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On October 22, the CFPB, the OCC, the FDIC, the Federal Reserve Board, and the NCUA (collectively, the Agencies) issued a joint statement (Interagency Statement) in response to inquiries from creditors concerning their liability under the disparate impact doctrine of the Equal Credit Opportunity Act (ECOA) and its implementing regulation, Regulation B by originating only “qualified mortgages.” Qualified mortgages are defined under the CFPB’s January 2013 Ability-to-Repay/Qualified Mortgage Rule (ATR/QM Rule). The DOJ and HUD did not participate in the Interagency Statement.
The Interagency Statement describes some general principles that will guide the Agencies’ supervisory and enforcement activities with respect to entities within their jurisdiction as the ATR/QM Rule takes effect in January 2014. The Interagency Statement does not state that a creditor’s choice to limit its offerings to qualified mortgage loans or qualified mortgage “safe harbor” loans would comply with ECOA; rather, the Agencies state that they “do not anticipate that a creditor’s decision to offer only qualified mortgages would, absent other factors, elevate a supervised institution’s fair lending risk.” Furthermore, the Interagency Statement will not necessarily preclude civil actions.
The Agencies acknowledge that although there are several ways to satisfy the ATR/QM Rule, some creditors may be inclined to originate all or predominantly qualified mortgages, particularly when the ATR/QM Rule first becomes effective. In selecting business models and product offerings, the Agencies “expect that creditors would consider and balance demonstrable factors that may include credit risk, secondary market opportunities, capital requirements, and liability risk.” The Agencies further understand that creditors may have a “legitimate business need” to fine-tune their product offerings over the next few years in response to the impact of the ATR/QM Rule, just as they have in response to other significant regulatory changes that have occurred in the past.
The Agencies advise creditors to continue to evaluate fair lending risk as they would for other types of product selections, including by carefully monitoring their policies and practices and implementing effective compliance management systems. Nonetheless, the Agencies state that individual cases will be evaluated on their own merits.
The Agencies state that they “believe that the same principles…apply in supervising institutions for compliance with the Fair Housing Act.” However, because neither DOJ nor HUD participated in issuing the Interagency Statement, it remains to be seen how those agencies would view this issue.
It is noteworthy that the standard articulated in the Interagency Statement (“legitimate business needs”) differs from HUD’s disparate impact rule relating to the Fair Housing Act. In its rule, HUD codified a three-step burden-shifting approach to determine liability under a disparate impact claim. Once a practice has been shown by the plaintiff to have a disparate impact on a protected class, the rule states that the defendant would have the burden of showing that the challenged practice “is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent…or defendant…A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative.” (Emphasis added.)
Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.
- Jeffrey P. Naimon, (202) 349-8030
On October 9, the CFPB (or Bureau) announced it had assessed civil money penalties totaling $459,000 against two financial institutions—one bank and one nonbank—after examinations identified significant data errors in mortgage loans reported pursuant to the Home Mortgage Disclosure Act (HMDA). The Bureau simultaneously issued a HMDA bulletin to all mortgage lenders regarding the elements of an effective HMDA compliance management system, resubmission thresholds, and factors the Bureau may consider when evaluating whether to pursue a public HMDA enforcement action and related civil money penalties.
According to the consent orders (available here and here), both financial institutions maintained inadequate HMDA compliance systems that resulted in the reporting of “severely compromised mortgage lending data.” The nonbank, which reported 21,015 applications in its 2011 HMDA Loan Application Register (LAR), agreed to pay a penalty of $425,000. The consent order notes previous violations identified by the state regulator and states that the Bureau sampled 32 loans and concluded that the sample error rate unreasonably exceeded the Bureau’s resubmission threshold, although the error rate was not disclosed. The investigation of the nonbank was conducted in cooperation with the Massachusetts Division of Banks, which announced its own consent order imposing a $50,000 administrative fine at the same time that the CFPB announced its order. The bank, which reported 5,785 applications in its 2011 HMDA LAR, agreed to pay a penalty of $34,000. The consent order against the bank states that the bank’s sample error rate was 38 percent but does not disclose the size of the sample. Both institutions will be required to correct and resubmit their 2011 HMDA data and develop and implement an effective HMDA compliance management system to prevent future violations. Neither of the orders reveals the specific deficiencies in the institutions’ HMDA compliance programs.
