BCLP Banking Blog

Main Content

Conversations about Banking: An Interview with Bill Easterlin

This month we continue our “Conversations about Banking” series. The series will consist of video conversations with leaders and influencers in the banking industry about topics of current interest. We hope you will enjoy and find benefit in this new aspect of BankBCLP.

In this second installment of our new “Conversations about Banking” series Banking group partner Jim McAlpin speaks with Bill Easterlin, CEO and President of Queensborough National Bank & Trust Co. Bill is the fourth generation leader of a $1.5 billion family owned bank in eastern Georgia.

Read More

Stimulus Bill Creates Second Draw PPP Loans

On December 27, 2020, President Trump signed the 2021 Consolidated Appropriations Act, which also contained the latest stimulus relief bill. Part of that bill was the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venue Act, which made changes to all Paycheck Protection Program (PPP) loans, re-opened the PPP program for new loans, and allowed certain borrowers to obtain a second PPP loan.

This post specifically looks at the changes implemented by the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venue Act (the “Act”) that affects new PPP borrowers. The changes previously discussed that will affect all PPP borrowers will also generally affect Second Draw PPP loans, and the changes previously discussed that only affect new PPP loans will also generally apply. The discussion below is based on the text of the Act, and may be further modified or clarified by subsequent regulations or guidance.

Ability to Apply for a Second PPP Loan. While the CARES Act originally limited eligible small businesses to one PPP loan, Section 311 of the Act creates a new opportunity for certain PPP borrowers (including those that received a PPP loan in 2020 or that will receive a new PPP loan in 2021) to apply for one additional PPP loan, a so-called “second draw” loan. In order to apply for a second draw loan, the PPP borrower will need to have utilized 100% of their prior PPP loan prior to distribution of the second draw loan. This requirement should presumably not be particularly burdensome for those that obtained their PPP loan in 2020, but may limit the ability of new PPP borrowers to obtain both a PPP loan and a second draw PPP loan in 2021.

The Act provides for up to $259 billion for second draw PPP loans, with $25 billion set aside for second draw PPP loans to entities with no more than 10 employees (in individual loan amounts not to exceed $250,000 and made to an entity in a low or moderate income neighborhood). Second draw PPP loans are to be available through March 31, 2021.

Eligibility – Number of Employees. In order to be eligible for a second draw loan, the small business may have no more than 300 employees (down from 500 employees for general PPP loan eligibility). Based on the language in the Act, it appears that the other means of eligibility for a small business to have qualified for a PPP loan, namely the revenue standards or the alternative size standard, will not be available to qualify for a second draw loan.

Eligibility – Revenue Decline. Unlike a primary PPP loan, eligibility for a second draw PPP loan is also conditioned on specific evidence that the business has been harmed by the pandemic. Specifically, to be eligible for a second draw loan, a small business will need to show that gross receipts during at least one quarter in 2021 was down at least 25% from the comparable 2019 quarter. The Act provides that for loans up to $150,000, borrowers may merely attest certification to this revenue standard, but would then be required to provide supporting documentation before submitting forgiveness.

Loan Size. Like the primary PPP loan, the size of the loan is generally set to be an amount equal to 2.5 times monthly payroll costs, however the maximum size of a second draw PPP loan will be $2 million. (As over 995 of the original PPP loans were for $2 million or less, this small size cap should not affect most borrowers.) In addition, the Act provides that small businesses that are classified under NAICS 72 code (generally those in the accomodation and food services sector) are eligible for a larger PPP loan, namely up to 3.5 times their monthly payroll costs (but still capped at $2 million).

Read More

Stimulus Bill Changes to New PPP Loans

On December 27, 2020, President Trump signed the 2021 Consolidated Appropriations Act, which also contained the latest stimulus relief bill. Part of that bill was the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venue Act, which made changes to all Paycheck Protection Program (PPP) loans, re-opened the PPP program for new loans, and allowed certain borrowers to obtain a second PPP loan.

This post specifically looks at the changes implemented by the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venue Act (the “Act”) that affects new PPP borrowers. The changes previously discussed that will affect all PPP borrowers will also affect new borrowers. The changes below only affect new PPP borrowers, and do not affect existing outstanding PPP loans. The changes below are based on the text of the Act, and may be further modified or clarified by subsequent regulations or guidance.

