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FSOC Approves Analytic Framework for Financial Stability Risks and Guidance on Nonbank Financial Company Designations

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A&B Abstract:

On November 3, 2023 the Financial Stability Oversight Council (hereinafter “FSOC” or “Council”) unanimously approved final versions of: (1) the new Analytic Framework for Financial Stability Risk Identification, Assessment, and Response (“Analytic Framework”); and (2) the updated Guidance for Nonbank Financial Company Determinations (“Nonbank Designations Guidance”). The Analytic Framework was published today in the Federal Register and is effective immediately, and the Nonbank Designations Guidance will be effective 60 days after publication in the Federal Register.

Given the recent bank failures, it should come as no surprise that federal regulators are focusing on financial risks to U.S. stability across various sectors, including nonbank mortgage lenders and servicers.

Background

Following the 2007-2009 financial crisis, the Dodd-Frank Act created FSOC, an interagency panel of top U.S. financial regulators, to monitor excessive risks to U.S. financial stability and facilitate intergovernmental cooperation to effectively address those risks. Chaired by the Treasury Secretary and consisting of 10 voting members (comprised of the U.S. prudential regulators including, among others, the Consumer Financial Protection Bureau (“CFPB”)) and 5 nonvoting members, one of the Council’s statutory purposes is to specifically oversee large, interconnected bank holding companies or nonbank financial companies that pose potential risks to U.S. financial stability and, given the broad statutory mandate, the Council’s monitoring may cover an expansive range of asset classes, institutions, and activities, such as:

  • Markets for debt, loans, and other institutional and consumer financial products and services;
  • Central counterparties and payment, clearing, and settlement activities;
  • Financial entities, including banking organizations, broker-dealers, mortgage originators and services;
  • New or evolving financial products and practices; and
  • Developments affecting the resiliency of the financial system, such as cybersecurity and climate-related financial risks.

The Dodd-Frank Act empowers the Council to designate a nonbank financial company subject to certain prudential standards and supervision by the Federal Reserve’s Board of Governors. The Dodd-Frank Act lists 10 factors that Council must consider before making such designation.  To date, the Council has used this authority sparingly.  According to Treasury Secretary Janet Yellen, the Council’s updated Nonbank Designations Guidance will make it easier to use its nonbank designation authority, eliminating “several prerequisites to designation … that were not contemplated by the Dodd-Frank Act and that are based on a flawed view of how financial risks develop and spread” that exist under the previous guidance issued in 2019.

As the country experienced a regional bank crisis earlier this year, it would not be unreasonable to conclude that the Council may use its authorities less sparingly than in the past. The Council’s annual reports specifically address the potential risks of nonbank companies, support the updated requirements issued by the Federal Housing Finance Authority, Ginnie Mae and the CSBS Model State Regulatory Prudential Standards for Nonbank Mortgage Servicers, and recommend that relevant federal and state regulators continue to enhance or establish information sharing in responding to distress at a mortgage servicer.  Indeed, in June 2022, FSOC restarted its Nonbank Mortgage Servicing Task Force, an interagency group to facilitate coordination and additional market monitoring of nonbank servicers.

The Finalized Analytic Framework

The finalized Analytic Framework, which is not a formal rule, broadly describes the approach FSOC expects to take in “identifying, assessing, and responding to certain potential risks to U.S. financial stability,” and interprets “financial stability” to mean the “financial system being resilient to events or conditions that could impair its ability to support economic activity, such as by intermediating financial transactions, facilitating payments, allocating resources, and managing risks.”  The Council’s statutory mandate includes the duty to monitor a wide class of assets, such as new or evolving financial products and practices, and nonbank financial companies, such as mortgage originators and servicers, at several key pressure points.

Following consideration of public comments on the proposed Analytic Framework, which we previously discussed, the finalized Analytic Framework reflects several key changes from the proposed Analytic Framework, which include:

  • A description of the term “threat to financial stability” that builds on the proposed interpretation, specifically, to mean events or conditions that could “substantially impair” the financial system’s ability to support economic activity;
  • Additional examples of the types of quantitative metrics FSOC will consider to assess vulnerabilities that contribute to risks to financial stability;
  • Clarification on the relationship between the vulnerabilities and the four transmission channels (discussed below) by highlighting vulnerabilities that may be particularly relevant to a channel; and
  • An emphasis on the importance of FSOC’s engagement with state and federal financial regulatory agencies as it assesses potential risks and the extent to which existing regulation may mitigate those risks.

Under the finalized Analytic Framework, a non-exhaustive list of potential risk factors and the indicators that FSOC intends to monitor includes:

  • Leverage, assessed by levels of debt and other off-balance sheet obligations that may create instability in the face of sudden liquidity restraints.
  • Liquidity Risks & Maturity Mismatches, measured by the ratios of short-term debt to unencumbered liquid assets and the amount of additional funding available to meet unexpected reductions in available short-term funds.
  • Interconnections, measured by the extent of exposure to certain derivatives, potential requirements to post margin or collateral, and overall health of the balance sheet.
  • Operational Risks, measured by the failure to implement proper controls related to financial market infrastructures and the vulnerability of cybersecurity incidents.
  • Complexity or Opacity, such as the extent to which transactions occur outside of regulated sectors, in a grey area of overlapping or indefinite jurisdiction, or are structured in such a way that cannot be readily observed due to complexity or lack of disclosure.
  • Inadequate Risk Management, such as the failure to maintain adequate controls and policies or the absence of existing regulatory oversight.
  • Concentration, measured by the market share for the provision of important services within segments of applicable financial markets and the risk associated with high concentration in a small number of firms.
  • Destabilizing Activities, such as trading practices that substantially increase volatility in a particular market, especially when a moral hazard is present.