As noted above, the Bureau also issued a bulletin regarding HMDA compliance along with HMDA resubmission guidelines. The bulletin discusses the components of an effective HMDA compliance management system, including: (i) comprehensive policies, procedures, and internal controls; (ii) comprehensive and regular internal, pre-submission HMDA audits; (iii) a process for reviewing regulatory changes; (iv) reporting systems commensurate with lending volume; (v) one or more individuals responsible for oversight, data entry, and data updates, including timely and accurate reporting; (vi) appropriate, sufficient, and periodic employee training on HMDA, Regulation C, and reporting requirements; (vii) a process for effective corrective action in response to deficiencies identified; and (viii) appropriate board and management oversight.
In addition, the bulletin announces the Bureau’s new HMDA Resubmission Schedule and Guidelines, which sets forth thresholds that will apply when determining whether resubmission is required when errors are discovered in a HMDA data integrity examination. The new resubmission schedule creates a two-tier system in which resubmission thresholds are lower for institutions reporting fewer than 100,000 entries on the HMDA LAR. Under the guidance, institutions that report 100,000 or more entries on their LAR should correct and resubmit their entire HMDA LAR if the error rate exceeds four percent of the total sample (or two percent in any individual data field), while institutions with fewer than 100,000 entries on their LAR should correct and resubmit their LAR if the error rate exceeds ten percent in the total sample (or five percent in any individual data field). The guidance states that resubmission for error rates below the applicable thresholds may be called for if “the errors prevent an accurate analysis of the institution’s lending.” Under the Bureau’s current standards, institutions, regardless of size, must resubmit a corrected LAR if any “key fields” have an error rate of five percent, or if at least ten percent of the institution’s records have an error in at least one of the key fields. The new resubmission schedule and guidelines will apply to all HMDA data integrity reviews initiated on or after January 18, 2014.
Finally, the bulletin provides a non-exclusive list of factors the Bureau may consider when evaluating whether to pursue a public HMDA enforcement action, including: (i) size of the institution’s HMDA LAR and observed error rates; (ii) whether errors were self-identified and independently corrected outside of an examination; and (iii) history of previous HMDA errors that exceed the permissible threshold. In addition, the guidance states that the Bureau may seek civil money penalties for HMDA violations depending on such factors as (i) size of financial resources and good faith effort of compliance by the institution; (ii) gravity of the violations or failure to pay; (iii) severity of harm to consumers; (iv) history of previous violations; and (v) such other matters as justice may require.
These recent CFPB announcements reinforce BuckleySandler’s experience to date that the CFPB is stepping up scrutiny of HMDA practices both at banks and nonbanks. These examination and enforcement initiatives dovetail with the CFPB’s other recent HMDA-related activities. The CFPB recently launched new tools to allow the public—including consumer and housing advocates—to leverage HMDA data to attempt to identify lending patterns. The CFPB also has started internally drafting a proposed rule to implement changes to HMDA data collection requirements, as required by the Dodd-Frank Act. Though a final rule is a distant prospect, once finalized the CFPB may require institutions to report, among other things: (i) ages of loan applicants and mortgagors; (ii) the difference between the annual percentage rate associated with the loan and benchmark rates for all loans; (iii) the term of any prepayment penalty; (iv) the term of the loan and of any introductory interest rate for the loan; (v) the origination channel; and (vi) the credit scores of applicants and mortgagors.
All of these developments suggest bank and nonbank mortgage originators should review their HMDA practices and processes to ensure they are reporting data that are accurate or at least within the CFPB’s revised tolerances.
On July 25, the FDIC, the OCC, and the Federal Reserve Board issued a joint statement to encourage financial institutions to “work constructively with private student loan borrowers experiencing financial difficulties.” The statement explains that prudent workout arrangements are consistent with safe-and-sound lending practices and are generally in the long-term best interest of both the financial institution and the borrower. Specifically, under the Retail Credit Policy, which covers student loans, “extensions, deferrals, renewals, and rewrites of closed-end loans can be used to help borrowers overcome temporary financial difficulties.” As such, the agencies promise not to criticize institutions for engaging in prudent workout arrangements with borrowers who have encountered financial problems, even if the restructured loans result in adverse credit classifications or troubled debt restructurings in accordance with accounting requirements under GAAP. Further, the regulators state that modification programs should provide borrowers with clear and easily accessible practical information about the available options, general eligibility criteria, and the process for requesting a modification.
HUD Proposes Framework for Affirmatively Furthering Fair Housing, HUD Secretary Promises Increased Enforcement
On July 18, HUD released a proposed rule to refine the fair housing elements of the existing planning process that recipients of HUD funds – states, local governments, insular areas, and public housing agencies (Program Participants) – already undertake. To aid Program Participants, HUD will provide local and regional data to allow Program Participants (i) to evaluate patterns of integration and segregation in their area, (ii) to identify disparities in access to community assets by members of protected classes, (iii) to locate racial and ethnic concentrations of poverty, and disproportionate housing needs based on protected class; (iv) to uncover areas for improvement in their fair housing programs; and (v) to develop the tools, strategies, and priorities to respond to problems identified by the data.