Applications Re-Opened through March 31, 2021. The Act authorizes a renewed opportunity for eligible small businesses to apply for a PPP loan. The Act authorizes up to $259 billion in new PPP loans, although some of that money could also be utilized for second draw PPP loans. The prior authorization for new PPP loans ended on August 8, 2020. The terms of these new (first) PPP loans remain essentially the same… up to $10 million, based on monthly payroll costs, with a cap of $20 million for any affiliated corporate group. Eligibility is also generally unchanged: less than 500 employees and ability to certify that due to economic uncertainty the PPP loan is necessary.

Public Companies Ineligible. If a company has securities listed on an exchange registered with the SEC, then it is ineligible for a covered loan on or after December 27, 2020.

Expanded Non-Profit Eligibility. Section 318 of the Act slightly expands eligibility for non-profit entities to include 501(c)(6) and “destination marketing organizations.”

Read More

Stimulus Bill Changes to All PPP Loans

On December 27, 2020, President Trump signed the 2021 Consolidated Appropriations Act, which also contained the latest stimulus relief bill. Part of that bill was the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venue Act, which made changes to all Paycheck Protection Program (PPP) loans, re-opened the PPP program for new loans, and allowed certain borrowers to obtain a second PPP loan.

This post specifically looks at the changes implemented by the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venue Act (the “Act”) that affects all PPP borrowers. The changes below are based on the text of the Act, and may be further modified or clarified by subsequent regulations or guidance.

Tax Treatment. Most importantly, Section 276 of the Act reverses the prior Internal Revenue Service guidance and provides significant tax relief to all PPP borrowers. Not only does the Act confirm that any cancellation of debt income obtained from forgiveness of the PPP loan is tax exempt (as provided for in the CARES Act), but now any tax deductible expenses used to generate such forgiveness may still be taken to reduce taxable income.

Covered Period Flexibility. Section 306 of the Act provides PPP borrowers with the flexibility of setting the length of the “Covered Period” for purposes of PPP loan forgiveness and FTE representations at any length between 8 and 24 weeks. The Covered Period will begin on the date of the origination of the PPP loan, and end on the date selected by the borrower that occurs between 8 weeks and 24 weeks after origination.

EIDL Advance Does Not Affect Forgiveness. Section 333 of the Act repeals a prior CARES Act provision that said that any forgiveness would be reduced by the amount of the EIDL Advance. We understand that newly processed forgiveness remittances from the Small Business Administration (SBA) already reflect this change, but we are awaiting SBA guidance for how they will handle previous EIDL Advance-based forgiveness reductions.

Read More

New CFPB Consent Decree May Highlight Loss Mitigation Issues for 2021

December 23, 2020

Categories

What’s old is new again. 2021 will bring a new U.S. Administration and hopefully positive developments with regard to the COVID-19 pandemic, but it also is likely to see further adverse economic impacts. Various financial models are predicting differing trajectories for potential recession and economic recovery. What we do know is that 2020 has resulted in sizeable income loss and employment interruption for many. In the face of all this challenge, the CFPB is likely to focus in 2021 on consumer loss mitigation process and transparency. Getting it right is paramount for lenders and servicers as 2021 customer contact volumes will increase with the potential sunset of COVID-19 relief measures.

Recently, the CFPB announced a consent decree with Seterus, Inc. and its successor-in-interest Kyanite Services, Inc. The clear priority is helping consumers avoid foreclosure, a risk we know will continue throughout 2021.  The lengthy consent decree covers loss mitigation conduct from 2014 through 2018, years in the past. But the violations asserted and the consent Decree conclusions preview 2021 priorities and hot buttons. Transparency and accountability are two themes that should serve consumer lenders and servicers well and mitigate regulatory and litigation risk.  Importantly, the Order highlights risks associated with process automation in servicing. In addition to laser focus on requirements and process, lenders and servicers may want to consider adopting customer experience approaches like ombudspeople or “secret shoppers” to get a real sense of how employees and systems are interacting with and serving customers.

Read More

Conversations about Banking: An Interview with Bobby Nix

This month we begin a new series “Conversations about Banking.” The series will consist of video conversations with leaders and influencers in the banking industry about topics of current interest. We hope you will enjoy and find benefit in this new aspect of BankBCLP.

In the first installment of “Conversations about Banking” our partner and Banking practice group leader Jim McAlpin speaks with Philadelphia based entrepreneur Bobby Nix. Mr. Nix has served on the boards of several community banks over the past four decades. As an African American he has a perspective on diversity within banks and bank boards that is timely to hear within our industry. As a successful entrepreneur he is also a champion of the positive impact that community banks can have on small businesses. Mr. Nix currently serves as the chair of the Loan Committee and the ALCO Committee of Hyperion Bank, which has offices in Philadelphia and Atlanta.  

Read More

Happy Holidays: CFPB Advisory Opinions!

On November 30, 2020, the Consumer Financial Protection Bureau (“CFPB”) set forth procedures for the issuance of advisory opinions provided as interpretive rules to resolve regulatory uncertainty, effective immediately. Under this new advisory opinion schema, the CFPB concurrently released two advisory opinions: one on earned wage access products and one on private education loans.

Advisory Opinions

A request for an advisory opinion must include:

  • Identity of the person or entity seeking the opinion, or the person or entity submitted a request on behalf of a third part (e.g., outside counsel, in which case clients need not be identified);
  • Statement about the absence of investigation or litigation;
  • All material facts about an actual fact or course of action that is (a) within the CFPB’s purview and (b) that the person or entity is engaged in or is planning to engage in;
  • A description of the uncertainty or ambiguity, including (a) identification of the regulatory or statutory provision at issue; (c) a proposed interpretation of the law or regulation; and (d) an explanation of why that proposed interpretation is an appropriate resolution of the uncertainty or ambiguity;
  • Identification of information that should be treated as confidential.

Each advisory opinion will be specific to the facts provided, which the CFPB will not generally investigate independently, making it important that the request include a clear description of any material facts. Where the advisory opinion permits for a safe harbor, as provided for in the Truth in Lending Act (“TILA”), Equal Credit Opportunity Act, Electronic Fund Transfer Act, Real Estate Settlement Procedures Act, and Fair Debt Collection Practices Act, that fact will be explained in the advisory opinion. The scope and terms of an advisory opinion will be set out in the advisory opinion itself.

The CFPB will weigh multiple factors in determining whether to issue an advisory opinion on a specific topic, including issues that it has previously noted that are of significant importance or where clarification would provide significant benefit, and where the CFPB has not previously addressed a highlighted ambiguity. Conversely, the CFPB may decide an advisory opinion is not the appropriate tool for responding to an inquiry. In particular, issues where the CFPB is actively investigating or enforcing a related matter or a rulemaking is proposed or being planned.

Read More

CFPB Highlights Debt Relief Practices in Student Lending

Student Lending CFPB Enforcement:
Alleging Impermissible Debt Relief Service Advance Fees

Director Kraninger has outlined in various settings, the Bureau’s focus on protecting those often most vulnerable, including the elderly, military personnel and veterans, as well as students, sometimes collectively referred to special populations. Recently, the Bureau took aim at several businesses, which according to the CFPB’s complaint were exploiting students by charging impermissible advance fees in connection with purported debt relief services.  We should expect further activity in 2021 with the change of administration, potential extension of certain COVID-19 pandemic-related student lending forbearance orders, and other potential student lending protection efforts. 

The complaint asserts five causes of action under the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6102(c), 6105(d) (“TCFAPA”); the Telemarketing Sales Rule (“TSR”), 16 C.F.R. pt. 310; and the Consumer Financial Protection Act of 2010 (“CFPA”), 12 U.S.C. §§ 5531, 5536(a), 5564, 5565, in connection with the marketing and sale of debt relief services. According to the complaint, “Defendants Performance SLC, LLC and Performance Settlement, LLC, along with their owner and manager Defendant Daniel Crenshaw, are engaging in debt relief activities that have harmed consumers nationwide by charging illegal advance fees, failing to make required disclosures, and engaging in deceptive sales practices.”

