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Financial Services Law Insights and Observations


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  • FHA expands Covid-19 loss-mitigation options

    Federal Issues

    On July 8, the FHA announced additional home retention measures to assist homeowners with FHA-insured mortgages who are financially impacted by the Covid-19 pandemic. According to Mortgagee Letter 2020-20, effective immediately, mortgage servicers are able to offer a new suit of loss mitigation “waterfall” options to homeowners whose mortgages were current or less than 30 days past due as of March 1. ML 2020-20 updates existing options previously outlined in ML 2020-06 (covered by InfoBytes here) and introduces several new measures including (i) a standalone partial claim, not to exceed the 30 percent maximum statutory value; (ii) an owner-occupant loan modification (for homeowners who do not qualify for a standalone partial claim) that will modify the rate and term of the existing mortgage at the end of the Covid-19 forbearance period; (iii) a combination partial clam and loan modification (for homeowners who are ineligible for either of the first two options); and (iv) a FHA Home Affordable Modification Program combination loan modification and partial claim with reduced documentation, which may include principal deferment and is for homeowners who are ineligible for the other home retention solutions. ML 2020-20 also provides that borrowers who do not currently occupy their FHA-insurance single family property may obtain a modification to their mortgage rates and terms under a Covid-19 non-occupant loan modification.

    Federal Issues Covid-19 FHA HUD Loss Mitigation Mortgages

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  • 3rd Circuit: Filed-rate doctrine precludes borrowers’ fraud claims


    On July 1, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of a class action challenging the lender placed insurance practices of a mortgage servicer, concluding that the filed-rate doctrine blocked the claims. According to the opinion, borrowers from North Carolina and New Jersey filed suit against their reverse mortgage lender and insurance company, alleging the lender and insurer colluded to overcharge consumers for lender placed insurance in violation of TILA, the federal Racketeer Influenced and Corrupt Organizations Act (RICO), and various state laws. Specifically, the plaintiffs asserted that the insurance company charged an insurance rate, which was appropriately filed with state regulators, that was higher than the mortgage lender paid. The plaintiffs asserted the insurer then returned a portion of the profits back to the lender in order to induce continued insurance business. The district court dismissed the action, holding that the filed-rate doctrine blocked the claims.

    On appeal, the 3rd Circuit agreed with the lower court. The appellate court emphasized that under the filed-rate doctrine, there is no distinction between “challenging a filed rate as unreasonable and…challenging an overcharge fraudulently included in a filed rate.” Because the plaintiffs sought damages in connection with the alleged overcharge of insurance premiums, the appellate court concluded that the plaintiffs were “functionally challeng[ing] the reasonableness of rates filed with state regulators.” Moreover, the appellate court noted that if the court were to award damages to the plaintiffs, the court would essentially be “giving these borrowers a better price for [lender placed insurance] than other [] borrowers using a different lender,” but the same insurer. Thus, because the insurance rate was appropriately filed with the state regulators, the appellate court had no ability to decide whether the rate was “unreasonable or fraudulently inflated,” because the claims were precluded by the filed-rate doctrine.

    Courts Lender Placed Insurance Mortgages Reverse Mortgages Appellate Third Circuit TILA RICO

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  • CFPB issues proposed rule on Regulation Z HPML escrow exemptions

    Agency Rule-Making & Guidance

    On July 2, the CFPB issued a notice of proposed rulemaking (NPRM) to amend Regulation Z, as required by the Economic Growth, Regulatory Relief, and Consumer Protection Act, and exempt certain insured depository institutions and credit unions from the requirement to establish escrow accounts for certain higher-priced mortgage loans (HPMLs). Under the proposed amendment, any loan made by an insured depository institution or credit union that is secured by a first lien on the principal dwelling of a consumer would be exempt from Regulation Z’s HPML escrow requirement if (i) the institution has assets of no more than $10 billion; (ii) “the institution and its affiliates originated 1,000 or fewer loans secured by a first lien on a principal dwelling during the preceding calendar year”; and (iii) the institution meets certain existing HPML escrow exemption criteria. Comments on the NPRM will be accepted for 60 days following publication in the Federal Register.

