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01.29.2016 | Legal Update

The Nutter Bank Report is a monthly publication of the firm's Banking and Financial Services Group.

Headlines
1. CFTC Issues Relief from Swap Clearing Requirements to Small Holding Companies
2. Federal Banking Agencies Issue Proposed Rules for 18-Month Exam Cycle
3. Division of Banks Releases Guidance on Updates to Right to Cure Notices Requirements
4. GAO Reports on Compliance Burdens and Other Effects of Dodd-Frank Act Regulations
5. Other Developments: FHLB Membership, BSA-AML Liability and Deposit Insurance Assessments 

1. CFTC Issues Relief from Swap Clearing Requirements to Small Holding Companies

The U.S. Commodities Futures Trading Commission (“CFTC”) has issued no-action relief from the mandatory clearing requirement for swaps under Section 2(h)(1)(A) of the Commodity Exchange Act (“CEA”) to small bank holding companies (“BHCs”) and small savings and loan holding companies (“SLHCs”). The CFTC’s no-action letter issued on January 20 provides that the CFTC’s Division of Clearing and Risk will not recommend that the CFTC take enforcement action against BHCs and SLHCs that have no more than $10 billion in consolidated assets, and comply with the same conditions that a bank or savings association must comply with under the CFTC’s rule at 17 C.F.R. § 50.50 in order to elect not to clear a swap subject to the CFTC’s clearing requirements. The CEA authorized the CFTC to exempt small banks, savings associations, farm credit system institutions and credit unions from the mandatory clearing requirement applicable to a “financial entity.” The CFTC’s rule at 17 C.F.R. § 50.50 provides that exemption, but it is not available for swaps entered into directly by BHCs or SLHCs. According to the no-action letter, the CFTC believes that swaps executed by small BHCs and SLHCs are what Congress was considering when it directed the CFTC to consider an exemption from the financial entity definition for small financial institutions.

    Nutter Notes: Under the CEA, if the CFTC requires a particular class of swap to be cleared, then a person entering into such a swap must clear it at a derivatives clearing organization that is either registered with the CFTC or that the CFTC has exempted from registration. The CFTC currently requires four classes of interest rate swaps and two classes of credit default swaps to be cleared under part 50 of the CFTC’s regulations. The no-action relief from those clearing requirements is available for BHCs and SLHCs that enter into interest rate swaps to hedge interest rate risk that they incur as a result of issuing debt securities or making loans to finance their subsidiary banks or savings associations, among other things. If a small BHC or SLHC elects not to clear a swap covered by the no-action letter, one of the counterparties to the swap must provide, or cause to be provided, certain information to a registered swap data repository or, if no registered swap data repository is available, to the CFTC, including notice of the election of the exception, the identity of the electing counterparty to the swap, and whether the swap is used by the BHC or SLHC to hedge or mitigate commercial risk.

2. Federal Banking Agencies Issue Proposed Rules for 18-Month Exam Cycle

The FDIC, Federal Reserve and OCC have jointly proposed rules to implement section 83001 of the Fixing America's Surface Transportation Act (“FAST Act”), which permits the agencies to examine qualifying insured depository institutions with less than $1 billion in total assets on an 18-month examination cycle rather than a 12-month examination cycle. Prior to enactment of the FAST Act, the 18-month examination cycle was available only to qualifying institutions with less than $500 million in total assets. The interim final rules generally would allow well capitalized, well managed institutions with less than $1 billion in total assets and that have a composite CAMELS rating of “1” or “2” to benefit from the extended 18-month examination cycle. A depository institution that is currently subject to a formal enforcement proceeding or order by its primary federal banking regulator would not be eligible for the extended examination cycle. The FDIC Board of Directors voted to approve the rules at its meeting held on January 21, and Comptroller of Currency Thomas J. Curry announced during the meeting that he had approved identical rules for institutions supervised by the OCC. If the Federal Reserve also approves the proposed rules, they would become immediately effective as an interim final rule when published in the Federal Register. The Federal Deposit Insurance Act (“FDI Act”) and the proposed rules permit an agency to conduct an on-site examination of an institution more frequently than once every 18 months if the agency determines it would be necessary or appropriate.