Just as FSOC will consider all the factors listed above as sources of potential financial risk contagion, it will also assess the transmission of those risks to broader market sectors and other specific entities based on certain metrics. This non-exhaustive list of transmission risk factors includes:

  • Exposures: The level of direct and indirect exposure of creditors, investors, counterparties, and others to particular instruments or asset classes.
  • Asset liquidation: Rapid asset liquidation and the snowball effect of a widespread asset sell off across sectors.
  • Critical function or service: The potential consequences of interruption to critical functions or services that are relied upon by market participants for which there is no substitute.
  • Contagion: The potential for financial contagion arising from public perceptions of vulnerability and loss of confidence in widely held financial instruments.

Despite receiving comments recommending that the Analytic Framework specifically address climate-related risk, FSOC declined to do so, explaining that it believes potential risks related to climate change may be assessed under other factors such as through the “interconnections” vulnerability factor and the “exposures” transmission channel.  Similarly, FSOC declined to specifically discuss risks to the financial needs of underserved families and communities because it expects that such risks would be considered under the “critical function or service” transmission channel.

Once a financial risk has been identified, FSOC may use various tools to mitigate such risk depending on the circumstances.  For instance, FSOC may work with the relevant federal or state regulator to seek to address the risk. Where a regulator can sufficiently address such risk in a timely manner, FSOC will encourage regulators to do so.  Through formal channels, the Council can make a public recommendation to Congress or regulatory agencies to apply new standards or heightened scrutiny to a known risk within their jurisdiction. Where no clear-cut regulatory oversight exists, the Council may make legislative recommendations to Congress to address the risk. These formal recommendations to agencies or Congress, made pursuant to section 120 of the Dodd-Frank Act, are also subject public notice and comment.

In addition to making nonbinding recommendations for action to the appropriate financial regulatory authorities, FSOC is empowered to make a “nonbank financial company determination,” by a two-thirds vote, that a specific company shall be supervised by the Federal Reserve Board of Governors and subject to enhanced prudential standards. This designation can be made upon FSOC’s finding that:

  • Material financial distress at the nonbank financial company could pose a threat to the financial stability of the United States; or
  • The nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of the nonbank financial company could pose a threat to the financial stability in the United States.

Nonbank Financial Company Designation Final Interpretative Guidance

The finalized Nonbank Designations Guidance is procedural in nature relating to nonbank financial company designation.  It defines a two-stage process FSOC will use to make a firm-specific “nonbank financial company determination” discussed in FSOC’s Analytic Framework. In the proposed interpretive guidance issued for public comment in April 2023, the Council recognized that in the past, it “has used this authority sparingly, but to mitigate the risks of future financial crises, the Council must be able to use each of its statutory authorities as appropriate to address potential threats to U.S. financial stability.”  The Nonbank Designations Guidance will change the 2019 guidance in the following three ways:

  • First, under the current guidance, FSOC is committed to relying on federal and state regulators to address problematic nonbank financial company activity before considering whether a designation is appropriate. The new guidance removes this prioritization and allows FSOC to consider an entity for a designation proactively, without first relying on regulators to act before FSOC begins deliberating.
  • Second, FSOC has finalized the Analytic Framework discussed above to revise its process for monitoring risks to U.S. financial stability. This comprehensive new framework replaces that found in Section III of the 2019 interpretive guidance. Because the new guidance is focused on the procedural process for making nonbank financial company designations, the substantive analytic factors applied by FSOC in its assessments will be contained in the separate Analytic Framework document.
  • Third, FSOC has reversed course and is eliminating its current practice of conducting a cost-benefit analysis and an assessment of the likelihood of material financial distress prior to making its determination. FSOC has concluded that these processes are not required by Section 113 of the Dodd-Frank Act. FSOC defines “material financial distress” as a nonbank financial company “being in imminent danger of insolvency or defaulting on its financial obligations.” In eliminating the “likelihood” assessment required by the 2019 guidance, the Council will now presuppose a company’s material financial distress and then evaluate what consequences could follow for U.S. financial stability.

With respect to the formal process for nonbank financial company determinations, the finalized Nonbank Designations Guidance describes a two-stage process that FSOC will use once they decide to review a company for a potential designation.

Stage One:  FSOC will conduct a preliminary analysis of a company that has been identified for review based on quantitative and qualitative information available publicly and regulatory sources. FSOC will notify the company no later than 60 days before a vote is held to evaluate the company for Stage Two.  A company under review may submit information for FSOC’s review and may request to meet with FSOC staff and members agencies responsible for the analysis.  When evaluating a company in Stage One, the Council’s Nonbank Designations Committee may decide whether to analyze the risk profile of the company as a whole or to consider the risk posed by its subsidiaries as separate entities, depending on which entity the Council believes poses a threat to financial stability. At Stage One, FSOC is statutorily obligated to collect information from any relevant, existing regulators that oversee the company’s activities concerning the specific risks the Council has identified.

Stage Two: Any nonbank financial company selected for additional review will receive notice that the company is being considered for supervision by the Federal Reserve and enhanced prudential standards. The Nonbank Designations Guidance says that “[t]he review will focus on whether material financial distress at the nonbank financial company, or the nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of the company, could pose a threat to U.S. financial stability.” At this point, if a company is under consideration for a Proposed Determination it will receive a formal Notice of Consideration from the Council.

