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Private Flood Insurance

The below article is the Special Focus section of the March 2019 Compliance Journal. The full issue may be viewed by clicking here.

On February 12, 2019 the Federal Financial Institutions Examination Council published a final rule on loans in areas having special flood hazards (2019 final rule). The 2019 final rule amends the flood regulations for the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Farm Credit Administration, and the National Credit Union Administration (Agencies). The Agencies issued the 2019 final rule to implement the private flood insurance provisions of the Biggert-Waters Flood Insurance Reform Act of 2012 (Biggert-Waters Act). The 2019 final rule was published in the Federal Register on February 20, 2019 and compliance is manditory on July 1, 2019; however, lenders may begin following the rule now.

Background

The Biggert-Waters Act includes a statutory definition of private flood insurance and directs the Agencies to implement acceptance through rulemaking. In 2013 the Agencies proposed a rule requiring the acceptance of private flood insurance pursuant to the statutory definition. The proposed rule generated interpretive uncertainties that ultimately resulted in the Agencies issuing a revised proposed rule in 2016. The 2019 final rule is an attempt to clarify the definition of private flood insurance under the Biggert-Waters Act.

2019 Final Rule

In addition to attempting to clarify the statutory definition of private flood insurance, the 2019 final rule includes a compliance aid to enable institutions to identify acceptable private policies. Additionally, subject to certain restrictions, it permits institutions to exercise discretionary acceptance of flood insurance policies that do not meet the definition of private flood insurance. Finally, the rule specifies how lenders may accept policies issued by “mutual aid societies” such as certain Amish Aid Plans.

Definition of Private Flood Insurance

The statutory definition of private flood insurance under the Biggert-Waters Act incorporated factors from the Federal Emergency Management Agency’s Mandatory Purchase of Flood Insurance Guidelines. The 2019 final rule attempts to clarify this statutory definition. As such, institutions familiar with the statutory definition will notice slight variations when compared to the 2019 final rule’s definition. For purposes of this article, the analysis will focus on the 2019 final rule’s definition and not make a comparison.

Under the 2019 final rule, private flood insurance means an insurance policy that:

Is issued by an insurance company that is:
- Licensed, admitted, or otherwise approved to engage in the business of insurance by the insurance regulator of the State or jurisdiction in which the property to be insured is located; or
- Recognized, or not disapproved, as a surplus lines insurer by the insurance regulator of the State or jurisdiction in which the property to be insured is located in the case of a policy of difference in conditions, multiple peril, all risk, or other blanket coverage insuring nonresidential commercial property;
Provides flood insurance coverage that is at least as broad as the coverage provided under a Standard Flood Insurance Policy (SFIP) for the same type of property, including when considering deductibles, exclusions, and conditions offered by the insurer. To be at least as broad as the coverage provided under an SFIP, the policy must, at a minimum:
- Define the term “flood” to include the events defined as a “flood” in an SFIP;
- Contain the coverage specified in an SFIP, including that relating to building property coverage; personal property coverage, if purchased by the insured mortgagor(s); other coverages; and increased cost of compliance coverage;
- Contain deductibles no higher than the specified maximum, and include similar nonapplicability provisions, as under an SFIP, for any total policy coverage amount up to the maximum available under the National Flood Insurance Program (NFIP) at the time the policy is provided to the lender;
- Provide coverage for direct physical loss caused by a flood and may only exclude other causes of loss that are excluded in an SFIP. Any exclusions other than those in an SFIP may pertain only to coverage that is in addition to the amount and type of coverage that could be provided by an SFIP or have the effect of providing broader coverage to the policyholder; and
- Not contain conditions that narrow the coverage provided in an SFIP;
Includes all of the following:
- A requirement for the insurer to give written notice 45 days before cancellation or non-renewal of flood insurance coverage to:
  - The insured; and
  - The lending institution that made the designated loan secured by the property covered by the flood insurance, or the servicer acting on its behalf;
- Information about the availability of flood insurance coverage under the NFIP;
- A mortgage interest clause similar to the clause contained in an SFIP; and
- A provision requiring an insured to file suit not later than one year after the date of a written denial of all or part of a claim under the policy; and
Contains cancellation provisions that are as restrictive as the provisions contained in an SFIP.

Compliance Aid

Pursuant to the above definition, a national bank or Federal savings association must accept private flood insurance in satisfaction of the flood insurance purchase requirements. Thus, a financial institution is required to accept private flood insurance and must also ensure it meets the above definition. However, the 2019 final rule provides a compliance aid to assist in that mandatory acceptance. Pursuant to the compliance aid, a financial institution may determine that a policy meets the definition of private flood insurance without reviewing the policy, if the following statement is included within the policy or as an endorsement to the policy:

“This policy meets the definition of private flood insurance contained in 42 U.S.C. 4012a(b)(7) and the corresponding regulation.”

