The Banking Law Connection

The Banking Law Connection

Trends and topics related to banking law and litigation

Student Loans: Another Bubble Waiting To Burst

Posted in Regulatory

The student loan market is the next bubble to burst.  It used to be good business for banks to make federally subsidized student loans. Students received cash for college at favorable interest rates and lenders had credit enhancement from the federal government. But that was then, and this is now.

Hand in glove with the passage of the Dodd-Frank financial regulatory behemoth legislation, the federal government took federally subsidized student loans out of the private sector. And as with most federal programs, student loans are now being gimmicked with fraudulent accounting and brazen demagoguery. The most recent example of the former is the bill introduced by Sen. Elizabeth Warren that would set the rate of student loans-which are long term unsecured debt obligations with documented historic default rate-at the interest rate that the Federal Reserve charges for secured, overnight loans to participating banks through the discount window.

Warren actually comes across looking like a fiscal conservative compared to the Obama Administration which, in its “Pay As You Earn” proposal, actually encourages study loan borrowers to default.

WSJ Live hosted a discussion entitled “Opinion: Too Big to Fail Students” on these two ideas, featuring the Journal’s editorial page editor.

Are students who pay back their student loans good responsible citizens, or suckers?

FFIEC Guidance Highlights the Importance of Updated Social Media Policies

Posted in Regulatory

Guest Post by Waller Labor & Employment Attorney John Park

Social media has become the primary avenue for personal networking and communications, and therefore is also an increasingly important part of companies’ marketing and advertising strategies.  Social media offers the opportunity for companies to instantly interact with new and current customers across various platforms.  The benefits of social media, however, can also pose risks to financial institutions that are subject to numerous regulations, privacy requirements, and consumer protection laws.  Financial institutions must be vigilant and careful in controlling the communications that are disseminated through social media, both with or without their knowledge or permission.  Examples may include a tweet promoting deposit account products through social media that leaves out language required by the Truth in Savings Act or exposes the institution to consumer litigation, a Facebook posting that inadvertently references private consumer information, or an inappropriate and untrue comment about a competitor posted by an employee that identifies themselves as a representative of the institution.

The FFIEC recently issued its proposed guidance on the risks posed by social media.  The proposed guidance sets forth some best practices that financial institutions should consider, including instituting a risk management program that identifies and monitors the proper use of social media.  Financial institutions should review their social media policies to ensure that they describe the proper, and improper, uses of social media by employees or representatives.  For example, any advertising or solicitation must be made through the authorized channels and should be approved in advance.  Employees should be warned that they should not hold themselves out as representatives of the company when making statements on their own personal accounts.

Do not allow the informal and instant nature of social media to cause you to lose control of your message.

The policies and practices above are the first step in managing the risks of social media while enjoying its benefits.  Financial institutions are encouraged to ensure that their social media policies are up to date and consistent with the FFIEC’s guidance.

 

Elizabeth Warren: A Populist Demagogue?

Posted in Creditor Rights, Loan Servicing

Remember Elizabeth Warren?

She used to be a law professor at Harvard. It was widely speculated that she was President Obama’s first choice to be Director of the Consumer Financial Protection Bureau, an agency that owes its very existence in no small measure to Warren’s academic writings and public advocacy. She proved to be so controversial a figure that confirmation of her nomination was considered impossible. So the story goes that the President looked elsewhere to fill the CFPB position while Warren remained in academia.

But then she ran for the United States Senate in Massachusetts.  Warren won the seat over her opponent, Scott Brown. Off to Washington went Professor Warren, where she was assigned a chair on the Senate Banking Committee and from which she has offered her first piece of legislation: The Bank On Student Loan Fairness Act.

In support of her bill, which would set the interest rate on federally subsidized student loans at the same rate of interest the Federal Reserve charges banks for short-term loans, Warren, in what could be perceived as class-warfare terms, argues: “If the Federal Reserve can float trillions of dollars  to large financial institutions at low interest rates to grow the economy, surely they can float the Department of Education the money to fund our students, keep us competitive and grow our middle class.”

However, Sen. Warren might be misleading Congress about the interest rates offered to banks.  This has upset some commentators. Ian Tuttle offers a scathing deconstruction of Senator Warren’s inaugural legislative offering in National Review’s on-line magazine.  Here is a sample of Tuttle’s critique:

In pushing her bill, Warren, for her political convenience, has studiously misrepresented the interest rates extended to banks. “The banks pay interest that is one-ninth of the amount that students will be asked to pay,” she complained. “That’s just wrong. It doesn’t reflect our values.” Warren derided the notion that “the banks get exceptionally low interest rates because the economy is still shaky and banks need access to cheap credit to continue the recovery,” adding, “our students are just as important to our recovery as our banks.”