The Council will begin its Stage Two review by consulting with the U.S. Treasury Department’s Office of Financial Research (OFR) and relevant financial regulators to ascertain the risk profile of the company. This information would remain confidential throughout the process, and, once interagency coordination has produced all available information, the company will be invited to submit any relevant information to the Council. These submissions may include “details regarding the company’s financial activities, legal structure, liabilities, counterparty exposures, resolvability, and existing regulatory oversight. . . . Information relevant to the Council’s analysis may include confidential business information such as detailed information regarding financial assets, terms of funding arrangements, counterparty exposure or position data, strategic plans, and interaffiliate transactions.” Council staff from the FSOC Deputies Committee will be available to meet with representatives of the company and will disclose the specific focus of the Council’s analysis, although the areas of analytic focus may change based on the ongoing analysis.

Finally, if FSOC preliminarily designates the company for supervision by the Federal Reserve and subjects it to enhanced prudential standards, the company will be able to request a nonpublic hearing after which FSOC may vote to make a final designation. FSOC will conduct an annual review for any company designated by the Council to determine whether continued Federal Reserve supervision and enhanced prudential standards are still appropriate. This annual review period will afford the company the opportunity to meet with Council representatives and present information or make a written submission to the Council about its efforts to mitigate risk. If the Council decides to sustain the designation, it will present the company with a written explanation for its decision.

Takeaway

Given the 2023 regional banking crisis, it is no surprise that federal regulators are focusing on potential risks to financial stability.  In FSOC’s 2021 and 2022 annual reports, nonbank mortgage companies have been identified as a potential risk.  The Federal Housing Finance Agency and Ginnie Mae have both updated their minimum financial eligibility requirements for seller/servicers and issuers with such requirements taking effect with varying effective dates later in 2023 and 2024.  States also have started to adopt prudential regulatory standards for nonbank mortgage servicers.  By voting through the Analytic Framework and Nonbank Designations Guidance, the Council signals that it remains vigilant to weaknesses in the financial system and will utilize a variety of tools and approaches to strengthen its supervision over companies if existing protections do not adequately mitigate financial stability risks.  Indeed, CFPB Director and voting member of the Council, Rohit Chopra, has expressed strong support for the actions taken and points out that the Council currently has “a total of zero shadow banks” designated as systemically important and that could pose a threat to financial stability which, according to Director Chopra, will most likely change once the Council implements the new guidance and conducts evaluations to identify shadow banks that meet the statutory threshold for enhanced oversight.

Oh Snap! CFPB Sues Fintech Company under CFPA and TILA

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A&B Abstract:

On July 19, 2023, the Consumer Financial Protection Bureau (CFPB) sued a Utah-based fintech company and several of its affiliates (the Company) for allegedly deceiving consumers and obscuring the terms of its financing agreements in violation of the Consumer Financial Protection Act (CFPA), the Truth in Lending Act (TILA), and other federal regulations.

The Allegations

The Company provides lease-to-own financing, through which consumers finance purchases from merchants though the Company’s “Purchase Agreements,” and, in turn, make payments back to the Company.  The Company allegedly provides the merchants with advertisement materials and involves them heavily in the application and contracting process.

According to the CFPB, the Company’s advertising and servicing efforts were deceptive.  As part of its marketing efforts, the Company allegedly provided its merchant partners with display advertisements that featured the phrase “100 Day Cash Payoff” without further explanation of the terms of financing.  Consumers who received financing from the Company reasonably believed they had entered into a 100-day financing agreement, where their automatically scheduled payments would fulfill their payment obligations after 100 days.  But, in fact, consumers had to affirmatively exercise the 100-day early payment discount option, and if they missed the deadline pay significantly more than the “cash” price under the terms of their Purchase Agreements.  Additionally, as part of its servicing efforts, the Company allegedly threatened consumers with collection actions that it does not bring.

From the CFPB’s perspective, these efforts constituted deceptive acts or practices under the CFPA.  The marketing efforts were deceptive because the Company’s use of this featured phrase was a (1) representation or practice; (2) material to consumers’ decision to take out financing; and (3) was likely to mislead reasonable consumers as to the nature of the financing agreement, while the servicing efforts were deceptive because the Company threatened actions it does not take.

The CFPB also alleges that the Company’s application and contracting process was abusive.  The Company allegedly designed and implemented a Merchant Portal application and contracting process that frequently resulted in merchants signing and submitting Purchase Agreements on behalf of consumers without the consumer’s prior review of the agreement.  Further, the Company relied on merchants to explain the terms of the agreements but provided them with no written guidance for doing so.  And as part of the process, the Company required consumers to pay a processing fee before receiving a summary of the terms of their agreement and before seeing or signing their final agreement.

Altogether, the CFPB views these acts and practices as abusive under the CFPA because they “materially interfered” with consumers’ ability to understand the terms and conditions of the Purchase Agreements.

Lastly, the CFPB alleges that the Company’s Purchase Agreements did not meet TILA and its implementing Regulation Z’s disclosure requirements.  On this point, the CFPB is careful in alleging that the Purchase Agreements are not typical rent-to-own agreements to which TILA does not apply.  Rather, the CFPB alleges they are actually “credit sales” because the agreements permitted consumers to terminate only at the conclusion of an automatically renewing 60-day term, and only if consumers were current on their payment obligations through the end of that term.