While the compliance aid provides a safe harbor to financial institutions that accept policies containing the above language, there is no requirement for insurers to include the compliance aid language. Furthermore, because the 2019 final rule prescribes mandatory acceptance of private flood insurance that meets the above definition, financial institutions must accept policies that meet the above definition whether it includes the compliance aid or not. Meaning, a financial institution cannot reject a policy for the sole reason that it does not contain the compliance aid language.

Discretionary Acceptance

The 2019 final rule provides financial institutions the discretionary ability to accept or reject policies that do not meet the above definition of private flood insurance. Lenders may accept such policies, at their own discretion, if the policy:

Provides coverage in the amount required by the NFIP;
Is issued by an insurer that is licensed, admitted, or otherwise approved to engage in the business of insurance by the insurance regulator of the State or jurisdiction in which the property to be insured is located; or in the case of a policy of difference in conditions, multiple peril, all risk, or other blanket coverage insuring nonresidential commercial property, is issued by a surplus lines insurer recognized, or not disapproved, by the insurance regulator of the State or jurisdiction where the property to be insured is located;
Covers both the mortgagor(s) and the mortgagee(s) as loss payees, except in the case of a policy that is provided by a condominium association, cooperative, homeowners association, or other applicable group and for which the premium is paid by the condominium association, cooperative, homeowners association, or other applicable group as a common expense; and
Provides sufficient protection of the designated loan, consistent with general safety and soundness principles, and the national bank or Federal savings association documents its conclusion regarding sufficiency of the protection of the loan in writing.

Mutual Aid Societies

In order to meet the mandatory acceptance provisions for private flood insurance, the 2019 final rule permits lenders to accept policies written by mutual aid societies if:

The applicable supervisory agency has determined that such plans qualify as flood insurance for purposes of the Act;
The plan provides coverage in the amount required by the NFIP;
The plan covers both the mortgagor(s) and the mortgagee(s) as loss payees; and
The plan provides sufficient protection of the designated loan, consistent with general safety and soundness principles, and the national bank or Federal savings association documents its conclusion regarding sufficiency of the protection of the loan in writing.

In addition, the rule defines mutual aid society to mean an organization:

Whose members share a common religious, charitable, educational, or fraternal bond;
That covers losses caused by damage to members’ property pursuant to an agreement, including damage caused by flooding, in accordance with this common bond; and
That has a demonstrated history of fulfilling the terms of agreements to cover losses to members’ property caused by flooding.

Conclusion

With the 2019 final rule becoming effective July 1, 2019, and optional compliance available under the 2019 final rule now, WBA recommends financial institutions review their policies on acceptance of private flood insurance. Financial institutions will need to understand the definition of private flood insurance policies pursuant to the rule, even if they had previously adhered to the statutory definition, as the 2019 final rule implements slight changes. Furthermore, institutions should be prepared to understand the relation of the compliance aid to the mandatory acceptance requirements.

The 2019 final rule may be found here: https://www.govinfo.gov/content/pkg/FR-2019-02-20/pdf/2019-02650.pdf ■

By, Ally Bates

March 27, 2019/by Jose De La Rosa

Compliance

Legal Q&A: NPCs Covered by CDD Requirements for Certification of Beneficial Ownership

Q: Are non-profit corporations covered by the customer due diligence requirements for certification of beneficial ownership?

A: Yes. All corporations that file articles of incorporation with the State of Wisconsin are covered by the Customer Due Diligence (CDD) Rule regardless of non-profit status.

The CDD Rule requires covered financial institutions to develop written procedures to identify and verify beneficial owners of legal entity customers upon opening of new account. A legal entity customer is described, in part, as a Corporation, limited liability company, or other entity that is created by the filing of a public document with a Secretary of State. Thus, a non-profit corporation would be a legal entity customer for purposes of the CDD rule.

The key determination is whether the customer is a "legal entity customer." Tax status, such as non-profit status, does not directly affect a customer's legal entity status. Meaning, a non-profit organization such as a church could decide to incorporate, file articles of organization, or otherwise file with the State and be covered by the CDD Rule. Typically, however, a non-profit organization will opt for an unincorporated association status. Unincorporated associations are not legal entity customers and are not covered by the CDD rule. Wisconsin's Uniform Unincorporated Nonprofit Association Act can be found under chapter 184 of the Wisconsin Statutes.

For this reason, non-profits are often exempt from the CDD rule. This is, however, by their decision to organize as an unincorporated association rather than their tax status.

Note: The above information is not intended to provide legal advice; rather, it is intended to provide general information about banking issues. Consult your institution's attorney for special legal advice or assistance.

