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Financial Services Law Insights and Observations


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  • Agencies highlight downpayment assistance, child privacy in regulatory agendas

    Agency Rule-Making & Guidance

    Recently, the Office of Information and Regulatory Affairs released fall 2022 regulatory agendas for the FTC and HUD. With respect to an FTC review of the Children’s Online Privacy Protection Rule (COPPA) that was commenced in 2019 (covered by InfoBytes here), the Commission stated in its regulatory agenda that it is still reviewing comments. COPPA “prohibits unfair or deceptive acts or practices in connection with the collection, use and/or disclosure of personal information from and about children under the age of 13 on the internet,” and, among other things, “requires operators of commercial websites and online services, with certain exceptions, to obtain verifiable parental consent before collecting, using, or disclosing personal information from or about children.”

    HUD stated in its regulatory agenda that it anticipates issuing a notice of proposed rulemaking in March that would address mortgage downpayment assistance programs. The Housing and Economic Recovery Act of 2018 amended the National Housing Act to add a clause that prohibits any portion of a borrower’s required minimum cash investment from being provided by: “(i) the seller or any other person or entity that financially benefits from the transaction, or (ii) any third party or entity that is reimbursed, directly or indirectly, by any of the parties described in clause (i).” According to the agenda, FHA continues to receive questions about prohibitions on persons or entities that may financially benefit from a mortgage transaction, including “whether down payment assistance programs operated by government entities are being operated in a fashion that would render such assistance prohibited.” A future NPRM would clarify the circumstances in which government entities are deriving a prohibited financial benefit.

    Agency Rule-Making & Guidance Federal Issues FTC HUD COPPA Downpayment Assistance Mortgages Privacy, Cyber Risk & Data Security Consumer Protection FHA

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  • HUD suspends downpayment assistance mortgagee letter following injunction

    Federal Issues

    On July 23, HUD issued Mortgagee Letter 2019-10, announcing the official suspension of the effective date of the agency’s April guidance (Mortgagee Letter 2019-06), which changed the downpayment assistance (DPA) guidelines. The suspension comes just a week after the U.S. District Court for the District of Utah granted an American Indian band and its mortgage company (collectively, “plaintiffs”) a preliminary injunction halting the enforcement of the April changes, and ordering that HUD “shall not deny insurance nor cause insurance to be denied based on non-compliance with Mortgagee Letter 19-06 and shall provide public notice that the effective date of Mortgagee Letter 19-06 is suspended until after a final determination on the merits of the case.” Buckley is co-counsel in the pending litigation.

    The suspended guidance, Mortgagee Letter 2019-06 (Mortgagee Letter), issued on April 18, imposed new documentation requirements purportedly aimed at confirming that Governmental Entities operate their DPA programs within the scope of their governmental capacity when providing any portion of a borrower’s Minimum Required Investment (MRI). The letter updated Handbook 4000.1 to specify that when any portion of a borrower’s MRI comes from a Governmental Entity, a mortgagee must obtain the following documentation: (i) proof that the Governmental Entity has authority to operate in the jurisdiction where the property is located; (ii) a legal opinion from the Governmental Entity’s attorneys, signed and dated within two years of closing, establishing the Governmental Entity’s authority to operate in the jurisdiction where the property is located, which in the case of a federally recognized Indian Tribe means the entity is operating on tribal land in which the property is located, or offering DPA to enrolled members of the tribe; and (iii) evidence that the Governmental Entity is providing DPA and is doing so in its governmental capacity. The Mortgagee Letter went on to require documentation indicating that the provision of DPA is not contingent upon the future transfer of the insured mortgage to a specific entity.

    The plaintiffs filed suit against HUD on April 22 arguing that the Mortgagee Letter was unlawful and discriminatory, and unfairly targeted American Indian tribes by “requiring them, for the first time, to confine their DPA programs to the geographic boundaries of their reservations and to enrolled members of the tribes, literally driving them out of the national marketplace and back onto the reservation.” Additionally, the complaint argued that HUD failed to execute these changes in accordance with the protections of the Administrative Procedures Act (APA) by providing a notice and comment period—purporting the Mortgagee Letter to be an “informal ‘guidance’ document that merely ‘clarifies’ existing law.” The decision to grant the preliminary injunction was announced by the court at the conclusion of a July 16 hearing. In the written order released the following week, the court concluded that the plaintiffs were likely to succeed on claims that the agency violated the APA because the Mortgagee Letter was actually a legislative rule with the force and effect of the law, not merely an interpretive rule. Moreover, the court rejected HUD’s argument that the Mortgagee Letter merely reiterates jurisdictional limitations that were already present, and stated the plaintiffs sufficiently demonstrated irreparable harm caused by the new jurisdictional limitations in the Mortgagee Letter.

    Federal Issues Courts Agency Rule-Making & Guidance HUD Downpayment Assistance Preliminary Injunction

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