Takeaways

This suit serves as a good reminder to every lending program to: (i) have counsel carefully vet all advertisements to ensure that they are not inadvertently deceptive or misleading to consumers; (ii) ensure that the mechanics of its application process facilitate rather than interfere with consumers’ ability to understand the terms and conditions; and (iii) consult with counsel regarding whether their agreements are subject to TILA and Regulation Z’s disclosure requirements.

CFPB and Federal Agencies Seek Comment on Proposed Automated Valuation Models Rule

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A&B Abstract:

On June 21, the Consumer Financial Protection Bureau (CFPB), along with five federal regulatory agencies (Office of the Comptroller of the Currency (OCC), Board of Governors of the Federal Reserve System (Board), Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA), and Federal Housing Finance Agency (FHFA) (the “Agencies”), published for public comment a proposed rule to implement the quality control standards mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) for the use of automated valuation models (AVMs) by mortgage originators and secondary market issuers in valuing the collateral worth of a mortgage secured by a consumer’s principal dwelling.

Background

Section 1473(q) of the Dodd-Frank Act amended the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), adding 12 U.S.C. § 3354, to address the use of AVMs to estimate the collateral value of a mortgage for mortgage lending purposes.  The statute sets forth the framework for developing quality control standards to which AVMs must adhere and directs the Agencies to promulgate regulations implementing the standards.

Automated Valuation Models (AVMs) and Covered AVMs

The term “AVMs” refers to computerized models used by mortgage originators and secondary market issuers to determine the value of a consumer’s principal dwelling collateralizing a mortgage.  Under the proposed rule, the quality control standards are applicable only to AVMs used in connection with making credit decisions or covered securitization determinations regarding a mortgage, for example, when determining a new value before originating, modifying, terminating a mortgage, or making other changes to a mortgage including a decision whether to extend new or additional credit or change the credit limit on a line of credit, or placing a loan in a securitization pool.  Other uses, such as monitoring collateral value in mortgage-backed securitizations after they have already been issued over time or validating an already completed valuation of real estate, would not be subject to the proposed rule.

Applicability 0f the Proposed Rule
Mortgage Originators and Brokers

The proposed rule would not apply to mortgage brokers if they do not engage in making covered credit decisions or securitization determinations.  As proposed, the term “mortgage originator” would follow the same definition contained in the Truth in Lending Act (TILA), at 15 U.S.C. § 1602(dd)(2).  The term would generally include creditors, as defined in TILA, such as, any person who originates two or more high-cost mortgages in any 12-month period.  Further, the term is also defined broadly to include mortgage brokers.

Mortgage Servicers

Following the exception in TILA, the proposed rule would also generally not cover mortgage servicers unless they perform any of the stated origination activities for any new extensions of credit, including a refinancing or an assumption.  For example, the proposed rule would apply to a mortgage servicer that both uses covered AVMs to engage in credit decisions and performs any of the stated origination activities.  According to the preamble, once the definition of “mortgage originator” is met, a mortgage servicer would be required to comply with the requirements of the proposed rule any time it uses an AVM to determine the collateral worth of a mortgage, including when such usage does not involve a new extension of credit such as a loan modification or reduction of a home equity line of credit.

Secondary Market Issuers

The proposed rule would apply to certain secondary market participants.  It defines the term “secondary market issuer” to mean “any party that creates, structures, or organizes a mortgage-backed securities transaction,” which includes coverage of entities that are responsible for determining the collateral worth of a mortgage when issuing mortgage-backed securities.  This would encompass secondary market participants in the securitization process that make these types of determinations, as opposed to verifying or monitoring such determinations.

Business Purpose and Commercial Loans

With respect to non-residential loans, the proposed rule would reach further than TILA.  The proposed rule includes a definition of “dwelling” that follows that contained in Regulation Z (which implements TILA), at 12 C.F.R. § 1026.2(a)(19).  However, unlike TILA, the proposed rule would apply when a mortgage is secured by a consumer’s principal dwelling, even if the mortgage is primarily for business, commercial, agricultural, or organizational purposes.

Quality Control Standards Address Valuation Bias and Discrimination

The proposed rule would require institutions that engage in covered credit decisions or securitization determinations themselves or through or in cooperation with a third party affiliate, to adopt policies, practices, procedures, and control systems to ensure that the use of AVMs adhere to quality control standards.

The proposed rule defines “control systems” to mean the functions (such as internal and external audits, risk review, quality control, and quality assurance) and information systems that are used to measure performance, make decisions about risk, and assess and effectiveness of processes and personnel, including with respect to compliance with statutes and regulations.

In keeping with FIRREA, these standards would be designed to:

  • Ensure a high level of confidence in the estimates produced by AVMs;
  • Protect against the manipulation of data;
  • Seek to avoid conflicts of interest; and
  • Require random sample testing and reviews.
Extension to Nondiscrimination Laws

However, in the proposed rule, the Agencies take the standards one step further than the Dodd-Frank Act mandate, by including that AVM quality control standards must comply with applicable nondiscrimination laws.  Exercising their statutory authority to account for other appropriate quality control factors, the Agencies included this fifth factor to address concerns about the potential for AVMs to produce property estimates that reflect discriminatory bias.

