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FHFA re-proposes GSE seller/servicer eligibility requirements
On February 24, FHFA re-proposed updated eligibility standards that Fannie Mae and Freddie Mac (collectively, GSEs) mortgage sellers and servicers would have to meet. The updated proposed requirements are designed to provide transparency and consistency of capital and liquidity requirements for sellers and servicers with different business models, and would differentiate between the servicing of Ginnie Mae mortgages and GSE mortgages. FHFA noted that the updated proposed requirements, which reflect coordination with other federal agencies, also incorporate feedback from a January 2020 proposal (covered by InfoBytes here), as well as lessons learned from the Covid-19 pandemic.
Under the updated proposed requirements, all GSE sellers and servicers (both depositories and non-depositories) would be required to maintain a tangible net worth requirement of $2.5 million, plus 35 basis points of the unpaid principal balance for Ginnie Mae servicing and 25 basis points of the unpaid principal balance for all other 1-to-4 unit residential loans serviced, including GSE loans. Current GSE sellers and servicers, as well as new applicants, will be required to comply with the updated proposed requirements by December 31, 2022, minus the exception that Capital and Liquidity Plan requirements must be submitted to the GSEs by December 31, 2023, and are due annually by the end of each year thereafter. Comments on the proposed changes are due in 60 days. FHFA stated it anticipates finalizing the updated proposed requirements in the second quarter of 2022, with most requirements taking effect six months after finalization.
CFPB blogs about growth in auto lending
On February 24, the CFPB published a blog post regarding the auto lending market. In the post, the Bureau noted that the consumer price index for new and used cars increased by nearly 40 percent over the last year, and that it anticipated “that both the total amount of debt and the average loan size will continue to increase and that larger car loans will put increased pressure on some consumers’ budgets for much of the next decade.” Among other things, the Bureau highlighted it is monitoring the loan-to-value ratios in the auto lending market, auto loan servicing and collections practices, and the subprime auto lending market, stating that with respect to the subprime auto lending market, it is “looking to better understand potential barriers to competition in the subprime auto lending market that may drive” variation among subprime interest rates for auto loans. The post pointed to research that found “that typical ‘shallow subprime’ small BHPH ('buy-here-pay-here') borrowers would save around $894 over the life of a loan if they could reduce the interest rate from 13 percent, which is typical for such BHPH borrowers, to 9 percent, which is typical for bank borrowers with similar default rates.” The Bureau also noted that it “will continue to research auto lending policies and practices that may hinder a fair, transparent, and competitive market" and will work with its counterparts at the FTC and the Federal Reserve to use the agencies' collective authorities to address issues in the market.
HUD announces Nebraska and Iowa disaster relief
On February 24, HUD announced disaster assistance for certain areas in Nebraska and Iowa impacted by severe storms, straight-line winds, and tornadoes on December 15, 2021. This follows President Biden’s major disaster declaration for certain counties on February 23. The disaster relief includes providing an automatic 90-day moratorium on foreclosures of FHA-insured home mortgages for covered properties and making FHA insurance available to victims whose homes were destroyed or severely damaged, such that “reconstruction or replacement is necessary.” Additionally, HUD’s Section 203(k) loan program will allow individuals who have lost homes to finance the purchase of a house, or refinance an existing house and the costs of repair, through a single mortgage. The program will also allow homeowners with damaged property to finance the rehabilitation of existing single-family homes. Flexibility measures for state and local governments, public housing authorities, tribes, and tribally designated house entities are also addressed.
Special Alert: NYDFS guidance on cybersecurity and virtual currency responds to events in Ukraine
The New York Department of Financial Services last week issued guidance on its cybersecurity and virtual currency regulations in response to the Russian military actions in Ukraine and recently imposed sanctions. NYDFS specifically raised the specter of elevated cyber risk due to ongoing cyberattacks against Ukraine, which could spill over to other networks, as well as potential direct attacks against U.S. critical infrastructure.
Updated cybersecurity regulation guidance
NYDFS suggested that regulated entities with programs pursuant to its cybersecurity regulation (23 NYCRR 500) have the potential to mitigate increased cyber threats and should take the following steps:
- Review cybersecurity programs for compliance, with particular attention to certain safeguards and core cybersecurity hygiene measures, including access control, vulnerability management, and privileged access review
- Review, update, and test incident-response and business-continuity plans and ensure they address ransomware events
- Review and implement practices pursuant to the June 2021 Ransomware Guidance
- Re-evaluate plans to maintain essential services and protect critical data in the event of an extended outage or service disruption
- Conduct a full test of backup and recovery abilities
- Provide additional cybersecurity awareness training and reminders for all employees
NYDFS also advised that regulated entities should keep track of known threat actors and take extra precautions when doing business in Russia and Ukraine, including segregating Russian and Ukrainian networks. Regulated entities must report cybersecurity events that meet the criteria of 23 NYCRR 500.17(a) as promptly as possible and within 72 hours, and should also report cybersecurity events immediately to law enforcement, including the FBI and the Cybersecurity and Infrastructure Security Agency.
