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Financial Services Law Insights and Observations


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  • Agencies finalize 2024 HPML smaller loan exemption threshold

    On November 13, the CFPB, OCC, and the Fed published final amendments to the official interpretations for regulations implementing Section 129H of TILA, which establishes special appraisal requirements for “higher-risk mortgages,” otherwise termed as “higher-priced mortgage loans” (HPMLs). The final rule increases TILA’s loan exemption threshold for the special appraisal requirements for HPMLs. Each year, the threshold must be readjusted based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers. The exemption threshold will increase from $31,000 to $32,400 effective January 1, 2024.

    Bank Regulatory Federal Issues OCC Federal Reserve CFPB Mortgages Appraisal Consumer Finance HPML TILA

  • HUD and NAREB to educate consumers on appraisal bias

    Federal Issues

    On August 2, HUD announced a partnership with the National Association of Real Estate Brokers to address appraisal bias and discrimination in the housing market. The collaboration, launching in October 2023, will include online training, roundtable discussions, and distribution of educational material designed to promote fairness in the housing market. HUD also referenced its involvement in the PAVE task force (covered by InfoBytes here), which is dedicated to ending bias in home valuation and has made critical progress since its launch in 2022.

    Federal Issues Agency Rule-Making & Guidance HUD Appraisal Mortgages Consumer Finance

  • Rhode Island enacts provisions for real estate appraisal

    On June 20, the Rhode Island state governor signed SB 850 (the “Act”), which amends the Real Estate Appraiser Certification Act and the Real Estate Appraisal Management Company (AMC) Registration Act for consistency with federal laws and recommendations from the appraisal subcommittee. Among other things, the Act includes new terminology, including “covered transaction” and “state-licensed real estate appraiser.” This Act sets forth numerous additional provisions, one of which requires that appraisals must be performed by licensed or certified appraisers unless they are specifically exempt under federal law. Also amended are state-certified appraisers and state-licensed appraisers’ classifications. Specifically, the text defining residential property appraisal is replaced with a general statement that requirements for certification and licensing of appraisers will be “as required by the appraiser qualifications board of the appraisal foundation.” Another addition addresses the continuing education requirement for state-licensed and state-certified real estate appraisers, which now stipulates that up to one-half of an individual’s continuing education requirement may be completed by participation in certain educational activities approved by the board. Concerning registration, the Act contains a new subsection, detailing that AMCs cannot be registered in the state if any owner (an individual who owns more than 10 percent) of the AMC fails to submit to a background check or any owner is determined by the director to not have good moral character. Among other amendments, the Act also stipulates that registration is now valid for only one year (previously two years) after issuance.

    The Act is effective upon passage.

    Licensing State Issues State Legislation Rhode Island Appraisal

  • Hsu says OCC focused on fairness in banking

    On March 30, acting Comptroller of the Currency Michael J. Hsu commented that the safety and soundness of the federal banking system continues to be a top agency priority, as is improving fairness in banking. Speaking at a conference, Hsu discussed several measures taken by the OCC to elevate and advance fairness, particularly for the underserved and financially vulnerable. Explaining that OCC examiners are encouraging bank management to review existing overdraft protection programs and consider adopting pro-consumer reforms, Hsu referred to CFPB guidance issued last October to address unfair, deceptive, and abusive practices associated with “so-called ‘surprise overdraft’ fees.” (Covered by InfoBytes here.) He also commented that both the Federal Reserve Board and the FDIC have cited the risk of violating UDAP in connection with the certain overdraft practices. Hsu noted that not all overdraft practices are equal, stating that “authorize positive, settle negative” and “representment” fees both present heightened risks.

    Recognizing the recent decline in banks’ reliance on overdraft fees, Hsu emphasized that most bankers he has spoken to “understand the importance of treating their customers fairly and have been open to learning about best practices.” He noted that “[t]hese bankers are committed to being there for their customers and providing them with short-term, small dollar liquidity when it is needed most. Many customers tell their banks, as well as groups that have studied overdraft practices, that this banking service helps them meet payments when they come due.” Hsu added that the OCC’s intended goal is to “improve the fairness of these programs by making them more pro-consumer, not to eliminate them,” and that “[m]ore fairness means more financially healthy communities, which means more trust in banking.” Hsu also discussed efforts taken by the OCC to combat discriminatory lending practices, including working to enhance supervisory methods for identifying appraisal discrimination.