As a result, this proposed factor would create an independent requirement for institutions to establish policies and procedures to specifically address nondiscrimination and fair lending laws, such as the Equal Credit Opportunity Act (ECOA) and its implementing Regulation B, and the Fair Housing Act.  To that end, the preamble specifically notes that ECOA and Regulation B prohibit discrimination in any aspect of a credit decision, which “extends to using different standards to evaluate collateral” including “the design or use of an AVM in any aspect of a credit transaction in a way that would treat an applicant differently on a prohibited basis or result in unlawful discrimination against an applicant on a prohibited basis.”  The Agencies’ inclusion of the addition of this fifth factor is consistent with the focus of the Interagency Task Force on Property Appraisal and Valuation Equity (“PAVE”), as we have previously discussed, on addressing issues of bias and discrimination in residential property appraisal.

The proposed rule does not include specific requirements on how institutions are to structure their policies and procedures – an approach intended to provide institutions the flexibility to set quality controls for AVMs as appropriate, based on the size of the institution and the risk and complexity of transactions for which AVMs will be used.

Use of AVMs by Appraisers Not Subject to Proposed Rule

A certified or licensed appraiser using AVMs in the development of an appraisal would not be subject to the proposed rule due to the Agencies’ recognition that appraisers must make valuation conclusions that are supportable independently and do not rely on the results produced by AVMs in accordance with the Uniform Standards of Professional Appraisal Practice and its interpreting opinions.  The Agencies also acknowledge that it may be impractical for mortgage originators and secondary market issuers to adopt policies and procedures relating to AVMs used by multiple independent appraisers with which they work.

However, the proposed rule would cover the use of AVMs in preparing valuations required for certain real estate transactions that are exempt from the existing appraisal requirements under the appraisal regulations issued by the OCC, Board, FDIC, and NCUA (such as transactions that have a value below the exemption thresholds in the appraisal regulations).  Additionally, the Agencies’ existing guidance regarding AVMs would remain applicable separately from the proposed rule; for example, the OCC, Board, FDIC, and NCUA have issued guidance about prudent appraisal and evaluation programs in Appendix B to the Interagency Appraisal and Evaluation Guidelines.

Takeaway

If adopted, the proposed rule would require regulated mortgage originators and secondary market issuers to take appropriate steps and adopt policies, practices, procedures, and control systems to ensure that the use of AVMs in valuing real estate collateral securing mortgage loans adhere to the specified quality control standards, including compliance with nondiscrimination laws to avoid potential valuation bias.  While the proposed rule does not contain specific requirements, it would require institutions to create their own policies and procedures to ensure the credibility and integrity of the valuation determinations produced by AVMs.

Comments must be received by August 21, 2023.

FSOC Issues Proposed Update to Interpretative Guidance on Nonbank Financial Company Designations

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A&B Abstract:

On April 21, 2023 the Financial Stability Oversight Council (hereinafter “FSOC” or “Council”) issued for public comment (1) a proposed analytic framework setting forth FSOC’s approach to identifying, evaluating, and addressing potential risks to financial stability (“Proposed Analytic Framework”), and (2) proposed revisions to FSOC’s existing 2019 interpretive guidance that FSOC would use when deciding whether to designate a nonbank financial company for enhanced prudential standards and Federal Reserve supervision (“Proposed Interpretive Guidance”). Comments concerning the new proposed framework are due by June 27, 2023. Given the recent bank failures, it should come as no surprise that federal regulators are focusing on financial risks to U.S. stability across various sectors, including nonbank mortgage lenders and servicers.

Background

Following the 2007-2009 financial crisis, the Dodd-Frank Act created FSOC, an interagency panel of top U.S. financial regulators, to monitor excessive risks to U.S. financial stability and facilitate intergovernmental cooperation to effectively address those risks. The Dodd-Frank Act empowers the Council to designate a nonbank financial company subject to certain prudential standards and supervision by the Federal Reserve’s Board of Governors. The Dodd-Frank Act lists 10 factors that Council must consider before making such designation.  To date, the Council has used this authority sparingly.  According to Treasury Secretary Janet Yellen, the Council’s revisions will make it easier to use its nonbank designation authority, eliminating “inappropriate hurdles as part of the designation process” that exist under the current guidance issued in 2019.

As the country is in the midst of a regional bank crisis, it would not be unreasonable to conclude that the Council may use its authorities less sparingly than in the past. The Council’s annual reports specifically address the potential risks of nonbank companies, supports the updated requirements issued by the Federal Housing Finance Authority, Ginnie Mae and the CSBS Model State Regulatory Prudential Standards for Nonbank Mortgage Servicers, and recommends that relevant federal and state regulators continue to enhance or establish information sharing in responding to distress at a mortgage servicer.  Indeed, in June 2022, FSOC restarted its Nonbank Mortgage Servicing Task Force, an interagency group to facilitate coordination and additional market monitoring of nonbank servicers.

The Proposed Analytic Framework

The Proposed Analytical Framework, which is not a formal rule, broadly describes how FSOC “identifies, evaluates, and responds to potential risks to U.S. financial stability, whether they come from activities, individual firms, or otherwise.”  The Council’s statutory mandate includes the duty to monitor a wide class of assets, such as new or evolving financial products and practices, and nonbank financial companies, such as mortgage originators and servicers, at several key pressure points. A non-exhaustive list of these potential risk factors and the indicators that FSOC intends to monitor includes:

