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FDIC announces Louisiana disaster relief
On March 15, the FDIC issued FIL-18-2021 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Louisiana affected by winter storms. The FDIC acknowledged the unusual circumstances faced by institutions affected by the winter storms and suggested that institutions work with impacted borrowers to, among other things, (i) extend repayment terms; (ii) restructure existing loans; or (iii) ease terms for new loans to those affected by the severe weather, provided the measures are done “in a manner consistent with sound banking practices.” Additionally, the FDIC noted that institutions “may receive favorable Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery,” and that the FDIC will consider institutional relief from certain filing and publishing requirements.
D.C. enacts law extending obligations for debt collection, credit reporting, mortgage servicing, and evictions
On March 17, the mayor of D.C. signed the Coronavirus Support Emergency Amendment Act of 2021. The act extends the most provisions of D.C.’s prior Covid-19 relief act (previously covered here and here) through June 15. Among other things, the act includes consumer protection provisions, including provisions regarding debt collection and credit reporting. It also provides housing and tenant protections, including in the areas of mortgage payment and late fee relief, and restrictions on evictions and foreclosures.
FHA removes LIBOR benchmark for adjustable-rate HECMs
On March 11, FHA issued Mortgagee Letter (ML) 2021-08 announcing changes for adjustable interest rate home equity conversion mortgages (HECMs) as the market transitions away from LIBOR. Among other things, ML 2021-08 (i) removes approval for using the LIBOR index for adjustable interest rate HECMs; and (ii) approves the use of the Secured Overnight Financing Rate (SOFR) index, permitting “mortgagees to commingle index types for newly originated annual adjustable interest rate HECMs when establishing the expected average mortgage interest rate using the U.S. Constant Maturity Treasury” and SOFR index. ML 2021-08 also states that LIBOR-based HECMs must close on or before May 3 to be eligible for FHA insurance.
Find continuing InfoBytes coverage on LIBOR here.
Agencies propose new flood insurance Q&As
On March 11, the FDIC, OCC, Federal Reserve Board, NCUA, and the Farm Credit Administration issued a notice and request for public comment on 24 proposed interagency questions and answers regarding the 2019 private flood insurance rule (covered by InfoBytes here). The new Q&As supplement interagency questions and answers proposed last year (covered by InfoBytes here), which were intended to reduce compliance burdens for lenders related to flood insurance laws. The new Q&As are designed to help lenders comply with private flood insurance provisions found in the Biggert-Waters Flood Insurance Reform Act of 2012, and address mandatory and discretionary acceptance of private flood insurance policies by lenders if such insurance is required. Comments on the proposed additions to the interagency Q&As are due 60 days after publication in the Federal Register.
California begins accepting applications for their Covid-19 rent relief program
On March 15, California launched their CA COVID-19 Rent Relief Program to aid landlords and renters who have unpaid rental debt due to Covid-19. In order to be eligible, a tenant must have “suffered a financial hardship” as a result of Covid-19 and have 80% or less of the area median income for their location. Landlords with eligible tenants may receive up to 80% of a tenant’s unpaid rent if they agree to waive the remaining 20%.
Nevada Dept. of Business and Industry extends work from home guidance
On March 15, the Nevada Department of Business of Industry, Division of Mortgage Lending extended its provisional guidance allowing licensed mortgage loan originators to work from home (previously covered here, here, and here) until June 30, 2021.
4th Circuit affirms $10 million penalty for appraisal practices
On March 10, a divided U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s summary judgment that an appraisal practice common before 2009 was unconscionable under the West Virginia Consumer Credit and Protection Act. According to the opinion, a class of borrowers filed a lawsuit against a lender and an appraisal management company, alleging the defendants relayed home value estimates provided by borrowers on their applications to appraisers and allegedly asked appraisers “to take another look” if the appraisal value came in lower than the estimated value. The plaintiffs claimed, among other things, that this practice constituted a breach of contract and unconscionable inducement under West Virginia law. Plaintiffs also filed a civil conspiracy claim against the defendants. The district court conditionally certified the class. It ultimately imposed a $9.6 million statutory penalty and awarded class members the appraisal fees paid as damages for breach of contract in an amount totaling nearly $1 million. However, no damages were awarded for conspiracy. The defendants appealed, arguing that summary judgment was wrongfully granted and that the class should not have been certified since individual issues predominated over common ones.
On appeal, the majority determined, among other things, that the acceptability of the challenged practice “shifted dramatically during the class period,” and that “[w]hat started out as a common (though questionable) practice became one that, in short order, was explicitly forbidden.” The majority determined the plaintiffs established their claim for unconscionable inducement, and that it “was unethical for Defendants to attempt to pressure or influence appraisers.” The majority also affirmed the district court’s ruling on the conspiracy claim. However, the appellate court concluded that the district court improperly granted summary judgment on the breach of contract claim and ordered the district court to reexamine whether breach of contract occurred and whether the plaintiffs suffered resulting damages.
The dissenting judge called the majority opinion “startling,” writing that “[t]his is an unjust punishment indeed for a company that followed a practice that was both customary and legal and only later modified to avoid potentially influencing appraisers.”
HUD approves settlement resolving Fair Housing Act violation
On March 8, HUD released a Conciliation Agreement between an African-American consumer and a mortgage lender to resolve allegations that the consumer’s home was appraised at an amount lower than its actual worth due to her race. Under the Fair Housing Act, a homeowner’s race may not influence the valuation of a home, HUD stated. While the lender denied having engaged in any discriminatory behavior, it agreed to pay $50,000 to the consumer and will provide mandatory training to all of its home lending advisors and client care specialists nationwide on the reconsideration of value (ROV) process and fair lending issues related to appraisals. Training will include information on how to handle complaints of discrimination in the appraisal process and the process for consumers to submit ROV requests.
FHFA extends Covid-19 flexibilities until April 30
On March 11, the FHFA announced the extension of several loan origination guidelines put in place to assist borrowers during the Covid-19 pandemic. Specifically, FHFA extended until April 30 existing guidelines related to: (i) alternative appraisal requirements on purchase and rate term refinance loans; (ii) alternative methods for documenting income and verifying employment before loan closing; and (iii) the expanded use of power of attorney to assist with loan closings. The extensions are implemented in updates to Fannie Mae Lender Letters LL-2021-03 and LL-2021-04, and Freddie Mac Guide Bulletin 2021-10 and Selling FAQs.
New York governor signs bill setting forth eviction and foreclosure protections for small businesses
On March 9, the New York governor signed the COVID-19 Emergency Protect Our Small Businesses Act of 2021 (S471A/A3207), which sets forth eviction and foreclosure protections for small businesses. Among other things, the act prohibits removal of a commercial tenant prior to May 1, 2021, except by eviction proceedings. The act also prohibits the initiation of eviction proceedings until May 1, 2021 and stays pending eviction proceedings for a certain period of time depending on whether an eviction warrant or judgment of possession or ejectment has been issued. The act further requires landlords to provide certain pre-eviction notices. The press release notes that the act builds on prior state moratoriums on residential and commercial evictions.