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Financial Services Law Insights and Observations

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  • District court denies request to lift OFAC sanctions despite EU decision

    Courts

    On March 31, the U.S. District Court for the District of Columbia granted the Treasury Department’s Office of Foreign Assets Control’s (OFAC) motion to dismiss and denied two Iranian corporations’ (plaintiffs) cross-motion for summary judgment. According to the opinion, the plaintiffs requested to be delisted from OFAC’s Specially Designated Nationals and Blocked Persons List (SDN List) following the Court of Justice of the European Union’s decision in 2013 to lift its own sanctions, which were, according to the plaintiffs, “the basis for OFAC including [the plaintiffs] in its SDN list in the first place.” The plaintiffs were added to the SDN List in 2011 after OFAC allegedly determined that they had assisted certain U.S. and United Nations-sanctioned Iranian companies in procuring goods for uranium enrichment activities. OFAC denied the plaintiffs’ request to be delisted in 2018, causing the plaintiffs to file a complaint seeking to remove the sanctions or “cause OFAC to request the information needed to remove [the plaintiffs] from the SDN List,” citing violations of their rights under the U.S. Constitution and the Administrative Procedure Act. Among other things, the plaintiffs argued that OFAC’s decision to reject the request for delisting was based on “undisclosed/secret information,” and further, OFAC “never provided any evidence to substantiate the[] allegations” that the plaintiffs had worked with other OFAC-sanctioned Iranian firms. Moreover, the plaintiffs contended that OFAC violated their “procedural and substantive due process rights because it failed to provide [the plaintiffs] notice and opportunity to be heard before designating [them] as an SDN.”

    The court, however, found among other things that OFAC’s actions were not “arbitrary or capricious,” stating that while OFAC considered classified evidence of the plaintiffs’ involvement, it also provided unclassified summaries to the plaintiffs. “In denying [the plaintiffs’] request for removal, OFAC requested and reviewed information provided by [the plaintiffs], and it responded to [the plaintiffs’] arguments for reconsideration,” the court stated, noting that OFAC ultimately concluded that the plaintiffs failed to submit credible arguments or evidence “establishing that an insufficient basis exists for the company’s designation.” In addition, the court rejected the plaintiffs’ Fifth Amendment argument, stating that the constitutional claims fail because the “Supreme Court has long held that non-resident aliens without substantial connections to the United States are not entitled to Fifth Amendment protections.”

    Courts OFAC Department of Treasury Sanctions Of Interest to Non-US Persons Iran Administrative Procedures Act Due Process

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  • NYDFS issues best practices guidance for state-chartered institutions issuing loans to multi-family residential owners and landlords

    Lending

    On September 25, NYDFS released new guidance to assist regulated, state-chartered institutions when engaging in permissible lending activities involving New York rent-stabilized or rent-regulated multifamily residential buildings. According to the press release, the department received complaints concerning certain owners/landlords of rent-stabilized multifamily residential buildings who allegedly engaged in “inappropriate practices including tenant harassment and unsafe living conditions” and may have obtained loans to purchase or renovate buildings directly or indirectly from regulated institutions. The guidance is intended to ensure that regulated institutions apply best practices, including pre-loan and post-loan due diligence, to prevent the possibility of knowingly or unknowingly facilitating these types of practices. Among other things, pre-loan due diligence best practices include (i) conducting due diligence on property owners, including when the bank’s role is to provide indirect financing to the property owner; (ii) conducting due diligence on properties and property owners, including enhanced diligence on properties with a high number of violations; (iii) ensuring “realistic and sound underwriting terms” for loans involving multifamily residential buildings; and (iv) establishing a debt service coverage ratio subject to documentation based on the specific facts of each loan as well as realistic assumptions, consistent with safe and sound underwriting standards and practices. The best practices for post-loan monitoring should include (i) establishing covenants or procedures to ensure emergency and hazard repairs are completed within six months of a loan’s closing; and (ii) considering the property owner’s level of responsiveness and willingness to address building code violation when factoring future loans to the property owner.

    Lending NYDFS Due Process

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  • Rep. Leutkemeyer Reintroduces Legislation to End Operation Choke Point

    Federal Issues

    On May 25, Rep. Blaine Luetkemeyer (R-Mo.) reintroduced the Financial Institution Customer Protection Act (H.R. 2706), which would prohibit federal agencies from requesting or ordering a financial institution to terminate a banking relationship unless the regulator had material reason. H.R. 2706 would, in effect, seek to end the Department of Justice’s “Operation Choke Point” by requiring termination requests to rely on information other than reputational risk.

    Notably, as previously discussed in InfoBytes, last month a group of payday lenders filed a brief with an appellate court claiming a district court judge was wrong to deny their request for a preliminary injunction against regulator activities they claim violate their rights to due process.

    Federal Issues Operation Choke Point Due Process Federal Legislation

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  • Nevada Supreme Court Holds that HOA "Superpriority" Statute Does Not Violate Due Process, Declines to Follow 9th Circuit

    Courts

    On January 26, in Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, No 68630, (Nev. Jan 26, 2017), the Nevada Supreme Court reaffirmed its interpretation of the state statute granting priority lien status to unpaid condo assessments (Nev. Rev. Stat. § 116.3116 et seq.); specifically that foreclosure of such liens extinguishes prior-recorded mortgages. The Nevada Supreme Court declined to follow a 2016 ruling by the Ninth Circuit holding that the statute violates the Due Process Clause of the 14th Amendment. Rather, the Nevada Supreme Court stated that the Due Process Clause protects individuals from state actions, and a foreclosing HOA cannot be deemed to be a state actor. In doing so, the court specifically notes that “[w]e acknowledge that the Ninth Circuit has recently held that the Legislature's enactment of NRS 116.3116 et seq. does constitute state action. . . . However, for the aforementioned reasons, we decline to follow its holding.”

    Courts Mortgages Foreclosure Due Process HOA Ninth Circuit

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