    Agency Rule-Making & Guidance CFPB Escrow Mortgages Regulation Z TILA EGRRCPA

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  • State Issues, Covid-19, District of Columbia, Consumer Credit, Credit Report, Consumer Finance

    State Issues

    On July 7, the Kansas Office of the State Bank Commissioner again extended its remote work guidance for mortgage companies, mortgage loan originators, supervised loan licenses, credit service organizations, money transmitters, and credit notification registrations, previously covered here. With the update, working from home is permitted through September 15.

    State Issues Covid-19 Kansas Mortgages Mortgage Origination Licensing Consumer Credit Money Service / Money Transmitters Bank Compliance

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  • CFPB’s semiannual report to Congress discusses Covid-19 response

    Federal Issues

    On July 7, the CFPB issued its semiannual report to Congress covering the Bureau’s work from October 1, 2019, through March 31, 2020. The report, which is required by the Dodd-Frank Act, addresses, among other things, problems faced by consumers with regard to consumer financial products or services; significant rules and orders adopted by the Bureau; and various supervisory and enforcement actions taken by the Bureau. In her opening letter, Director Kathy Kraninger discusses the Bureau’s response to the Covid-19 pandemic, stating that the Bureau has participated in “countless joint statements, virtual co-appearances, and shared broadcasts to stakeholders with [their] prudential partners” and has “directly engage[d] consumers with the right information, at the right time.”

    Among other things, the report highlights first time homebuyers and credit scores as areas in which consumers face significant problems, citing to the Bureau’s Market Snapshot on First-time Homebuyers and the quarterly consumer credit trends report on public records. In addition to highlighting the Bureau’s previous efforts during the reporting period, the report notes upcoming initiatives and plans, including (i) the Taskforce on Federal Consumer Financial Law’s public listening sessions in the fall; (ii) the cost-benefit analysis symposium in July; and (iii) further work on their Covid-19 pandemic responses.

    Federal Issues CFPB Mortgages Credit Scores Credit Report Congress Dodd-Frank Consumer Finance Covid-19

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  • CFPB releases spring 2020 rulemaking agenda

    Agency Rule-Making & Guidance

    On June 30, the CFPB released its spring 2020 rulemaking agenda. According to a Bureau announcement, the information details the regulatory matters that the Bureau “expect[s] to focus on” between May 1, 2020 and April 30, 2021. The announcement notes that the agenda was set before the Covid-19 pandemic struck and while the Bureau “continues to move forward with other regulatory work,” it will prioritize work related to supporting consumers and the financial sector during and after the Covid-19 pandemic.

    In addition to the rulemaking activities already completed by the Bureau in May and June of this year, the agenda highlights other regulatory activities planned, including:

    • Escrow Rulemaking. The Bureau intends to issue a proposed rule to implement Section 108 of the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018, which directs the Bureau to exempt certain loans made by creditors with assets of $10 billion or less (and that meet other criteria) from the escrow requirements applicable to higher-priced mortgage loans.
    • Small Business Rulemaking. The Bureau states that in September 2020, it will publicly release materials for an October panel (convening under the Small Business Regulatory Enforcement Fairness Act) with small entities likely to be directly affected by the Bureau’s rule to implement Section 1071 of Dodd-Frank.
    • HMDA. The Bureau states that two rulemakings are planned, including (i) a proposed rule that follows up on a May 2019 advanced notice of proposed rulemaking which sought information on the costs and benefits of reporting certain data points under HMDA and coverage of certain business or commercial purpose loans (covered by InfoBytes here); and (ii) a proposed rule addressing the public disclosure of HMDA data.
    • Debt Collection. The Bureau intends to release the final rule amending Regulation F to implement the Fair Debt Collection Practices Act in October 2020 (InfoBytes coverage of the May 2019 proposed rule here). Additionally, “at a later date” the Bureau intends to finalize the February supplemental proposal, which covers time-barred debt disclosures (covered by a Buckley Special Alert here).
    • Qualified Mortgages (QM). The Bureau states it is considering issuing a proposed rule “later this year” that would create a new “seasoning” definition of a QM under Regulation Z, allowing for QM status after the borrower has made consistent timely payments for a defined period.

    Additionally, in its announcement, the Bureau notes that it is (i) participating in an interagency rulemaking process on quality control standards for automated valuation models (AVMs) with regard to appraisals; and (ii) continuing to review and conduct the five-year lookback assessments under Section 1022(d) of Dodd-Frank.