By, Scott Birrenkott

June 7, 2018/by Jose De La Rosa

Compliance

Legal Q&A: Authority to Act Under a POA Agreement

Q: How can I be Certain an Agent has Authority to Act under a Power of Attorney Agreement?

A: WBA continues to field a variety of questions about when and how an agent may act under a Power of Attorney (POA) agreement. This Q&A is dedicated to that question generally.

A POA agreement is a legal document whereby one party (the principal) designates authority to act on their behalf to another party (the agent). Always ensure that any POA agreement bank receives relates to powers over finances. Take a copy of and review any POA agreement related to finances the bank may receive for its customers. Customers may bring in the model agreement provided by Wisconsin in accordance with Chapter 244 or one drafted by an attorney. Both are equally valid methods, but may contain different terms and provisions. Confirm whether the POA agreement is: durable, non-durable, or springing. This refers to when the agent may act: either while the principal is incapacitated, cease while the principal is incapacitated, or after a predetermined event.

All of the agent’s authority to act comes from what is written within the POA agreement. Ideally, the POA agreement is clear and specific. Sometimes, it may not be. For example, the POA agreement may refer to “general powers of finances.” Wisconsin Statute Section 244.41 indicates which authority is covered by a general grant and those powers that require a specific grant. You will want to review that portion of the statute to assist in determining the agent’s authority. In any case, carefully review the document, and consider obtaining an opinion from the bank’s own counsel.

Special rules exist for agency on joint deposit accounts. All parties to the joint account must designate the agent to have authority on the account for the agency to be valid. However, only one party needs to revoke that authority in order for the revocation to be effective.

Generally, agents may not appoint other agents, and generally may not conduct estate planning activities on behalf of the principle. Look for specific language granting this authority if an agent wishes to act in this way and consider obtaining an opinion from the bank’s own counsel.

A POA agreement for personal finances of an individual doesn’t automatically mean that an agent can act with respect to any fiduciary authority the ward has. For example, while a trustee may have the authority to appoint an agent over a trust, in order for the trustee to appoint an agent over a trust they should do so in their capacity as a trustee rather than as an individual.

As a final reminder, POA agreements for health care do not apply to deposit accounts. They relate to health care decisions rather than finances.

As always, if you have any questions on POA matters or other compliance-related concerns, call the WBA legal hotline at 608-441-1200 or email us at wbalegal@wisbank.com.

Note: The above information is not intended to provide legal advice; rather, it is intended to provide general information about banking issues. Consult your institution's attorney for special legal advice or assistance.

By, Scott Birrenkott

October 27, 2017/by Jose De La Rosa

Compliance

Legal Q&A: POD Beneficiaries for Deposit Accounts

Q: Can a Deposit Account with a Payable on Death Beneficiary have a Contingent Beneficiary?

A: No. Wisconsin Section 705 covers non-probate transfers at death. WBA does not read section 705 to permit contingent beneficiaries.

The WBA payable on death beneficiary designation form was created in accordance with the below interpretation of Wisconsin Section 705 and thus does not permit contingent beneficiaries. It has been WBA’s longstanding opinion that the POD statute does not permit identification of contingent beneficiaries to accounts governed by Subchapter 1 of the Chapter 705. Accounts covered by this statute include most standard checking, savings and certificate of deposit accounts established by a standard deposit account agreement.

The POD statute specifies who is entitled to payment on a POD account on the death of the last surviving accountholder. Under 705.06(1)(c), the funds are paid to the beneficiaries who survive the death of the last surviving accountholder. If none of the beneficiaries survive, the funds are paid to the estate of the last surviving accountholder. This is the way the WBA form is drafted.

The statute provides a second option under 705.04(2)(d), under which funds otherwise payable to a beneficiary who predeceases the death of the last surviving accountholder, would pass to the beneficiary’s issue who would take under 854.06(3).

When the option to pay the beneficiary’s issue was added to the POD statute, it was WBA’s understanding that the decision was made not to draft for this option. We believe that not all persons would want the issue (without identification of specific children) to receive payment. Further, the bank would not have any easy way to identify all of the issue who would be entitled to the payment. The identity of a person’s issue can change throughout the term of the account.

However, the statute does not permit any other payment of fund in a POD account. The statue does not authorize payment to named contingent beneficiaries.

The WBA POD beneficiary form was drafted to follow the above. Thus, if a bank wishes to contract in a way to appoint contingent beneficiaries for a customer’s deposit account we recommend working with the bank’s own counsel to either modify WBA’s form or create a separate designation. If your bank does not use WBA forms we recommend consulting with your forms drafters to determine what their interpretation of Section 705 is with respect to contingent beneficiaries.

