February 2020 OBA Legal Briefs

• Index to Legal Briefs now online
• “Abusive” UDAAP Update – Policy Statement
• Compliance Aids – Policy Statement
• SECURE Act and IRAs
• LIBOR – Transition Plans
• HMDA Guides

Index to Legal Briefs now online

by Pauli Loeffler

There are 15 years (January 2005-January 2020) of OBA Legal Briefs articles available on the OBA’s website. These articles are like an all-you-can-eat buffet of information covering a wide range of topics including check warranties and reasons for returns, advertising free accounts, HMDA, flood insurance, SCRA, campaign accounts, late fees, garnishments and levies, and nearly the entire alphabet of federal regulations. Yes, there is a wealth of information available at your fingertips, but until now it was difficult to find the article you needed. Your OBA Compliance Team shared your frustration. The search box in the right-hand corner wasn’t of much use since it would return results for not only Legal Briefs but also for webinars and OBA news articles. Another issue was finding whether an article had ever been written on the subject. Since I have been with the OBA since June 2004, I pretty much knew what had and had not been covered over the last 15 years, but that wasn’t the case for the other members of the OBA Compliance Team or for our bankers.

Thanks to the extraordinary efforts of our legal extern, Roy Adams, we now have a cumulative index of all those articles, which will be updated as new articles are posted online.  In order to access the OBA Legal Briefs index, articles, Legal Links webpage and some of Elaine Dodd’s fraud articles, you will need to create an account through the OBA’s “MyOBA Member Portal” located next to the date in the upper left-hand corner of the main (oba.com) webpage. After registering, all you need to do is click the red “Access Legal Briefs” button and enter the email address and password you registered when asked. Click the hyperlink to the index, use the “Find in Page” command (Ctrl+F) and enter a search term. I admit the search feature is not perfect, but it is much better than what was available before.

Note that Legal Briefs is a four-page pull-out in the middle of the Oklahoma Banker, the monthly newspaper sent to our member banks. It is also available via email subscription, which is sent usually within a couple of days of our submission. To subscribe to the email edition, you will need to go to this link for purchase:  https://oba.com/2018/02/01/legal-updates/.  The online Legal Briefs edition is posted on the website about two weeks after the print versions are received.

“Abusive” UDAAP Update – Policy Statement

By Andy Zavoina

It has been nearly a decade since the Dodd-Frank Wall Street Reform and Consumer Protection Act added “abusive” to what was the Unfair or Deceptive Acts or Practices (UDAP) law. Initially there were very few questions over the Consumer Financial Protection Bureau (CFPB) and its new Unfair, Deceptive or Abusive Acts and Practices (UDAAP) as the focus was on the enforcement actions brought using UDAAP. In fact, there have been 32 enforcement actions which included an abusiveness claim from 2011 through 2019. Only two actions were solely on an abusive act so for the most part it appeared unfair and deceptive were closely related to abusive. But with new leadership at the Bureau came new questions, such as what is “abusive” and how does that differ from the existing restrictions?

The Federal Trade Commission handled UDAP claims for many, many years and provided guidance and cases with examples of what was unfair or deceptive. But there was no such track record for what was abusive. The “CFPB Consumer Laws and Regulations” document on UDAAP from October 2012 is based on section 1031(d) of the Dodd-Frank Act, and states the following:

“An abusive act or practice:

• Materially interferes with the ability of a consumer to understand a term or condition of a consumer financial product or service or
• Takes unreasonable advantage of:
  • A lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service;
  • The inability of the consumer to protect its interests in selecting or using a consumer financial product or service; or
  • The reasonable reliance by the consumer on a covered person to act in the interests of the consumer.”

Although abusive acts also may be unfair or deceptive, examiners should be aware that the legal standards for abusive, unfair, and deceptive are separate.”

Note that the guidance indicates that abusive is separate from unfair and deceptive even though these could be the same acts. There is subjectivity in this guidance and that is what seemed confusing for many bankers trying to follow the law and those who would enforce UDAAP.

In an effort to better define standards for what may be an abusive practice, the CFPB issued a Policy Statement on January 24, 2020. This provides the framework the CFPB will use to apply a standard in its supervision and enforcement activities. The Policy Statement says, “The Bureau wants to make sure that such uncertainty does not impede or deter the provision of otherwise lawful financial products or services that could be beneficial to consumers.” This statement hits home for many bankers as they may tend to take a conservative posture toward a new product or service and offer less than their customers actually want because of the fear of uncertainty. This uncertainty could limit products and services and increase costs to comply with the rules as a bank understood them.

