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OCC Provides a Path for FinTech Charters

On July 31, 2018, the OCC announced that it had finalized parameters for its new limited-purpose financial technology national bank charter and is ready to begin taking applications.  This release follows several years of formal deliberation on the topic and coincided with the release of a 222-page U.S. Treasury report on innovation.  Industry reactions have been wide-ranging – will this level the playing field or usher in a FinTech “apocalypse“?

Highlights of the OCC notice include:

  • Designation of the charter type as a national bank.  Like its other special-purpose charters, including the non-depository trust company or the credit card bank, the FinTech charter will be a “national association” in the National Bank Act sense of the term.  As the saying goes, membership will have its privileges (and burdens):  capital requirements, examinations, and federal preemption of certain state laws.
  • Eligibility for qualified applicants that plan to conduct activities “within the business of banking.”  Pursuant to existing OCC regulations, a limited-purpose national bank not engaging in fiduciary activities “must conduct at least one of the following three core banking functions:  receiving deposits; paying checks; or lending money.”  In its FinTech charter announcement, the OCC notes that it “views the National Bank Act as sufficiently adaptable to permit national banks to engage in traditional activities like paying checks and lending money in new ways.  For example, facilitating payments electronically may be considered the modern equivalent of paying checks.”
  • A requirement for a commitment to “financial inclusion.”  We will see how this element is administered.  In theory it provides a non-depository parallel to the Community Reinvestment Act (“CRA”).
  • Publication and comment period.  Just as for other types of national banks, applications will feature newspaper publication requirements and will be generally subject to public review and comment.

The OCC stated that its decision to open the door for this new form of national bank “is consistent with bi-partisan government efforts at federal and state levels to promote economic opportunity and support innovation that can improve financial services to consumers, businesses, and communities.”  Comptroller Otting added:

Providing a path for fintech companies to become national banks can make the federal banking system stronger by promoting economic growth and opportunity, modernization and innovation, and competition.  It also provides consumers greater choice, can promote financial inclusion, and creates a more level playing field for financial services competition.

Treasury’s report is consistent with these themes, noting, “A forward-looking approach to federal charters could be effective in reducing regulatory fragmentation and growing markets by supporting beneficial business models” and that the OCC should proceed with “thoughtful consideration” of FinTech charter applications.  Treasury also calls out specifically the need for updating regulations that relate to data aggregation, for addressing those which have become “outdated” in light of technological advances (e.g., in the mortgage lending and servicing space, according to Treasury), and for a regulatory approach that enables “responsible experimentation” in the financial sector.

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Lender’s “Boilerplate” Disavowal Dooms Rescission of a Common Loan Modification Agreement

In a case with potentially broad implications, the Sixth Circuit becomes the first federal circuit court to hold that the Truth in Lending Act provides no right to rescind a loan modification agreement entered into with a successor creditor. TILA exempts from rescission “refinancing” transactions with “the same creditor secured by an interest in the same property” but not “refinancing” with a different creditor.

The case impacts those borrowers whose loans were assigned after origination (an everyday occurrence), and who seek rescission after receiving a common form of modification that lowered their interest rate, recalculated the principal due to include only the unpaid balance plus earned finance charges and premiums for continuation of insurance, and perhaps even extended their payment schedule.

Regulation Z provides that a “refinancing occurs when an existing obligation … is satisfied and replaced by a new obligation undertaken by the same consumer” and that a refinancing does not include a “reduction in the annual percentage rate with a corresponding change in the payment schedule.”

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We’re Back! And Having a Conversation with Terry Ammons

Our unannounced and unplanned summer hiatus is over, and Jonathan and I are back in the studio to provide the latest episode of The Bank Account.  Between travel for various banking conferences, a full work plate, and a few summer vacations, we stepped away from the podcasting studios for a few months (or three months exactly), but now we’re bank and re-energized!

Joining us in the studio is Terry Ammons.  Terry is a partner with Porter Keadle Moore LLC and the host of GroundBanking, PKM’s podcast on innovation in the financial industry.  If you’ve enjoyed The Bank Account, I suggest you also give GroundBanking a listen; I know I’ve enjoyed the first several episodes.

Before turning to the intersection of banking and fintech, we spend a little time on another industry focus for PKM that personally interests Jonathan and me, craft beverages.   We also each select our “rest of life” beer:  Terry selected Automatic by Creature Comforts Brewing Company, Jonathan selected a Sierra Nevada Pale Ale, and I went with a 420 Extra Pale Ale by Sweetwater Brewery.

Terry, Jonathan and I then turned to looking at some of the interesting interactions we’ve each seen between depository institutions and fintech companies.  We looked at the strengths of each and how partnerships can help each thrive in the 21st century.  We also examined some of the diligence items that are necessary in any such partnership.