    Nutter Notes: Until the joint interim final rule becomes effective, depository institutions with between $500 million and $1 billion in total assets only qualify for the extended 18-month examination cycle if they have a composite CAMELS rating of “1” and meet the other qualifying criteria. Section 83001 of the FAST Act amended section 10(d) of the FDI Act to expand the asset threshold for eligibility for the extended examination cycle from $500 million to $1 billion in total assets. Prior to that amendment, section 10(d) of the FDI Act made the extended 18-month examination cycle available to qualifying depository institutions with less than $500 million of total assets and a composite CAMELS rating of “1,” and to depository institutions with less than $100 million of total assets and a composite CAMELS rating of “1” or “2.” Section 10(d) of the FDI Act also granted the federal banking agencies discretion to allow 2-rated institutions with between $100 million and $500 million in total assets to become eligible for the extended examination cycle. Each federal banking agency has exercised that discretion and issued rules expanding the extended examination cycle to 2-rated institutions with between $100 million and $500 million in total assets. The agencies have not yet revised their rules to expand the extended examination cycle to 2-rated institutions with between $500 million and $1 billion in total assets. The FDI Act and the proposed rules permit an agency to conduct an on-site examination of an institution more frequently than once every 18 months if the agency determines it would be necessary or appropriate.

3. Division of Banks Issues Guidance on Updates to Right to Cure Notices Requirements

The Massachusetts Division of Banks has issued guidance in the form of answers to frequently asked questions (“FAQs”) regarding the January 2016 updates to the form of written notice of a right to cure a payment default under a residential mortgage loan required by Massachusetts law. The right to cure a payment default under a residential mortgage was reduced from a period of 150 days to 90 days effective as of January 1. The FAQs advise that a mortgagee must provide a written notice of the right to cure to the mortgagor at least 90 days before accelerating the unpaid balance of the mortgage or otherwise proceeding with a foreclosure due to a payment default. The Division has also provided an example of an acceptable form of the text of the right to cure notice with the FAQs. The Division also said that it is in the process of drafting proposed amendments to 209 CMR 56.00, which implements the right to cure law, which will include an updated version of the form of right to cure notice that will be mandatory when it becomes effective. The FAQs also advise that a mortgage servicer, or any entity authorized to act on behalf of the mortgagee, may issue the right to cure notice to the mortgagor. The Division’s FAQs can be found here.

    Nutter Notes: Additional sunset provisions in the right to cure law that became effective on January 1 will also require revisions to the notice of the right to request a modified mortgage loan required by Massachusetts law. The reduction of the notice period for the right to cure a payment default under a residential mortgage loan from 150 days to 90 days also applies to individuals who are identified as “Certain Mortgage Loan” borrowers under Chapter 244, Section 35B(a) of the General Laws of Massachusetts. “Certain Mortgage Loans” are generally residential mortgage loans with specified features such as a teaser rate, interest-only payments (other than an open-end home equity line of credit), negative amortization, limited or no documentation of the borrower’s income or assets, certain prepayment penalties or loans meeting certain loan-to-value criteria. The FAQs instruct mortgagees to update the Right to Request a Modified Mortgage Loan Notice and the accompanying Mortgage Modifications Options Form required by that law to notify the borrower of the 90-day right to cure and eliminate references to a 150-day period to cure a payment default to eliminate potential confusion. The Division’s current rule implementing those notice requirements is found at 209 CMR § 56.09. An example of the updated form of Right to Request a Modified Mortgage Loan Notice is included with the FAQs.

4. GAO Reports on Compliance Burdens and Other Effects of Dodd-Frank Act Regulations

The U.S. Government Accountability Office (“GAO”) has issued a report concluding that the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) has increased regulatory compliance burdens on community banks and may be having a negative impact on the availability of certain types of consumer credit. The report published on December 30 examined nine Dodd-Frank Act rules that were effective as of October 2015 for their impact on community banks and credit unions, including the integrated mortgage disclosure rules, the Ability-to-Repay and Qualified Mortgage rules under the Truth in Lending Act, and others. The GAO report said that community banks and industry associations interviewed by the GAO have reported increases in staff, training and time allocation for regulatory compliance and updates to compliance systems necessary as a result of the nine Dodd-Frank Act rules that were examined. Some industry officials also reported to the GAO a decline in certain business activities, such as extending home mortgage loans that are not Qualified Mortgages, due to concerns about litigation or inability to sell such loans to secondary market purchasers. The GAO concluded that there have been “moderate to minimal initial reductions in the availability of credit” among the institutions surveyed and that “regulatory data to date have not confirmed a negative impact on mortgage lending.” However, the GAO also said that the results of the study do not rule out the possibility that Dodd-Frank Act rules have had a significant effect on the availability of certain types of consumer credit or the possibility that effects may arise in the future. A copy of the full GAO report is available here.

