OCTOBER 19, 2009 FINANCIAL INSTITUTIONS REGULATORY UPDATE The Financial Institutions Regulatory Practice Group of Sidley Austin LLP The Financial Institutions Regulatory Practice group offers counseling, transaction and litigation services to depository and nondepository financial institutions and their holding companies. Our lawyers assist domestic and foreign financial institutions and their holding companies, and electronic payment systems, as well as securities, insurance, finance, mortgage and other diversified financial services companies.we represent financial services clients before the U.S. Department of the Treasury, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Office of Thrift Supervision and state bank regulatory agencies. In addition, we represent clients before the United States Supreme Court, the federal courts of appeal, federal district courts and state courts. To receive future copies of Financial Institutions Regulatory Update via email, please send your name, company or firm name and email address to Lacy Quarles at lquarles@sidley.com This Sidley Update has been prepared by Sidley Austin LLP for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. Attorney Advertising - For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300 and One South Dearborn, Chicago, IL 60603, 312.853.7000. Prior results do not guarantee a similar outcome. Federal Reserve Issues Regulations to Implement Credit CARD Act of 2009 On September 29, 2009, the Board of Governors of the Federal Reserve System ( FRB ) issued a proposed amendment to Regulation Z ( Proposal ) to implement the Credit CARD Act of 2009 (the CARD Act ). The CARD Act enacted substantial new limitations and requirements for credit card issuers. The Proposal provides much needed detail on how those new limitations requirements will apply to the industry. The requirements of the CARD Act become effective on February 22, 2010. As a result, the FRB has allowed only a short 30-day comment period from when the Proposal is published in the Federal Register (which is expected shortly). Because of the significance of the changes, however, it is likely that issuers and other creditors offering open-end (not home-secured) credit will need to begin planning for compliance now, well before final rules are released. This update summarizes some of the key issues raised by the Proposal. The Proposal also contains a re-issuance of the FRB s comprehensive amendment to Regulation Z published in January 2009, including the substantial revisions to the advertising, application and solicitation, account opening, periodic statement, and change-in-terms disclosure requirements. This update does not attempt to summarize all of the requirements in the Proposal. Limitations on Rate Changes The Proposal implements the CARD Act s restrictions on rate increases by adopting a broad rule that an issuer may not increase any APR, annual fee, minimum interest charge, or required debt cancellation fee unless the increase fits within one of six exceptions: Upon the expiration of a period of six months or longer, but only if the issuer disclosed the length of the period and the higher rate that would apply afterward in writing, prior to the commencement of the period. This exception also applies to deferred interest plans, which the FRB considers to involve a rate increase; For a variable-rate plan;
PAGE 2 For new transactions only, but only following advance notice and only after the account has been open for a year. The issuer may not raise any APR, annual fee, minimum interest charge, or required debt cancellation fee on any existing balance, and must follow specific rules to allow the cardholder to pay off the balance over time; For a 60-day delinquency, but only if the reason for the increase is disclosed, and if the issuer returns the cardholder to the lower rate if the cardholder makes 6 consecutive minimum payments following the rate increase; Upon the expiration or termination of a workout arrangement; Upon termination of protection under the Servicemembers Civil Relief Act. One of the key issues raised by these new requirements is the limitation that temporary rates must be in effect for at least 6 months, and the related requirement that the period of a temporary rate and the go to rate be disclosed in writing and in close proximity to the disclosure of the lower temporary rate. These rules will limit the types of promotions that many issuers have offered, and will require disclosures that may be operationally difficult to deliver and update. Underwriting Requirements The CARD Act provides that an issuer may not open any credit card account or increase any credit limit unless the card issuer considers the ability of the consumer to make the required payments under the terms of such account. The Proposal implements this requirement by requiring issuers to consider the consumer s ability to make the required minimum payments based on the consumer s assets and current obligations. Issuers are required to have reasonable polices and procedures to consider this information. There is a safe harbor for issuers to measure the minimum payment by assuming full utilization of the credit line, and using the applicable minimum payment formula on the account. The regulation does not specify the sources from which issuers may collect information about the consumer s assets and income, and it does not require issuers to verify the information they receive. This new requirement raises serious concerns, as many issuers have historically relied on credit scores for underwriting credit card accounts. Incorporating the