Guidance in response to recent sanctions
In the last week, the Biden administration imposed significant new sanctions targeting Russian assets, the Russian financial market, and Russian business dealings in response to Russia’s invasion of Ukraine. (See InfoBytes coverage here.) NYDFS reiterated that regulated entities should fully comply with U.S. sanctions on Russia, as well as Part 504 of its regulations regarding transaction monitoring and filtering. In order to comply with the new sanctions, NYDFS recommended that regulated entities take the following steps immediately:
- Monitor all communications from NYDFS, the U.S. Department of the Treasury, the Office of Foreign Assets Control (OFAC), and other federal agencies on a real-time basis to keep tabs on the latest developments
- Modify transaction monitoring and filtering programs as necessary to capture new sanctions as they are proposed
- Monitor all transactions, particularly trade finance transactions and funds transfers, and identify and interdict transactions prohibited by U.S. sanctions.
- Update OFAC compliance policies and procedures on a continuous basis to incorporate the recent sanctions and any new sanctions that may be imposed.
Updated virtual currency regulation guidance
NYDFS also cautioned that sanctioned entities may attempt to use virtual currency to evade sanctions. It said regulated entities must ensure they have “tailored policies, procedures, and processes to protect against the unique risks that virtual currency present” and are complying with the relevant state and federal laws, including the OFAC Sanctions Compliance Guidance for the Virtual Currency Industry and New York virtual currency regulation (23 NYCRR 200). Additionally, regulated entities should monitor the effectiveness of virtual currency-specific control measures, including sanctions lists, geographic screening, geolocation tools/IP address identification and blocking capabilities, and transaction monitoring and investigative tools, including blockchain analytics tools.
Buckley will continue to monitor the ongoing situation in Ukraine and provide updates in conjunction with significant developments.
If you have any questions regarding the NYDFS guidance or the recent Ukraine-related sanctions against Russia, please visit our Privacy, Cyber Risk & Data Security or Bank Secrecy Act/Anti-Money Laundering & Sanctions practice pages, or contact a Buckley attorney with whom you have worked in the past.
4th Circuit reviews whether borrowers’ letters are QWRs under REPSA
On February 22, the U.S. Court of Appeals for the Fourth Circuit affirmed in part and reversed in part a district court’s dismissal of claims related to whether letters sent by plaintiff borrowers to a defendant loan servicer constituted qualified written requests (QWRs) under RESPA or Regulation X that would require the defendant to stop sending adverse information about accounts to credit reporting agencies. According to the opinion, one of the plaintiffs wrote to the defendant asking to have his records corrected after noticing his credit reports reflected purported overdue home loan payments that were allegedly affecting his employment after his employer expressed concerns about the credit report. The plaintiff noted a discrepancy between the amount he was allegedly behind on his mortgage payment and included a copy of the credit report his employer received, his account number, the ID number of the agent with whom he spoke on the phone, and requested that the error be corrected. However, the plaintiff alleged that the defendant continued to report adverse loan information. The other named plaintiff allegedly fell behind on her loan payments, and the defendant began reporting adverse information to the credit reporting agencies. She later applied for a loan modification, which was not finalized due to the existence of a lien by a solar panel company. The plaintiff sent a letter to the defendant challenging the existence of “title issues” and asked for her dispute to be investigated and corrected. The parties ultimately finalized a loan modification, but in the interim, the defendant continued reporting adverse information. The plaintiffs filed a putative class action alleging that despite sending QWRs, the defendant continued to report adverse information on their loans to credit reporting agencies; however, the district court dismissed the claims.
On appeal, the 4th Circuit reversed the district court’s dismissal of the first plaintiff’s claim, holding that the plaintiff’s letter was a QWR subject to RESPA because it contained sufficient details to identify his account and indicate why he believed the credit reporting was in error. In particular, the court noted that the letter constituted a QWR because it did not rely solely on the alleged phone call “as the basis for the description of the problem,” but also detailed conflicting balance information received from the defendant and the credit reporting service. The dissenting judge wrote that this plaintiff’s letter was not a QWR because it failed to identify the possible error and did not provide a statement of reasons for believing the unidentified error existed.
With respect to the other named plaintiff’s claim, the court affirmed dismissal because the letter did not qualify as a QWR. The court explained that the content of the plaintiff’s letter failed to satisfy the requirements of a valid QWR, finding that “correspondence limited to the dispute of contractual issues that do not relate to the servicing of the loan, such as loan modification applications, do not qualify as QWRs.”