    Bank Regulatory Federal Issues OCC Overdraft Examination Discrimination Supervision Appraisal Consumer Finance CFPB Federal Reserve FDIC

  • Oregon clarifies appraisal company registration authority

    On March 13, the Oregon governor signed HB 2287 to clarify that the Appraiser Certification and Licensure Board (the “Board”) is the entity responsible for determining specified criteria for registration or certification of real estate appraisal management companies. In Oregon, “[a] person may not directly or indirectly engage in or attempt to engage in business as an appraisal management company or advertise or represent that the entity is an appraisal management company unless the person is” registered with the Board or is owned and controlled by an insured depository institution. The Act takes effect 91 days following adjournment of the legislature.

    Licensing State Issues State Legislation Oregon Appraisal

  • DOJ, CFPB: Lenders that rely on discriminatory appraisals violate the FHA and ECOA


    On March 13, the DOJ and CFPB filed a statement of interest saying that a “lender violates both the [Fair Housing Act (FHA)] and ECOA if it relies on an appraisal that it knows or should know to be discriminatory.” (See also CFPB blog post here.) Pointing out that the case raises important legal questions regarding the issue of appraisal bias, the agencies explained that the DOJ has enforcement authority under both the FHA and ECOA, and the Bureau has authority to interpret and issue rules under ECOA and enforce the statute’s requirements.

    The case, which is currently pending in the U.S. District Court for the District of Maryland, concerns whether an appraiser, a real estate appraisal company, and an online mortgage lender (collectively, “defendants”) violated federal and state law by undervaluing plaintiffs’ home on the basis of race and denying a mortgage refinancing application based on the appraisal. Plaintiffs, who are Black, claimed their home was appraised for a lower amount on the basis of race, and maintained that the lender denied their loan even after being told the appraisal was discriminatory. Additionally, plaintiffs claimed that after they replaced family photos with pictures of white people and had a white colleague meet a new appraiser, that appraiser appraised the house for $750,000—a nearly 60 percent increase despite there not being any significant improvements made to the house or meaningful appreciation in the value of comparable homes in the market.

    The defendant appraiser filed a counterclaim against the plaintiffs providing technical arguments for why he valued the home at $472,000, including that the property next door was listed for $500,000, but was later reduced to $475,000, only 10 days after he completed the appraisal. He further claimed that the second appraisal failed to include that property as a comparison and relied on home sales that had not happened as of the time of the first appraisal. The lender argued that it should not be held liable because it was relying on a third-party appraiser and that “it can be liable only if it took discriminatory actions that were entirely separate from [the appraiser’s].” 

    While the statement does not address the issue of vicarious liability, the DOJ and CFPB asserted that lenders can be held liable under the FHA and ECOA for relying on discriminatory appraisals. They explained that it is “well-established that a lender is liable if it relies on an appraisal that it knows or should know to be discriminatory.” The statement also provided that for disparate treatment claims under the FHA and ECOA, “plaintiffs need only plead facts that plausibly allege discriminatory intent.” The agencies also argued that a violation of Section 3617 of the FHA (which includes “a prohibition against retaliating in response to the exercise of fair housing rights”) “does not require a ‘predicate violation’ of the FHA.

    Courts CFPB DOJ Appraisal Fair Housing Act Fair Lending ECOA Discrimination Consumer Finance

  • Fannie says appraisals are no longer required to establish market value

    Agency Rule-Making & Guidance

    On March 1, Fannie Mae issued a Selling Guide announcement to introduce a range of options for establishing a property’s market value, noting that it is “moving away from implying that an appraisal is a default requirement.” As part of Fannie’s efforts to improve the efficiency and accuracy of the home valuation process, it is rolling out choices that balance “traditional appraisals with appraisal alternatives.” Options introduce the term “value acceptance,” which will be “used in conjunction with the term ‘appraisal waiver’ to better reflect the actual process of using data and technology to accept the lender-provided value.” A new option, “value acceptance + property data” will use property data collected by vetted third parties that conduct interior and exterior data collection on a property. This data will be used by the lender to confirm property eligibility (an appraisal will not be required). “Hybrid appraisals” will be “based on interior and exterior property data collection by a vetted and trained third-party that is provided to an appraiser to inform the appraisal.” Fannie explained that hybrid appraisals will be “permitted for certain one-unit transactions where value acceptance + property data was initially started, but changes in loan characteristics results in the transaction not being eligible for that option.”

    The updates also allow for alternative methods to the Appraisal Update and/or Completion Report, including a borrower/builder attestation letter verifying completion of construction, and a borrower attestation letter confirming completion of repairs for existing construction. The updates also provide additional guidance on the use of sweat equity and revise timelines and expectations for lenders’ prefunding and post-closing quality control reviews, among other things.

    Agency Rule-Making & Guidance Federal Issues Fannie Mae Appraisal Mortgages Consumer Finance Selling Guide

  • Agencies reiterate illegality of appraisal discrimination

    Federal Issues

    On February 14, CFPB Fair Lending Director Patrice Ficklin joined senior leaders from the FDIC, HUD, NCUA, Federal Reserve Board, DOJ, OCC, and FHFA in submitting a joint letter to The Appraisal Foundation (TAF) urging the organization to further revise its draft Ethics Rule for appraisers to include a detailed statement of federal prohibitions against discrimination under the Fair Housing Act (FHA) and ECOA.

