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Financial Services Law Insights and Observations


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  • CFPB seeks better refi, loss-mitigation options

    Federal Issues

    On September 22, the CFPB issued a request for information (RFI) regarding ways to improve mortgage refinances for homeowners and how to support automatic short-term and long-term loss mitigation assistance for homeowners who experience financial disruptions. According to the Bureau, refinancing volume has decreased almost 70 percent from last year as interest rates have risen. Additionally, periods of economic turmoil, such as the Covid-19 pandemic, can pose significant challenges for mortgage borrowers, the Bureau noted. Throughout the pandemic, 8.2 million borrowers entered a forbearance program, and as of July 2022, 93 percent have exited. Of those who have exited forbearance, five percent are delinquent or in active foreclosure. The Bureau is interested in the features of pandemic-related forbearance programs that should be made more generally available to borrowers. Specifically, the RFI requests information regarding, among other things: (i) targeted and streamlined refinance programs; (ii) innovative refinancing products; and (iii) automatic forbearance and long-term loss mitigation assistance. Comments are due 60 days after publication in the Federal Register.

    Federal Issues Agency Rule-Making & Guidance CFPB Consumer Finance Mortgages Refinance Forbearance Federal Register

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  • VA clarifies Covid-19 forbearance timeline

    Federal Issues

    On September 19, the Department of Veterans Affairs issued a change to Circular 26-21-20 extending the rescission date to align with the end of Covid-19 pandemic, including conforming changes to VA’s expectation as to the completion of a forbearance period. As previously covered by InfoBytes, the VA issued Circular 26-21-20 in September 2021 to clarify timeline expectations for forbearance requests submitted by affected borrowers. The September 2021 Circular stated thar “[f]or borrowers who have not received a COVID-related forbearance as of the date of this Circular, servicers should approve requests from such borrowers provided that the borrower makes the request during the National Emergency Concerning the Novel Coronavirus Disease 2019 (COVID-19) Pandemic,” and that all Covid-19 related forbearances would end by September 30, 2022. However, Change 1 stated that “September 30, 2022” should be replaced with “six months after the end of the National Emergency Concerning the Novel COVID-19 Pandemic.” The circular is rescinded March 1, 2023.

    Federal Issues Department of Veterans Affairs Covid-19 Mortgages Forbearance Consumer Finance

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  • California bankruptcy court says a forbearance that modifies the original loan is subject to state usury laws in certain instances


    Earlier this year, the United States Bankruptcy Court for the Northern District of California granted in part and denied in part cross-motions for summary judgment in an action concerning “piecemeal exemptions” to California’s usury law. Plaintiffs entered into a loan agreement secured by their residence carrying an interest rate of 11.3 percent and a default interest rate of 17.3 percent (plus late fees) with a then-unlicensed lender. They also signed a promissory note, which stated that should they fail to make a monthly payment within 10 days of the due date they would be assessed a late charge equal to 10 percent of the monthly payment. After plaintiffs struggled to make payments, the parties entered into an extension agreement to supplement and amend the original loan (but not replace it), which slightly lowered the initial interest rate but increased the monthly payments and default interest rate. The extension also included language adding a charge on the final balloon payment that was not part of the original loan. Plaintiffs again began to miss loan payments and sought to refinance the loan with a different lender. A payoff quote provided by the defendant included what was originally called a “prepayment penalty” but was later changed to represent a late charge on the principal balance in line with the extension.

    Plaintiffs sued the defendant and related parties in state court, seeking damages and alleging claims related to breach of contract, fraud, and intentional interference. After the court denied plaintiffs’ motion for preliminary injunction, plaintiffs filed an appeal on the same day one of the plaintiffs filed for bankruptcy. The defendant eventually filed a motion for summary judgment on the claims in the amended complaint, whereas plaintiffs sought partial summary judgment on several new claims, including that (i) the extension violated state usury law; (ii) the defendant “demanded an illegal acceleration penalty” from plaintiffs; and (iii) the defendant illegally charged multiple late fees on a single loan payment.

