ABA Dodd-Frank Tracker

ABA Comments on CFPB’s Servicing Proposal

2012-10-10T10:34:00.000-04:00

ABA wrote to the CFPB regarding proposed rules that would amend the mortgage servicing provisions of Regulation Z under the Truth in Lending Act (TILA) and Regulation X under the Real Estate Settlement Procedures Act (RESPA).

“ABA agrees that all borrowers deserve high-quality mortgage servicing. However, we are concerned about the scope of the proposal, whether it meaningfully advances consumer protection, and its potential implementation costs. We also have a number of comments regarding the specific requirements that the CFPB has proposed.”

ABA provided specific comments on the proposal in the areas of servicer diversity, cumulative impact, the small servicer exemption, compliance costs and effective date, and preemption. The letter also noted concerns regarding procedures and that not all of the proposed requirements are mandated by the Dodd-Frank Act.

Read the full letter.

Dodd-Frank Act Helping Community Banks?

2012-08-28T15:55:00.000-04:00

Treasury in a recent blog post attempted to explain how the Dodd-Frank Act has helped Main Street banks—community banks. The post states Treasury “recognizes that small banks were not the cause of the financial crisis,” and attempts to explain how new regulations “level the playing field” for community banks.

Read Treasury’s post here.

ABA has identified multiple issues facing community banks that have stemmed from the Dodd-Frank Act, including the following:

Capital Requirements
The Creation of the Another Regulatory Supervisor: CFPB
FDIC Coverage and Assessment Base Changes
Mortgage Finance Changes
Housing: QM and QRM Changes
Interchange Restrictions
Municipal Advisors Regulations
The Merger of OTS into OCC
Preemption Changes
Changes for Savings and Holding Companies
New Swap Regulations
Volcker Rule

These issues are discussed in the ABA online booklet—“Dodd-Frank and Community Banks: Your Guide to 12 Critical Issues.”

Download the free guide.

Thousands Download ABA Dodd-Frank Guide

2012-02-24T12:30:00.000-05:00

Bankers have downloaded more than 6,000 copies of “Dodd-Frank and Community Banks: Your Guide to 12 Critical Issues” -- ABA’s latest free resource to help bankers understand and manage Dodd-Frank Act provisions.

The guide describes 12 key DFA issues that are expected to see action in 2012, explains why they matter and offers ways bankers can get involved in order to influence the outcome. A hard copy of the guide was mailed earlier this month to all banks with less than $10 billion in assets.

Download the guide.

Federal Judge: Dodd-Frank Made No Material Change to Pre-emption Standard

2011-09-21T14:07:00.002-04:00

The U.S. District Court for the Southern District of Iowa has ruled that the Dodd-Frank Act made no material change to standards governing federal pre-emption and that the National Bank Act and OCC regulations pre-empt Iowa payment processing rules.

The decision was handed down Aug. 29 and released on Sept. 19.

The case -- U.S. Bank, N.A. v. Schipper -- involved an Iowa law that required state banks to use state-approved and -regulated “central routing units” to authorize ATM transactions with ATM units not owned or operated by the bank.

U.S. Bank argued that under the National Bank Act and OCC regulations it has the authority to provide such services to state banks, and that the Iowa regulators impermissibly interfered with this power. The state regulators argued that the Dodd-Frank Act amendment to the National Bank Act “raised the standard” for National Bank Act pre-emption.

U.S. District Court Judge James Gritzner dismissed that argument in a footnote. The Dodd-Frank Act “did not materially alter the standard for pre-emption that the court must apply in this case,” he said.

Legal experts say that the ruling is the second federal decision to hold that Dodd-Frank has only a minimal effect on federal pre-emption.

See the ruling.

OCC Finalized Dodd-Frank Rule on OTS Authorities and Preemption

2011-07-20T17:31:00.000-04:00

The OCC issued a final rule implementing Dodd-Frank’s transfer of authorities from the OTS, as well as revisions to the OCC’s preemption rules.

The OCC assumes regulatory authority of federal savings associations on July 21. The rule includes an amendment that, following a transition period, establishes a single assessment system for all OCC-regulated institutions.