To counter these inhibitors the CFPB explained that for clarity, it has three principles it intends to apply:

1. Focusing on citing or challenging conduct as “abusive” in supervision and enforcement matters only when the harm to consumers outweighs the benefit, (this is also a test under the “unfairness” standard)
2. Generally avoiding “dual pleading” of abusiveness and unfairness or deception violations arising from all or nearly all the same facts, and alleging “stand alone” abusiveness violations, and
3. Generally seeking monetary relief for abusiveness only when there has been a lack of a good-faith effort to comply with the law. However, the CFPB will continue to seek restitution for injured consumers regardless of whether a company acted in good faith or not.

These principles under the Policy Statement are effective immediately.

The CFPB does indicate that there still exists the future possibility of future rulemaking if there is a need to better define standards for what will be considered “abusive.”

The Dodd-Frank Act gave the 50 state attorneys general and state banking regulators the authority to enforce UDAAP rules. Those entities are not bound by this Policy Statement because it was not done in a form which would bind them. While it would seem unlikely one of these would enforce the UDAAP rules inconsistently from what the CFPB is intending, it is possible.  Also, as a non-binding policy because it did not affect the law, the next Director of the CFPB could rescind this policy and create a different interpretation of the rule.

When your bank reviews products, services or conducts a periodic risk analysis, it should consider the defining rules the Dodd-Frank Act outlined as “abusive” and simultaneously consider the CFPB’s point in this new Policy Statement. Perhaps a little less conservatism could lead to a more widely accepted and needed product or service your customers want.

Compliance Aids – Policy Statement

By Andy Zavoina

On January 27, 2020, the Consumer Financial Protection Bureau published a Policy Statement on what it calls “Compliance Aids.” The Compliance Aids will act as official guidance from the CFPB. The Policy Statement explains the legal status and the effect of this new category of materials or Compliance Aids.

The CFPB noted that Compliance Aids “will provide the public with greater clarity regarding the legal status and role of these materials.” The Policy Statement does not alter the status of materials that the CFPB issued in the past but indicated that it may reissue certain existing materials as Compliance Aids “if it is in the public interest and as CFPB resources permit.”

For years the CFPB has issued useful guidance documents such as its “small entity compliance guides,” TRID forms with detailed explanations, executive summaries, FAQs and more. The Policy Statement makes it clear that this will apply only to materials which are clearly identified as a Compliance Aid. Some of the aforementioned documents will not enjoy the same legal status as an official Compliance Aid. This does not mean any of those documents will not be reissued or updated as Compliance Aids and the CFPB says that is a possibility if it is in the best interest of the public. It was also clear that these Compliance Aids will not determine the policies of any of the prudential regulators. (I will remind our readers that there may be a distinction between the policy of a regulatory agency other than the CFPB, and the CFPB’s controlling influence as the “owner” of the consumer protection regulations. I would believe that generally what the “owner” of the Reg says, goes, but there may be times when some issues will be open to interpretation and the CFPB could even carve out those exceptions for the other agencies.)

A designated Compliance Aid will be intended to provide clarity to the public and to the banks following these regulations. The Bureau notes that Compliance Aids will not rise to the level of a regulation or an official interpretation, both of which require issuance under the Administrative Procedure Act. “Compliance Aids present the requirements of existing rules and statutes in a manner that is useful for compliance professionals, other industry stakeholders, and the public” as per the Policy Statement. Like the TRID forms the CFPB issued, Compliance Aids may present practical suggestions demonstrating or illustrating how a bank (as an example) may go about complying with a specific requirement. However, the CFPB points out that a Compliance Aid may demonstrate one way to comply with a statute or regulatory requirement, but there may be alternative ways, as well. These Compliance Aids will not bind a bank into meeting its compliance requirements in the one way a Compliance Aid illustrated.  When there are multiple ways to comply, the Compliance Aid may show only one and the bank is free to use any other method so long as the stated regulatory requirements are met.