    In a case of first impression, the court held that under California law, a loan extension that modifies the original loan, including by extending the maturity date, is considered a forbearance subject to state usury laws because there was no other sale, lease, or other transaction involved. The court noted that the statute “provides a restricted definition of the term ‘arranged’ in relation to a forbearance,” and that it also “painstakingly sets forth the instances in which a forbearance negotiated by a real estate broker would be exempt under usury law: when that broker was previously involved in arranging the original loan and that loan was in connection with a sale, lease, or other transaction, or when that broker had previously arranged for the sale, lease or other transaction for compensation.” The court further stated that “[c]onspicuously absent from those instances is a scenario in which a forbearance is arranged on a simple loan of money secured by real estate, with no other sale, lease, or other transaction involved,” adding that it “cannot create an exemption here to save [the defendant].” In the subject transaction, the real estate broker involved when the original loan was made was not involved in the extension, the court said.

    The court also held that the loan forbearance violated California usury laws although the original loan was exempt from usury laws, disagreeing with the defendant’s position that “an originally non-usurious transaction cannot be transformed into a usurious transaction at a later point.” The court pointed out the distinction in this case from others cited by the defendant, stating that the “difference between a non-usurious loan and a loan subject to an exemption is slight but distinct. . . . Once the exemption (no real estate broker involved) ceased to apply, the exemption disappeared, and the transaction became subject to the full consequences of the usury law.” Because the extension’s interest rate and default interest rate both violated state usury law, the defendant is entitled only to the principal balance of the extension minus the amount of usurious interest paid.

    Additionally, the court determined that under California law, the liquidated damages provision of the loan extension was separate from the interest charged by the extension, and a late charge on top of a balloon payment under extension was an unenforceable penalty provision instead of a valid provision for liquidated damages. The court also declined to consider punitive or other damages and said it will make a determination in the future as to what the defendant is entitled to by way of reimbursements or costs, as well as any interest accrued and owed after the extension’s maturity date.

    Courts Mortgages Consumer Finance California Usury Interest Forbearance State Issues

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  • CFPB report finds variance in mortgage servicers’ pandemic response

    Federal Issues

    On May 16, the CFPB released a report examining data collected across 16 large mortgage servicers from May through December 2021 on the servicers’ responses to the Covid-19 pandemic. According to the Bureau, there is significant variation in how servicers collected information on borrowers’ language preference, stating that “the substantial lack of information about borrowers’ language preference and varying data quality made it challenging to make any comparison between servicers.” However, the report also found that “the number of non-[limited English proficiency] borrowers who were delinquent without a loss mitigation option after forbearance declined over time, with the greatest decrease between October and November 2021, while the number of unknown and limited English proficiency (LEP) borrowers did not reflect the same decrease.” The report noted that servicer response to the Bureau’s requests for borrower demographics, including “a breakdown of the total loans they service by race, and race information for forbearances, delinquencies, and forbearance exits” was limited, precluding comparisons. The report encouraged "servicers to ensure that they are preventing discrimination in the provision of loss mitigation assistance.” Other key findings from the report included: (i) by the end of 2021, more than 330,000 borrowers’ loans remained delinquent – with no loss mitigation solution in place; (ii) the average hold times of more than ten minutes and call abandonment rates exceed 30 percent for certain servicers; (iii) the percentage of borrowers in delinquency and who had a non-English language preference increased during the reviewed period, but the percentage decreased for borrowers in delinquency and who identified English as their preferred language; (iv) more than half of the borrowers in the data received are categorized as race “unknown”; and (v) most borrowers exiting Covid forbearance exited with a loan modification (27 percent), while 15.2 percent exited in a state of delinquency.

    Federal Issues Mortgages Mortgage Servicing Covid-19 CFPB Forbearance Consumer Finance

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  • Education Dept. rolls out new plan for IDRs

    Agency Rule-Making & Guidance

    On April 19, the Department of Education announced additional changes to the federal student loan program designed to reduce or eliminate federal student loan debt for many borrowers. In particular:

    • To address long-term forbearance steering, Federal Student Aid (FSA) will conduct “a one-time account adjustment that will count forbearances of more than 12 months consecutive and more than 36 months cumulative toward forgiveness” under the income-driven repayment (IDR) and Public Service Loan Forgiveness (PSLF) programs.
    • Borrowers “steered” into shorter-term forbearances may file a complaint with the FSA Ombudsman to seek an account review.
    • FSA will also partner with the CFPB to conduct regular audits of servicers’ forbearance use, and will seek to improve oversight of loan servicing activities.
    • Loan servicers’ ability to enroll borrowers in forbearance by text or email will be restricted.
    • FSA will conduct a one-time revision of IDR-qualifying payments for all Direct Student Loans and federally-managed Federal Family Education Loan Program (FFEL) loans, and will count any month in which a borrower made a payment toward IDR, regardless of the payment plan. Borrowers who meet the required number of payments for IDR forgiveness based on the one-time revision will receive automatic loan cancellation. Moreover, months spent in deferment prior to 2013 will count towards IRD forgiveness (with the exception of in-school deferment) to address certain data reliability issues.