The proposed rule also (i) defines “affirmatively furthering fair housing” to clarify that the phrase requires proactive steps to foster more inclusive communities and greater access to community assets for all groups protected by the Fair Housing Act; (ii) refines current Analysis of Impediment requirements; (iii) requires Program Participants to incorporate fair housing planning in existing planning processes, such as the consolidated plan and PHA Annual Plan; and (iv) encourages Program Participants to take regional approaches to address fair housing issues.
In a speech earlier in the week in which he previewed the proposed rule, HUD Secretary Donovan also promised increased enforcement of the Fair Housing Act, stating: “I want to send a message to all those outside these doors. There are no stones we won’t turn. There are no places we won’t go. And there are no complaints we won’t explore in order to eliminate housing discrimination. Period. . . . HUD is enhancing its enforcement techniques by initiating investigations on our own without waiting for individuals to file complaints. We have more than tripled the number of Secretary-initiated complaints that we have filed since 2008.”
On July 15, the Federal Reserve Board announced that it will co-host an upcoming consumer compliance webinar with the CFPB and the DOJ entitled “Indirect Auto Lending – Fair Lending Considerations.” The event, which will be held August 6, 2013, 11:30 a.m. – 12:30 p.m. (ET), will feature Maureen Yap, special counsel and manager of the Federal Reserve’s Fair Lending Enforcement Section; Coty Montag, deputy chief of the DOJ’s Housing and Civil Enforcement Section of the Civil Rights Division; and Patrice Ficklin, assistant director of the CFPB’s Office of Fair Lending and Equal Opportunity. The panelists plan to discuss (i) the CFPB’s indirect auto lending bulletin and compliance with ECOA; (ii) supervisory guidance; (iii) examination procedures; (iv) public settlements; and (v) “emerging issues.” Following their presentations, the panelists will take audience questions, which may be submitted in advance.
On July 12, the FTC extended the comment deadline on proposed changes to its Telemarketing Sales Rule (TSR). In May, the FTC proposed to prohibit the use of certain payment methods it believes are favored by “fraudulent telemarketers,” and sought comments by July 29, 2013. Because a slightly modified version of the original proposal was published in the Federal Register on July 9, 2013, the FTC now will accept comments through August 8, 2013.
Recently, HUD published a notice seeking public comments on “ways to improve the efficiency and effectiveness” of FHA’s quality assurance process (QAP). In the notice, HUD explains that it is seeking to enhance its oversight of FHA single-family lenders by evaluating single family quality assurance alternatives that would better align with FHA’s mission. Specifically, HUD aims to ensure that it maintains and improves a quality assurance framework that (i) does not hinder or dissuade lending to FHA-targeted populations; (ii) enhances the efficiency and effectiveness of the QAP; (iii) ensures compensation to FHA for defects resulting from the lender manufacturing process; and (iv) applies fairly to all lenders. In addition, HUD also endeavors to establish a framework that ensures that loans are reviewed within a reasonable time period, post-endorsement; in order to allow FHA to use loan quality findings to improve credit policy and to allow lenders to improve their FHA origination practices. HUD particularly seeks public comments on (i) the types of loan manufacturing or compliance defects found in the QAP that should be subject to indemnification or other administrative remedies or a combination of responses; (ii) how the FHA’s review and comparison of early defaults and claims may achieve an improved assessment of a mortgagee’s performance – for example, HUD is considering establishing a specific standard of defaults and claims which mortgagees should not exceed within a given construct; (iii) whether FHA should establish a threshold manufacturing (or loan deficiency) risk tolerance; and (iv) whether FHA should establish a process to review a statistically significant random sample of loans for each mortgagee within a prescribed time frame after loan endorsement to estimate defect rates. Comments on the potential changes are due by September 9, 2013.
On July 3, the CFPB released its spring 2013 regulatory agenda. Among the agenda items are three rulemaking activities listed for the first time: (i) “prerule activities” related to payday loans and deposit advance products anticipated for January 2014, (ii) “further action” on debt collection regulations expected in October 2013, and (iii) “prerule activities” related to Gramm-Leach-Bliley Act privacy notices planned for November 2013. The agenda also indicates that the CFPB expects, among other things, to (i) finalize its integrated mortgage disclosures rule in October 2013, (ii) issue a final student loan servicer “larger participant” rule in September 2013, and (iii) propose a rule regarding general purpose reloadable prepaid cards in December 2013. The agenda does not mention any planned activities related to small business lending data collection or auto finance issues.