In short, these Compliance Aids will not have the force and effect of a regulation or law and compliance with a Compliance Aid is not mandatory for that reason. It is compliance with the regulations and laws that are required. A compliance Aid will be designed to accurately depict and explain one way to comply with a regulation or law. The CFPB does not intend to exercise enforcement actions against a bank or other entity which reasonably relied on a Compliance Aid as a guidance document.

This policy statement does not include rulemaking steps under the Administrative Procedures Act (such as proposal, comment period and final rule). It is intended to provide information and, like the UDAAP article also in this issue, it could be rescinded, particularly by another Director of the CFPB.

Compliance Aids will not be issued prior to February 1, 2020, as the Policy Statement identifies that as the effective date.  At the end of the day, a Compliance Aid is not a get-out-of-jail-free card. If used accurately and in good faith, those compliance efforts will go a long way toward avoiding compliance penalties, but it is always the underlying regulation or law which ultimately controls.

SECURE Act and IRAs

By Andy Zavoina

Setting Every Community Up for Retirement Enhancement (SECURE) Act. You just have to appreciate the government job of acronym writing. This article will act as an overview of some of the changes included in the new law and what your bank should have done or at least be doing to plan for the implementation of these changes. For detailed explanations bank staff handling Individual Retirement Accounts in the bank should seek out webinars, seminars or online classes to get the working details.

There was a large government spending package signed into law on December 20, 2019. As is often the case, there were non-spending bills attached, things that had nothing to do with government expenditures. The SECURE Act was one of them. IRA rules were in need of some tweaking and this will do much of that. It is hoped that some of these reforms will make it easier and more advantageous for Americans to start saving more for retirement.

Here are six key attributes to the SECURE Act. The Act:

1. Repeals the maximum age for traditional IRA contributions, (it was 70 1/2),
2. Increases the required minimum distribution (RMD) age for retirement accounts to 72 (it was 70 1/2),
3. Allows long-term, part-time workers to participate in 401(k) plans.
4. Offers more options for lifetime income strategies,
5. Permits parents to withdraw up to $5,000 from retirement accounts without a tax penalty within a year of birth or adoption for qualified expenses,
6. Allows parents to withdraw up to $10,000 from 529 plans to repay student loans.

One important point and popular question involves RMDs. These now begin at 72 years of age for individuals who turn 70 ½ in 2020 – any time during this year. Those who turned 70 ½ in 2019 and have begun receiving RMDs should generally continue doing so. If customers ask about this, they should be referred to their tax advisors and to watch for any IRS guidance. Those turning 70 1/2 in 2020 may also want to discuss income strategies with their tax advisor or financial planner as to withdrawal options.

With the SECURE Act, those over 70 1/2 who are still working may continue to contribute to their IRAs. One question we have seen was whether these folks can just have any RMDs reinvested automatically? Until the IRS says otherwise, we recommend an RMD go to the depositor as scheduled, and they can then determine if it will be reinvested. The paperwork trail is clear that way.

Inherited IRA distributions used to be able to be stretched out over the new owner’s single life expectancy. Now these must be taken within 10 years. That is, if the IRA owners dies in 2020 or later, the entire remaining balance must be distributed by the end of the tenth year. This may translate into larger lump-sum payouts at some banks. There are some exceptions to this rule, applicable to a surviving spouse, a minor child, or a disabled beneficiary, among others.

The SECURE Act allows an individual to take a qualified birth or adoption distribution of up to $5,000 from an IRA. The 10% early withdrawal penalty will not apply to these withdrawals, and it can be repaid as a rollover contribution to an applicable IRA. The distribution must be made during the one-year period beginning on the date on which a child of the individual is born or on which the legal adoption is finalized.

With the overview complete, let’s consider an action plan. Remember this was just passed in December 2019. Your IRA forms vendors should be in communication with you about changes and necessary amendments to conform to the SECURE Act.  If they haven’t contacted you, call them. These include contracts, distributions forms, beneficiary election forms and notices to customers to correct the 70-1/2 notices for those who no longer have to take RMDs because they were going to turn 70-1/2 in 2020. (The IRS has said that if you already sent out the notice using age 70-1/2, there is no problem if you advise IRA customers born after June 30, 1949 (these are the folks who weren’t 70-1/2 by December 31, 2019), no later than April 15, 2020, that no RMD is due for 2020.)

