Beyond "Shall": Dodd-Frank's Permissive Rulemakings
By Gabriel D. Rosenberg and Jeremy R. Girton, Davis Polk & Wardwell LLP
The burden on regulatory agencies to complete the hundreds of rulemakings required by the Dodd-Frank Act has garnered a great deal of well-warranted
attention. Much less discussed, however, are the 198 places in the Act that authorize, but do not require, regulatory action. These "permissive
rulemakings" raise key questions about the prioritization and coordination of rulemaking. These provisions and related controversy are the focus of
Loan Sales: Should the Borrower be Permitted to Bid?
Required vs. Permissive Rulemakings
Dodd-Frank's 848 pages only begin to outline the multiple regulatory regimes it puts into place. The Act contains 243 provisions that specifically
require U.S. financial regulators to adopt final rules - counting each regulator separately, this amounts to roughly 400 rulemaking requirements. Of these 400 requirements, 286 have specified deadlines, mainly within the first two years after
Dodd-Frank's enactment. The Act further requires 87 studies to be conducted, some repeated annually. As Jonathan Macey of Yale Law School recently
noted: "Laws classically provide people with rules. Dodd-Frank is not directed at people. It is an outline directed at bureaucrats and it instructs
them to make still more regulations and to create more bureaucracies."
By Laurence M. Smith, Wolff & Samson PC
Following the collapse of Lehman Brothers, many commercial mortgage lenders have sold more loans
than they have originated. Escalating vacancy rates and a precipitous decline in property values
are among the causes of the defaults which have led to the loan sales. Rather than examine causal
factors, this article explores a procedural phenomenon underlying many loan sales: the refusal by the
lender to sell the loan at a discount to the borrower or its affiliate some or all of whose principals
are the same as the principals of the borrower. Why?
Cordray's Recess Appointment: Future Legal Challenges
By V. Gerard Comizio and Amanda M. Jabour, Paul Hastings LLP
On January 4, 2012, President Obama appointed Richard Cordray as director of the Consumer
Financial Protection Bureau ("CFPB"), pursuant to the President's constitutional recess appointment
powers. The Recess Appointments Clause, Article II, Section 2, of the U.S. Constitution provides in
part that "[t]he President shall have power to fill up all Vacancies that may happen during the Recess
of the Senate, by granting Commissions which shall expire at the End of their next Session."
What Is Good Faith? Subjective and Objective Standards for Banks Accepting Payment Orders
Cordray's appointment has raised questions about the constitutionality of the President's
actions for a number of reasons. Partially because the appointment of a CFPB director has been
politically charged, challenges to Cordray's appointment are likely.1 These potential legal challenges
include, but are not limited to, challenges to both new regulations and enforcement actions against
nonbank lenders. 2 As a result, the legal issues surrounding the appointment have significant
implications for all institutions regulated by the CFPB.
By Mark E. Wilson and Jeremy D. Kerman, Kerns, Frost & Pearlman, LLC
The Uniform Commercial Code ("UCC") contains several provisions incorporating the concept of "good faith." But what exactly does "good faith" mean? The
Code originally defined "good faith" as "honesty in fact in the conduct or transaction concerned." See UCC § 1-201(19) (2006). While many
in the banking industry are familiar with this subjective, "pure heart and empty head" standard, banking lawyers may be surprised to learn that the
current uniform text imposes an objective standard as well as the traditional subjective one. This dual, subjective-objective standard of good faith
applies to funds transfers under Article 4A of the UCC. The Federal Financial Institution Examination Council ("FFIEC") has established guidelines that
may assist financial institutions in meeting the objective component of the good faith standard with regard to funds transfers, especially with regard
to Internet schemes such as "phishing" frauds.
Bank Owned Life Insurance (BOLI) and PLR 201152014©: An Innovative Arrangement Poses Numerous Issues
By Charles C. Morgan and James L. Hess, HMH Consulting, LLC
Private Letter Ruling 201152014
(the "PLR") describes a novel approach to managing Bank Owned Life Insurance ("BOLI"). This article
outlines the most significant issues that counsel should call to the attention of bank management should they be considering participation in this
The stated purpose of the transaction
described in the PLR is to provide banks with a more effective, centralized way to manage BOLI and, where appropriate, either negotiate the terms of
new replacement life insurance policies or renegotiate the terms of existing BOLI. Probably of at least equal importance, the conclusions in the PLR
bless the arrangement as a structure that eliminates the income tax impediments to updating BOLI plans that otherwise would effectively prevent a bank
from purchasing replacement life insurance coverage or renegotiating the terms of existing BOLI.
One of the unfortunate problems with updating BOLI plans is that doing so could cause the bank to lose interest deductions on its debt. The PLR concludes that the transaction, as structured, does successfully eliminate the risk that banks
holding minority interests in the LLC will lose those interest deductions but it does not address many other concerns to which the proposed
transaction may give rise.
back to top ↑