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Fifth Circuit Holds Variable Rate Home Equity Loan Did Not Violate Texas Constitution

On July 22, the U.S. Court of Appeals for the Fifth Circuit affirmed a decision by a Texas district court finding that the terms of an adjustable rate home equity loan did not violate the Texas Constitution. Cerda v. 2004-EQR1 L.L.C., No. 09-50619, 2010 WL 2853651 (5th Cir. July 22, 2010). In response to a foreclosure proceeding, the plaintiff borrowers in Cerda alleged that the terms of a 2002 home equity loan refinance violated the Texas Constitution because (i) it was issued in violation of a mandated waiting period of 12 days between submission of an "application" and closing, (ii) it called for monthly payments that were not "substantially equal," and (iii) it required the payment of fees in excess of a 3% cap. The district court rejected these arguments and, following a bench trial, granted judgment to the defendants. The Fifth Circuit affirmed in all respects. First, the court held that an oral application, which the borrowers indisputably made over the telephone more than 12 days before the loan closed, was sufficient to commence the required waiting period. Second, with respect to the Texas Constitution’s requirement that scheduled payments on home equity loans be "substantially equal" in amount, the Fifth Circuit recognized that the provision was "in some tension with" a separate provision explicitly permitting "variable rate[s] of interest." The Fifth Circuit reconciled the provisions by holding that, in combination, the provisions merely required that home equity loans fully amortize - i.e., that installments extinguish principal and interest over the life of the loan - and, in addition, that there be no final, "balloon" payment. Because the plaintiffs’ loan comported with these requirements, the Fifth Circuit held that the "substantially equal" provision had not been violated. Third, the Fifth Circuit held that the loan did not exceed a 3% cap on fees, reasoning that the yield spread premium on the loan was not a "fee" because it was paid by the lender - not the borrower - to the broker, and that discount points are properly considered to be interest rather than a fee subject to the cap. As the Fifth Circuit noted, its rulings were based on the Texas Constitution as of 2002. Since that time, certain provisions at issue in this case have been amended.

Ninth Circuit Holds Fixed APR in Credit Card Solicitation May Be Misleading To Consumers

On July 21, the U.S. Court of Appeals for the Ninth Circuit held that a plaintiff properly alleged claims under the Truth in Lending Act (TILA) and the California Unfair Competition Law (UCL) because the use of the term "fixed" to describe an annual percentage rate (APR) along with an enumeration of three specific exceptions may have been misleading to a consumer when the APR was also subject to change for other reasons. Rubio v. Capital One Bank, No. 08-56544, 2010 WL 2836994 (9th Cir. July 21, 2010). In Rubio, the plaintiff consumer applied for and received a credit card pursuant to a direct-mail solicitation from the defendant bank in 2004. The solicitation’s "Schumer Box," as required by federal law, described the credit card’s APR as a "fixed rate of 6.99%." A paragraph below the Schumer Box stated that the APR was subject to increase in the case of (i) a failure to make a payment when due, (ii) an overlimit account, and/or (iii) a returned payment. When the consumer received her credit card, she also received a Cardholder Agreement that contained a reservation of the right of the bank to "amend or change any part" of the agreement "at any time." While none of the three enumerated conditions occurred, three years later the consumer received notice from the bank that her APR would increase. The consumer subsequently filed suit against the bank, alleging violations of TILA and the UCL and asserting a breach of contract claim.

In concluding that the bank’s disclosure was misleading under TILA, the Ninth Circuit relied in part on a study conducted by the Federal Reserve Board, which found that consumers "frequently assume that a rate that is labeled ‘fixed’ cannot be changed for any reason." Based in part on the same study, the Federal Reserve Board recently promulgated revisions to Regulation Z, which, as of July 1, 2010, bar the use of the term "fixed" in the Schumer box in certain circumstances. While those regulations did not apply retroactively to this case, the Ninth Circuit found them persuasive in determining that the disclosure at issue should be viewed as misleading. The Ninth Circuit reasoned that a reasonable consumer could conclude that the APR was "’unchangeable’ except for the three exceptions" listed next to the Schumer box and that it was, thus, reasonable for a consumer to conclude that the three enumerated conditions tied to the Schumer box were identified "precisely because they were the only reasons that the APR could change." The Ninth Circuit further held that the misleading nature of the disclosure as measured under TILA’s standards was sufficient to state a claim under the UCL.

