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On July 19, the U.S. District Court for the District of Minnesota granted preliminary approval of a proposed settlement in a class action against a mortgage lender (defendant) alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment, as well as violations of the FDCPA and various state laws. The plaintiffs originally filed three separate putative class actions against the defendant alleging the lender violated state laws in Minnesota, North Carolina, and Texas and breached consumers’ mortgage agreements by improperly charging and collecting “Pay-to-Pay” fees when borrowers made monthly mortgage payments by telephone, interactive voice response, or the internet. The defendant denied the allegations and any wrongdoing and moved to dismiss the claims. After proceedings were stayed in all three class actions pending mediation, notices of settlement were filed in each case providing that a global settlement had been reached and that plaintiffs would be added to one lawsuit. Under the terms of the preliminarily approved settlement, the defendant agreed to pay $5 million to establish a settlement fund and resolve the plaintiffs’ claims.
On July 7, the Connecticut governor signed SB 848, which, among other things, amends certain mortgage licensing provisions in the state’s banking statutes. Amendments include defining “residential mortgage loan” to include a “shared appreciation agreement” which is defined as “a nonrecourse obligation in which an advance sum of monetary value is extended to a consumer, as a lump sum or otherwise, in exchange for an equity interest in a dwelling, residential real estate or a future obligation to repay a sum upon the occurrence of an event, including, but not limited to, the transfer of ownership, repayment maturity date, death of the consumer or as outlined and explicitly agreed to within said agreement.” Amendments also include defining an “out-of-state mortgage loan originator” as “an individual who maintains a unique identifier through the system and holds a valid mortgage loan originator license issued pursuant to the laws of any state other than this state.” Additionally, effective October 1, all individuals must “obtain a mortgage loan originator license prior to conducting such business unless such individual does not engage directly in the activities of a mortgage loan originator or conducts such business pursuant to the temporary authority provided in subsection (e).”
New Subsection (e) provides that individuals employed by a person licensed as a mortgage lender, mortgage correspondent lender, or mortgage broker in the state will be granted temporary authority to act as a mortgage loan originator in the state for the certain period of time, provided the individual meets certain specified criteria, including that the individual has not had a loan originator licensing application denied, has not had a loan originator license revoked or suspended, has not been subject to, or served with, a cease and desist order in any governmental jurisdiction or by the CFPB, has not been convicted of a misdemeanor or felony that would preclude licensure in this state, and was registered in the system as a registered loan originator during the one-year period immediately preceding the date on which the individual submitted an application and supporting materials. Temporary licenses will remain effective until a determination is made on the status of a permanent license, and temporarily licensed individuals will “be subject to the laws of this state to the same extent as if the individual is licensed as a mortgage loan originator in this state.” The amendments are effective October 1.
FDIC proposes changes to deposit insurance regulations for trust accounts and mortgage servicing accounts
On July 20, the FDIC published a notice of proposed rulemaking (NPRM) that would amend the deposit insurance regulations for trust accounts and mortgage servicing accounts. The changes are intended to clarify the deposit insurance rules for depositors and bankers, enable more timely insurance determinations for trust accounts in the circumstance of a bank failure, and increase consistency of insurance coverage for mortgage servicing account deposits. According to the FDIC, some highlights include, among other things, that: (i) a deposit owner’s trust deposits would be insured up to $250,000 per beneficiary, but must not exceed five beneficiaries, regardless of if a trust is revocable or irrevocable, and regardless of contingencies or the allocation of funds among the beneficiaries; (ii) a maximum amount of deposit insurance coverage would be $1.25 million per owner, per insured depository institution for trust deposits; and (iii) “mortgage servicers’ advances of principal and interest funds on behalf of mortgagors in a mortgage servicing account would be insured up to $250,000 per mortgagor, consistent with the coverage for payments of principal and interest collected directly from mortgagors.” Additionally, the FDIC published a Fact Sheet on the NPRM, which provides an overview of simplifying deposit insurance rules for trust accounts and enhancing consistency for mortgage servicing account deposits. FDIC Chairman Jelena McWilliams released a statement specifying that the NPRM would, “merge the revocable and irrevocable trust categories into one uniform trust accounts category with one set of rules; establish a simple formula for calculating deposit insurance based on the number of beneficiaries; and eliminate the ability for a trust account to be structured to obtain unlimited deposit insurance at a bank, which is the case today, and certainly contrary to the spirit of the Federal Deposit Insurance Act.” Comments on the NPRM will be due 60 days after publication in the Federal Register.