This afternoon, the CFPB issued CFPB Bulletin 2013-6, which identifies four pillars of “responsible conduct” on the part of potential targets of enforcement action by the Bureau. The CFPB expressly states that such conduct may be rewarded with (i) resolution of an investigation with no public enforcement action; (ii) treatment of subject conduct as a less severe type of violation; (iii) reduction in the number of violations pursued; or (iv) reduction in sanctions or penalties. The Bulletin, titled “Responsible Business Conduct: Self-Policing, Self-Reporting, Remediation, and Cooperation,” states that such conduct has “concrete and substantial benefits for consumers and significantly contributes to the success of the Bureau’s mission” because it speeds detection and increases investigative and enforcement efficiency, thereby enabling the Bureau to pursue a larger number of investigations.
The Bulletin has interesting parallels to the SEC Seaboard Report and the DOJ’s Thompson and McNulty Memoranda. The four factors to be considered by the CFPB—self-policing, self-reporting, remediation, and cooperation—are discussed in further detail below.
- Self-Policing. In deciding whether to provide favorable consideration for self-policing, the Bureau will evaluate the nature of the violation (duration, pervasiveness, and significance); how it was detected (effectiveness of internal mechanisms); prior or relative performance of compliance management and audit functions; and the institution’s “culture of compliance.”
- Self-Reporting. The Bureau notes that it views self-reporting to be “special” among the four factors, and will evaluate for favorable consideration the completeness, effectiveness, and timeliness of the disclosure, as well as the degree to which the disclosure was purely proactive or a violation otherwise was likely to be discovered.
- Remediation. Remediation activity will be credited based on a review of how timely potential misconduct was addressed and how quickly it was remediated; whether responsible individuals were disciplined; whether information and extent of harm were documented and preserved promptly; and the Bureau’s confidence that misconduct is unlikely to recur.
- Cooperation. In evaluating cooperation with enforcement efforts, the Bureau will look for “substantial and material steps above and beyond what the law requires,” including cooperation from start to finish and the identification of any additional misconduct; proper steps taken to complete an objective internal investigation and share findings with the Bureau; encouragement of employee cooperation; and facilitation of enforcement actions against other potential targets.
The Bulletin should be considered carefully by any entity facing enforcement action by the CFPB because, among other things, the way in which these factors will be applied remains an open question. Despite the encouragement of self-policing, self-reporting, remediation, and cooperation, the Bulletin notes that there is no consistent formula that can be applied to the crediting of responsible conduct, and satisfaction of some or all of the factors will not bar the Bureau from bringing any enforcement action or pursuing any remedy. The Bulletin also states that there may be misconduct so egregious or harm so great that enforcement actions or penalties cannot be mitigated.
On April 24, the CFPB published a white paper on payday loan and deposit advance products that claims to show those products lead to a “cycle of high-cost borrowing.” On April 25, the FDIC and the OCC proposed guidance relating to deposit advance products based on similar concerns. The CFPB paper reflects the results of what the CFPB characterizes as a year-long, in-depth review of short-term, small-dollar loans, which began with a January 2012 field hearing. Although it acknowledges that demand exists for small dollar credit products, that such products can be helpful for consumers, and that alternatives may not be available, the CFPB concludes that such products are only appropriate in limited circumstances and faults lenders for not determining whether the products are suitable for each customer. The CFPB paper does not propose any rule or guidance, but is instead intended to present a clear statement of CFPB concerns. The paper notes that a related CFPB study of online payday loans is ongoing. The FDIC and OCC proposed guidance outlines the agencies’ safety and soundness, compliance, and consumer protection concerns about deposit advance products, and sets forth numerous expectations, including with regard to consumer eligibility, capital adequacy, fees, compliance, management oversight, and third-party relationships. For example, under the guidance the agencies would expect banks to offer a deposit advance product only to customers who (i) have at least a six month relationship with the bank, (ii) do not have any delinquent or adversely classified credits, and (iii) meet specific financial capacity standards. The guidance also would require, among other things, that (i) each deposit advance loan be repaid in full before the extension of a subsequent loan, (ii) banks refrain from offering more than one loan per monthly statement cycle and provide a cooling-off period of at least one monthly statement cycle after the repayment of a loan before another advance is extended, and (iii) banks reevaluate customer eligibility every six months.
- APPROVED Webcast: CFL license transition to NMLS
- 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 “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