Michigan Supreme Court Invalidates State Rules Prohibiting the Practice of Insurance Scoring

On July 8, the Michigan Supreme Court struck down rules issued by the state’s Commissioner of Financial and Insurance Regulation (Commissioner) banning the use of credit reports to determine automobile and homeowners insurance premiums, a practice known as “insurance scoring.”Ins. Inst. of Mich. v. Comm’r, Fin. & Ins. Servs., 2010 WL 2696342, No. 137400 (Mich. Jul. 8, 2010). The court held that the Commissioner’s rules were contrary to Michigan’s Insurance Code, which allows insurers to establish premium discount plans and rating systems based on factors that reasonably reflect an insurer’s anticipated reduction in losses, and, thus, exceeded the statutory scope of the Commissioner’s rule-making authority. The court based its determination largely on evidence in the record indicating that individuals with higher insurance scores pose a lower risk of loss to the insurer. Based on that evidence, the court found that there was “little difference between providing a discount for anti-lock brakes, for example, and providing a discount based on high insurance scores.” The court separately rejected an argument by the Commissioner that credit reports are unreliable and, therefore, their use violates an Insurance Code prohibition on “unfairly discriminatory” rates. In the course of its opinion, the court also noted that the Michigan Legislature had at one time considered legislation that would ban the use of credit scores in insurance underwriting. However, this legislation was abandoned by the Legislature after the governor made clear her intention to veto the legislation.

Mississippi Enacts Legislation Revising SAFE Act Implementation

The Mississippi legislature recently enacted legislation (H.B. 223) amending Mississippi’s Secure and Fair Enforcement for Mortgage Licensing Act (SAFE Act) compliance legislation. The bill generally amends certain definitions and exemptions, as well as changes the licensing process. Most notably, H.B. 223 amends the definition of “mortgage loan originator” to include individuals who take residential mortgage loan applications or (rather than and) who offer or negotiate terms of a residential mortgage loan. The bill adds definitions for “taking an application for a residential mortgage loan” and “offering or negotiating a residential mortgage loan.” Furthermore, the bill exempts from the SAFE Act compliance legislation institutions regulated by the Farm Credit Administration, certain licensed lenders, and certain mortgage loan servicers.

Washington State Supreme Court Holds HOLA Does Not Preempt Allegation of Impermissible Reconveyance Fees

On June 24, the Washington Supreme Court held that the Home Owners’ Loan Act (HOLA) and Office of Thrift Supervision (OTS) regulations do not preempt a borrower’s claim challenging fax and notary fees to secure the reconveyance of title when the claim is based on the terms of a deed of trust. McCurry v. Chevy Chase Bank, F.S.B., No. 81896-7, 2010 WL 2521772 (Wash. June 24, 2010). InMcCurry, the borrowers, who sued on behalf of two similarly situated classes, conveyed a deed of trust to the lender. The payoff statement included a $20 fax fee and a $2 notary fee. The borrowers argued that the deed of trust did not permit such fees, thereby resulting in the lender’s unjust enrichment, and that the charging of the fees violated the Washington Consumer Protection Act (WCPA). The lender moved to dismiss on the grounds that HOLA and OTS regulations preempted state laws that dictate the type and nature of loan-related fees a lender can charge. The Washington Supreme Court, sitting en banc, noted that whether the lender was precluded from charging fax and notary fees under the terms of the deed of trust was a matter of contract law. The court concluded that state contract law requires the parties to adhere to the terms of their contracts, and the effect this has on lending operations is “unintended, ancillary, and subordinate to the purpose of the contract law,” and is therefore “incidental.” As such, the court ruled in favor of the borrowers, finding that neither the WCPA nor state contract law was preempted by federal regulations.