On July 9, the U.S. Court of Appeals for the Eighth Circuit affirmed summary judgment in favor of a mortgage loan servicer (defendant), concluding that the defendant’s communications were not in connection with an attempt to collect a debt. The plaintiff had alleged that the defendant violated the FDCPA by engaging in misrepresentations and unfair conduct when processing the plaintiff’s application for loss mitigation assistance and selling the plaintiff’s home through a foreclosure sale. According to the 8th Circuit, “the district court applied the ‘animating purpose’ test, which considers the content of each communication individually, and determined that they were not made in connection with the collection of a debt.”
In affirming the district court’s recent order, the 8th Circuit agreed with the district court’s decision that the defendant did not violate the FDCPA because the substance of each of the communications indicates that none were made in connection with an attempt to collect on the underlying mortgage debt.
On July 12, Colorado enacted HB 1282, which creates the Colorado Nonbank Mortgage Servicers Act under Article 21 and provides additional consumer protections through the regulation of mortgage servicers. Under the act, a mortgage servicer does not include, among others: supervised financial organizations; certain regulated mortgage loan originators; a federal agency or department; a collection agency whose debt collection business involves collecting on defaulted mortgage loans; agencies, instrumentalities, or political subdivisions of the state; supervised lenders that do not service residential mortgages; servicers that service fewer than 5,000 residential mortgage loans annually; nonprofit organizations; government agencies; originators or servicers using a subservicer that does not act under their direction; and persons servicing loans held for sale. The act stipulates that on or after January 31, 2022, a person may not act as a mortgage servicer without providing notice to the administrator and paying the required fees within 30 days after it begins servicing in the state, and on or before January 31 annually thereafter. The act also outlines provisions related to renewal requirements, record retention, and compliance with federal laws and regulations. Under specified administrator powers and duties, the administrator is allowed to bring an enforcement action against a mortgage servicer, seek restitution and civil money penalties, and request an injunction. While the act provides a four-year statute of limitations, an additional one-year extension may be granted if it is proven that a mortgage servicer engaged in calculated conduct to delay commencement of the action. The act, however, does not create a private right of action or “affect any remedy that a borrower may have pursuant to law other than this Article 21.”
On July 13, the CFPB released findings regarding trends in reported assistance on consumers’ credit records. The post—the second in a series documenting trends in consumer credit outcomes during the Covid-19 pandemic (the first covered by InfoBytes here)—examines consumer month-to-month transitions into and out of assistance from January 2020 to April 2021. As previously covered by InfoBytes, last August, the Bureau issued a report examining trends through June 2020 in delinquency rates, payment assistance, credit access, and account balance measures, which showed that generally there was an overall decrease in delinquency rates since the start of the pandemic for auto loans, first-lien mortgages, student loans, and credit cards. According to the Bureau’s recent findings, as of March 2021, auto loans and credit card accounts with assistance were slightly above pre-pandemic levels, and the share of mortgages and student loans on assistance continued to be significantly higher than pre-pandemic levels. Researchers also found that some communities have been disproportionately affected by the health and economic shocks of the pandemic: “majority Black census tracts, majority Hispanic census tracts, older borrowers and borrowers in counties hit hardest by COVID cases and layoffs were most likely to receive assistance in the early months of the pandemic.” Additionally, consumers in majority Hispanic census tracts were “more likely to exit assistance, but consumers in majority Black census tracts were somewhat less likely to exit assistance than their counterparts in majority white census tracts.”