  • Leverage, assessed by levels of debt and other off-balance sheet obligations that may create instability in the face of sudden liquidity restraints.
  • Liquidity Risks & Maturity Mismatches, measured by the ratios of short-term debt to unencumbered liquid assets and the amount of additional funding available to meet unexpected reductions in available short-term funds.
  • Interconnections, measured by the extent of exposure to certain derivatives, potential requirements to post margin or collateral, and overall health of the balance sheet.
  • Operational Risks, measured by the failure to implement proper controls related to financial market infrastructures and the vulnerability of cybersecurity incidents.
  • Complexity & Opacity, such as the extent to which transactions occur outside of regulated sectors, in a grey area of overlapping or indefinite jurisdiction, or are structured in such a way that cannot be readily observed due to complexity or lack of disclosure.
  • Inadequate Risk Management, such as the failure to maintain adequate controls and policies or the absence of existing regulatory oversight.
  • Concentration, measured by the market share for the provision of important services within segments of applicable financial markets and the risk associated with high concentration in a small number of firms.
  • Destabilizing Activities, such as trading practices that substantially increase volatility in a particular market, especially when a moral hazard is present.

Just as FSOC will consider all the factors listed above as sources of potential financial risk contagion, it will also assess the transmission of those risks to broader market sectors and other specific entities based on certain metrics. This non-exhaustive list of transmission risk factors includes:

  • The level of direct and indirect exposure of creditors, investors, counterparties, and others to particular instruments or asset classes.
  • Rapid asset liquidation and the snowball effect of a widespread asset sell off across sectors.
  • The potential consequences of interruption to critical functions or services that are relied upon by market participants for which there is no substitute.
  • The potential for financial contagion arising from public perceptions of vulnerability and loss of confidence in widely held financial instruments.

Once a financial risk has been identified, FSOC may use various tools to mitigate such risk depending on the circumstances.  For instance, FSOC may work with the relevant federal or state regulator to seek to address the risk. Where a regulator can sufficiently address such risk in a timely manner, FSOC will encourage regulators to do so.  Through formal channels, the Council can make a public recommendation to Congress or regulatory agencies to apply new standards or heightened scrutiny to a known risk within their jurisdiction. Where no clear-cut regulatory oversight exists, the Council may make legislative recommendations to Congress to address the risk. These formal recommendations to agencies or Congress, made pursuant to section 120 of the Dodd-Frank Act, are also subject public notice and comment.

In addition to nonbinding recommendations for action to the appropriate financial regulatory authorities, FSOC is empowered to make a “nonbank financial company determination,” by a two-thirds vote, that a specific company shall be supervised by the Federal Reserve Board of Governors and subject to enhanced prudential standards. This designation can be made upon FSOC’s finding that:

  • Material financial distress at the nonbank financial company could pose a threat to the financial stability of the United States; or
  • The nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of the nonbank financial company could pose a threat to financial stability in the United States.

Nonbank Financial Company Designation Interpretative Guidance

The Proposed Interpretive Guidance is procedural in nature relating to nonbank financial company designation.  It would define a two-stage process FSOC will use to make a firm-specific “nonbank financial company determination” discussed in FSOC’s Proposed Analytic Framework. The Council recognized that in the past, it “has used this authority sparingly, but to mitigate the risks of future financial crises, the Council must be able to use each of its statutory authorities as appropriate to address potential threats to U.S. financial stability.”  The Proposed Interpretive Guidance, if adopted, would change the 2019 guidance in the following three ways:

  • First, under the current guidance, FSOC is committed to relying on federal and state regulators to address problematic nonbank financial company activity before considering whether a designation is appropriate. The new guidance removes this prioritization and allows FSOC to consider an entity for a designation proactively, without first relying on regulators to act before FSOC begins deliberating.
  • Second, FSOC has issued the Proposed Analytic Framework discussed above to revise its process for monitoring risks to U.S. financial stability. This comprehensive new framework replaces that found in Section III of the 2019 interpretive guidance.
  • Third, FSOC has reversed course and is eliminating its current practice of conducting a cost-benefit analysis and an assessment of the likelihood of material financial distress prior to making its determination. FSOC has concluded that these processes are not required by Section 113 of the Dodd-Frank Act. FSOC defines “material financial distress” as a nonbank financial company “being in imminent danger of insolvency or defaulting on its financial obligations.” In eliminating the “likelihood” assessment required by the 2019 guidance, the Council would now presuppose a company’s material financial distress and then evaluate what consequences could follow for U.S. financial stability.

With respect to the formal process for nonbank financial company determinations, the Proposed Interpretive Guidance contemplates a two-stage process that FSOC would use once they decide to review a company for a potential designation.

Stage One:  FSOC would conduct preliminary analysis of a company that has been identified for review based on quantitative and qualitative information available publicly and regulatory sources. FSOC would notify the company no later than 60 days before a vote is held to evaluate the company for Stage Two.  A company under review may submit information for FSOC’s review and may request to meet with FSOC staff and members agencies responsible for the analysis.  When evaluating a company in Stage One, the Council’s Nonbank Designations Committee may decide whether to analyze the risk profile of the company as a whole or to consider the risk posed by its subsidiaries as separate entities, depending on which entity the Council believes poses a threat to financial stability. At Stage One, FSOC is statutorily obligated to collect information from any relevant, existing regulators that oversee the company’s activities concerning the specific risks the Council has identified.

Stage Two: Any nonbank financial company selected for additional review would receive notice that the company is being considered for supervision by the Federal Reserve and enhanced prudential standards. The Proposed Interpretive Guidance says that “[t]he review will focus on whether material financial distress at the nonbank financial company, or the nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of the company, could pose a threat to U.S. financial stability.” At this point, if a company is under consideration for a Proposed Determination it would receive a formal Notice of Consideration from the Council.

