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Washington Department of Financial Institutions amends guidance for state regulated and exempt residential mortgage loan servicers
On June 19, the Washington Department of Financial Institutions issued amended guidance that replaces guidance issued in March to Washington State regulated and exempt residential mortgage loan servicers regarding support for consumers impacted by Covid-19. The amended guidance urges mortgage servicers to continue to assist consumers adversely impacted by Covid-19. The department further urges services to take “reasonable and prudent actions through September 30, 2020, subject to the requirements of any related guarantees or insurance policies” to support mortgagors by: (1) forbearing mortgage payments; (2) refraining from certain credit reporting; (3) offering additional time to complete trial loan modifications; (4) ensuring that late payments do not adversely affect a consumer’s ability to obtain permanent loan modifications; (5) waiving certain fees; (6) postponing foreclosures; (7) ensuring mortgagors do not experience service disruptions as a result of office closures; and (8) proactively reaching out to mortgagors to explain the assistance being offered.
D.C. law creates new requirements for debt collection, creditor reporting, and mortgage servicing during the Covid-19 pandemic
On June 8, the mayor of D.C. signed the Coronavirus Support Congressional Review Emergency Amendment Act, which amended and consolidated four existing emergency acts passed in response to the Covid-19 pandemic (including the Coronavirus Omnibus Emergency Amendment Act and Foreclosure Moratorium Emergency Amendment Act). Among other things, the new act includes requirements for debt collection, credit reporting, remote notarizations, mortgage lending, and eviction and foreclosure moratoriums. It requires mortgage lenders to offer 90 day payment deferrals, waive late fees, and cease negative credit reporting, subject to specific requirements. It also prohibits initiating or conducting foreclosure sales on residential mortgages for the duration of the Covid-19 public health emergency and for 60 days thereafter, subject to certain specified limitations, and prohibits residential and commercial evictions during the same time period.
Federal agencies launch joint housing assistance website
On May 12, the CFPB, the Federal Housing Finance Agency (FHFA), and the Department of Housing and Urban Development (HUD) announced a new mortgage and housing assistance website, which consolidates the CARES Act mortgage and rent relief protections, tips to avoid Covid-19 related scams, and tools for homeowners and renters to determine if their property is federally backed. The release details the steps the CFPB has taken in response to the Covid-19 pandemic, including informing consumers of their protections under newly created programs and releasing a policy statement concerning the responsibilities of credit reporting companies and furnishers. The release also outlines efforts that FHFA’s regulated entities and HUD have taken to address the national emergency, including forbearance options for homeowners and eviction protections for renters who live in multifamily properties that are backed by Fannie Mae or Freddie Mac.
Agencies revise reporting guidance during Covid-19 pandemic
On April 7, the Federal Reserve (Fed), FDIC, OCC, CFPB, and NCUA (agencies) issued a revised interagency statement for financial institutions regarding loan modifications for customers affected by Covid-19. As previously covered by InfoBytes, the agencies issued the initial interagency statement on March 22, which stated that the agencies would not require loan modifications made as a result of Covid-19 to be categorized as troubled debt restructurings (TDRs), and additionally that the agencies would not criticize implementation by financial institutions of credit risk mitigation procedures.
Among other things, the revised interagency statement encourages financial institutions to continue to adhere to consumer protection laws, such as fair lending laws, as they assist borrowers who have been negatively impacted by Covid-19. The agencies take a favorable view of loan modification programs intended to assist borrowers affected by Covid-19 and note that financial institutions will not be criticized “for working with borrowers in a safe and sound manner.” In addition, with respect to credit risks, examiners will refrain from issuing automatic adverse risk ratings when reviewing loan modifications impacted by Covid-19. The revised statement explains that the CARES Act created a forbearance program for borrowers affected by Covid-19, and that under Section 4013 of the Act, financial institutions are not required to “report section 4013 loans as TDRs in regulatory reports.” Furthermore, deferrals granted to borrowers affected by Covid-19 do not need to be classified as “past due because of the deferral.”
9th Circuit holds extraneous information violates FCRA standalone disclosure requirement
On March 20, the U.S. Court of Appeals for the Ninth Circuit partially reversed a district court’s dismissal of a Fair Credit Reporting Act (FCRA) action, concluding that a company’s disclosures contained “extraneous information” in violation of the FCRA’s standalone disclosure requirement. The plaintiff filed a putative class action lawsuit against his former employer (defendant) after his employment—which was contingent on passing a background check—was ultimately terminated based on the results of his credit report. According to the plaintiff, the defendant violated two sections of the FCRA: (i) that the disclosure form was not clear and conspicuous and was encumbered by extraneous information; and (ii) that the defendant failed to notify him in the pre-adverse action notice that he could discuss the consumer report directly with the defendant prior to his termination. The district court dismissed the allegations, concluding that the disclosure met the FCRA’s disclosure requirements because it was not overshadowed by extraneous information, and “that the FCRA does not require that pre-adverse action notices inform an employee how to contact and discuss a consumer report directly with the employer.”