On July 12, the Division of Banks of the Massachusetts Office of Consumer Affairs and Business Regulations (Division) issued guidance that authorizes its licensees and registrants to continue permitting their personnel to operate remotely from non-licensed locations subject to certain conditions and restrictions. Among other things, the licensee or registrant: (i) cannot hold the unlicensed location out to the public as a place of business; (ii) must ensure that the individual working remotely only engages in activities that can be completed safely and in compliance with all applicable laws, regulations, and Division guidance; (iii) must ensure that the individual working remotely is strictly prohibited from engaging in any in-person customer interactions at the remote location; (vi) must have established security protocols to securely access systems through a virtual privacy network or other secure system; (v) must have policies and procedures to protect data; (vi) must protect sensitive customer information; and (vii) must ensure adequate supervision of remote personnel. The guidance also notes that the work location for mortgage loan originators (MLOs) has been the subject of various inquiries over the years and clarifies that MLOs are not required to live within a certain distance of a branch office and that “the Division will look to determine that the [branch] manager is able to provide adequate supervision for the given number and location of MLOs under his/her supervision.” The guidance replaces any previous guidance issued by the Division regarding telework and will continue, unless modified or withdrawn.
On July 1, the CFPB released a report that analyzed 2020 HMDA loan data and examined the differences in mortgage characteristics across Asian American and Pacific Islander (AAPI) subgroups. The report examined various outcomes for the subgroups, including costs of borrowing, denial rates, and credit characteristics. According to the report, “out of 18.8 million applications with race and ethnicity information, 8 percent (1.6 million) were submitted by AAPI consumers.” The CFPB generally found that borrowers who identified in the Asian Indian or Chinese subgroups paid lower interest rates than non-Hispanic White borrowers, and noted variations within the Hawaiian or Pacific Islanders group, which paid higher interest rates and loan costs than Asian borrowers. The report noted that Chinese and Asian Indian borrowers had higher average credit scores and incomes and lower combined-loan-to-value ratios than those of non-Hispanic White borrowers, but their denial rates were greater. The report provides additional analysis of data and compares various outcomes and loan characteristics within the AAPI subgroups and against those of Black, Hispanic White, and non-Hispanic White borrowers.
On July 1, the Federal Reserve Board announced an enforcement action against a Tennessee-based bank for alleged violations of the National Flood Insurance Act (NFIA) and Regulation H. The consent order does not specify the number or the precise nature of the alleged violations of the NFIA or Regulation H, and the bank was assessed a $8,000 civil money penalty for an alleged pattern or practice of violations.
On July 1, FHFA released a policy statement on its commitment to “comprehensive” fair lending oversight of Fannie Mae, Freddie Mac, and the Federal Home Loan Banks (collectively, “regulated entities”), in addition to expanding FHFA’s fair lending program. The statement describes FHFA’s position on monitoring and information gathering, supervisory examinations, and administrative enforcement regarding ECOA, the Fair Housing Act, and the Federal Housing Enterprises Financial Safety and Soundness Act. FHFA noted the purpose of the policy statement is “to provide a foundation for possible future interpretations and rulemakings by the agency for its regulated entities.” FHFA also issued an order on fair lending reporting that requires Fannie Mae and Freddie Mac to submit quarterly fair lending reports and data. Comments on the policy statement are due 60 days after publication in the Federal Register.
- Jeffrey P. Naimon to provide “Fair lending update” at the Colorado Mortgage Lenders Association Operational and Compliance Forum
- Jonice Gray Tucker to discuss “Justice for all: Achieving racial equity through fair lending” at CBA Live
- Warren W. Traiger to discuss “On the horizon for CRA modernization” at CBA Live
- Jonice Gray Tucker to discuss "Fair lending" at the Mortgage Bankers Association Regulatory Compliance Conference
- Michelle L. Rogers to discuss “State law regulatory and enforcement trends” at the Mortgage Bankers Association Regulatory Compliance Conference
- Jonice Gray Tucker to discuss “Government investigations, and compliance 2021 trends” at the Corporate Counsel Women of Color Career Strategies Conference
- Max Bonici to discuss “BSA/AML trends: What to expect with the implementation of the AML Act of 2020” at the American Bar Association Banking Law Fall Meeting
- H Joshua Kotin to discuss “Modifications and exiting forbearance” at the National Association of Federal Credit Unions Regulatory Compliance Seminar
- Jonice Gray Tucker to discuss “Fintech trends” at the BIHC Network Elevating Black Excellence Regional Summit
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute