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COMPLIANCE REMINDER – Red Flag Rules Apply August 1, 2009

Although some questioned if the day would arrive, the Red Flag Rules issued by the FTC, the federal bank regulatory agencies and the National Credit Union Administration go into effect August 1, 2009. The Rules are drafted broadly and will apply to many different companies, including “financial institutions and creditors with covered accounts.” Essentially, if you offer any form of loan or maintain any form of money account, you will have to comply the Red Flag Rules.

Preparing for August 1

The biggest step you should take is to prepare a Red Flag Plan. Although the Rules stress that each program should be tailored to the individual entity, some central elements should be present:

  • IDENTIFICATION – Make sure your plan identifies what constitutes a “red flag” (i.e. what could reasonably indicate identify theft).
  • DETECTION – Make sure you have a written procedure for how you will detect, understand and process any red flags.
  • RESPONSE – Make sure you adequately define how you will respond, making sure that you include enough flexibility to respond adequately to different levels of threat.
  • MAINTENANCE – Make sure you have a set process for reviewing, updating and revising your Red Flag Plan.
  • OVERSIGHT – Make sure the plan is properly approved by the Board of Directors, Managers or similar management positions, and include explicit designations of power as to who in management (either the Board or a senior officer) will oversee the Plan and its execution.
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Obama Proposes Comprehensive Regulatory Reform

On June 17, 2009, the Obama administration publicly announced its vision of regulatory reform.  Among the key points for community banks and thrifts:

  • Combine the Office of the Comptroller of the Currency (OCC) and Office of Thrift Supervision (OTS) into a new federal agency, the National Bank Supervisor, which would remain an office of the Treasury Department.  The National Bank Supervisor would have all the powers of the OCC and the OTS.  The Federal Reserve and FDIC would retain their respective roles with respect to state banks.
  • Eliminate the federal thrift charter, subject to “reasonable” transition arrangements.
  • Eliminate restrictions on interstate branching by national and state banks.  States would not be allowed to prevent de novo branching into the state, or to impose a minimum age requirement of in-state banks that can be acquired by an out-of-state banking firm.
  • Thrift holding companies and Industrial Loan Company (ILC) holding companies would both be required to become Bank Holding Companies supervised by the Federal Reserve.
  • Create a new federal Consumer Financial Protection Agency (CFPA).  The CFPA is proposed to have sole authority to promulgate and interpret regulations under existing consumer financial services and fair lending statutes, including TILA, HOEPA, RESPA, CRA, and HMDA.  The CFPA is also proposed to assume from the federal prudential regulators all responsibilities for the supervision, examination and enforcement of consumer financial protection regulations.
  • States would have the authority to adopt and enforce stricter laws, and federally chartered institutions would be subject to nondiscriminatory state consumer protection and civil rights laws to the same extent as other financial institutions.

As a reminder, we are the very beginning of regulatory reform; the final reforms are undoubtedly not going to be exactly as laid out in the President’s current proposal.

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Modification of Repurchase Agreements May be Required

Earlier this year the FDIC published its Final Rule on Processing Deposit Accounts in the Event of an Insured Depository Institution Failure.  One of the requirements of the Rule is that financial institutions are required to provide sweep account customers with information about what would happen to the customer’s funds in the event the institution failed.  As a byproduct of the attention being paid to the new sweep account disclosure rules, the FDIC has also focused on the terms of the Master Repurchase Agreement used in certain sweep arrangements where the institution serves as the customer’s custodial agent for securities held at another financial intermediary.

The standard industry Repurchase Agreement contains a provision which allows the financial institution to substitute the originally purchased securities with different securities of the same type.  The FDIC has recently taken the position that the right of substitution renders a Repurchase Agreement used in connection with such a sweep account defective based on the fact that the institution retains excessive control over the securities.   The result of this is that the customer’s funds will be treated as if they never left the deposit account from which they originated.   This could be devastating to a customer in the event of the failure of the institution.

In addition to the risk which a customer runs of having significant uninsured deposits, the financial institution runs the risk that the funds should have been reported on a Call or Thrift Financial Report as deposits for purposes of reserves and assessments. This then in turn raises issues of whether the financial institution has been in violation of Reg Q  which prohibits the payment of interest on demand deposits.