gathering and consideration of income, assets, and current obligations raises a host of practical concerns, and may affect underwriting models. The FRB acknowledges that these requirements are taken from the rules applicable under Regulation Z for underwriting closed-end mortgages. However, the process of underwriting a consumer for a mortgage payment that may well be several thousand dollars a month seems very different from underwriting a consumer for a much smaller credit card minimum payment. The Proposal does not explain how issuers are expected to translate those concepts. Two-Cycle Billing and Partial Grace Periods The Proposal broadly prohibits the two-cycle average daily balance computation method. In addition, following the CARD Act, the Proposal requires issuers to give cardholders the benefit of a partial grace period. In the past, under most card agreements, a cardholder could only take advantage of the grace period if he or she was otherwise eligible, and then paid off the card balance in full. However, the Proposal will require issuers to provide a partial grace period to cardholders who are otherwise eligible but who make only a partial payment. The Proposal further provides, however, that an issuer can chose to offer no grace period. Overlimit Transactions Following the CARD Act, the Proposal would significantly limit issuers ability to charge fees to a consumer for exceeding a credit limit. In particular, as a condition to charging an overlimit fee, the issuer will need to:
PAGE 3 Obtain the affirmative consent of the cardholder to the payment of overlimit transactions, after disclosing the consumer s right to consent, the amount of the overlimit fee, and the amount of any penalty rate that may apply as a result of exceeding the credit limit; and Provide the consumer notice of the right to revoke that consent following any assessment of an overlimit fee. The cardholder is permitted to revoke consent at any time. While the issuer is permitted to honor overlimit transactions even if the cardholder has not consented, the issuer cannot charge a fee for such a transaction. In the Proposal, the FRB also proposes to prohibit a number of additional practices associated with overlimit transactions, several of which were not mentioned in the CARD Act: Charging more than one overlimit fee per cycle; Charging a fee for the same overlimit transaction in more than 3 cycles (unless the consumer makes additional overlimit transactions); Imposing an overlimit fee solely because of the issuer s failure to replenish credit availability after receiving a payment; Conditioning a credit limit on the cardholder s agreement to overlimit transactions; and Charging an overlimit fee because of fees or charges assessed by the issuer in that billing cycle (but the issuer may charge an overlimit fee based on posting fees or charges from prior billing cycles). Payment Crediting and Allocation The Proposal sets forth a number of new requirements for the crediting and allocation of payments: Payment due dates must be on the same numerical date each month. Issuers can make changes in response to consumer requests and for operational reasons, as long as future payments then fall on the same numerical date going forward. The FRB has requested comment on whether an exception is needed to allow due dates to fall on the 29th, 30th, and 31st days of a month. Any payment in excess of the required minimum payment must be allocated first to the account balance with the highest APR, and then to balances with progressively lower APRs. There is a limited exception for deferred interest and similar plans, which generally must be treated as balances with a 0% APR, except that amounts in excess of the required minimum payment must be allocated first to such balances during the last two cycles prior to expiration of the plan. Issuers may set reasonable cut-off times for payments received by mail, electronically, by telephone, or in person, but the cut-off time may not be earlier that 5 p.m. at the location specified for payment. A depository institution issuer that accepts payments in person at a branch or other office (but not a retail location) may not specify a cut-off time that is earlier than the closing time for the branch. If the payment due date is a date on which the issuer does not receive or accept payments by mail, then the issuer must treat as timely any payments received by any method on the next business day. However, if the issuer accepts or receives payments on the due date by a means other than mail (e.g., electronic payments), then the issuer is not required to treat payments received on the next business day by that method as timely. An issuer may only charge a fee to a cardholder for making a payment by a specific method if the method involves an expedited service by a customer service representative of the creditor. Expedited service means that the issuer credits the payment on the same day (or the next day, if received after the cut-off time). [B]y a customer service representative means that the cardholder receives the assistance of a live representative or agent, whether in
PAGE 4 person, by telephone, or online; it does not include a voiceresponse telephone system. If an issuer makes a material change in the address for receiving payments or its procedures for handling payments, and the change causes a material delay in crediting payments during the next 60 days, then the issuer may not impose a late fee or finance charge for late payment on the account. Examples in the commentary include changing a post office box in a way that results in payments sent to the old box not being credited, or closing a branch where a consumer had been permitted to make payments. Limits on First Year Fees If an issuer charges any fees to a credit card account during the first year after opening, the issuer may not charge fees in that year that aggregate to more than 25% of the initial credit limit on the account, and the issuer may not require the cardholder to pay fees in excess of that amount even if collected outside of the account. This limitation picks up not only annual and monthly fees, and account-opening fees, but also transactional fees such as fees for cash advances and foreign currency transaction fees. It excludes late payment fees, overlimit fees, returned check fees, and nonrequired fees such as optional debt cancellation. The inclusion of transaction fees within this section (such fees were not included in the former Regulation AA rules regarding subprime card fees) means that issuers will need to monitor accounts on an ongoing basis to avoid running afoul of the rule. Although unlikely, it is possible that a cardholder who uses a card internationally could incur sufficient foreign transaction fees to reach the limit. Minimum Payment and Late Payment Warnings The CARD Act substantially rewrote the Truth in Lending Act provisions requiring minimum payment and late payment warnings on periodic statements, and the Proposal incorporates these changes into Regulation Z. Of particular note, the Proposal eliminates the option of providing generic minimum payment information on the statement, and requires all issuers to provide on a periodic statement specific, individualized information about the cardholder s expected repayment time and total cost if he or she pays only the minimum payment. The Proposal also requires issuers to provide a disclosure of the amount the cardholder would need to pay in order to pay off the account balance in 3 years, along with an estimate of the savings by doing so. These disclosures must be made in a specified table form. The Proposal provides a number of assumptions that issuers can follow in providing the disclosures, but requires issuers to consider the actual minimum payment formula and APRs (including promotional APRs) applicable to the account. If an account is in a negative amortization or no amortization mode, then a modified form of the disclosure is required. The Proposal eliminates the requirement to make minimum payment information available by telephone in some circumstances. Renewal Disclosures The Proposal implements two changes to the requirement in existing Regulation Z to provide to the cardholder key credit cost disclosures whenever an annual fee is billed. First, the requirement has been expanded to require the disclosures both whenever an annual fee is billed, and also whenever any credit card is renewed, if there have been any changes in the key credit terms not previously disclosed to the consumer. While ordinarily the issuer would have notified cardholders of the changes earlier, this disclosure might be required if, for example, the creditor had lowered a fee or finance charge rate and not provided contemporaneous notice. One issue raised is determining when a card is considered to be renewed, which is not defined by the Proposal.
PAGE 5 Second, the CARD Act and the Proposal eliminate the option of providing the required disclosures at the same time an annual fee is billed, as long as the cardholder has the option of cancelling the account and receiving a refund. Instead, the disclosure must be provided in all cases at least 30 days before the annual fee is billed or the card is otherwise renewed. Many issuers currently rely on the option of providing notice on the statement where the annual fee is billed, and this will no longer be permitted. Internet Posting The Proposal requires issuers to make their cardholder agreements available to the general public as well as to individual cardholders. For the general public, the Proposal will require issuers to provide to the FRB a copy of each cardholder agreement used by the issuer to open new accounts. Each agreement must include key financial terms (such as the account opening disclosures and the credit limit). If this information is not in the text of the agreement, it can be provided in an addendum, and must include ranges or multiple amounts if the issuer, for example, offers multiple APRs or credit limits. The Proposal establishes a quarterly process for updating the agreements on file with the FRB. In the event of changes, issuers are required to provide a new agreement (and addendum). Issuers cannot update the agreements provided to the FRB simply by providing change-in-terms notices. Issuers must also make available on their own websites all of the agreements provided to the FRB, although they may update these more frequently. For individual cardholders, issuers must either post and maintain the cardholder s specific cardholder agreement on the website, or make the cardholder s agreement available on request in either electronic or paper form. As with the version provided to the FRB, the agreement provided to the cardholder must be a single document with an addendum of pricing terms (if applicable). The issuer may not provide a base agreement combined with subsequent change-in-terms notices. As a result, issuers would seem to be required to maintain multiple generations of documents into which change-in-terms notices have been integrated, and then to match the correct agreement with the cardholder. Credit Cards for Young People and College Students The Proposal would require specific underwriting for any