All in Regulatory Update

On May 1, 2023, the CFPB issued a proposed rule to implement a Congressional mandate to establish consumer protections for residential Property Assessed Clean Energy (PACE) loans. The proposed rule would require lenders to assess a borrower’s ability to repay a PACE loan and would provide a framework for how these loans will be treated under the Truth in Lending Act. 

On April 28, 2023, the CFPB issued an interim final rule amending the agency’s 2021 LIBOR transition rule. The interim final rule contains updates to reflect the subsequent enactment of the Adjustable Interest Rate (LIBOR) Act and issuance of an implementing regulation by the Board of Governors of the Federal Reserve Board System. This interim final rule will further facilitate the orderly transition of those consumer loans that currently use the LIBOR index to other indices in anticipation of the planned cessation U.S. Dollar (USD) LIBOR after June 30, 2023.

On April 28, 2023, Freddie Mac announced that starting June 29, 2023, Loan Collateral Advisor will include new feedback messages​pdf to alert users when certain prohibited, subjective or potentially biased words or phrases are included in appraisal reports submitted to Freddie Mac through the Uniform Collateral Data Portal. This insight is intended to help users identify potential issues and to assist in compliance with Freddie Mac Single-Family Seller/Servicer Guide requirements.

On April 26, 2023, the OCC issued a bulletin to banks to address the risks associated with overdraft protection programs. According to the OCC, overdraft protection programs can present a variety of risks, including compliance, operational, reputation, and credit risks. The bulletin discusses certain practices that may present heightened risk of violating prohibitions against unfair or deceptive acts or practices.

On April 26, 2023, the FDIC issued a supervisory guidance to its supervised institutions to ensure that supervised institutions are aware of the consumer compliance risks associated with assessing overdraft fees on a transaction that was authorized against a positive balance but settled against a negative balance (APSN). The guidance also clarifies that disclosures describing transaction processing may not mitigate the said risks.

On April 26, 2023, the CFPB issued guidance on debt collectors, covered by the Fair Debt Collection Practices Act, threatening to foreclose on homes with mortgages past the statute of limitations. The advisory opinion clarifies that a covered debt collector who brings or threatens to bring a state court foreclosure action to collect a time-barred mortgage debt may violate the Fair Debt Collection Practices Act and its implementing regulation.

On April 25, 2023, four federal agencies issued a joint statement reiterating their commitment to enforce fairness, equality, and justice as the emerging use of automated systems, including those sometimes marketed as “artificial intelligence” or “AI,” have impacted  civil rights, fair competition, consumer protection, and equal opportunity. The Civil Rights Division of the United States Department of Justice, the Consumer Financial Protection Bureau, the Federal Trade Commission, and the U.S. Equal Employment Opportunity Commission released the joint statement outlining their enforcement efforts to protect the public from bias in automated systems and artificial intelligence.