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FDIC Issues Final Brokered Deposit and Interest Rate Restriction Regulations

On May 29, 2009, the FDIC adopted a final rule amending the interest rate restrictions applicable to institutions that are less than well capitalized.  The new regulation, which will take effect on January 1, 2010, will effectively tie interest rate caps to an average of interest rates charged nationally, significantly diminishing the importance of calculating prevailing interest rates within local deposit market areas.  Less than well-capitalized institutions will generally be subject to national rate caps as published by the FDIC.

Existing Rules

Section 29 of the Federal Deposit Insurance Act places statutory limits on the ability of any insured depository institution that is not well capitalized to accept brokered deposits.  As we have noted earlier, these brokered deposit rules also limit the interest rates that may be paid by insured depository institutions that are not well capitalized.  In order to be considered well capitalized, an insured depository institution must exceed certain uniform regulatory capital measures, as well as not be subject to any written agreement or order issued by its primary federal regulator that requires the institution to meet and maintain a specific capital level for any capital measure.

Under the current rules, any institution that is not well capitalized (including those subject to a regulatory capital order) may not pay interest in excess of 75 basis points over the average interest paid for comparable deposits in the institution’s “normal market area,” although institutions operating under a brokered deposit waiver may not pay interest rates in excess of 75 basis points over a “national rate” for deposits that are accepted outside the institution’s “normal market area.”

The current rule has proved increasingly problematic in recent years; with the Internet blurring local deposit market boundaries, regulators and institutions have had difficulty determining what constitutes an institution’s “normal market area.” In addition, the “national rate” applicable to institutions with a brokered deposit waiver has proved to be largely obsolete in recent years, as it ties permissible interest rates paid on deposits solicited nationally to the comparable maturity Treasury yield, resulting in an excessively low “national rate.”

The New Rule

The new rule moves to solve these two problems by redefining the “national rate” as “a simple average of rates paid by all insured depository institutions and branches for which data are available” and creating a presumption that this national rate is the prevailing rate in any market.  Effective immediately, the FDIC will regularly (weekly) publish national rates and caps, and permit institutions that are less than well capitalized to avail themselves of these rates as a safe harbor for complying with the statutory interest rate restrictions.

As of June 1, 2009, the highest rate that could be paid by a less than well-capitalized institution for a savings account would be 97 basis points, for a money-market account would be 1.21%, for a six-month CD would be 1.70%, for a one-year CD would be 2.00%, and for a 5-year CD would be 2.94%.  The FDIC Weekly National Rates and Rate Caps provides the rates and caps for various deposit maturities and sizes.

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FDIC Adopts a Final Rule Regarding Special Assessments

On May 22, 2009, the FDIC adopted a final rule imposing a 5 basis point special assessment and authorizing the FDIC to impose additional special assessments of 5 basis points, if necessary.  The initial special assessment and any additional special assessment will be based on an institution’s assets minus Tier 1 capital as of June 30, 2009.  This final rule differs significantly from the interim rule that FDIC issued on March 2, 2009.

The interim rule contemplated a 20 basis point special assessment, based on an institution’s deposits, which is the assessment base used for the regular quarterly risk-based assessments.  The interim rule also contemplated imposing additional special assessments of up to 10 basis points at the end of each remaining calendar quarter of 2009.

The final rule lowered the initial special assessment from 20 to 5 basis points, and any additional special assessment from 10 to 5 basis points, but changed the assessment base from deposits to assets minus Tier 1 capital.  The memorandum from the FDIC’s director of the insurance and research division indicates that the “departure from the regular risk-based assessment base is appropriate in the current circumstances because it better balances the burden of the special assessment.”