At the same time, you may want to remind IRA customers born after June 30, 1948, but before July 1, 1949 (people who turned 70-1/2 in calendar year 2019) who haven’t yet taken their 2019 RMDs, that they are still required to taken those distributions by April 1, 2020. The SECURE Act didn’t change their RMD start dates.

Training materials need to be updated and while that is happening, existing materials (brochures, IRA agreements, preprinted forms mentioning RMDs and age 70-1/2, scripts … you get the idea) that are outdated need to be identified and purged. System triggers that identify IRA customers at age 70-1/2 for RMDs need to be revised to age 72. I’m certain your checklist will expand and become much more detailed, but we wanted to identify the initial steps necessary now. When your customers ask about IRAs and want to entrust you with much of their life savings, they want to know that you know the current requirements and laws. It’s a trust issue. If you haven’t had training on this yet, we suggest you seek it as soon as possible.

A final note – You may have heard that the IRS has proposed updates to the life expectancy and distribution period tables that are used in calculating, among other things, the RMDs for IRA customers. That proposal was published on November 8, 2019, with a comment period that ended On January 7, 2020. A final rule hasn’t yet been issued, and the IRS suggested in the proposal the new tables won’t be used until tax year 2021. That’s a story for later.

LIBOR – Transition Plans

By Andy Zavoina

We have already had questions about preparing for the transition away from LIBOR rates and “what should we be doing?” Let’s explore a little of what this is, so you know where to find it, and what plan of action is necessary.

The London Interbank Offered Rate (LIBOR) was and is a commonly used index rate for many adjustable rate mortgage (ARM) loans. Even when I was at a small national bank, we had some lenders who, for various reason, wanted LIBOR as an index on the loans they made that had adjustable rate features. The OCC has a rule (12 CFR 34.22), which most banks, I believe, followed in one form or another, that required that the index not be controlled by the bank. The rule states that if a  national bank makes an ARM loan to which 12 CFR 1026.19(b) applies (i.e., the annual percentage rate of a loan may increase after consummation, the term exceeds one year, and the consumer’s principal dwelling secures the indebtedness), the loan documents must specify an index to which changes in the interest rate will be linked. This index must be readily available to, and verifiable by, the borrower and beyond the control of the bank. A national bank may use as an index any measure of rates of interest that meets these requirements. The index may be either single values of the chosen measure or a moving average of the chosen measure calculated over a specified period. A national bank also may increase the interest rate in accordance with applicable loan documents specifying the amount of the increase and the times at which, or circumstances under which, it may be made. A national bank may decrease the interest rate at any time.

LIBOR was a commonly used index as it met those criteria followed by national and other banks and lenders. The index ideally is in sync with market conditions and this preserves the banks’ interest income during fluctuating market conditions. But LIBOR was based on banking transactions and that market has changed at least partly to a scandal that included misuse and manipulation of the LIBOR rate itself. The result is that the financial regulator in the United Kingdom overseeing LIBOR has stated that it will likely disappear after 2021.

Banks looking for a reliable replacement index rate may look to the Alternative Reference Rates Committee, which is a working group created by the Federal Reserve. It recommends the Secured Overnight Financing Rate (SOFR) as a LIBOR replacement. SOFR is based on overnight reverse repurchase agreements that offer a deep and liquid market with far more transactions to use as a base, as compared to LIBOR. This is not a required alternative, just a suggested one. As noted above, within certain conditions banks have many options. If your bank sells mortgages, your investors may impose certain restrictions as well.

With almost two years before the change takes effect, there is time to plan your transition but expect borrowers to begin asking questions of you if LIBOR is their indexed rate. More importantly, what are you using on loans made today? There is little reason to be using a rate that is going away unless the bank has already determined it is the best rate to continue using until it can no longer be used. In those cases, loan documents should be crystal clear as to what the bank will do, and when, to change that rate with its borrowers. In fact, the existing loan documents will hopefully be uniform and address what steps the bank must take.

Following on this, the loan administration department should be able to produce a list of adjustable rate loans that use the LIBOR rate as an index. If there are none, keep it that way. Otherwise you will know the number and dollar amount of loans impacted by this index change. The identified loan documents may require a review by counsel as to amending the indexed rate. This is where we hope the terminology is uniform and sufficiently detailed so that the bank can identify a new index rate and substitute that with the new rate, and under what conditions. It may be that the bank has to wait until LIBOR is scheduled to be terminated or it may be able to be changed sooner. But borrowers will have a required amount of lead time and will need information about the rate. This may include where to find the rate, a comparison of the two rates over a given historical period, and when the change will take effect for each borrower. If your documents fail to adequately address the transition, bank counsel may be consulted so that an agreed upon notice of the change in terms can be created.

