Rules and Regulations

CFPB Proposes Mortgage Servicing Changes to Prevent Wave of COVID-19 Foreclosures

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On April 5, the Consumer Financial Protection Bureau (CFPB) proposed rule changes intended to prevent avoidable foreclosures as emergency federal foreclosure protections put in place due to the global pandemic expire. The rules aim to assist both borrowers and servicers to navigate an expected surge of borrowers exiting forbearance. The proposed rules (1) provide a pre-foreclosure review period that generally prohibits servicers from starting foreclosure until after December 31, 2021; (2) permit servicers to offer certain streamlined loan modification options to borrowers with COVID-19-related hardships based on the evaluation of an incomplete application; and (3) update required servicer communications to keep borrowers informed of their options. Release.

OCC, FDIC and CFPB Issue Final Rule on Role of Supervisory Guidance

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On January 19, the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC) and the Consumer Financial Protection Bureau (CFPB) published a final rule regarding the role of supervisory guidance for regulated institutions. The final rule provides that unlike a law or regulation, supervisory guidance does not have the force and effect of law, and that the Agencies will not take enforcement actions or issue supervisory criticisms based on non-compliance with supervisory guidance. The final rule provides that the proper role of supervisory guidance is to outline supervisory expectations and priorities, or articulate views regarding appropriate practices for a given subject area. FDIC Release. OCC Release. Final Rule.

CFPB Issues Final Rule on Higher-Priced Mortgage Loan Escrow Exemption

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On January 19, the CFPB issued a final rule exempting certain insured depository institutions and insured credit unions from the requirement to establish escrow accounts for certain higher-priced mortgage loans (HPMLs). The final rule exempts from the HPML escrow requirement any loan made by an insured depository institution or insured credit union and secured by a first lien on the principal dwelling of a consumer if (1) the institution has assets of $10 billion or less; (2) the institution and its affiliates originated 1,000 or fewer loans secured by a first lien on a principal dwelling during the preceding calendar year; and (3) certain of the existing HPML escrow exemption criteria are met. Final Rule.

OCC Issues Final Rule Regarding Regulatory Capital Treatment of Total Loss-Absorbing Capacity Investments

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On January 6, the OCC issued a final rule that applies to Category I and II banking organizations (advanced approaches banks), which include banking organizations and their subsidiary banks that have at least $700 billion in total consolidation assets, or $100 billion or more in total consolidated assets and $75 billion or more in cross-jurisdictional activities. The final rule requires deduction from advanced approaches banks’ regulatory capital for investments in certain unsecured debt instruments issued by bank holding companies subject to the Federal Reserve Board’s total loss-absorbing capacity and long-term debt requirements. Bulletin.

SEC Proposes Amendment to Rule 144

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On December 22, the SEC proposed to amend Rule 144. Among other things, the amendment would revise the holding period determination to the date of acquisition upon the conversion or exchange for market-adjustable securities acquired on the conversion or exchange of certain securities of issuers that do not have securities listed on a national securities exchange. The amendment would also require electronic filing of Form 144 and would eliminate the requirement to file Form 144 for resales of securities of issuers that are not subject to Exchange Act reporting. The public comment period will be open for 60 days following the publication of the proposed rule in the Federal Register. Release.

CFPB Issues Two Final Rules to Promote Access to Responsible, Affordable Mortgage Credit

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On December 10, the Consumer Financial Protection Bureau (CFPB) issued two final rules related to qualified mortgage (QM) loans. The first final rule, the General QM Final Rule, replaces current requirements for measuring a consumer’s ability to repay General QM loans based on the consumer’s debt-to-income ratio, and instead adopts a price-based approached. The second final rule creates a new category called “Seasoned QMs” for first-lien, fixed-rate covered transactions that have met certain performance requirements, are held in portfolio by the originating creditor or first purchaser for a 36-month period, comply with general restrictions on product features and points and fees, and meet certain underwriting requirements. Release.

Federal Housing Finance Agency Announces Final Capital Rule for the Enterprises

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On November 18, the Federal Housing Finance Agency (FHFA) sent for publication a final rule that establishes a new regulatory capital framework for Fannie Mae and Freddie Mac (the “Enterprises”). The final rule fulfills Congress’s Housing and Economic Recovery Act of 2008 mandate that FHFA establish risk-based capital requirements for the Enterprises. Release.

CFTC Unanimously Approves Final Rule for Granting Exemptions from Derivatives Clearing Organization Registration

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On November 18, the Commodity Futures Trading Commission (CFTC) unanimously approved a final rule establishing a framework for the Commission to grant an exemption from registration as a derivatives clearing organization (DCO) to a clearing organization organized outside of the United States for the purpose of clearing proprietary swap transactions for U.S. persons. Section 5b(h) of the Commodity Exchange Act permits the CFTC to exempt a non-U.S. clearing organization from registration for clearing swaps if the CFTC determines that the clearing organization is subject to comparable, comprehensive supervision and regulation by its home country authorities. Therefore, financial institutions may have more options for central clearing counterparties to clear swaps that they enter into that are subject to a clearing mandate by the CFTC – namely, derivatives clearing organizations organized outside of the U.S., so long as the CFTC determines that they are subject to comparable, comprehensive supervision and regulation by the relevant local authorities in the jurisdiction of their organization. Final Rule.

CFTC Unanimously Approves Final Rule Amending Swap Execution Facility Requirements

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On November 18, the CFTC unanimously approved a final rule amending certain parts of its regulations relating to the execution of “package transactions” on swap execution facilities (SEFs) and the resolution of error trades on SEFs. The final rule amends part 37 of CFTC regulations to allow the swap components of certain categories of package transactions to be executed on SEF but through flexible means of execution rather than through the required methods of execution for “required transactions.” Release.

CFTC Approves Final Rule Exempting Certain Swaps from Swap-Clearing Requirements

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On November 2, the Commodity Futures Trading Commission (CFTC) approved a final rule exempting swaps entered into by certain financial institutions from the CFTC’s swap-clearing requirement under the Commodity Exchange Act (CEA). The exemption applies to swaps entered into by certain central banks, sovereign entities, international financial institutions, bank holding companies, savings and loan holding companies and community development financial institutions. Release.