account opened for a cardholder under the age of 21. In particular, the issuer would be required to receive a written application containing either: The signed agreement of a cosigner, guarantor, or joint applicant who is at least 21, together with financial information indicating that the cosigner, guarantor, or joint applicant has the ability to make the minimum payments on the account; or Financial information indicating that the person under 21 has an independent ability to make the minimum payments on the account. The Proposal does not require the creditor to obtain verification of this information. This new requirement would seem to limit the ability to accept new cardholders of age 21 or less through certain account acquisition channels, such as by telephone. However, the proposed commentary provides that the writing requirement can be satisfied by an electronic application, without the need to comply with consumer disclosure provisions of the esign Act. The proposal also clarifies that issuers must comply with Regulation B and the Equal Credit Opportunity Act when evaluating consumers under 21. However, if issuers do not generally accept cosigners, guarantors, or joint applicants, they are not required to do so for applicants under 21. The Proposal also imposes new requirements for credit cards issued to college students. First, colleges will be required to publicly disclose any agreements they have with issuers for marketing credit cards. Second, issuers will be prohibited from
PAGE 6 offering tangible items to induce college students to apply for a credit card, if the offer is made on or near a college campus (including by mail), or at a college-sponsored event. Notably, this requirement applies to all open-end credit offered to college students, not only credit cards and not only from issuers that have a marketing or other agreement with the college. Finally, issuers are required to make annual reports to the FRB concerning marketing or similar agreements that they have with colleges or affiliated organizations. Settlement of Estates The Proposal requires issuers to adopt policies and procedures to enable the representatives of estates to determine the amount owing on, and pay, the accounts of deceased cardholders. In particular, issuers will be prohibited from assessing additional interest and fees on accounts after the representative requests a statement of the amount owed. Timing and Transition Rules One of the key questions not answered by the Proposal is the specific effective dates for various aspects of the Proposal, and rules for the transition period (for example, whether existing offers or terms will be grandfathered). The complexity is the result of the history of the rulemaking. The FRB s prior comprehensive amendments to the credit card rules under Regulation Z, as well as the unfair and deceptive acts and practices regulations issued by the FRB, the Office of Thrift Supervision, and the National Credit Union Administration, all published in January 2009, were scheduled to be effective on July 1, 2010. But most of the CARD Act s provisions are effective on February 22, 2010 (some already became effective on August 20, 2009, and a few provisions are not effective until August 22, 2010). As released, the Proposal s proposed effective date is February 22, 2010, but the FRB has requested comment on both (1) whether some provisions should be pushed back until July 1, and (2) rules for the transitional period. Issuers should consider providing comments, given the operational burden that many of these rules will impose as well as the potential effect on existing accounts. Some members of Congress have advocated advancing the effective date of the CARD Act s requirements to as soon as December 1, 2009, and legislation to this effect has been introduced in the House of Representatives. It is not clear at this point whether that legislation is likely to advance in the House, or if it would be taken up by the Senate. Conclusion The FRB s Proposal is but the latest significant alteration of the federal requirements that government credit cards. Moreover, the time for comment (30 days) and for compliance (by February 22, 2010, at least for some requirements) is very short. As a result, issuers need to swiftly examine and understand these important changes. Sidley s Financial Institutions Regulatory attorneys are available to assist clients with understanding these important issues. James A. Huizinga Karl F. Kaufmann +1.202.736.8681 +1.202.736.8133 jhuizinga@sidley.com kkaufmann@sidley.com Michael F. McEneney John K.Van De Weert +1.202.736.8368 +1.202.736.8094 mmceneney@sidley.com jvandeweert@sidley.com BEIJING BRUSSELS CHICAGO DALLAS FRANKFURT GENEVA HONG KONG LONDON LOS ANGELES NEW YORK SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGTON, D.C. www.sidley.com Sidley Austin LLP, a Delaware limited liability partnership which operates at the firm s offices other than Chicago, London, Hong Kong, Singapore and Sydney, is affiliated with other partnerships, including Sidley Austin LLP, an Illinois limited liability partnership (Chicago); Sidley Austin LLP, a separate Delaware limited liability partnership (London); Sidley Austin LLP, a separate Delaware limited liability partnership (Singapore); Sidley Austin, a New York general partnership (Hong Kong); Sidley Austin, a Delaware general partnership of registered foreign lawyers restricted to practicing foreign law (Sydney); and Sidley Austin Nishikawa Foreign Law Joint Enterprise (Tokyo). The affiliated partnerships are referred to herein collectively as Sidley Austin, Sidley, or the firm.