Headlines
1. Final Massachusetts Rules Require Right-to-Cure Mortgage
Default Notification
2. Federal Banking Agencies Issue Answers to FAQs on Interest Rate
Risk Advisory
3. FDIC Moves Forward with New Dodd-Frank Requirements for Large
Banks
4. New CFPB Rule Implements Dodd-Frank Consumer Protections for
Remittance Transfers
5. Other Developments: Loan Participations and Information
Security
1. Final Massachusetts Rules Require Right-to-Cure Mortgage Default Notification
The Division of Banks issued final rules to implement a
Massachusetts law enacted in 2010 that provides a standardized
process for lenders and servicers to inform a borrower of a
mortgage default and to disclose repayment options in order to
prevent a foreclosure. The law, Chapter 258 of the Acts of 2010,
requires that notice be provided to residential borrowers in
default of a right to cure the default. The right-to-cure
regulation, 209 CMR 56.00, establishes the mandatory form of the
right-to-cure notice as well as the information required to be
included in the notice, procedures to determine whether a 150-day
notice or a 90-day notice is required and the method of delivery of
the notice. The regulation also allows a borrower to request from
the entity foreclosing on the mortgage documentation evidencing
that it is the holder of the mortgage or is authorized by the
holder of the mortgage to foreclose. The regulation becomes
effective on February 3, but use of the form of right-to-cure
notice contained in the regulation will be voluntary until April
23, 2012. Use of the right-to-cure notice will become mandatory on
April 23, 2012.
Nutter Notes: Chapter 258 of the
Acts of 2010 amended the existing right-to-cure provisions of
Chapter 244, Section 35A of the General Laws of Massachusetts to
provide a mortgagor of a residential property with 150 days to cure
a default of a required payment by full payment of all amounts that
are due without acceleration of the maturity of the unpaid balance
of the mortgage. The law provides that a creditor may begin
foreclosure proceedings after a right-to-cure period lasting only
90 days if the creditor has engaged in a good faith effort to
negotiate a commercially reasonable alternative to foreclosure,
including at least one meeting with the borrower in person or by
telephone. The law also requires that, to establish that a creditor
has made a good faith effort to negotiate a commercially reasonable
alternative to foreclosure, the creditor must consider, among other
factors, an assessment of the borrower's current circumstances,
and the net present value of receiving payments pursuant to a
modified mortgage loan as compared to the anticipated net recovery
following foreclosure. The creditor is required to provide
documentation of that effort to the borrower 10 days prior to
meeting the borrower.
2. Federal Banking Agencies Issue Answers to FAQs on Interest Rate Risk Advisory
The federal banking agencies have issued interpretive guidance
on interest rate risk management through the Federal Financial
Institutions Examination Council ("FFIEC"). The January
12 guidance responds to frequently asked questions
("FAQs") about the Interagency Advisory on Interest Rate
Risk published on January 11, 2010. According to the guidance,
interest rate risk management processes and measurement systems
should be capable of capturing, reporting and controlling the risks
being taken including risks arising from major new initiatives by a
banking organization. The guidance recommends that institutions
stress test interest rate risk exposures using scenarios that
include meaningful interest rate shocks. According to the Federal
Reserve, the advisory and the FAQs are intended for use by
depository institutions, holding companies and the agencies'
examiners as they assess an institution's management of
interest rate risk. While the questions and answers are applicable
to all institutions, the Federal Reserve noted that many of the
questions originated from community banking organizations.
According to the FFIEC, examiners will take into account a banking
organization's size, nature, and balance sheet complexity when
applying the guidance.
Nutter Notes: For stress testing,
the guidance suggests that "meaningful" interest rate
shocks in a low-rate environment would be +300 and +400 basis
points. The guidance recommends that institutions test more severe
scenarios if conditions warrant. Stress testing should ensure that
interest rate risk exposures are within risk tolerance levels.
According to the guidance, examiners will expect institutions to
measure the potential effect of changes in market interest rates on
earnings and capital. The guidance states that most institutions
should use income simulations when measuring risk-to-earnings and
that the economic-value-of-equity and similar models generally are
used to measure risk-to-capital. The guidance also says that
long-term simulations, which can supplement capital measures,
generally are not necessary for community institutions. The
guidance recommends that management perform simulations for one-
and two-year time horizons, conduct model measurements that do not
include new business growth, develop reasonable assumptions
reflecting the institution's experience, and perform
appropriate back-testing.
3. FDIC Moves Forward with New Dodd-Frank Requirements for Large Banks
The FDIC has issued a final rule requiring certain large insured
depository institutions to submit periodic contingency plans for
resolution in the event of the institution's failure and
proposed a rule that would require certain large insured depository
institutions to conduct annual capital-adequacy stress tests. The
final and proposed rules announced on January 17 were adopted under
Section 165 of the Dodd-Frank Wall Street Reform and Consumer
Protection Act ("Dodd-Frank Act"). The resolution plan
requirements under Section 165(d) of the Dodd-Frank Act apply to
institutions with $50 billion or more in total assets. According to
the FDIC, the purpose of the plans is to put the FDIC in a
position, as receiver, to resolve large institutions in a manner
that ensures that depositors receive access to their insured
deposits within one business day of an institution's failure
(or within two business days if the failure occurs on a day other
than a Friday), maximizes the net-present-value return from the
sale or disposition of its assets, and minimizes the amount of any
loss to be realized by the institution's creditors. The FDIC
said that it will use the plans to supplement but not replace the
FDIC's own resolution planning. The final rule for insured
depository institutions was preceded by an interim final rule
adopted in September 2011. The interim final rule became effective
on January 1, 2012 and will remain in effect until it is superseded
by the final rule, which becomes effective on April 1, 2012.