    Nutter Notes: The Dodd-Frank Act includes a provision requiring the GAO to study various implementing regulations annually. The GAO said that federal financial regulators are also in the process of conducting retrospective analyses of Dodd-Frank Act rules on smaller financial institutions. The GAO reported that it has developed indicators “associated with resources used to comply with regulations and with business lines that may be affected by Dodd-Frank Act regulations” that the GAO will use as baselines for monitoring future trends in the impact of the regulations. For example, the GAO said that its indicators suggest that home mortgage loans as a percentage of total assets have generally increased for banks of all sizes, though they have decreased for larger credit unions. These changes may reflect factors other than the influence of Dodd-Frank Act implementing regulations, including fluctuations in consumer demand for credit. According to the GAO report, the full impact of the Dodd-Frank Act remains uncertain because some rules have not yet been implemented and not enough time has passed to evaluate others.

5. Other Developments: FHLB Membership, BSA-AML Liability and Deposit Insurance Assessments

• FHFA Drops Minimum Mortgage Levels from Revised FHLB Membership Criteria

The Federal Housing Finance Agency (“FHFA”) issued a final rule amending its regulation on Federal Home Loan Bank (“FHLB”) membership requirements on January 12. The final rule does not include provisions inserted into the 2014 proposed rule that would have required FHLB members to maintain ongoing minimum levels of investment in specified residential mortgage assets as a condition of remaining eligible for membership. A copy of the final rule is available here. 

    Nutter Notes: The final rule does include a provision from the 2014 proposal that defines “insurance company” to exclude so-called “captive insurers,” which will prevent non-eligible entities from gaining de facto FHLB membership through a captive insurer. The final rule will become effective 30 days after it is published in the Federal Register.

• Federal Court Rules That Officers May Be Personally Liable for BSA-AML Violations

A U.S. District Court in Minnesota ruled on January 8 that a civil penalty may be imposed on corporate officers and employees who are responsible for designing and overseeing a financial institution’s Bank Secrecy Act/Anti-Money Laundering (“BSA-AML”) compliance program. The decision resulted from a U.S. Treasury enforcement action against the chief compliance officer of a non-bank financial institution based on his alleged willful failure to ensure that the institution implemented and maintained an effective BSA-AML program and filed timely suspicious activity reports.

    Nutter Notes: Although the Minnesota federal court’s decision is not binding on federal courts in Massachusetts and did not involve a bank, a federal court in Massachusetts could choose to follow the Minnesota precedent in any case involving a BSA-AML enforcement action brought against an individual bank official responsible for BSA-AML compliance involving similar facts and circumstances. 

• FDIC Reissues Proposed Rule Refining Deposit Insurance Assessments for Small Banks

The FDIC on January 21 released a new proposal that revises a 2015 proposed rule that would refine the deposit insurance assessment system for small insured depository institutions (generally, those with less than $10 billion in total assets). Among other changes, the new proposal would revise the previously proposed one-year asset growth measure. A copy of the proposed rule is available here.

    Nutter Notes: The new proposal would also use a brokered deposit ratio, rather than the previously proposed core deposit ratio, as a measure in the financial ratios method for calculating assessment rates for all established small banks. Comments on the proposal are due within 30 days after it is published in the Federal Register.

Nutter Bank Report

Nutter Bank Report is a monthly electronic publication of the Banking and Financial Services Group of the law firm of Nutter McClennen & Fish LLP. Chambers and Partners, the international law firm rating service, after interviewing our clients and our peers in the profession, has ranked Nutter’s Banking and Financial Services practice among the top banking practices in the nation. Visit the U.S. rankings at ChambersandPartners.com. The Nutter Bank Report is edited by Matthew D. Hanaghan. Assistance in the preparation of this issue was provided by Bridget L. Vellucci. The information in this publication is not legal advice. For further information, contact:

Kenneth F. Ehrlich
kehrlich@nutter.com
Tel: (617) 439-2989

Michael K. Krebs
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Tel: (617) 439-2288

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.