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Dutta: The Ninth Circuit Strikes Another Blow to FCRA Plaintiffs

On July 13, 2018, in Dutta v. State Farm Mutual Automobile Insurance Company, 895 F.3d 1166 (9th Cir. 2018), the United States Court of Appeals for the Ninth Circuit affirmed summary judgment against a plaintiff that lacked Article III standing to assert a claim under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”).

The Ninth Circuit relied on Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and held that the plaintiff lacked standing because he “failed to establish facts showing that he suffered actual harm or material risk of harm.”

This ruling is significant in the Ninth Circuit and elsewhere because it provides construct under which defendants may successfully challenge a plaintiff’s Article III standing to assert claims under the FCRA or other federal statutes.

Bryan Cave Leighton Paisner’s full client alert on the Dutta decision is available here.

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FinCEN Extends Temporary Beneficial Ownership Rule Relief for Older Autorenewing Products

The temporary exception that FinCEN extended to autorenewing CDs and loans established prior to the May 11, 2018 compliance effective date of its beneficial ownership requirements was scheduled to expire on August 9, 2018.  On August 8, FinCEN published a short release in which it announced the extension of this relief through September 8, 2018.  FinCEN noted that it was providing this extension in order to further consider the issues raised by the application of these aspects of its Customer Due Diligence (CDD) rules to such products.

As a reminder, this exception only applies to CDs and loans that (i) automatically rollover or renew and (ii) were established prior to May 11, 2018.  Such accounts or loans established subsequent to this date (and older accounts that are renewed on new or modified terms) are fully subject to the CDD rules, and all accounts are subject to its general due diligence and monitoring requirements.  In particular, institutions should continue to collect or update beneficial ownership information as other “risk events” warrant for particular customers–including those whose autorenewing CDs or loans or other accounts were established prior to May 11, 2018.  FinCEN has given as an example of such risk or “trigger” events an unexplained spike in cross-border wire transfers.  Moreover, as we noted previously, OFAC’s strict liability framework continues to apply to any U.S. person that does business with a sanctioned party, so institutions that do not collect beneficial ownership information may be exposed to this type of risk.

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Fair Debt Collection – In Writing, and We Mean It

The Sixth Circuit Court of Appeals continues to contribute to the case law defining which violations of procedural statutes constitute an injury-in-fact under Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016).

In Macy v GC Services Limited Partnership, it holds that Plaintiffs alleged sufficient concrete harm to satisfy the injury-in-fact requirement for standing where the defendant debt collector’s letter omitted to inform the plaintiffs, credit card holders, that it was obligated to provide certain information only if Plaintiffs disputed their debts in writing. See 2018 WL 3614580 (6th Cir. July 30, 2018).

At issue was the Fair Debt Collection Practices Act’s requirements that a debt collector provide a consumer with a notice that contains:

(4) a statement that if the consumer notifies the debt collector in writing within [a] thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer’s written request within [a] thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.” 15 U.S.C. § 1692g(a) (emphases added).

The Defendant’s letter omitted to mention the writing requirement, instead simply stating, “if you do dispute all or any portion of this debt within 30 days of receiving this letter, we will obtain verification of the debt from our client and send it to you. Or, if within 30 days of receiving this letter you request the name and address of the original creditor, we will provide it to you in the event it differs from our client, Synchrony Bank.”

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Restricting Corporate Authority to File Bankruptcy

A dramatic recreation of the fight over corporate authority to file bankruptcy.

The Fifth Circuit recently issued an opinion that federal bankruptcy law does not prohibit a bona fide shareholder from exercising its right to vote against a bankruptcy filing notwithstanding that such shareholder was also an unsecured creditor. This represents the latest successful attempt to preclude bankruptcy through golden shares or bankruptcy blocking provisions in corporate authority documents.

In this post on the Bankruptcy Cave, Bryan Cave Leighton Paisner attorney, Jay Krystinik, analyzes how the Fifth Circuit Affirms Dismissal of Bankruptcy Case Due to Lack of Corporate Authority to File (and potentially provides a blueprint for veto powers over bankruptcy filings).

“There is no prohibition in federal bankruptcy law against granting a preferred shareholder the right to prevent a voluntary bankruptcy filing just because the shareholder also happens to be an unsecured creditor by virtue of an unpaid consulting bill. . . . In sum, there is no compelling federal law rationale for depriving a bona fide equity holder of its voting rights just because it is also a creditor of the corporation.”

The Fifth Circuit was careful to limit its holding to the facts of this case. “A different result might be warranted if a creditor with no stake in the company held the right. So too might a different result be warranted if there were evidence that a creditor took an equity stake simply as a ruse to guarantee a debt. We leave those questions for another day.”

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2017 Landscape of U.S. Banking Industry

July 24, 2018

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The U.S. depository industry has continued its path of consolidation, but as of the end of 2017, there are still over 5,600 banks chartered in the United States.  This represents a decline of just under 3,000 charters from 10-years earlier, as mergers, receiverships and a near complete dearth of de novo activity have continued to shrink the number of banks.

