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Federal Register / Vol. 86, No. 146 / Tuesday, August 3, 2021 / Proposed Rules
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C. Proposed Rule The FDIC is proposing to amend the rules governing coverage for deposits in mortgage servicing accounts to provide consistent deposit insurance treatment for all MSA deposit balances held to satisfy principal and interest obligations to a lender, regardless of whether those funds are paid into the account by borrowers, or paid into the account by another party such as the servicer in order to satisfy a periodic obligation to remit principal and interest due to the lender. Under the proposed rule, accounts maintained by a mortgage servicer in an agency, custodial, or fiduciary capacity, which consist of payments of principal and interest, would be insured for the cumulative balance paid into the account in order to satisfy principal and interest obligations to the lender, whether paid directly by the borrower or by another party, up to the limit of the SMDIA per mortgagor. Mortgage servicers advances of principal and interest funds on behalf of delinquent borrowers would therefore be insured up to the SMDIA per mortgagor, consistent with the coverage rules for payments of principal and interest collected directly from borrowers.65
The composition of an MSA
attributable to principal and interest payments would also include collections by a servicer, such as foreclosure proceeds, that are used to satisfy a borrowers principal and interest obligation to the lender. In some cases, foreclosure proceeds may not be paid directly by a mortgagor. The current rule does not address whether foreclosure collections represent payments of principal and interest by a mortgagor. Under the proposed rule, foreclosure proceeds used to satisfy a borrowers principal and interest obligation would be insured up to the limit of the SMDIA per mortgagor.
The proposed rule would make no change to the deposit insurance coverage provided for mortgage servicing accounts comprised of payments from mortgagors of taxes and insurance premiums. Such aggregate escrow accounts are held separately from the principal and interest MSAs and the deposits therein are held in trust for the mortgagors until such time 65 Servicers advances may have been insured under the rule that applied to mortgage servicing account deposits prior to 2008. Prior to 2008, mortgage servicing deposits were insured on a passthrough basis. Under the pass-through insurance rules, the identity of the party that pays funds into a deposit account does not generally factor into insurance coverage. In this sense, the proposed rule can be viewed as restoring coverage to the previous level.

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as tax and insurance payments are disbursed by the servicer on the borrowers behalf. Under the proposed rule, such deposits would continue to be insured based on the ownership interest of each mortgagor in the account and aggregated with other deposits maintained by the mortgagor at the same IDI in the same capacity and right.
D. Request for Comment The FDIC is requesting comment on all aspects of the proposed rule.
Comment is specifically invited with respect to the following questions:
Would the proposed amendments to the rules governing coverage for mortgage servicing accounts adequately address servicers practices with respect to these accounts, as described above?
Are there any other funds representing principal and interest that are commingled with borrowers payments that the FDIC should take into account in the deposit insurance calculation, consistent with its policy objectives?
Would deposit insurance coverage of servicer principal and interest advances help to promote financial stability in the financial system? If the FDIC does not amend the rule as proposed, how would mortgage servicers react if their insured depository institution, or the banking industry as a whole, appears stressed? If so, how would funding arrangements or deposit relationships change?
Does the proposed rule reduce the compliance burden for part 370 covered institutions?
Are there any alternatives to the proposed rule that would better achieve the FDICs policy objectives in connection with this rulemaking? Are there any other amendments to the deposit insurance rules applicable to MSAs that the FDIC should consider?
III. Regulatory Analysis A. Expected Effects 1. Simplification of Trust Rules Generally, the proposed simplification of the trust rules is expected to have benefits including clarifying depositors and bankers understanding of the insurance rules, promoting the timely payment of deposit insurance following an IDIs failure, facilitating the transfer of deposit relationships to failed bank acquirers thereby potentially reducing the FDICs resolution costs, and addressing differences in the treatment of revocable trust deposits and irrevocable trust deposits contained in the current rules. The proposed amendments would directly affect the
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level of deposit insurance coverage provided to some depositors with trust deposits. In some cases, which the FDIC
expects are rare, the proposed amendments could reduce deposit insurance coverage; for the vast majority of depositors, the FDIC expects the coverage level to be unchanged. The FDIC has also considered the impact of any changes in the deposit insurance rules on the DIF and on the covered institutions that are subject to part 370.
Finally, the FDIC describes other potential effects of the proposal, such as the effects on information technology IT service providers to the institutions that could be affected by the proposed rule. These effects are discussed in greater detail below.
Effects on Deposit Insurance Coverage The proposed rule would affect deposit insurance coverage for deposits held in connection with trusts.
According to the March 31, 2021 Call Report data, the FDIC insures 4,987
depository institutions 66 that report holding approximately 641 million deposit accounts. Additionally, 1,573
IDIs have powers granted by a state or national regulatory authority to administer accounts in a fiduciary capacity i.e., trust powers and 1,167
exercise those powers, comprising 31.5
percent and 23.4 percent, respectively, of all IDIs.67 However, individual depositors may establish a trust account at an IDI even if that IDI does not itself have or exercise trust powers, and in fact, as discussed below, 99 percent of a sample of failed banks had trust accounts. Therefore, the FDIC estimates that the proposed rule, if adopted, could affect between 1,167 and 4,987 IDIs.
The FDIC does not have detailed data on depositors trust arrangements that would allow the FDIC to precisely estimate the number of trust accounts that are currently held by FDIC-insured institutions. However, the FDIC
estimated the number of trust accounts and trust account depositors utilizing data from failed banks. Based on data from 249 failed banks 68 between 2010
and 2020, 335,657 deposit accounts owned by 250,139 distinct depositors were trust accounts revocable or irrevocable, out of a total of 3,013,575
deposit accounts. Thus, about 11.14
percent of the deposit accounts at the 249 failed banks were trust accounts. Of 66 The count of institutions includes FDICinsured U.S. branches of institutions headquartered in foreign countries.
67 FDIC Call Report data, March 31, 2021.
68 Data on failed banks comes from the FDICs Claims Administration System, which contains data on depositors funds from every failed IDI since September 2010.

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