The OCC also provided clarity on the applicability of the federal preemption rules.

ABA’s chief counsel Kenneth Clayton commented:

In addition to assisting consumers, the OCC’s action closely adheres to the direction of Congress.

Policymakers directed the agency to tighten its process for preemption decisions, modify where preemption applies in certain circumstances, and – most importantly – maintain the fundamental principles of preemption that have been the basis for uniform regulation of national banks for close to 150 years.

See the OCC’s final rule and press statement.
See Clayton’s full comments.

Carper & Warner Reject Treasury’s Interpretation of Preemption

2011-07-08T10:03:00.000-04:00

Sen. Tom Carper and Sen. Mark Warner, the authors of Dodd-Frank's preemption amendment, have drafted a letter to Treasury Secretary Geithner expressing surprise and disappointment at the Treasury’s interpretation of the provision.

Earlier this month, in opposition to the OCC and the ABA, the Treasury said Dodd-Frank’s preemption provision does not uphold the Barnett standard.

Carper and Warner disagreed and clarified the intent of their amendment saying:

Our amendment maintaining the Barnett standard passed the Senate by an overwhelming vote of 80 to 18. Both the language of the final law and its legislative history clearly demonstrate that the Barnett standard is maintained, and the Treasury position in this comment process was, in fact, rejected by Congress.

Congress wished to provide “certainty” on the issue of the preemption standard. If the Treasury position were to be adopted, there would be great uncertainty as to what the new standard would mean.

See the letter.

Neugebauer Concerned with Treasury Over Preemption

2011-07-05T13:06:00.001-04:00

House Financial Services Oversight Subcommittee Chairman Randy Neugebauer (R-TX) wrote to Treasury Secretary Timothy Geithner last week to state concerns with Treasury’s influencing of OCC’s rulemaking on preemption.

“We seek assurances that the Treasury has permitted the OCC to act independently in the rulemaking for this and all provisions of the Dodd-Frank Act,” Chairman Neugebauer wrote.

Neugebauer requested that Treasury send him, by July 15, all relevant documents and communications from Treasury and Consumer Financial Protection Bureau staff on the OCC preemption rule.

In late June, the Treasury questioned the OCC’s interpretation of preemption in light of Dodd-Frank language.

See Neugebauer's letter.

House Fin. Serv. Dems Request Longer Preemption Comment Period

2011-07-01T11:30:00.000-04:00

Five senior Members of the House Financial Services sent a letter to the OCC requesting an extension to the comment period for the proposed rule on preemption and visitorial powers for national banks for at least 60 days.

Barney Frank, Carolyn Maloney, Luis Gutierrez, Mel Watt and Brad Miller wrote that the original 30-day comment period was "insufficient to foster a meaningful and balanced exchange of views between the OCC and other interested parties."

Barney Frank commented:

I think an Acting Comptroller should not set rules of this importance. These rules should not be finalized until a permanent head of the OCC is in place.

See the letter.

Treasury, State AG's Criticize OCC Preemption Proposal

2011-06-29T11:56:00.001-04:00

Both the Treasury and a collection of all state Attorneys General clarified their opposition yesterday to the OCC's preemption proposal, which would leave the current Barnett standard intact. Both letters take the position that the OCC reading of Dodd-Frank expands beyond the Barnett standard.

ABA supports the OCC's proposal.

Read Treasury's letter.
Read the state Attorneys General's letter.

ABA Backs OCC on Pre-emption Standard Under Dodd-Frank

2011-06-28T09:08:00.000-04:00

ABA expressed support for the OCC’s conclusion that the Dodd-Frank Act codifies the pre-emption standards articulated in the Barnett Bank case.

“Without such guidance, national banks and many state banks will not have the necessary certainty regarding the applicability of State laws to their operations.

Banks and savings associations that make the wrong “guess” could be subject to significant regulatory and litigation liability.”

Further, ABA appreciates the OCC’s efforts to provide a transition period from the OTS to the OCC assessment schedule.

For the first two assessment cycles, savings associations will pay the lesser of the OCC assessment schedule and the former OTS schedule. The ABA recommends that during the transition period the OCC report the assessment total under the different methodologies so the institutions can prepare for an increase if expected.