Note: The above information is not intended to provide legal advice; rather, it is intended to provide general information about banking issues. Consult your institution’s attorney for special legal advice or assistance.

By, Scott Birrenkott

April 7, 2017/by Jose De La Rosa

News

Structural Integrity: Make compliance part of your institution’s DNA

Structural Integrity
Make compliance part of your institution’s DNA

Compliance is top-of-mind for every bank executive today – it might even keep you up at night – but do all of your employees feel the same level of responsibility? They should.

There’s a difference between following prescribed protocols from regulators and having a truly effective and efficient compliance system. In the struggle to keep ahead of new and changing regulations and complex expectations from examiners, some banks have fallen into the rut of using their compliance department as the last line of defense. However, a holistic approach to compliance, where key elements are knit into an integrated whole and every employee feels personal ownership of their role within the compliance system, tends to be more effective (and more efficient) than viewing the compliance department as a safety net.

Key Features

The foundation of a holistic compliance system is the distribution of ownership across all departments and the bank’s strategic plan. “Compliance is the responsibility of the organization as a whole, so it needs to be distributed,” explained Elliot Berman, Principal at Bowtie Advisors. According to Berman, distributed compliance systems are one of the most effective responses by financial institutions to the continuing challenge of meeting the resource needs of today’s regulatory expectations about compliance. A distributed system is not just an idea; it must be put down on paper as part of the bank’s plans and processes to create accountability. “It is critical that each area of the bank examine its compliance risks and articulate in their operating plans how they will manage them,” said Joe Fikejs, COO of Bank Mutual, Milwaukee. “Then, they need to be held accountable to the goals and plans that are set. This best practice also reiterates the message that compliance is not just the responsibility of the compliance department.”

Another key feature of a holistic compliance system is compliance personnel that are seen as collaborative partners to be consulted in the early stages of every project rather than gatekeepers or the final step in a process. “I prefer the ‘compliance first’ approach,” said Ami Dregne, compliance officer at Citizens First Bank, Viroqua. “I don’t like being the last stop before something goes out.” Berman also prefers this model of spreading responsibility because it allows the compliance team to be subject matter experts. “That’s a more effective use of their expertise,” he said. “I’ve seen organizations where compliance is viewed as the ‘department of no’ and that’s not conducive to success.” Dregne also advocated for a collaborative relationship between compliance and the rest of bank staff. “You don’t want staff to feel like the compliance officer is ‘Bad Cop,’” she said.

Implementation

When implementing a distributed compliance system, first lay the groundwork with communication and support from upper management. “Having management involved is key so that the employees know and trust the compliance team will tell them how things need to be done in order to stay compliant, rather than just make their jobs harder for no reason," Dregne explained. A hands-on management approach is also essential to foster a sense of ownership for all staff. “You won’t have a strong risk-conscious culture until all employees feel they have key roles that they take ownership of,” said Fikejs. “It is as simple as connecting the dots between regulation and key processes.” Drawing those connections for staff doesn’t require that management be subject matter experts, either. “It’s not a compliance issue, really,” said Berman. “It’s a communication and operations issue.”

Another facet of this holistic approach to compliance that cannot be overlooked is the need for ongoing training. “Weaving compliance and risk management across all key areas of a financial institution’s strategic plan is the start, but it cannot stop there,” said Fikejs. “It needs to be reinforced on a regular basis at key meetings, training and in communications.” Compliance training doesn’t have to be torturous, either. “Compliance is not as exciting as other functions in banking, so try to have fun with it,” Fikejs suggested. “Use gamification at meetings to reinforce key messages.” It’s also important not to let your compliance training schedule slip into “peaks and valleys,” according to Berman. Even though changes to regulations and procedures require mandatory training to update employees, it is also important to provide ongoing refresher training. “Find a balance between the ‘big training’ and the reminders,” he advised.

Finally, equip your compliance personnel for success by ensuring they have access to all the tools and resources they need to coordinate your compliance program. One of the most powerful resources out there is a wide network of peers. “It’s important to have a peer network you can rely on for perspective,” said Dregne. “Many compliance officers wear many hats and some are stronger in certain areas, so we lean on each other a lot.” Regular contact with industry thought leaders and other compliance experts will help your team guide the institution to consistent success.

As with many business functions, the bank’s compliance system should also undergo a continuous improvement process. “Review processes and workflows frequently to ensure unnecessary complexities and controls are removed,” Fikejs recommended. “The more simplistic the process, typically the better.” The ultimate goal is to empower everyone in the bank to work in tandem with the compliance team and take ownership of their individual compliance role. With that approach in place, the whole institution will benefit from a more efficient and effective compliance system.

By, Amber Seitz

August 23, 2016/by Jose De La Rosa

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