    This is the second time the agencies have raised concerns with TAF. As previously covered by InfoBytes, last February, the agencies sent a joint letter in response to a request for comments on proposed changes to the 2023 Appraisal Standards Board Ethics Rule and Advisory Opinion 16, in which they noted that while provisions prohibit an appraiser from relying on “unsupported conclusions relating to characteristics such as race, color, religion, national origin, sex, sexual orientation, gender, marital status, familial status, age, receipt of public assistance income, disability, or an unsupported conclusion that homogeneity of such characteristics is necessary to maximize value,” the “provisions do not prohibit an appraiser from relying on ‘supported conclusions’ based on such characteristics and, therefore, suggest that such reliance may be permissible.” The letter noted that the federal ban on discrimination under the FHA and ECOA is not limited only to “unsupported” conclusions, and that any discussions related to potential appraisal bias should be consistent with all applicable nondiscrimination laws. 

    In their second letter, the agencies said that the fourth draft removed a detailed, unambiguous summary covering nondiscrimination standards under the FHA and ECOA, and instead substituted “a distinction between unethical discrimination and unlawful discrimination.” The letter expressed concerns that the term “unethical discrimination” is not well established in current law or practice, and could lead to confusion in the appraisal industry. Moreover, the letter noted that “the term ‘ethical’ discrimination, and reference to the possibility of a protected characteristic being ‘essential to the assignment and necessary for credible assignment results,’ appears to resemble the concept of ‘supported’ discrimination that the agencies previously disfavored and whose removal and replacement with a summary of the relevant law significantly improved the draft Ethics Rule.” The agencies further cautioned that “[s]uggesting that appraisers avoid ‘bias, prejudice, or stereotype’ as general norms” would grant individual appraisers wide discretion in applying these norms and likely yield inconsistent results. The agencies advised TAF to provide a thorough explanation of these legal distinctions.

    Federal Issues CFPB Consumer Finance Appraisal FDIC HUD NCUA Federal Reserve DOJ OCC FHFA Fair Housing Act ECOA Discrimination

  • HUD discusses steps to address appraisal bias

    Federal Issues

    On January 12, HUD Secretary Marcia L. Fudge announced at a Brookings Institute event that HUD is creating a process that people seeking FHA financing can use to request a review of their appraisal if they believe the results may have been affected by racial bias. According to the announcement, under the reconsideration of value (ROV) proposal, lenders will have clear guidance on how to review requests from borrowers for an ROV for the appraisal conducted in conjunction with their application for FHA-insured mortgage financing. The proposal also provides guidance for obtaining a second appraisal when material deficiencies are documented, and the appraiser is unwilling to resolve them. Fudge noted that the proposal “represents the first step to solidify the processes that lenders must follow when a borrower requests a [ROV] review if concerns arise around unlawful discrimination in residential property valuations.” Fudge also noted that the proposal supports the Biden-Harris administration’s PAVE Action Plan commitments and the continued work of the Interagency Task Force. As previously covered by InfoBytes, in March 2022, HUD delivered the Interagency Task Force on Property Appraisal and Valuation Equity (PAVE) Action Plan to President Biden. PAVE focuses primarily on actions to substantially reduce racial bias in home appraisals, as well as steps federal agencies can “take using their existing authorities to enhance oversight and accountability of the appraisal industry and empower homeowners and homebuyers to take action when they receive a valuation that is lower than expected.”

    Federal Issues Agency Rule-Making & Guidance HUD FHA Discrimination Appraisal Mortgages Consumer Finance

  • FHA seeks feedback on changing reconsideration of valuation requests

    Federal Issues

    Recently, FHA published a draft mortgagee letter (ML) proposing policy changes to its requirements for processing and documenting reconsideration of valuation (ROV) requests, specifically when requests are initiated by a borrower for the review of appraisal results. According to the ML, FHA provided proposed guidance to improve the process when prospective borrowers applying for FHA-insured Title II forward or Home Equity Conversion Mortgages (HECM) request an ROV on a property if the initial valuation is lower than expected, or that there is indication of illegal bias, that Fair Housing regulations have been violated, or that there may be unlawful discrimination. The draft also proposed updated appraisal review standards, which are intended to provide mortgagees and appraisers with clarifying guidance on the quality of an appraisal report and the ROV process and responsibilities. Public comments are due by February 2.

    Federal Issues Agency Rule-Making & Guidance FHA Mortgages HECM Appraisal


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