    In addition, FSA plans to reform its IDR tracking process. New guidance will be issued to student loan servicers to ensure accurate and uniform payment counting practices. FSA will also track payment counts on its own systems and will display IDR payment counts on beginning in 2023 so borrowers can monitor their progress. The Department also plans to issue rulemaking that will revise the terms of IDR and “further simplify payment counting by allowing more loan statuses to count toward IDR forgiveness, including certain types of deferments and forbearances.”

    Agency Rule-Making & Guidance Department of Education CFPB Student Lending Consumer Finance Debt Cancellation Forbearance Student Loan Servicer Income-Driven Repayment

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  • VA updates loan repayment relief for Covid-19 borrowers

    Federal Issues

    On February 28, the Department of Veterans Affairs (VA) issued changes updating Circular 26-21-07 to address loan repayment relief for borrowers affected by Covid-19. The circular is “Change 2” of the original circular issued in June 2021, which, among other things, provided servicers with information regarding home retention options and foreclosure alternatives for impacted borrowers. The guidance stems from the extended duration of the pandemic and developments in the VA’s program. (Covered by InfoBytes here). The circular is now effective until July 2023.

    Federal Issues Department of Veterans Affairs Covid-19 Mortgages Forbearance Consumer Finance

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  • VA extends suspension of certain property inspection requirements for Covid-19 forbearance cases

    Federal Issues

    On December 21, the Department of Veterans Affairs (VA) issued Circular 26-21-27 to extend the suspension of certain inspection requirements for properties purchased with loans guaranteed by the VA where the borrower has been negatively impacted by Covid-19. In 2020, the VA temporarily suspended its requirement to conduct a property inspection before the 60th day of delinquency for borrowers whose loans are currently in forbearance and were current or had not reached the 60th day of delinquency when the borrower requested CARES Act forbearance. Circular 26-21-27 sunsets on October 1, 2022.

    Federal Issues Department of Veterans Affairs Covid-19 Consumer Finance CARES Act Mortgages Servicing Forbearance

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  • Fed cites need to increase oversight of nonbank mortgage companies

    Federal Issues

    On November 8, Federal Reserve Board Governor, Michelle W. Bowman, spoke at the “Women in Housing and Finance Public Policy Luncheon” regarding U.S. housing and the mortgage market. Bowman observed that home prices have increased in the past year and a half, stating that “[i]n September, about 90 percent of American cities had experienced rising home prices over the past three months, and the home price increases were substantial in most of these cities,” which “raise[s] the concern that housing is overvalued and that home prices may decline.” She discussed several factors leading to the demand for housing as including (i) low interest rates; (ii) accumulated savings; and (iii) increased income growth. Additionally, she pointed out that mortgage refinancing has surged due to the decrease in long-term interest rates, and that nonbank servicers utilized the proceeds from the “refinacings to fund the advances associated with forbearance.” However, Bowman added that higher home prices and rising rents contributed to inflationary pressures in the economy. Bowman stated that the “multifamily rental market is at historic levels of tightness, with over 95 percent occupancy in major markets,” and she anticipates that these housing supply issues are unlikely to reverse materially in the short term, suggesting that there will be higher levels of inflation caused by housing. With respect to forbearance, Bowman said, “1.2 million borrowers were still in forbearance, down from a peak of 4.7 million in June 2020” on mortgage payments. Bowman stated that, “[f]orbearance, foreclosure moratorium, and fiscal support have kept distressed borrowers in their homes.” Bowman warned that transitioning borrowers from mortgage forbearance to modification may be a “heavy lift” for some servicers. Bowman disclosed that the Fed will be monitoring what happens as borrowers reach the end of the forbearance on mortgage payments and estimates that 850,000 of those in forbearance will reach the end of their forbearance period in January 2022, and “the temporary limitations on foreclosures put in place by the Consumer Financial Protection Bureau will expire at the end of the year.” Bowman recommended that state and federal regulators collaborate to collect data, identify risks, and strengthen oversight of nonbank mortgage companies.