District Court grants motion to dismiss in privacy suit
On February 17, the U.S. District Court for the District of Delaware granted a motion to dismiss a putative class action suit for lack of Article III standing, in which plaintiffs alleged that the defendant violated their privacy rights by intercepting and recording mouse clicks and other website visit information. According to the memorandum opinion, the plaintiffs alleged defendant’s recording of that information violated, among other things, the California Invasion of Privacy Act (CIPA) and the Federal Wiretap Act. In finding the plaintiffs’ failed to plead a concrete injury, the district court found while the “[p]laintiffs have a legally cognizable interest in controlling their personal information and that intrusion upon that interest would amount to a concrete injury[,]” they failed to identify how any of their personal information was implicated in the complaint. The court explained: “[p]laintiffs fail to explain how either [the defendants] possession of anonymized, non-personal data regarding their browsing activities on [the defendant’s] website harms their privacy interests in any way.” The district court also noted that the plaintiffs did not make any allegations to suggest a risk of imminent or substantial future harm.
Special Alert: Russian invasion of Ukraine triggers significant sanctions (updated)
Over past few days, and following weeks of clear signals that sanctions would be imposed in response to military activity, the Biden administration issued significant new sanctions in response to the Russian Federation’s military invasion of Ukraine and its recognition of Ukraine’s separatist regions. The recent measures:
- Freeze the U.S. assets of numerous Russian banks and their subsidiaries, including Russia’s second largest bank, VTB, the company behind the Nord Stream 2 pipeline and multiple Kremlin-connected individuals
- Cut off Sberbank, Russia’s largest bank, from the U.S. financial system by prohibiting transactions involving Sberbank and imposing correspondent account-related prohibitions
- Prohibit transactions in new debt and equity of 13 large Russian enterprises
- Target secondary market dealings in Russian government debt
- Impose a near complete prohibition on dealings with the separatist regions of Ukraine
11th Circuit affirms $7.5 million settlement on overdraft appeal
On February 16, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court’s class certification and approval of a $7.5 million settlement, which resolved allegations that, after merging with another national bank, the former bank (defendant) improperly assessed and collected overdraft fees. According to the opinion, a customer accused the bank of “high-to-low” posting that restructured customers’ debit transactions so that high value debits posted before low value ones, increasing the chance of overdrafts. After the defendant merged with the national bank in 2012, the national bank agreed to the $7.5 million settlement to resolve the claims. A class member (interested party-appellant) appealed the order. The interested party-appellant claimed “that the court abused its discretion by finding that the settlement class’s representative … adequately represented her (and her proposed subclass’s) interests and that the settlement class’s claims were typical of hers (and her proposed subclass’s).”
The 11th Circuit disagreed and found that the district court did not abuse its discretion because the plaintiff classes “suffered identical injuries” based on the defendant’s alleged high-to-low restructuring practices. Additionally, the appellate court found that “[t]he district court didn’t abuse its discretion by finding [the settlement class’s representative’s] claims were typical of those of the class.” The court also found that “[t]he district court could reasonably conclude that any difference in the value of the plaintiffs’ claims was too speculative or too small to create a fundamental conflict of interest.”
Agencies weigh in on availability of SPCPs under ECOA and Regulation B
On February 22, the CFPB, DOJ, FDIC, Fed, FHFA HUD, OCC, and NCUA released an interagency statement “to remind creditors of the ability under [ECOA] and Regulation B to establish special purpose credit programs [(SPCPs)].” The statement points creditors to the CFPB’s December 2020 Advisory Opinion on SPCPs, which clarified (i) the content that a for-profit organization must include in a written plan that establishes and administers a SPCP under Regulation B; and (ii) the type of research and data that may be appropriate to inform a for-profit organization’s determination that an SPCP is needed to benefit a specified class of persons. The statement highlights December 7, 2021 HUD guidance, which concluded that SPCPs “instituted in conformity with ECOA and Regulation B generally do not violate the FHA,” conveying that SPCPs may also be appropriate avenues to expand credit access in mortgage lending. This was reiterated in a post released by the CFPB, stating that the “[interagency] statement [on SPCPs] calls attention to these programs as one way to expand access to critical financial services, including mortgage lending.”
OCC issues CRA FAQs
On February 22, the OCC issued Bulletin 2022-4 announcing responses to frequently asked questions (FAQs) regarding the December 2021 final rule rescinding the OCC’s Community Reinvestment Act (CRA) rule issued in June 2020. (The December 2021 final rule was covered by InfoBytes here.) According to the OCC, highlights of the FAQs include providing general information regarding the final rule, and addressing inquires related to, among other things: (i) the impact of the final rule on CRA bank type; (ii) qualifying activities and the qualifying activity confirmation request system; (iii) the transition period; (vi) examination administration; and (v) assessment areas.