As of December 31, 2017, we had 5,679 depository institutions with $17.5 trillion in total assets.  That represents a decline of 243 institutions an increase of $600 million in assets since the end of 2016, and a decline of 2,865 institutions and an increase of $4.4 trillion since the end of 2007.

The four largest depository institutions by asset size (JPMorgan, Wells Fargo, Bank of America and Citi) hold $7.03 trillion (up slightly from $6.84 trillion at the end of 2016).  Those four now represent 40.1% of the industry’s assets, down slightly from 40.5% at the end of 2016; but up from 34.8% ten years earlier.

There are 120 additional banks that have assets greater than $10 billion, holding $7.45 trillion.  Both of those numbers are materially higher than one year earlier; at the end of 2016, there were 111 banks in this category with $6.98 trillion in assets.  The 124 largest banks now hold 82.7% of the industry’s assets.  Ten years ago, there were 119 institutions with more than $10 billion in assets, and they collectively held 77.6% of the industry’s assets.

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SEC Increases Smaller Reporting Company Threshold

The Securities and Exchange Commission amended its definition of “smaller reporting company” (an “SRC”) increasing the public float threshold (cap on portion of shares held by public investors) to $250 million, up from the prior $75 million threshold.  Companies with a public float of up to $700 million may also qualify for SRC status under the new rule if their annual revenues are less than $100 million.

Benefits of SRC Status

The less rigorous reporting requirements for SRC’s provide a number of benefits to qualifying companies.  The Independent Community Bankers of America estimates that SRC status—thus exemption from the 404(b) reporting requirements—could cut audit fees for qualifying bank holding companies by as much as 50%.   Included in the lesser filing requirements for SRCs are the following scaled disclosure accommodations:

  • Audited historical financial statement filing requirements are reduced to two years (rather than three for larger reporting companies)
  • Less rigorous disclosure for annual and quarterly reports, proxy statements and registration statements
  • Two years of income statements (rather than three)
  • Two years of changes in stockholders’ equity (rather than three)
  • Reduced compensation disclosures
  • No stock performance graph required
  • Not required to make quantitative and qualitative disclosures about market risk

Methods of Calculation

A company’s public float, the total market value of the company’s outstanding common stock (voting and non-voting) held by non-affiliates or non-insiders, is the amount reflected on the first page of the company’s 10-K as the “aggregate market value of the common stock held by nonaffiliates of the registrant.”   The public float is measured as of June 30th each year.

To calculate “annual revenues” for the $100 million SRC limit, a financial institution must calculate its gross revenues earned from traditional banking activities.

Interest income

+ non-interest income

– gains and losses on securities

= annual revenues

The calculation of annual revenues is from the most recent 12 months for which audited financials are available.  We have no reason to believe based on the issuance of this new rule that the SEC will change the calculation of annual revenues for financial institutions.

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Negotiability of HELOC Notes under Florida Law

In Third Fed. Sav. & Loan Ass’n of Cleveland v. Koulouvaris, No. 2D17-773, 2018 WL 2271112 (Fla. 2d DCA 2018), Florida’s Second District Court of appeal analyzed, in the context of trial exhibit authentication, whether the note for a home equity line of credit (“HELOC”) was negotiable.

The Second District Court of Appeal considered whether it was proper for the Pasco County, Florida trial court to involuntarily dismiss Third Federal’s claim for foreclosure of a HELOC mortgage based on an objection that the HELOC note was nonnegotiable.  At trial, Third Federal attempted to admit the note as self-authenticating, endorsed commercial paper.  The borrowers countered that because the HELOC note was nonnegotiable, self-authentication did not apply.  Because Third Federal made no further effort to authenticate, the trial court sustained the borrowers’ objection, and the borrowers’ subsequent motion to dismiss was granted.  Third Federal appealed.

The Second District Court of Appeal sided with the borrowers.  It noted that self-authenticating commercial paper is an exception to Florida’s requirement that a document be authenticated prior to its admission into evidence.  That rule, however, does not apply where the paper is not an unconditional promise to pay a fixed amount of money.  By its own terms, the subject HELOC note only established an obligation for the borrowers to repay whatever they might borrow, without any guarantee that they would ever borrow a single dollar.  Thus, the note’s failure to require payment of a fixed amount meant the note was nonnegotiable and, as such, was not self-authenticating.  Without proof of authentication, the note was inadmissible, and the trial court’s decision to grant the borrowers’ motion to dismiss was proper.

Although it is fairly obvious, the negotiability attributes of a HELOC are similar to a home equity conversion mortgage (“HECM”) and thus this case would likely apply to reverse mortgages too.  It is expected that borrower’s counsel will cite the decision for this purpose.  Accordingly, it is recommended that trial counsel in both HELOC and HECM matters be prepared to not rely on an endorsement of the note for authenticity, but rather should elicit live testimony supported by admissible documentary evidence that the note was assigned.  A prepared witness should be able to authenticate a HELOC or HECM note.

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