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Enhanced Deposit Insurance Extended Through 2013

On May 20, 2009, President Obama signed the Helping Families Save Their Homes Act of 2009 (Senate Bill 896).  Among other things, the Act:

  • extended the $250,000 deposit insurance limit through December 31, 2013;
  • extended the length of time the FDIC has to restore the Deposit Insurance Fund from five to eight years;
  • increased the FDIC’s borrowing authority with the Treasury Department from $30 billion to $100 billion;
  • increased the SIGTARP’s authority vis-a-vis public-private investment funds under PPIP (including the implementation of conflict of interest requirements, quarterly reporting obligations, coordination with the TALF program); and
  • removed the requirement, implemented by the American Recovery and Reinvestment Act of 2009, for the Treasury to liquidate warrants of companies that redeemed TARP Capital Purchase Program preferred investments.  The Treasury is now permitted to liquidate such warrants at current market values, but is not required to do so.

This extension does not affect the Transaction Account Guarantee provided by the FDIC’s Temporary Liquidity Guarantee.  The Transaction  Account Guarantee, which provides an unlimited guarantee of funds held in noninterest bearing transaction accounts, is still scheduled to expire on December 31, 2009.

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Making Home Affordable – Program Updates

On May 14, 2009, the Treasury and the Department of Housing and Urban Development announced updates to the Making Home Affordable Program.  These updates detail Foreclosure Alternatives Incentives and Home Price Decline Protection Incentives.

Foreclosure Alternative Program.  The Foreclosure Alternative Program provides incentives to mortgage servicers to pursue short sales of homes or deeds in lieu of foreclosure.  In either case, the incentives are aimed at helping homeowners who can no longer afford to stay in their homes by allowing them to avoid foreclosure and relocate to a home that they can afford.

The updates indicate that homeowners who satisfied the minimum eligibility requirements for a modification under the Program but who could not qualify for a modification will be eligible for the Foreclosure Alternative Program.  For example, a homeowner may meet all eligibility requirements yet the servicer determined that the borrower would not be able make payments on a loan as modified under the Program; in this case, the homeowner may be eligible for the foreclosure alternative.  Further, homeowners who received a modification but who were unable to sustain payments under that modification will be eligible for the Foreclosure Alternative Program.

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Making Home Affordable Programs – Updates for Mortgage Holders and Servicers

On April 28, 2009, Treasury announced updates to the Making Home Affordable Program.  As previously discussed, the Treasury’s Making Home Affordable Program, which is aimed at helping 7 to 9 million homeowners, consists of two programs: The Home Affordable Refinance Program and the Home Affordable Modification Program.  The newly announced updates address modifications to second mortgages where the first mortgage has been modified under the Home Affordable Modification Program.

The Making Home Affordable Program is a completely voluntary program.  However, mortgage holders and servicers that do sign up for the Program, should realize that they must modify any second mortgage for a homeowner whose first mortgage has been modified under the Program.   A mortgage holder cannot elect not to modify a second mortgage once it has entered the Program.  A list of participating institutions is available here.

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Making Home Affordable Programs – Updates for Homeowners

On April 28, 2009, Treasury announced updates to the Making Home Affordable Program.  As previously discussed, the Treasury’s Making Home Affordable program, which is aimed at helping 7 to 9 million homeowners, consists of two programs: The Home Affordable Refinance Program and the Home Affordable Modification Program.  The newly announced updates address modifications to second mortgages where the first mortgage has been modified under the Home Affordable Modification Program.

The important thing for homeowners to recognize is that the modification to the second mortgage is automatic.  That is, if the holder of the second mortgage is a participating servicer under the Making Home Affordable Program, then the holder must modify the second mortgage whenever a first mortgage is modified under the Program.  The updates address both traditional, amortizing second mortgages and interest-only second mortgages.

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The Lottery is Not an Acceptable Funding Source

On March 3, 2009, the FDIC published Financial Institution Letter FIL-13-2009 on the use of volatile or special funding sources by financial institutions that are in a weakened condition.  The guidance generally suggests that banks should be run safely and soundly.

Directors and officers of institutions that are in a weakened financial condition are expected to oversee the operations of these institutions in a way that stabilizes the risk profile and strengthens the financial condition. Actions taken by a weak financial institution to increase its risk profile are inconsistent with this expectation.

While the guidance is overly broad, we believe the FDIC guidance may be focused on two practices:

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