Getting this process underway and understanding the number of accounts requiring changes must be on the To-Do list for this year.

HMDA Guides

By Andy Zavoina

One of the first things a compliance professional does when they undertake a significant task like an audit or regulatory submission is to ensure they have the latest resources available. You must know that you are asking the right questions, know the correct thresholds for applicability and have the most current interpretive guidance. If you are a HMDA bank, you are preparing for a major submission – actually two. You are preparing your 2019 Loan Application Register (LAR), and you are starting your 2020 LAR for submission next year. Have you ensured you have the latest issuance applicable to your bank?

On February 4, 2019, the Consumer Financial Protection Bureau (CFPB) published “Reportable HMDA Data: A Regulatory and Reporting Overview Reference Chart for Data Collected in 2019.” The chart is intended to be used as a reference tool for data points required to be collected, recorded, and reported under Regulation C.

On March 7, 2019, the OCC issued Bulletin 2019-12. This was in concert with the FDIC and the Federal Reserve. Because these three agencies are part of the FFIEC, the information is the OCC Bulletin is not exclusive to national banks. What the Bulletin outlined were the key data fields on a banks’ LAR which are tested for HMDA compliance requirements.

Of 110 data fields, 37 have been identified as key fields. Examiners will typically test and validate these 37 key fields that reporting lenders are required to collect, record, and report. That certainly does not mean the other 73 fields can be wrong, but it does mean you want additional scrutiny on these 37 when you scrub HMDA data. For banks that qualify for a partial exemption from the HMDA data collection, your examiners will typically test and validate 21 of those 37 fields. The fields are identified in the Bulletin.

(To qualify for the partial exemption for closed-end mortgage loans, a bank must have originated, in each of the two preceding calendar years, fewer than 500 closed-end mortgage loans. To qualify for the partial exemption for open-end lines of credit, a bank must have originated, in each of the two preceding calendar years, fewer than 500 open-end lines of credit. The partial exemption is not available to banks that do not meet certain Community Reinvestment Act performance evaluation rating standards.)

On March 20, 2019 the FFIEC released the 2019 edition of “A Guide to HMDA Reporting: Getting It Right!,” for HMDA submissions due March 1, 2020. The 2019 edition reflects amendments made to HMDA by the EGRRCPA and the 2018 HMDA interpretive and procedural rule issued by the CFPB. The appendices provide additional implementation materials reporting lenders may find useful.

The FFIEC has the 2020 LAR submission software available on its website at https://www.ffiec.gov/software/software.htm.

In September 2019 the CFPB published its “Filing Instructions Guide” (FIG) for data collected in 2020 and a new resource, the “Supplemental Guide for Quarterly Filers.” Both are available on the Bureau’s HMDA Help for Filers webpage.

On October 29, 2019, The CFPB announced its approval of a rule that finalized certain aspects of its May 2019 Notice of Proposed Rulemaking under HMDA. It extended for two years the temporary threshold for collecting and reporting data about open-end lines of credit. The rule clarified partial exemptions from certain HMDA requirements that Congress added in the Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA).

On December 20, 2019, the Federal Register included a final rule increasing the Regulation C (HMDA) asset-size exemption threshold for banks from $46 million to $47 million. Banks with assets of $47 million or less as of December 31, 2019, are exempt from collecting data in 2020. The rule is effective on January 1, 2020.

And in January 2020 the CFPB released an updated version of its “Home Mortgage Disclosure Act (HMDA) Small Entity Compliance Guide.” The new version reflects changes made by the Bureau’s rule in October to extend by two years the temporary threshold of 500 for reporting open-end lines of credit. This issuance includes the new thresholds for reporting, the rule and the updated guide clarified the partial exemptions from certain HMDA requirements under EGRRCPA. The partial exemptions will become effective in 2022 after the expiration of the complete exemption for loans made beneath the reporting threshold amounts.

Get the right tools and ensure everyone involved in the HMDA scrub is on the same page. Good luck with your submission and data collection. It is