    Federal Issues Federal Reserve Mortgages Bank Regulatory Nonbank Mortgage Servicing Forbearance CFPB Consumer Finance

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  • CFPB offers reminder on forbearance options for borrowers

    Federal Issues

    On September 30, the CFPB issued an analysis of recent rules that ensure mortgage servicers provide options to potentially vulnerable borrowers exiting forbearance. The analysis points out that there are approximately 1.6 million borrowers exiting mortgage forbearance programs and that many may be vulnerable to a greater risk of harm due to a variety of circumstances, which may have been exacerbated by the effects of the Covid-19 pandemic. As previously covered by a Buckley Special Alert, the Bureau issued a final rule earlier this year, which took effect August 31, obligating servicers to continue specifying, with substantial detail, any loss mitigation options that may help borrowers resolve their delinquencies. In April, the CFPB also urged mortgage servicers “to take all necessary steps now to prevent a wave of avoidable foreclosures this fall.” Citing the millions of homeowners in forbearance due to the Covid-19 pandemic, the Bureau’s April compliance bulletin warned servicers that consumers would need assistance when pandemic-related federal emergency mortgage protections expire (covered by InfoBytes here). In addition, in August the Bureau released an overview report of Covid-19 pandemic responses from 16 large mortgage servicers, finding that, among other things: (i) most servicers reported abandonment rates of less than 5 percent during the reporting period, while others’ rates exceeded 20 percent, with one servicer as high as 34 percent; (ii) most servicers saw increased rates of borrowers who were delinquent upon exiting pandemic hardship forbearance programs in March and April 2021 compared to previous months; and (iii) delinquency rates ranged from about 1 percent to 26 percent for federally-backed and private loans (covered by InfoBytes here). According to the September analysis, the Bureau “encourages servicers to enhance their communication capabilities and outreach efforts to educate and assist all borrowers in resolving delinquency and enrolling in widely available assistance and loss mitigation options.” The Bureau further encourages servicers to ensure that their compliance management systems include robust measures and warns against one-size-fits-all practices that may harm vulnerable consumers.

    Federal Issues CFPB Forbearance Mortgages Loss Mitigation Mortgage Servicing Compliance Covid-19 Consumer Finance

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  • VA extends Covid-19 loan deferment, clarifies forbearance timeline

    Federal Issues

    On September 29, the Department of Veterans Affairs issued circulars providing updates for servicers on assisting borrowers who continue to be affected by the Covid-19 pandemic. According to Circular 26-21-19, servicers may continue to offer loan deferments as a home retention option to borrowers exiting a Covid-19 forbearance period. Servicers who select this option will defer repayment of principal, interest, taxes, and insurance “to the loan maturity date or until the borrower refinances the loan, transfers the property, or otherwise pays off the loan (whichever occurs first) and with no added costs, fees, or interest to the borrower, and with no penalty for early payment of the deferred amount.” The VA’s Covid-19 Home Retention Waterfall and Covid-19 Refund Modification guidance, issued in July (covered by InfoBytes here), provides that the loan deferment option may be used in situations where a borrower indicates that he or she can resume normal monthly guaranteed loan payments but cannot repay the arrearages. Additionally, the VA notes that in order “to relieve undue prejudice to a debtor, holder, or other person,” it is “temporarily waiving the requirement that the final installment on any loan shall not be in excess of two times the average of the preceding installments.” This waiver, the agency notes, is applicable only to VA’s Covid-19 Home Retention Waterfall cases. The Circular is rescinded July 1, 2023.

    The same day, the VA also issued Circular 26-21-20 to clarify timeline expectations for forbearance requests submitted by affected borrowers. “For borrowers who have not received a COVID-related forbearance as of the date of this Circular, servicers should approve requests from such borrowers provided that the borrower makes the request during the National Emergency Concerning the Novel Coronavirus Disease 2019 (COVID-19) Pandemic.” The VA states that it expects all Covid-19 related forbearances to end no later than September 30, 2022.

    Federal Issues Department of Veterans Affairs Forbearance Consumer Finance Mortgages Covid-19

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