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Tennessee updates its UCC to amend “money” definition and include CBDCs
On April 11, the Governor of Tennessee signed into law SB 2219 (the “Act”) that amended Section 47-1-201(b) of the Tennessee Code by redefining “money” and codifying “central bank digital currency.” The term “money” was updated to include a new provision that will state that money does not include a central bank digital currency. “Central bank digital currency” will instead be defined as a digital currency issued by a federal reserve, foreign government or foreign reserve system, and will include a digital currency, digital medium of exchange, or digital monetary unit of account processed by the entity. The Act will go into effect on July 1.
Iowa enacts new money transmission provisions
On April 10, Iowa’s governor signed into law HF 2262 (the “Act”) relating to money transmission services. The Act will exempt a person appointed as an agent of a payor for purposes of providing payroll processing services from licensure, provided that their agreement and services meet certain conditions. The Act will also allow the superintendent to suspend or revoke a licensee’s license, should they, among other things: (i) violate the Act; (ii) fail to cooperate with an examination or investigation conducted by the superintendent; (iii) engage in willful misconduct or blindness and, which leads to a conviction of an authorized delegate for violating a state or federal anti-money laundering statute, or violates the Act, a rule adopted under the Act, or an order issued under the Act; or (iv) engage in an unsafe or unsound practice. Further, the Act will detail different scenarios in which the superintendent may pursue an enforcement action. For instance, if the superintendent determined any violations were “likely to cause immediate and irreparable harm to the licensee, the licensee’s customers, or the public, or cause insolvency” the superintendent may issue a cease and desist order. Finally, the Act will provide guidelines for investigations, civil penalties, criminal penalties, and administrative proceedings. The Act became effective upon enactment and will apply retroactively to July 1, 2023.
Kansas enacts its Commercial Financing Disclosure Act
On April 12, Kansas enacted the Commercial Financing Disclosure Act in SB 345 (the “Act”) which will require the disclosure of certain commercial financing product transaction information, provide civil penalties for violations, and authorize enforcement by the attorney general. The Act will apply to any commercial loan, accounts receivable purchase transaction, and commercial open-end credit plan (when the transaction would be less than or equal to $500,000).
According to the Act, providers must disclose the total amount of funds furnished, and total amount dispersed, if that number is less than the amount furnished. Additionally, providers must disclose the total amount borrowers will owe the provider in that agreement, including the total cost to the borrower, as well as the manner, frequency, and amount of each payment. For each commercial financing agreement, only a single disclosure is necessary. If there are alterations to the financing arrangement, a new disclosure will not be mandated. Furthermore, providers will not be required to issue a new disclosure with every purchase of accounts receivables under the agreement. Moreover, brokers of such transactions are prohibited from collecting an advance fee from a business, making any false representations, or omitting any material facts during the sale of the services.
The Act will exempt certain depository institutions, commercial financing transactions secured by real property or a lease, and providers that made five or fewer commercial financing transactions in Kansas in one year, among other things.
Violations of the Act will be subject to a civil penalty of $500 per individual violation and the total penalty for multiple aggregated violations cannot exceed $20,000. If a person continues to violate the Act after receiving a written warning from the attorney general, the penalty will increase to $1,000 per violation. The maximum penalty for multiple aggregated violations in this scenario will be $50,000. The Act will not grant individuals the right to sue based on compliance or non-compliance with its provisions; there is no private right of action. Violations of the Act will not affect the enforceability or validity of the underlying agreement. The authority to enforce the Act will not be given exclusively to the attorney general.
Iowa enacts prudential standard and corporate governance requirements for mortgage servicers
On April 10, Iowa enacted HF 2392 (the “Act”) which will establish prudential safety and soundness requirements on mortgage servicers. The Act will establish prudential standards and corporate governance requirements on covered institutions, which include mortgage servicers that service at least 2,000 residential mortgage loans. (The Act will not apply to servicers that exclusively manage or service reverse annuity mortgage loans, including those managed by certain covered institutions.)
According to the Act, covered institutions must maintain adequate capital and liquidity requirements in line with GAAP. Covered institutions may meet these requirements by adhering to FHFA standards for enterprise single-family sellers or servicers. These institutions must have written policies and procedures for maintaining capital and liquidity and must provide these to the administrator when requested.
Regarding operating liquidity, covered institutions will be required to hold sufficient liquid assets to maintain normal business operations. They must also develop and implement plans and procedures to maintain this operating liquidity, which must be documented and available for review. Covered institutions must also have a sound cash management plan and business operating plan appropriate for their complexity to ensure ongoing operations.
On corporate governance, covered institutions will be required to have a board of directors responsible for oversight or a similar oversight committee if not approved for servicing by certain enterprises. The board or committee must establish a corporate governance framework, ensure compliance with the framework and the subchapter, perform regulatory reporting, establish internal audit requirements, and maintain a risk management program. The institution must also undergo an annual external audit and conduct an annual risk management assessment. The Act will go into effect on July 1.
CFPB approves of Illinois’ new regulations on appraisal discrimination
On April 9, the CFPB released a comment letter supporting the Illinois Department of Financial and Professional Regulation’s decision to propose three rules prohibiting discrimination related to appraisals. The CFPB interpreted and issued rules under ECOA and would enforce its requirements. Illinois’ three proposed rules (38 IAC 345.280(c)(1)(A); 38 IAC 185.280(c)(1)(A); and 38 IAC 1055.240(c)(1)) would all update the Illinois code to prohibit discrimination under ECOA or the FHA, including a provision to deny loan applications where they should have been granted due to discrimination. “Discrimination against applications on a prohibited basis in violation, for example of the [ECOA] or [FHA], including… relying on giving force or effect to discriminatory appraisals to deny loan applications where the covered financial institution knew or should have known of the discrimination[.]” The CFPB commented in their letter that these provisions accurately described ECOA. The CFPB also noted that TILA’s Appraisal Independence Rule, which it has rulemaking authority under, does not conflict with a lender’s obligations to comply with civil rights laws including ECOA.