    Agency Rule-Making & Guidance CFPB Rulemaking Agenda HMDA Small Business Lending Regulation Z Debt Collection ECOA Escrow EGRRCPA Mortgages

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  • Fannie and Freddie issue Covid-19-related selling updates

    Federal Issues

    On July 1, Fannie Mae and Freddie Mac updated its Covid-19 frequently asked questions regarding the underwriting and loan eligibility for sellers.  Fannie Mae’s FAQs (previously discussed here) were updated to address questions regarding documentation and calculations related to self-employed income and variable income, including where borrowers experienced gaps of employment due to Covid-19.  Freddie Mac’s origination, underwriting, and eligibility FAQs were updated to address questions regarding, among other things, pre-closing verifications, fluctuating employment earnings, self-employed income, determining income eligibility with additional analysis and documentation, documentation requirements, and Covid-19 business assistance, including proceeds from Paycheck Protection Program loans.

    Federal Issues Covid-19 Fannie Mae Freddie Mac Underwriting Loan Origination SBA Mortgages

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  • Delaware announces joint effort on foreclosure and eviction prevention

    State Issues

    On July 1, Delaware Governor Carney, Attorney General Jennings, the Delaware State Housing Authority, and the chief magistrate of the justice of the peace court announced a joint effort on foreclosure and eviction prevention to support homeowners and renters financially impacted by the Covid-19 shutdown. The foreclosure prevention effort will focus on: (i) educating Delaware homeowners at risk of losing their homes to foreclosure as a result of Covid-19, (ii) increasing the capacity of Delaware’s HUD-approved housing counseling nonprofit agencies, and (iii) providing timely financial assistance tools for homeowners at risk of foreclosure due to Covid-19. The eviction prevention effort will focus on: (i) educating Delaware renters at risk of eviction due to Covid-19, (ii) funding the state’s legal aid organizations that offer legal services for unrepresented tenants facing eviction, (iii) facilitating an alternative dispute resolution program to encourage solutions to avoid eviction, and (iv) reopening applications for the Delaware Housing Assistance Program. The statement follows a recent order issued by the governor, previously covered here, that modifies previous relief relating to evictions, foreclosures, and insurance.

    State Issues Covid-19 Delaware Foreclosure Evictions Mortgages HUD

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  • Oregon enacts bill providing payment deferrals and foreclosure relief

    State Issues

    On June 30, the Oregon governor signed HB 4204, which requires mortgage payment deferrals and limits foreclosures during the Covid-19 emergency period, which runs from March 8 until September 30. Among other things, during that period, a lender may not treat as a default a borrower’s failure to make a periodic installment payment or to pay any other amount that is due to the lender if, at any time during the emergency period, the borrower notifies the lender of his or her inability to make the periodic installment payment. Unless the lender and borrower do not otherwise agree to otherwise modify, defer, or mitigate a loan, the lender must refrain from collecting during the emergency period and must permit the borrower to pay the amounts deferred at the end of the mortgage term. The bill also imposes certain restrictions on a lender’s ability to assess late fees and to pursue a foreclosure. The bill became effective on June 30.

    State Issues Covid-19 Oregon Mortgages Foreclosure Mortgage Lenders

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  • Delaware governor issues order modifying relief relating to evictions, foreclosures, and insurance

    State Issues

    On June 30, the Delaware governor issued an order that modifies previous relief relating to evictions, foreclosures, and insurance. Specifically, the declaration lifts the stay on residential mortgage foreclosure actions commenced prior to the state of emergency. However, subject to certain exceptions, individuals may not be removed from the residential properties as a result of a mortgage foreclosure process while the order is in effect. Further, actions for summary possession may be filed for residential units in Delaware, but must be stayed pending a determination of whether the parties would benefit from participating in court supervised mediation or alternative dispute resolution. During the eviction process, subject to certain exceptions, individuals may not be removed from the residential properties. Finally, beginning July 1, 2020, every insurer is required to provide a 90-day payment plan for certain individual policyholders and business policyholders impacted by the Covid-19 state of emergency. 

    State Issues Covid-19 Delaware Mortgages Evictions Foreclosure Insurance Mortgage Insurance

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