What Warren is alluding to is the Federal Reserve Discount Window, which the Fed defines as “an instrument of monetary policy that allows eligible institutions to borrow money, usually on a short-term basis, to meet temporary shortages of liquidity caused by internal or external disruptions.” Warren may have been a professor in a past life, but even the most rabid deconstructionist is unlikely to associate an “institution” that has “temporary shortages of liquidity” with a typical college student.

But it is not confusion; it is misrepresentation. The Discount Window is an emergency measure used to prevent runs on banks; it is offered “short-term.” And these measures are typically very short-term: frequently, overnight.

As the Daily Beast’s Megan McArdle observes, “No one except possibly a lunatic has told Elizabeth Warren that banks are getting 0.75 percent at the discount window as a thank-you for all the hard work they’re doing helping the economy.” Banks get those low rates for three sound reasons: “The borrowers have assets and income that are easy to seize, the loans are quite short term, and the banks are required to put up collateral. . . . Students, on the other hand, are borrowing for a decade, and the only thing they’re putting up as a guarantee is their character.”

Isn’t it time to stop painting banks as the villain?

Do you think Warren is misleading Congress to further her own goals?

 

We’re from the Government, and We’re Here to Help

Posted in CFPB, Credit and Debit Cards, Creditor Rights

Incompetence (or worse) on the part of federal officials has become a recurring news story. In its response to Hurricane Sandy, FEMA appears to be using the same Policy and Procedure Manual it employed after Katrina struck the Gulf Coast. The FBI, CIA and HSA, appear to have been preoccupied with other matters and failed to keep Boston Marathon bomber, Tamerlan Tsarnaev from reentering the country after attending jihad fantasy camp in Chechnya. The Defense and State Departments and the White House look like a circular firing squad trying to assign blame for the debacle in Benghazi. And now, the IRS admits to tying up selected taxpayers in miles of red tape based upon social policy views and political associations. National Review’s Kevin Williamson has an excellent deconstruction of the IRS scandal in the magazine’s May 16 on-line edition.

In the last five years, between the misnamed Patient Protection And Affordable Care Act and the Dodd-Frank overhaul of financial regulation (“DFA”),  the federal government has taken upon itself the greatest accumulation of power over the everyday lives of American citizens in the history of the Republic.

Will the Consumer Financial Protection Bureau be any different than other agencies in the federal Leviathan? Will the DFA bring efficiency to federal regulation of the financial services industry?

Consider this: If someone wants advice on how to correct errors on a credit report, and they don’t want to trust the notice given to them by the credit reporting agency, they can turn to not just one, but three different federal agencies to get the same information. The Federal Reserve gladly offers advice on “How can I correct errors found in my credit report?” on its website.

Don’t trust the Fed? Don’t worry, the Federal Trade Commission also tells visitors to its website How To Dispute Errors In Credit Reports.

Not to be outdone by its bureaucratic siblings , the CFPB weighs in with its own answer to “How do I dispute an error on my credit report?

How much is the federal debt as a percentage of GDP? Can the Administration really not find anywhere to cut spending in order to comply with the meager reductions of the budge sequester?

At times like these, I recall a line of dialogue from one of the most popular TV shows of my youth: “Beam me up Scotty. There is no intelligent life on this planet.”

COMMUNITY BANKS: TOO SMALL TO SAVE?

Posted in Legislation, Regulatory

Writing yesterday in National Review Online, Prof. Tanya Marsh, at Wake Forest University School of Law, reviews the detrimental impact of the Dodd-Frank Act (“DFA”) on community banks. Her essay is a must-read for anyone involved in the financial services industry.

Prof. Marsh’s principal argument is that DFA imposes a “one-size-fits-all” regulatory scheme that fails to distinguish between traditional community banks and banks with a regional or national footprint. She identifies the added expense of this regulatory burden as a major driver in accelerating the disappearance of community banks and makes the case that the number of Americans who are “underbanked”–estimated by the FDIC to be 20% of U.S. households–will increase as access to basic financial services provided by community banks becomes harder.

Her call for Congressional action is certainly appealing, albeit short on specifics. Nevertheless, her essay echoes the concerns that I have heard expressed by bankers as well as customers. Like other gargantuan federal legislation that has been enacted in recent years, the adverse impacts from DFA are very real and growing. For instance, it creates a regulatory scheme that fails to distinguish between traditional community banks and banks with a regional or national footprint.

Will DFA’s effort to “fix” the problem with mega-banks being “too big to fail” render community banks too small to save?

What do you think?