Oregon enacts new consumer finance protections related to wage garnishment
Recently, the Governor of Oregon enacted bill SB 1595 (the “Act”) that amended Oregon’s statutes to provide greater consumer protection rights for Oregonians working to pay back their debts. The Act was mostly comprised of new rights for wage garnishments. Section 10, which updated ORS 18.785, amended what a financial institution must do if it receives a writ of garnishment for a debtor, including checking for federal benefits and analyzing an account holder’s base protected account balance, among other provisions. Additionally, the Act protected $2,500 from a person’s bank account to help them meet basic needs. The law went into effect on April 4.
CFPB and European Commission convene for future oversight of consumer finance products
On April 11, the CFPB Director, Rohit Chopra, and the Commissioner for Justice and Consumer Protection of the European Commission, Didier Reynders, issued a joint statement announcing their intent to begin an informal dialogue between the CFPB and the European Commission on consumer financial protection issues. The agencies have already convened three staff-level meetings on the following topics: (1) BNPL and over-indebtedness, where the U.S. shared the FCRA framework and the European Commission discussed the differences in the BNPL industry’s evolution in their respective jurisdictions; (2) digital payment access and fraud, where they discussed fraud, the issue of nonbanks in payments, Big Tech’s involvement in consumer finance, and digital access for the unbanked; and (3) artificial intelligence, where the European Commission shared four pieces of legislation or regulations and two recent court judgments. The joint statement iterated their inputs: “Our staff have shared expertise, best practices, and lessons learned on an important set of issues. Jointly analyzing the expansion of Big Tech’s financial services offerings, and the attendant risks to consumer privacy and competition, has been highly productive.”
Wisconsin updates licensing and regulation of financial services providers
On April 4, Wisconsin enacted SB 668 (the “Act”) which will amend many provisions to the Wisconsin Department of Financial Institution’s (DFI) regulation of non-banks. According to an analysis by the state’s Legislative Reference Bureau, the Act will change how multiple financial practices are regulated and rely on the Nationwide Multistate Licensing System and Registry (NMLS). The Act will allow Wisconsin to use NMLS to administer licensing needs concerning consumer lenders, payday lenders, collection agencies, sales finance companies, money transmitters, mortgage bankers and brokers, adjustment service companies, community currency exchanges, and insurance premium finance companies. The amendments were modeled after the Model Money Transmission Modernization Act approved by the CSBS.
The Act will require licensees to provide information directly to NMLS. For collection agencies, the Act will eliminate the requirement that a collector hold a separate license from the one held by his employer, update the definition of collection agency to add the exception for mortgage bankers, and require separate collection agency licenses for each place of business, among others – including repeals. As to consumer lenders, the Act will better define consumer loans, specify provisions governing licensed lenders, and specify which activities require licensure. With respect to sellers of checks and money transmitters, the Reference Bureau noted three provisions governing licensing and regulation of money transmitters will be replaced by the MTMA. This will include registering a license through the NMLS; granting the power to suspend, revoke, or refuse renewal of a license to the DFI; and allowing a licensed money transmitter to conduct business through an authorized delegate; among others. The Act also updated NMLSR requirements and DFI powers concerning payday lenders, sales finance companies, adjustment service companies, community currency exchanges, and insurance premium finance companies.
Kentucky enacts bills: on mortgage liens and unlawful trade practices
On April 9, Kentucky enacted HB 488 (the “Bill”) which will establish when a county clerk admits any amendment, renewal, modification, or extension of a recorded mortgage to record. The Bill will also establish when a county clerk admits affidavits of amendment prepared and executed by an attorney to record. Additionally, the Bill will establish recording requirements and a section to establish when a promise, acknowledgment, or payment of money operates as an extension of a lien in a recorded mortgage or deed. Finally, the Bill establishes recording requirements for extensions on a lien in a recorded mortgage or deed.
On April 4, Kentucky also enacted HB 88 (the “Act”) which will amend provisions related to unlawful trade practices, prohibiting (i) entities that are not banks or trust companies from implying that they are engaged in banking or trust activities, and (ii) entities to use in their marketing materials the name, trademark, logo or symbol of any financial institution or similarly resembling any financial institution, with exceptions for permitted use or disclosure of non-consent.
The Act will also state that residential real property service agreements cannot give rise to rights or obligations lasting longer than two years after their effective date. Additionally, barring exceptions, service agreements cannot (i) be enforceable on future owners of interests in the residential real property or otherwise purport to remain attached to the property; (ii) create or impose a lien, encumbrance, or other real property interest on the residential real property; or (iii) require or permit recording of the agreement or any notice or memorandum of the agreement, among other things.
Kentucky makes wholesale amendments to its financial services code
On April 9, the Governor of Kentucky signed into law HB 726 (the "Act"), an act that will make substantial amendments to the state’s regulation of financial services under Chapter 286 of the Kentucky Financial Services Code. Of note, the Act will update key definitions under the state’s financial services code, including “Bank,” “Company,” “Control,” and “Deposit.” Some of the changes will amend certain powers to the financial commissioner, an appointed position by the Governor, as well as the banking experience requirements for this position. The Act also, among other things, addresses in- and out-of-state trust company rules; banking activities rules for foreign and out-of-state financial companies; bank mergers and reviews by the commissioner; bank closures; bank loan compliance under 12 U.S.C. sec. 371c (prohibiting acceptance of a security from a bank’s affiliate); the commissioner’s rules to remove any officer, director, or employee of a bank via written notice; and mortgage loan license fees, including annual assessments.