The Council would begin its Stage Two review by consulting with the U.S. Treasury Department’s Office of Financial Research (OFR) and relevant financial regulators to ascertain the risk profile of the company. This information would remain confidential throughout the process, and, once interagency coordination has produced all available information, the company would be invited to submit any relevant information to the Council. These submissions “may include details regarding the company’s financial activities, legal structure, liabilities, counterparty exposures, resolvability, and existing regulatory oversight. . . . Information relevant to the Council’s analysis may include confidential business information such as detailed information regarding financial assets, terms of funding arrangements, counterparty exposure or position data, strategic plans, and interaffiliate transactions.” Council staff from the FSOC Deputies Committee would be available to meet with representatives of the company and would disclose the specific focus of the Council’s analysis.

Finally, if FSOC preliminarily designates the company for supervision by the Federal Reserve and subjects it to enhanced prudential standards, the company would be able to request a nonpublic hearing after which FSOC may vote to make a final designation. FSOC would conduct an annual review for any company designated by the Council to determine whether continued Federal Reserve supervision and enhanced prudential standards are still appropriate. This annual review period would afford the company the opportunity to meet with Council representatives and present information or make a written submission to the Council about its efforts to mitigate risk. If the Council decides to sustain the designation, it would present the company with a written explanation for its decision.

Takeaway

Given the current 2023 regional banking crisis, it is no surprise that federal regulators are focusing on potential risks to financial stability.  In FSOC’s 2021 and 2022 annual reports, nonbank mortgage companies have been identified as a potential risk.  The Federal Housing Finance Agency and Ginnie Mae have both updated their minimum financial eligibility requirements for seller/servicers and issuers with such requirements taking effect with varying effective dates later in 2023 and 2024.  States also have started to adopt prudential regulatory standards for nonbank mortgage servicers.  The Council appears to be signaling that additional supervision could occur if existing protections do not adequately mitigate risks.

*We would like to thank Summer Associate, Noah LeGrand, for their contribution to this blog post.

CFPB Issues Special Edition of Supervisory Highlights Focusing on Junk Fees

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A&B ABstract:

In the 29nd edition of its Supervisory Highlights, the Consumer Financial Protection Bureau (“CFPB”) focused on the impact of so-called “junk” fees in the mortgage servicing, auto servicing, and student loan servicing industries, among others.

CFPB Issues New Edition of Supervisory Highlights:

On March 8, the CFPB published a special edition of its Supervisory Highlights, addressing supervisory observations with respect to the imposition of junk fees in the mortgage servicing and auto servicing markets – as well as for deposits, payday and small-dollar lending, and student loan servicing.  The observations cover examinations of participants in these industries that the CFPB conducted between July 1, 2022 and February 1, 2023.

Auto Servicing

With respect to auto servicing, the CFPB noted three principal categories of findings the Bureau claims constitute acts or practices prohibited by the Consumer Financial Protection Act (“CFPA”).

First, examiners asserted that auto servicers engaged in unfair acts or practices by assessing late fees: (a) that exceeded the maximum amount stated in consumers’ contracts; or (b) after consumers’ vehicles had been repossessed and the full balances were due.  With respect to the latter, the acceleration of the contract balance upon repossession extinguished not only the customers’ contractual obligation to make further periodic payments, but also the servicers’ contractual right to charge late fees on such periodic payments. The report notes that in response to the findings, the servicers ceased their assessment practices, and provided refunds to affected consumers.

Second, examiners alleged that auto servicers engaged in unfair acts or practices by charging estimated repossession fees that were significantly higher than the average repossession cost.  Although servicers returned excess amounts to consumers after being invoiced for the actual costs, the CFPB found that the assessment of the materially higher estimated fees caused or was likely to cause concrete monetary harm – and, thus, “substantial injury” as identified in unfair, deceptive, and abusive acts and practices (“UDAAP”) supervisory guidance – to consumers.  Further, consumers could have suffered injury in the form of loss of their vehicles to the extent that they did not want – or could not afford – to pay the higher estimated repossession fees if they sought to reinstate or redeem the vehicle.  Examiners found that such injuries: (a) were not reasonably avoidable by consumers, who could not control the servicers’ fee practices; and (b) were not outweighed by a countervailing benefit to consumers or competition.  The report notes that in response to the findings, the servicers ceased the practice of charging estimated repossession fees that were significantly higher than average actual costs, and also provided refunds to consumers affected by the practice.

Third, examiners claimed that auto servicers engaged in unfair and abusive acts or practices by assessing payment processing fees that exceeded the servicers’ actual costs for processing payments.  CFPB examiners noted that servicers offered consumers two free methods of payment: (a) pre-authorized recurring ACH debits; and (b) mailed checks.  Only consumers with bank accounts can utilize those methods; all those without a bank account, or who chose to use a different payment method, incurred a processing fee.  The CFPB reported that as a result of “pay-to-pay” fees, servicers received millions of dollars in incentive payments totaling approximately half of the total amount of payment processing fees collected by the third party payment processors.

Mortgage Servicing

In examining mortgage servicers, CFPB examiners noted five principal categories of findings that related to the assessment of junk fees, which were alleged to constitute UDAAPs and/or violate Regulation Z.

