November 20, 2020

Consumer Financial Services Practice Digest

3 min

Setting the Record Straight: Agencies Seek to Clarify and Codify Guidance on Guidance

The use of supervisory guidance by the federal banking agencies has been the cause of much consternation in the banking industry, given that guidance is, well, guidance, and does not have the force and effect of law. Until recently it was not uncommon for institutions to be cited for violations of or noncompliance with supervisory guidance. However, at the end of October 2020, the Office of the Comptroller of the Currency, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, National Credit Union Administration, and Bureau of Consumer Financial Protection (collectively, the "Agencies") issued a notice of proposed rulemaking to clarify and codify the Agencies' Role of Supervisory Guidance (Proposed Rule)—thereby setting the record straight.

CFPB Issues No-Action Letter Based on BPI Application Template

The CFPB's No-Action Letter (NAL) process is a key feature of the Bureau's Office of Innovation. In 2019, the CFPB revised its Policy on No-Action Letters to "remov[e] barriers to innovation" and "reduc[e] uncertainty regarding the meaning or application of statutory and regulatory provisions." Since revising the NAL Policy, the Bureau has granted three template applications and four NAL applications – most recently granting a NAL regarding a short-term, small-dollar credit product.

BSA Alchemy: While Lowering the Recordkeeping and Travel Threshold, FinCEN and the Fed Turn Virtual Currency into Real Money

Technology facilitates legal and illicit transactions alike. Advances in payments technologies and cryptocurrencies such as Bitcoin, Monero, and Zcash allow criminal enterprises to dissect, route, and reaggregate small transactions to evade detection by regulatory and enforcement agencies. This is particularly true with international transactions where, for example, the exchange from cryptocurrency to fiat currency takes place outside U.S. financial supervision.

SBA Releases Questionnaire to Lenders, Requiring For-Profit and Nonprofit PPP Borrowers of $2 Million or More to Provide Significant Detail on Certification of Need

On October 26, 2020, the Small Business Administration (SBA) issued a notice in the Federal Register that it would be utilizing Loan Necessity Questionnaires in connection with its Paycheck Protection Program (PPP) loan review process. Borrowers who – together with their affiliates, as that term has been defined through the Interim Final Rules and other guidance – received loans with an original principal amount of $2 million or greater must complete the questionnaires.

Dealing with Defaults: Debt Collection Strategies and New Practices

The collections marketplace is a major component of the credit ecosystem. This presentation from "Dealing with Defaults: Debt Collection Strategies and New Practices," at the 2020 LEND360 Virtual Event outlines the new CFPB Debt Collection Final Rule, including steps that creditors and collectors can take now to prepare for the new requirements and opportunities.

Understanding the CFPB Debt Collection Final Rule

Several years in the making, the CFPB recently issued a significant debt collection final rule implementing the Fair Debt Collections Practice Act (FDCPA). The rule addresses use of electronic communications (e.g., email, text messages, and social media), voicemail messages, and telephone call frequency. The rule also contains provisions on disputes, record retention, and several other topics. The rule is a major development for all participants in the credit and accounts receivable marketplace and will have a direct impact on enforcement investigations, supervisory examinations, and litigation. This presentation for the Association of Corporate Counsel (ACC) Financial Services Network provides an overview of changes, with a focus, for in-house counsel, on how creditors and debt collectors can prepare for the new requirements and opportunities presented by the rule.

2020 Election Resources

Interacting with the Biden-Harris Transition Team and Inaugural Committee

Managing Risk in a Shifting Landscape – Best Practices for Banking the Marijuana Industry

Election Resource Center