Nutter Notes: The proposed stress
testing rule would implement Section 165(i)(2) of the Dodd-Frank
Act, which requires certain large insured depository institutions
to conduct annual capital-adequacy stress tests. The OCC has issued
a companion proposal with the FDIC, and the proposed rules would
apply to national banks, state nonmember banks, and federal and
state savings associations with total consolidated assets of more
than $10 billion. The stress tests would provide forward-looking
information that the FDIC and OCC would use to assess the capital
adequacy of the banks covered by the rule. The FDIC said that the
banks subject to the stress testing requirements also are expected
to benefit from improved internal assessments of capital adequacy
and overall capital planning. The proposed rules define
"stress test" as a process to assess the potential impact
of economic and financial conditions on the consolidated earnings,
losses and capital of the bank over a set planning horizon, taking
into account the current condition of the bank and its risks,
exposures, strategies, and activities. The proposed rules also
describe the content of the reports the institutions are required
to publish, and the timeline for conducting the stress tests and
producing the required reports. Comments on the FDIC's proposed
rule are due by March 23, 2012. Comments on the OCC's proposed
rule are due by March 26, 2012.
4. New CFPB Rule Implements Dodd-Frank Consumer Protections for Remittance Transfers
The Consumer Financial Protection Bureau ("CFPB") has issued a final rule amending Regulation E (Electronic Fund Transfers) to increase protections for consumers who transfer money internationally. Under the new rule announced on January 20, remittance transfer providers, including banks, will generally be required to disclose the exchange rate and all fees associated with a transfer so that consumers know how much money will be received by the recipient of the transfer. The rule implements Section 1073 of the Dodd-Frank Act, which creates a comprehensive new system of consumer protections for remittance transfers sent by consumers in the United States to individuals and businesses in foreign countries. The rule also requires remittance transfer providers to investigate disputes and remedy errors. Disclosures must generally be provided when the consumer first requests a transfer and again when payment is made. Consumers will generally have 30 minutes after payment is made to cancel a transaction. The final rule will become effective one year after the date it is published in the Federal Register, which is expected shortly.
Nutter Notes: The CFPB said that consumers transfer tens of billions of dollars from the United States to recipients in other countries each year, but that these transactions were generally excluded from existing federal consumer protection regulations in the United States until the Dodd-Frank Act expanded the scope of the Electronic Fund Transfer Act ("EFTA"), which is implemented by the Federal Reserve's Regulation E. The Dodd-Frank Act transferred authority to implement new rules under the EFTA and Regulation E from the Federal Reserve to the CFPB in July 2011. The Dodd-Frank Act required that the remittance transfer regulations be issued by January 21, 2012. The Federal Reserve issued a proposed rule addressing remittance transfers in May 2011. In issuing the final rule, the CFPB said that it considered the Federal Reserve's proposed rule and comments that were received. The CFPB also announced a notice of proposed rulemaking to further refine application of the final rule to certain transactions and remittance transfer providers. The CFPB said that it expects to complete any further rulemaking before the end of the one-year implementation period of the final rule.
5. Other Developments: Loan Participations and Information Security
- OCC Confirms Lending Limit Relief for a Loan Participation That Is Not a GAAP Sale
The OCC released an interpretive letter in December that confirmed that a loan participation that meets certain requirements set forth in the OCC lending limit rule but does not qualify as a sale under applicable accounting standards nonetheless qualifies for lending limit relief. The interpretation was published in OCC Interpretive Letter #1134 (Aug. 2, 2011).
Nutter Notes: Under the OCC's lending limit participation rule, lending banks may obtain relief from the lending limit upon the sale of loan participations provided that the participations meet certain requirements set forth in the rule, including that there be a pro rata sharing of credit risk between the selling and participant banks.
- Grandfathering for Vendor Agreement Information Security Requirements to Expire
Under the Massachusetts information security regulations, vendor agreements entered into before March 1, 2010 must be amended to include requirements addressing written information security program requirements by March 1, 2012. The Massachusetts information security regulations generally require businesses including banks to contractually require vendors to implement and maintain certain security measures to protect personal information consistent with the regulations.
Nutter Notes: The Massachusetts information security regulations, 201 C.M.R. 17.00, became effective on March 1, 2010. The regulations temporarily grandfathered vendor agreements entered into before the effective date from the contractual requirements for a two-year period to allow time for the agreements to be amended in compliance with the regulations or superseded by contracts that include the required compliance provisions.
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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.