Illinois Amends Consumer Installment Loan Act; Caps Interest Rates, Eliminates Fees

On June 21, Illinois Governor Pat Quinn signed HB0537, which amends the Illinois Consumer Installment Loan Act by placing a cap on interest rates, introducing income-based repayment measures, eliminating balloon payments and pre-payment penalties, and expanding the monitoring of licensed lenders. Under the new provisions, the interest rate on loans over $4,000 will be capped at 36% and the interest rate on certain loans under $1,500 will be capped at 99%. Moreover, the interest rate that may be charged on the unpaid balance of a delinquent account on small consumer loans will be capped at 18% per year. Lenders are prohibited from making small consumer loans that would result in a monthly payment exceeding 22.5% of the borrower’s gross monthly income. Lenders also may not condition the extension of credit on the consumer’s agreement to repay the loan using preauthorized electronic fund transfers. Finally, the bill requires certain information pertaining to small consumer loans to be entered into a state-wide electronic database. The amendments become effective March 21, 2011.

Ohio Federal Court Indicates Intent to Certify Question to Ohio Supreme Court to Resolve Applicability of Ohio Consumer Sales Practices Act to Servicers

On June 18, the U.S. District Court for the Northern District of Ohio stated its intent to certify to the Ohio Supreme Court the question of whether the Ohio Consumer Sales Practices Act (OCSPA) applies to mortgage loan servicers. Anderson v. Barclays Capital Real Estate, Inc., No. 3:09-cv-2335 (N.D. Ohio June 18, 2010). In Anderson, the plaintiff borrower asserted that the defendant, a mortgage servicer, violated the Real Estate Settlement Procedures Act (RESPA) and the OCSPA by allegedly misapplying the borrower’s mortgage loan payments and by allegedly failing to adequately respond to her qualified written request (QWR). The borrower also asserted common law claims for unjust enrichment and conversion. The servicer moved to dismiss all claims, challenging the sufficiency of the pleadings and specifically arguing that the OCSPA does not apply to mortgage servicers because they are not “suppliers,” nor were the servicer’s dealings with the borrower “consumer transactions” within the meaning of the OCSPA. With respect to the OCSPA claim, the court noted that there was no binding Ohio authority regarding whether the OCSPA applies to mortgage servicers and stated its intent to certify the question to the Ohio Supreme Court. With regard to the RESPA claim, the court found that the complaint sufficiently pled a breach of RESPA duties to survive a motion to dismiss by alleging a failure to adequately respond to a QWR. The court also ruled, however, that the borrower failed to adequately plead damages to state a RESPA claim, and therefore held its decision on the servicer’s motion to dismiss in abeyance to allow the borrower an opportunity to amend the complaint. The court also ruled that the borrower had sufficiently pled her common law claims to state plausible claims for relief to survive the motion to dismiss.

Utah Federal Court Extends "Complete Preemption" Doctrine to National Banking Act

On June 18, the U.S. District Court for the District of Utah issued a memorandum opinion explaining its June 11 order to vacate a preliminary injunction entered by a Utah state court, which had enjoined a defendant national bank and its trustee services company from conducting foreclosure sales in Utah (the order to vacate was reported in InfoBytes, June 18, 2010). Cox v. ReconTrust Co., N.A., No. 2:10-CV-492, 2010 WL 2519716 (D. Utah June 18, 2010). In Cox, the plaintiff, a borrower who was facing foreclosure, originally filed suit in state court claiming that the defendants, both national banks licensed under the National Banking Act (NBA), (i) were foreign companies not registered to transact business in Utah, (ii) were not qualified to act as trustees under Utah code, and (iii) violated the Real Estate Settlement Procedures Act (RESPA). Citing the federal claim under RESPA, the defendants removed the case to federal court. Thereafter, the borrower voluntarily dismissed her RESPA claim and moved for remand. Rejecting the motion for remand, the district court found that it retained original jurisdiction because the state law claims were subject to complete preemption under the NBA. The district court concluded that Congress intended for the NBA to exclusively control how national banks transact business nationwide and act as trustees and, thus, provided removal jurisdiction. This interpretation of the NBA also defeated the preliminary injunction because the NBA preempted the borrower’s state law claims that a national bank must be registered with Utah as a foreign corporation to foreclose on a property and must comply with Utah’s statutory requirements for trustees.