Read the letter.
See the proposal.

ABA Files Amicus Brief on Preemption Case

2011-06-17T10:54:00.002-04:00

ABA filed an amicus brief last week at the Fourth Circuit arguing that National Bank Act preempts Maryland post-repossession notice statute. ABA argued that the Dodd Frank Act did not fundamentally change the longstanding analysis regarding the preemptive effect of the National Bank Act and the OCC’s regulations.

The first court to construe the affect of Dodd Frank on National Bank Preemption, the United States Court of Appeals for the Eleventh Circuit, had little difficulty in concluding that the Dodd-Frank Act’s express incorporation of the Barnett standard does nothing more than designate conflict preemption as the appropriate method of analysis.

Read the amicus brief.

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OCC Issues Proposal Transferring OTS Authorities, Preemption Changes, Assessments

2011-05-25T16:10:00.001-04:00

Today the OCC issued a proposed rule implementing several provisions of the Dodd-Frank Act.

The proposal revises OCC rules to reflect the transfer of examination, supervision, and regulatory authorities from the OTS for Federal savings associations starting July 21.

The proposal would amend the OCC's assessment methodologies, rates, fees, and payment due dates to include Federal savings associations. For assessments charged in September 2011 and March 2012, Federal savings associations pay the lesser of the OCC and OTS fee schedules to facilitate a smooth transition to the OCC’s assessment system.

The proposal also implements:

a moratorium on changes in control of credit card banks and trust banks;
the incorporation of the permanent increase in deposit insurance coverage; and,
amendments to OCC rules pertaining to preemption and visitorial powers.

The proposed rule will be published in the Federal Register on May 26, 2011. Comments are due by June 27, 2011.

See the proposal.
Read OCC's release.

On July 6, the Federal Register corrected the email address for submitting comments on this proposal.
See the correct submission address here.

OCC Addresses Preemption Under Dodd-Frank

2011-05-16T09:40:00.000-04:00

The OCC said last week in a letter to Sens. Tom Carper (D-Del.) and Mark Warner (D-Va.) that its 2004 preemption rule is still valid for national banks under the Dodd-Frank Act.

The OCC explained, however, that the Dodd-Frank Act “eliminates preemption for national bank subsidiaries, agents and affiliates.” The agency was responding to the lawmakers’ inquiries on the proper interpretation of the Dodd-Frank Act’s preemption amendment to the National Bank Act.

The OCC clarified that Dodd-Frank will not be applied retroactively to make past conduct illegal. But while the preemption standard has not changed, the agency will have to comply with new procedures in making preemption determinations. Those procedures will include consulting with the Consumer Financial Protection Bureau on state law issue.

Ken Clayton, ABA SVP and general counsel commented:

The OCC's action helps clarify the rules of the road for national banks and how they serve their customers. This means that bank customers - regardless of where they live or work - will have a consistent, high-level set of consumer protections nationwide.

Read ABA's letter.

ABA Releases Updated Preemption FAQ

2010-11-29T10:23:00.000-05:00

ABA released an updated FAQ on the state of preemption, addressing requests and common questions received from our original resource.

Read ABA's updated FAQ here.

Does the Dodd-Frank Act Eliminate Preemption?

2010-11-17T09:38:00.002-05:00

Responding to rumors that the Dodd-Frank Act eliminates federal preemption of state banking laws, the ABA has developed an FAQ on the issue.

While the elimination of preemption could not be further from the truth, the Dodd-Frank Act does change some of the rules, particularly in the procedural area, regarding preemption.

Read ABA's FAQ here.
(This link has been changed to reflect an updated FAQ released November 29, 2010.)

ABA Publishes Dodd-Frank Act Executive Overview

2010-10-14T10:09:00.016-04:00

ABA yesterday published on aba.com a new executive overview of the Dodd-Frank Act’s key elements that will be implemented over the next several months. Since digesting all of the act’s 2,319 pages is a challenge for anyone, ABA has provided the executive overview to help bank leadership get an overall perspective on how the act is scheduled to unfold, with a focus on the elements that particularly apply to the banking industry.

Read the executive overview.