Rating Agency Developments

On May 18, 2016, Fitch issued a report entitled: Fitch: NSFR Rule Could Constrain Trust Banks’ Liquidity Position. Report.

On May 16, 2016, Fitch issued a report entitled: Fitch: Confidence in US Marketplace Lending ABS Takes a Hit. Report.

On May 12, 2016, Fitch issued a report entitled: Fitch Updates U.S. RMBS Seasoned and Re-Performing Loan Criteria. Report.

On May 12, 2016, Fitch issued a report entitled: Fitch Updates U.S. RMBS Loan Loss Model Criteria. Report.

On May 12, 2016, Fitch issued a report entitled: Fitch Publishes Revised EETC Criteria: Allows for Ratings in the ‘AA’ Category. Report.

Agencies Invite Comment on Proposed Rule to Prohibit Incentive-Based Pay that Encourages Inappropriate Risk-Taking in Financial Institutions

On May 16, 2016, six federal agencies – the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Federal Reserve Board of Governors, the National Credit Union Administration, the Office of the Comptroller of the Currency and the Securities and Exchange Commission – requested public comments on proposed rule that would “prohibit incentive-based compensation arrangements that encourage inappropriate risks at covered financial institutions.”  Comments must be submitted by July 22, 2016. Release.

U.S. Treasury Department Issues White Paper on Online Marketplace Lending Industry

On May 10, 2016, the Department of the Treasury issued a white paper on online marketplace lending that maps the current market landscape, reviews industry insights and offers policy proposals for the road ahead.  Based on approximately 100 responses from online marketplace lenders, financial institutions, investors and other key industry figures, the Treasury, in consultation with the CFPB, FDIC, Federal Reserve Board, FTC, OCC, SBA and SEC, made several notable recommendations and observations.

The white paper explores policies that would expand regulatory oversight, including standardized representations and warranties in securitizations, pricing methodology standards, the implementation of a registry for tracking data on transactions and the reporting of loan-level performance, among others.  In addition, the Treasury mentions potential cybersecurity threats, anti-money laundering, the uneven protections and regulations in place for small business borrowers and the growth of the mortgage and auto loan markets as some of the emerging trends to monitor.  The Treasury is also considering the role of federal agencies in regulating these areas, including the formation of an interagency working group for online market place lending.  Press ReleaseWhite Paper.

The SEC is Seeking Comment on a Joint Agency Proposed Rule Relating to Incentive-based Compensation Arrangements

On May 6, 2016, the Office of the Comptroller of the Currency, Treasury (OCC), the Board of Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation (FDIC), Federal Housing Finance Agency (FHFA), the National Credit Union Administration (NCUA), and the U.S. Securities and Exchange Commission (SEC) issued and sought comment on a joint proposed rule to implement section 956 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) relating to the prohibition on and the disclosure of information of incentive-based compensation arrangements.  The deadline for comments is July 22, 2016.  Notice of Proposed Rulemaking and Request for Comment.

U.S. Treasury Announces Customer Due Diligence Final Rule for Financial Institutions

On May 5, 2016, the U.S. Department of the Treasury announced a Customer Due Diligence (CDD) Final Rule that requires financial institutions to conduct certain diligence to verify personal information of beneficial owners of legal entity customers.  The final rule under the Bank Secrecy Act was published in the Federal Register on May 11, 2016 and becomes effective July 11, 2016.  Press ReleaseFinal Rule.

CFPB Proposes Prohibition on Mandatory Consumer Arbitration Clauses

On May 5, 2016, the Consumer Financial Protection Bureau (CFPB) issued and sought comment on proposed rules prohibiting mandatory arbitration clauses that deny groups of consumers their day in court.  Under the proposed rules, companies would be prohibited from putting mandatory arbitration clauses in new consumer contracts that would prevent consumers from bringing class actions.  Comments must be received on or before 90 days after publication in the Federal Register.  Press ReleaseProposed Rule.

FHFA Increases 2016 Multifamily Lending Caps

On May 4, 2016, the Federal Housing Finance Agency announced that it increased its 2016 multifamily lending caps for Fannie Mae and Freddie Mac from $31 billion to $35 billion.  The increase is based on growing estimates of the overall size of the multifamily finance market. Release.

Agencies Propose Net Stable Funding Ratio Rule

On May 3, 2016, the Federal Deposit Insurance Corporation, the Federal Reserve and the Office of the Comptroller of the Currency proposed a rule, the net stable funding ratio (the “NSFR”), to strengthen banks by requiring them to maintain a minimum level of stable funding relative to the liquidity of their assets, derivatives and commitments over a one-year period.  The most stringent of the NSFR’s requirements would apply to, among others, banking organizations with $250 billion or more in total consolidated assets.  The NSFR would become effective January 1, 2018.  ReleaseProposed Rule.

CFTC Amends Swap Portfolio Reconciliation Requirement

On May 2, 2016, the U.S. Commodity Futures Trading Commission approved a final rule to amend the swap portfolio reconciliation requirement.  Under CFTC Regulation 23.500(i), swap dealers and major swap participants were required to exchange all terms of swaps with their counterparties as part of the portfolio reconciliation exercise, but were only required to reconcile the material terms of swaps.  Amendments to the definitions of “portfolio reconciliation” and “material terms” now make it so that swap dealers and major swap participants need only exchange the material terms of swaps, so that the terms that are required to be exchanged are the same as those terms required to be reconciled.  Release.