California Federal Court Finds No Private Right of Action Under HAMP, National Housing Act

On June 15, the U.S. District Court for the Eastern District of California held that the Home Affordable Modification Program (HAMP), the National Housing Act (NHA) and the California Perata Mortgage Relief Act (PMRA) do not create private rights of action. Zendejas v. Wholesale Mortgage Corp., No. 1:10-CV-00184, 2010 WL 2490975 (E.D. Ca. June 15, 2010). In Zendejas, the plaintiff debtors borrowed $220,500 from the lender to refinance their home mortgage. The debtors defaulted on the loan and requested a loan modification from the lender, who was a participant in HAMP. The parties were unable to come to an agreement on the loan modification due to the debtors decreasing income, and the property was subsequently foreclosed. The debtors brought suit, claiming the lender failed to offer them an acceptable loan modification or any other satisfactory options prior to foreclosure. More specifically, the debtors, in addition to various other claims, alleged the lenders failed to (i) conform to the provisions of HAMP, which require the lender to offer certain loan modification and foreclosure prevention services, (ii) comply with the notice requirements of the NHA, which required the lender to advise the debtors of any home ownership counseling they may be eligible for, and (iii) contact the debtors prior to default and foreclosure as required by the PMRA. The debtors also claimed that the failure to provide a loan modification constituted unfair or fraudulent business practices, in violation of California state law. The lenders rejected these claims and filed a motion to dismiss, which the court granted in its entirety. The court found that the debtors did not have standing to sue under HAMP, reasoning that HAMP does not create a private right of action. The court noted that a "borrower to a HAMP agreement would not be reasonable in relying on [it] as manifesting an intention to confer a right on him because the [HAMP] does not require a servicer to modify eligible loans." Likewise, the court stated that the NHA did not create a cause of action because the NHA gives a borrower no claim in the event that the lender "fail[s] to follow the statute or its implementing regulations." The court additionally found that California legislature did not intend to create a private right of action for borrowers for violations of the PMRA. Finally, the court rejected the state unfair or fraudulent business practice claim on the basis that no law required the lenders to provide a loan modification.

South Carolina Legislature Overrides Governor’s Veto of Bill Amending Mortgage Broker Licensing Requirements, Restricts Payday Lending by Supervised Lenders

On June 15, the South Carolina General Assembly overrode the veto of South Carolina Governor Mark Sanford in connection with H 3790, a bill including provisions to amend licensing requirements for mortgage loan originators that are independent contractors and prohibiting payday loans made by non-bank supervised lenders. The bill amends the South Carolina Mortgage Lending Act to require the licensure of an independent contractor who originates loans for and under the supervision of a mortgage broker licensee as a “qualified loan originator.” A qualified loan originator is subject to the requirements of a loan originator and cannot (i) be compensated based upon the terms of the loan originated (except for the amount of the principal balance), (ii) offer loans other than fixed-term, fixed-rate, fully amortizing mortgages, or (iii) handle borrower or other third-party funds in connection with the mortgage loan. The bill also excludes payday loans from the definition of “supervised loans,” defined as non-mortgage consumer loans in excess of 12% interest per year, and prohibits non-bank supervised lenders from making payday loans. The bill, however, does not amend South Carolina’s separate payday lending law. Initial violations of this prohibition are subject to fines while the third violation is subject to license revocation. In vetoing the bill, Governor Sanford objected to licensing independent contractors working under the supervision of a mortgage broker licensee differently than non-affiliated independent contractors and restricting consumer access to payday loans. The law becomes effective immediately.