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MoFo Reenforcement

The Enforcement Blog

CFPB Seeks Input on Improving Access to Credit

Posted in Regulatory Developments

On August 3, 2020, the Consumer Financial Protection Bureau (CFPB) published a Request for Information (RFI) that seeks comment on ways to clarify the Equal Credit Opportunity Act’s (ECOA) implementing regulation, Regulation B, to expand access to credit and improve protections against credit discrimination. According to the CFPB, comments provided in response to the RFI will help the agency “continue to explore ways to address regulatory compliance challenges” associated with Regulation B. Comments on the RFI are due by October 2, 2020.

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Not So Fast—State Attorneys General Seek to Enjoin OCC’s Final Rule Reaffirming “Valid When Made” Doctrine

Posted in Regulatory Developments

On July 29, 2020, the state attorneys general of California, Illinois, and New York filed suit against the Office of the Comptroller of the Currency (OCC) challenging the OCC’s Final Rule reaffirming the “valid when made” doctrine for loans originated by national banks.  The challenge extends the uncertainty created by the Second Circuit’s Madden decision until the litigation is resolved.

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New York Passes Bill to Increase Transparency in Lending

Posted in Regulatory Developments

On July 23, 2020, in an effort to increase transparency in commercial financings so borrowers may make more informed decisions, the New York State legislature passed a bill, S5470B, which currently awaits the Governor’s signature. The bill requires certain commercial financing providers to disclose to recipients critical information about the amount, pricing, and terms of specific commercial financings, upon making the offers. This information must be disclosed in uniform formatting, to be determined by the New York State Department of Financial Services (NYDFS), which is tasked with issuing regulations to implement the bill.

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Will the True Lender Please Stand? – OCC Proposes “True Lender” Bright-Line Rule

Posted in Regulatory Developments

On July 20, 2020, the Office of the Comptroller of the Currency (OCC) issued a notice of proposed rulemaking that would establish when national banks or federal savings associations (collectively, banks) are the “true lender” making a loan in the context of a partnership between the bank and a third party.  Recognizing the uncertainty created by existing case law and lack of regulatory guidance, the OCC proposes that the bank will be treated as the “true lender” if, as of the date of origination, the bank is named as the lender in the loan agreement or the bank funds the loan.

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Louisiana Becomes Second State to Require Virtual Currency Licensing

Posted in Regulatory Developments

Developments in virtual currency regulation have been top-of-mind with recently announced initiatives from the New York Department of Financial Services. Companies engaging in virtual currency activity should also, however, take note of Louisiana’s enactment of HB701. This law, which takes effect on August 1, 2020, is a broad standalone licensing regime for the regulation of virtual currency activity in the state. While a number of states have addressed virtual currency activity through their money transmission laws, Louisiana now joins New York as the only states to regulate virtual currency activity through a separate licensing law. Taken together, these actions bring some degree of clarity to the regulatory treatment of virtual currency activity—at least in Louisiana and New York.

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Machine Underwriting: The CFPB Issues Blog Post on Use of Artificial Intelligence in Credit Underwriting

Posted in CFPB, Regulatory Developments

On July 7, 2020, the Consumer Financial Protection Bureau (CFPB or Bureau) published a blog post on the use of artificial intelligence (AI), especially machine learning (ML), in credit underwriting. The blog post addresses industry concerns about how AI and ML models interact with the existing regulatory framework, specifically the adverse action notice requirements in the Equal Credit Opportunity Act (ECOA) and the Fair Credit Reporting Act (FCRA).

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FinCEN Guidance: How to Hemp

Posted in Regulatory Developments

The Financial Crimes Enforcement Network (FinCEN) released guidance on the Bank Secrecy Act (BSA) and anti-money laundering (AML) obligations and considerations surrounding hemp-related customers. These customers include hemp growers, and processors and manufacturers that purchase hemp from such growers. The Guidance supplements a December 2019 interagency statement, summarized in our prior Client Alert, and outlines how financial institutions can comply with their BSA/AML requirements when providing services to hemp-related clients.

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Agencies Finalize Amendments to Volcker Rule Covered Fund Provisions

Posted in Regulatory Developments

On June 25, 2020, the five federal agencies with responsibility for implementing the Volcker Rule finalized amendments to the Volcker Rule’s provisions related to investing, sponsoring, and having certain relationships with “covered funds.”  The final rule is largely consistent with the agencies’ proposal of January 30, 2020 and is the final anticipated amendment in a series of recent changes to the Volcker Rule. The final rule will take effect on October 1, 2020.

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U.S. Supreme Court Strikes CFPB Director For-Cause Removal Provision

Posted in CFPB

The U.S. Supreme Court issued its ruling in Seila Law LLC v. Consumer Financial Protection Bureau, holding that the CFPB’s leadership structure—with a single director removable only for inefficiency, neglect, or malfeasance—is unconstitutional because it violates the separation of powers. But the Court preserved the Bureau by severing the for-cause removal provision from the rest of the Dodd-Frank Act. The bottom line: the CFPB remains intact, but the President (or the next one) can remove the director of the CFPB for any reason. CFPB Director Kathy Kraninger commented that it is now clear that the agency and its director “are fully accountable to the President.”

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Following Suit – FDIC Finalizes Rule Reaffirming “Valid When Made” Doctrine for State Banks

Posted in Regulatory Developments

On June 25, 2020, following the OCC’s lead, the Federal Deposit Insurance Corporation’s (FDIC) board of directors voted 3-1 to finalize a rule that reaffirms the “valid when made” doctrine as applicable to loans originated by state-chartered banks and insured branches of foreign banks. The FDIC believes that reaffirmation of a state bank’s ability to assign loans at the contractual interest rate will make state-bank loans more marketable, mitigate the potential for future secondary-market disruption, and maintain parity between national banks and state banks with respect to interest rate exportation.

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