State-chartered banks lending to Iowa residents will want to take note of an Assurance of Discontinuance entered into in December between the State of Iowa and an out-of-state bank to settle claims that the bank charged usurious rates of interest to Iowa consumers. The settlement also highlights the Iowa Attorney General’s interpretation of the state’s opt-out from the federal Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) — with the potential to impact loan eligibility parameters and enforcement risk for state-chartered banks and programs doing business in Iowa. Mayer Brown’s Legal Update provides further detail.

While many around the world are setting their calendars forward for the year 2023, residential mortgage loan owners and servicers may need to also look backward in time now that New York Governor Kathy Hochul signed the so-called “Foreclosure Abuse Prevention Act” (S5473) into law on December 30, 2022. The new law, which takes effect immediately, threatens to significantly constrain the ability of lenders, servicers and investors to efficiently prosecute foreclosure actions and potentially jeopardizes their ability to recover their mortgage debt with respect to not only foreclosures initiated after the law took effect but also foreclosure actions which were pending as of December 30. For mortgage industry participants, Mayer Brown’s Legal Update summarizes key provisions of the new law and notes how we expect industry groups and stakeholders to react in 2023.

Small business lenders hoping for federal intervention will be disappointed to learn that the Consumer Financial Protection Bureau (“CFPB”) has reached a preliminary determination that New York’s new commercial financing disclosure law is not preempted by the federal Truth in Lending Act (“TILA”). The CFPB’s public notice indicates that it initially takes the same view on similar laws recently enacted in California, Utah and Virginia—that these state laws are not preempted by TILA because they do not apply to the same types of transactions regulated by TILA. Mayer Brown’s Legal Update provides background and further detail on the CFPB’s initial determination and notes next steps for industry.

The Fifth Circuit recently ruled that the Consumer Financial Protection Bureau’s (CFPB) funding structure is unconstitutional, casting doubt on all of the agency’s actions. But the CFPB is as active as ever. Mayer Brown lawyers Ori Lev, Chris Leach and Christa Bieker discuss the Fifth Circuit’s ruling and its implications as well as the agency’s recent policy, enforcement, and supervisory activities.

Continue Reading CFPB Update—Constitutional Crisis or Business as Usual?

Utah has followed California and New York by enacting its own Truth in Lending-like commercial financing disclosure law, but with an additional twist—Utah’s new law has a registration requirement. On March 24, Utah Governor Spencer Cox signed SB 183 into law, with an effective date of January 1, 2023. We discuss how this new law fits into the recent trend of states enacting commercial financing disclosure laws, the companies that are subject to and exempt from the Utah law, the law’s registration obligation, the disclosures that a commercial financer must provide before consummating a transaction, and additional details and takeaways in Mayer Brown’s Legal Update.

Marketplace lender Opportunity Financial, LLC (“OppFi”) has gone on the offensive against the California Department of Financial Protection and Innovation (“DFPI”) to protect its bank partnership program against challenge on a “true lender” theory. On March 7, 2022, OppFi filed suit against the DFPI to ask the state court to declare that FinWise Bank, a Utah-chartered bank, is the true lender of loans facilitated through OppFi’s online platform and funded by the bank. Read more about OppFi’s action and other recent activity on the true lender front at the federal and state level in Mayer Brown’s Legal Update.

In December 2021 the Financial Accounting Standards Board (“FASB”) and the International Accounting Standards Board (“IASB”) released their proposed amendments to their accounting standards that will require buyers of goods/services who use supplier finance programs/arrangements[1] in respect of their payables to disclose key terms of those supplier finance programs in their financial statements.

Continue Reading Our Views on the Proposed FASB and IFRS Payables Reporting Rules

The Securities and Exchange Commission (“SEC”) recently implemented amendments to most fee-bearing forms and related rules with a stated goal of modernizing filing fee disclosure and enhancing the validation speed and accuracy of filing fee amounts. Most of the rule changes went into effect on January 31, 2022, and directly affect shelf registration statement filings and prospectus filings made after such date.

Continue Reading SEC Adopts Amendments to Change the Format and Procedure on Filing Fee Disclosures

Earlier this week, the Consumer Financial Protection Bureau (“CFPB”) won an important court ruling in a long-running case against student loan securitization trusts. The case has a long (and for the CFPB, somewhat ignoble) history. The CFPB first filed suit against 15 Delaware statutory student loan securitization trusts (the “Trusts”) in September 2017. The complaint alleged that the Trusts, through the actions of their servicers and sub-servicers, engaged in unfair and deceptive debt collection and litigation practices. Along with the complaint, the CFPB filed a purported consent judgment that the CFPB represented to the Court had been executed by the defendants. As we’ve previously discussed, in an embarrassing setback, the district court denied the CFPB’s motion to enter the consent judgment, finding that the attorneys who executed it on behalf of the defendant Trusts were not authorized to do so by the proper trust parties (and that, with respect to at least some of the Trusts, the CFPB knew that the proper parties had not consented). The CFPB was therefore left to litigate a case that it thought it had settled. Subsequently, after the Supreme Court held that the CFPB’s structure was unconstitutional because it was headed by a single director removable by the President only for cause, the district court dismissed the CFPB’s case without prejudice, holding that the CFPB did not have the power to bring the case when it did due to its structural defect. We discussed that ruling here.

Continue reading on Mayer Brown’s Consumer Financial Services Review blog.

 

As we discussed in a previous post, last October the Financial Accounting Standards Board (“FASB”) added the development of guidance on disclosure requirements with respect to trade payables programs to their agenda.  At the same meeting, FASB explicitly decided not to address the issue of how trade payables programs should be characterized for accounting purposes – a separate issue from disclosure that may be taken up by FASB in the future.

In the year since FASB voted to take up the issue of disclosure requirements for trade payables programs, the most significant development was the June 2021 decision to include in FASB’s draft proposal a requirement that companies with payables programs disclose the key terms of the programs, the total confirmed amounts payable under the programs and a description of where those amounts are presented in the balance sheet.  This is intended by FASB to provide investors with a broader view of certain companies’ liquidity positions.

At a board meeting on September 22nd, FASB took another step forward, voting in favor of a requirement that companies utilizing trade payables programs include a roll-forward of amounts confirmed under those programs in their annual disclosures. However, the board voted against developing any specific disclosure requirements for interim reporting periods.

The next step in the process is expected to be for FASB to develop a draft proposal setting forth in detail their proposed disclosure requirements, which is anticipated before the end of 2021.  A 90-day public comment period will follow the release of the draft proposal, after which FASB will develop its final guidance.  Given the longstanding and extensive use of payables programs by many large corporations, no doubt industry watchers will keep a close eye on FASB’s next moves related to payables programs.