On appeal, the 9th Circuit reversed the district court’s ruling on whether the signed disclosure form contained extraneous information, concluding that because the disclosure form also included information about plaintiff’s rights to obtain and inspect information gathered by the consumer reporting agency about the plaintiff, it went beyond the FCRA’s standalone disclosure requirement. Noting that the FRCA requires a standalone disclosure but does not define the term “disclosure,” the 9th Circuit stated that a company may “briefly describe what a ‘consumer report’ entails, how it will be ‘obtained,’ and for which type of ‘employment purposes’ it may be used.” Finding that the clear and conspicuous standard was established in a case decided after the district court had dismissed plaintiff’s case, the court remanded the case to the district court to determine whether the defendant’s disclosure form satisfied the clear and conspicuous standard. However, the appellate court affirmed the dismissal of the plaintiff’s other claim, agreeing with the district court that the FCRA only requires employers to provide “a description of the consumer’s right to dispute with a consumer reporting agency the completeness or accuracy of any item of information contained in the consumer’s file at the consumer reporting agency.”
Utah modifies credit reporting notification requirements
On March 24, the Utah governor signed HB 412, which modifies requirements for creditors when submitting negative credit reports to credit reporting agencies. Creditors are now required to provide written notification to the affected party “no more than 30 days after the day on which the creditor submits the negative credit report to the credit reporting agency.” Creditors may provide the written notice in-person, via first class mail, or electronically if the party consented to receive notices by email. The amendments take effect 60 days following adjournment of the legislature.
Arizona attorney general requests financial assistance for Arizona consumers
On March 19, Arizona’s attorney general issued a request for financial and lending institutions to provide temporary relief to their Arizona customers. The governor’s requests for institutions included taking the following actions for at least 90 days: (ii) forbearing or deferring payments on mortgages, automobile loans, and consumer loans; (ii) postponing foreclosures and evictions; (iii) ceasing automobile repossessions; (iv) waiving late fees and default interest for late payments; and (v) halting negative credit reporting.
Minnesota bill to address negative credit reports and student loans
On February 19, the Minnesota House Health and Human Services Finance and Policy Committee introduced a bill that would require the Commissioner of Commerce to negotiate with credit reporting bureaus to waive negative credit reports, and to negotiate a federal waiver for federally guaranteed student loans for persons under isolation or quarantine.
On March 9, the Minnesota Senate Health and Human Services Finance and Policy Committee introduced a bill that would accomplish the same objectives.
Virginia eliminates fee for credit report security freezes
On March 10, the Virginia governor signed HB 509, which amends certain statutory provisions related to fees for security freezes on credit reports. Currently, a credit reporting agency (CRA) may charge a fee of not more than $5 when a consumer or his representative requests a security freeze on his credit report, though victims of identity theft are exempt from this fee. HB 509 prohibits CRAs from charging a fee for credit report freezes, regardless of whether the request comes from a victim of identity theft. The amendments take effect on July 1.
Credit reporting agency FCRA suit may go forward
On March 9, the U.S. District Court for the Eastern District of Pennsylvania denied the motion to dismiss and motion to strike a claim of a credit reporting agency (CRA) and its subsidiary (defendants) in a putative class action that alleged the defendants: (i) knowingly used inaccurate eviction information in their tenant screening reports, and (ii) inaccurately represented that they obtained eviction information from public sources, each in violation of the FCRA. Specifically, the plaintiff alleged that the CRA failed to disclose that the eviction information was maintained and sold through the subsidiary, and when the plaintiff requested her credit report from the CRA, the CRA omitted information maintained by the subsidiary and therefore the credit report did not contain “all information in the consumer’s file at the time of the request” as required by the FCRA. She argued that the FCRA prohibits the CRA defendant from skirting the requirement of full and accurate disclosure of consumer information by assigning that duty to a third party—in this case, the subsidiary defendant.
According to its memorandum, the court rejected the CRA’s argument that it could not be held liable for faulty reports issued by its subsidiary. The court answered the question of whether plaintiff “sufficiently alleged that defendant evaded its obligation to make full and accurate disclosure of plaintiff's consumer file. . .through the use of corporate organization, reorganization, structure or restructuring,” concluding that she did so. The court dismissed the defendants’ motion to strike without prejudice, indicating the defendants can raise their argument again in an opposition to class certification.