within its category, while the three blogs that receive the most votes in any category will be designated overall winners. Voting will remain open until 12:00 AM on November 3, at which point the votes will be tallied and the winners announced. Please note that you can only cast one vote in this competition. To vote for Enforcement Watch, please click here. To vote for Digital Currency + Blockchain Perspectives, please click here.

This week’s Roundup contributors: Catalina Azuero, Matthew Riffee and Alyssa Sussman.