Penalties & Injunctive Relief Requested

In its filing announcement the CFPB stated that “Consumers would pay between $1,000 and $1,450 in fees to PSLC for it to file paperwork with [the U.S. Department of Education], even though student loan borrowers can do this themselves for free.” The Bureau claims “that PSLC had some consumers pay this prohibited upfront fee through high-interest financing from a third party.”  The complaint seeks injunctive relief to prevent the potential on-going violations of the TSR and the CFPA; consumer “monetary relief including but not limited to the refund of monies paid, restitution, disgorgement or compensation for unjust enrichment, and payment of damages;” imposition of civil money penalties against Defendants, and an award of costs to the Bureau. The complaint alleges that “[f]rom 2016 to 2019, PSLC enrolled more than 6,500 customers in multiple states” and that certain “Trust Plan Customers paid more than $4,300,000 in fees to PSLC” and other customers “paid more than $4,900,000 in loan principal and interest” on allegedly improper loans arising from Defendants’ activities.

Read More

PPP Loan Necessity Certifications and Fraud Investigations

A recent article in the Wall Street Journal highlights renewed talk in some circles about allegedly “growing evidence” of fraud among PPP participants.  We think the observation of the former federal prosecutor who is quoted in the story is salient.  While we wouldn’t phrase it the way the ex-prosecutor does (the “scandal is what’s legal, not what’s illegal”) and we disagree with his disdain for the program, the larger point is important: Congress has spoken—twice—and may speak a third time. In adopting the CARES Act, Congress established a program with small businesses’ self-assessment of their needs as the critical component for eligibility.  Congress’s revisions to the PPP at the end of May liberalized several program rules and broadened the amount of loan forgiveness that borrowers could expect.  While the existence of fraud, as with any federal program, was predictable, particularly in the rollout of an emergency measure, the WSJ story, and the federal prosecutor, points out that prosecutions are difficult considering that potential defendants would be judged based on the regulations and law existing at the time application were made.

We also think it’s important to put the numbers discussed in the Wall Street Journal article in context.  If every one of the suspicious activity reports related to PPP loans, then less than 0.05% of loans were suspicious.  If all 500 suspects are guilty of fraud, that represents less than 0.01% of PPP borrowers.  If we round up the dollar amount involved to ten hundred million dollars (which any reporter attempting to make a story sound important (or evil mastermind transported forward in time) would round to one billion dollars), then less than 0.2% of money lent under the Paycheck Program was fraudulent.

The WSJ story comes at a time when we have seen many accounting firms and a number of lawyers circulate the draft SBA Loan Necessity Questionnaire for For-Profit and Non-Profit Borrowers. “questionnaires.”  The questionnaires state that they will be used in cases of PPP loans greater than $2 million “to facilitate the collection of supplemental information that will be used by SBA loan reviewers to evaluate the good-faith certification that you made on your PPP Borrower Application … that economic uncertainty made the loan request necessary.”

Read More

2020 Governance Best Practices Survey

2020 Governance Best Practices Survey

October 15, 2020

Authored by: Jim McAlpin

Bryan Cave Leighton Paisner was pleased to partner with Bank Director on their first annual Governance Best Practices Survey. In my work with boards of directors over the years I’ve found that the most effective tool can be reference to what other well run companies are doing. Best practices are important in every industry, but of particular importance in the banking industry. I believe the information in this year’s survey results will be very helpful to bank boards across the U.S.

The survey focused on the areas of process, independence, oversight, composition and refreshment. You will find from reading the survey results that there is a range of approach In the banking industry to certain key aspects of board governance. For example, not all bank boards have executive committees and among those which do there is not a uniform approach to the committee’s functioning. There is also divergence of approach in whether the CEO also serves as the board chair. I tend to think that a lack of uniformity of approach in the industry is healthy. I am skeptical of those who advocate for rigid adherence to “best practices” in board governance but I agree that practices which have been effective for others can serve as a guide. 

Boards are groups of people, and no two groups of people function in the same way. In my experience, the fundamental building block of an effective board Is careful selection of directors to fill roles within a board. It’s not unlike how the best coaches recruit  for talent based on specific needs of the team. Too often I see board rooms with essentially the same director sitting in all of the seats. Differences in business experience, life experience and perspective among directors can greatly benefit the quality of the board’s collective insight and decision making. 

Read More
The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.