First, CFPB examiners found that servicers assessed borrowers late fees in excess of the amounts permitted by loan agreements, often by neglecting to input the maximum fee permitted by agreement into their operating systems.   The examiners found that by instead charging the maximum late fees permitted under state laws, servicers engaged in unfair acts or practices.  Further, servicers violated Regulation Z by issuing periodic statements that reflected the charging of fees in excess of those permitted by borrowers’ loan agreements. In response to these findings, servicers took corrective action including: (a) waiving or refunding late fees that were in excess of those permitted under borrowers’ loan agreements; and (b) corrected borrower’s periodic statements to reflect correct late fee amounts.

Second, CFPB examiners found that servicers engaged in unfair acts and practices by repeatedly charged consumers for unnecessary property inspections (such as repeat property preservation visits to known bad addresses). In response to the finding, servicers revised their policies to preclude multiple charges to a known bad address, and waived or refunded the fees that had been assessed to borrowers.

Third, CFPB examiners noted two sets of findings related to private mortgage insurance (“PMI”).  When a loan is originated with lender-paid PMI, PMI premiums should not be billed directly to consumers.  In certain cases, the CFPB found that servicers engaged in deceptive acts or practices by mispresenting to consumers – including on periodic statements and escrow disclosures – that they owed PMI premiums, when in fact the borrowers’ loans had lender-paid PMI.  These misrepresentations led to borrowers’ overpayments reflecting the PMI premiums; in response to the findings, servicers refunded any such overpayments. Similarly, CFPB examiners found that servicers violated the Homeowners Protection Act by failing to terminate PMI on the date that the principal balance of a current loan was scheduled to read a 78 percent LTV ratio, and continuing to accept borrowers’ payments for PMI after that date.  In response to these findings, servicers both issued refunds of excess PMI payments and implemented compliance controls to enhance their PMI handling.

Fourth, CFPB examiners found that servicers engaged in unfair acts or practices by failing to waive charges (including late fees and penalties) accrued outside of forbearance periods for federally backed mortgages subject to the protections of the CARES Act.  The CARES Act generally prohibits the accrual of fees, penalties, or additional interest beyond scheduled monthly payment amounts during a forbearance period; however, the law does not address fees and charges accrued during periods when loans are not in forbearance.  Under certain circumstances, HUD required servicers of FHA-insured mortgages to waive fees and penalties accrued outside of forbearance periods for borrowers exiting forbearances and  entering permanent loss mitigation options.  CFPB examiners found that servicers sometimes failed to complete the required fee waivers, constituting an unfair act or practice under the CFA.

Finally, CFPB examiners found that servicers engaged in deceptive acts and practices by sending consumers in their last month of forbearance periodic statements that incorrectly listed a $0 late fee for the next month’s payment, when a full late fee would be charged if such payment were late.  In response to the finding, servicers updated their periodic statements and either waived or refunded late fees incurred in the referenced payments.

Deposits

The CFPB determined that two overdraft-related practices constitute unfair acts or practices: (i) authorizing transactions when a deposit’s balance was positive but settled negative (APSN fees); and (ii) assessing multiple non-sufficient funds (NSF) fees when merchants present a payment against a customer’s account multiple times despite the lack of sufficient funds in the account.  The CFPB has criticized both fees before in Consumer Financial Protection Circular 2022-06, Unanticipated Overdraft Fee Assessment Practices.

According to the report, tens of millions of dollars in related customer injury are attributable to APSN fee practices, and redress is already underway to more than 170,000 customers.  Many financial institutions have abandoned the practice, but the CFPB noted that even some such institutions had not ceased the practice and were accordingly issued matters requiring attention to correct the problems.  As for NSF fees, the CFPB found millions of dollars of consumer harm to tens of thousands of customers.  It also determined that “virtually all” institutions interacting with the CFPB on the issue have abandoned the practice.

Student Loan Servicing

Turning to student loan servicing, the CFPB found that servicers engaged in unfair acts or practices prohibited by the CFPA where: (a) customer service representative errors delayed consumers from making valid payments on their accounts, and (b) those delays led to consumers owing additional late fees and interest associated with the delinquency.  Contrary to servicers’ state policies against the acceptance of credit cards, customer service representatives accepted and processed credit card payments from consumers over the phone.  The servicers initially processed the credit card payments, but then reversed those payments when the error in payment method was identified.

Payday and Small Dollar Lending

The CFPB determined that lenders, in connection with payday, installment, title, and line-of-credit loans, engaged in a number of unfair acts or practices.  The first conclusion they made was that lenders simultaneously or near-simultaneously re-presented split payments from customers’ accounts without obtaining proper authorization, resulting in multiple overdraft fees, indirect follow-on fees, unauthorized loss of funds, and inability to prioritize payment decisions. The second such conclusion concerned charges to borrowers to retrieve personal property from repossessed vehicles, servicer charges, and withholding subject personal property and vehicles until fees were paid.  The third such determination related to stopping vehicle repossessions before title loan payments were due as previously agreed, and then withholding the vehicles until consumers paid repossession-related fees and refinanced their debts.

Takeaways

The CFPB’s focus on “junk” fees is not new – it follows on an announcement last January that the agency would be focused on the fairness of fees that various industries impose on consumers.  (We have previously discussed how the CFPB’s actions could impact mortgage servicing fee structures.)  Similarly, the Federal Trade Commission has previously considered the issue of “junk fees” in connection with auto finance transactions.

By focusing specifically on the issue in a special edition of the Supervisory Highlights, the CFPB is drawing special attention to the issue of these fees in the servicing context.  Mortgage, auto, and student loan servicers might use this as an opportunity to review their current practices and see how they stack up against the CFPB’s findings.