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  • Waters urges foreclosure moratoria extension

    Federal Issues

    On June 21, Chairwoman of the House Financial Services Committee Maxine Waters (D-CA) sent a letter to several federal agencies “urging them to administratively extend their moratoria on foreclosures at least until the CFPB is able to finalize and implement its pandemic recovery mortgage servicing rule.” As previously covered by a Buckley Special Alert, the Bureau issued a proposed rule in April that would broadly halt foreclosure initiations on principal residences from August 31, 2021 until 2022, and change servicing rules to promote consumer awareness and processing of Covid-relief loss mitigation options. The proposed rule also would create new and detailed obligations for communicating with borrowers to ensure they are aware of their loss mitigation options for pandemic-related hardships.

    The letter, which was sent to the secretaries of HUD, the Department of Agriculture, the Department of Veterans Affairs, as well as the director of FHFA and the acting director of the CFPB, stresses that many homeowners will face the risk of foreclosure when the emergency federal foreclosure mortarium expires on June 30, as the Bureau’s proposed rule is not expected to take effect until August. This gap in critical protections, Waters cautions, “could result in servicers expediting efforts to initiate foreclosures before a final rule takes effect, especially for borrowers who have not been able to access forbearance options during the pandemic[.]” The letter requests not only an extension of the current foreclosure moratoriums but also urges the Bureau to finalize the rule (or issue an interim final rule if necessary) as soon as possible to prevent unnecessary foreclosures and ensure homeowners have the opportunity to finalize affordable loan modifications. Additionally, Waters urges the Bureau to alert servicers of the consequences should they, among other things, fail to notify homeowners about their post-forbearance options, unnecessarily delay reviewing loan modification applications, engage in improper foreclosure-related activity, unlawfully discriminate against borrowers, or provide inaccurate, adverse information to credit reporting agencies.

    Federal Issues House Financial Services Committee Covid-19 Mortgages Mortgage Servicing Consumer Finance Foreclosure CFPB HUD Department of Agriculture Department of Veterans Affairs FHFA

  • FHFA further extends foreclosure moratorium

    Federal Issues

    On June 24, FHFA announced that Fannie Mae and Freddie Mac (GSEs) will extend their moratorium on single-family foreclosures and real estate owned (REO) evictions until July 31. The current moratoriums were set to expire June 30. The foreclosure moratorium applies only to homeowners with a GSE-backed, single-family mortgage, and the REO eviction moratorium applies only to properties that have been acquired by the GSEs through foreclosure or deed-in-lieu of foreclosure transactions. Additional details on Covid-19 forbearance plan terms and payment deferrals are covered by InfoBytes here and here. The extensions are implemented in Fannie Mae Lender Letter LL-2021-02 and Freddie Mac Guide Bulletin 2021-23. The same day, the CDC also announced an extension of its current moratorium on residential evictions for non-payment of rent through July 31, also stating in the announcement that “this is intended to be the final extension of the moratorium.”

    Federal Issues FHFA Covid-19 Fannie Mae Freddie Mac GSE Forbearance Foreclosure Mortgages Consumer Finance CDC

  • CFPB provides update on housing insecurity during pandemic

    Federal Issues

    On June 22, the CFPB issued a release with data updating its March report on the effects of the Covid-19 pandemic on housing insecurity, finding some improvement but still elevated risks for borrowers relative to prior periods. The report summarized data and research regarding the impact of the pandemic on the rental and mortgage market, and specifically its effects on low income and minority households. According to the report, as of December 2020, 11 million renter and homeowner households were significantly overdue on their regular housing payments, which placed them, especially Black and Hispanic households, at a heightened risk of their homes being subjected to foreclosure or eviction. The report also indicated that as of January 2021, there were 2.7 million borrowers in active forbearance. As of June 2021, 600,000 fewer consumers were in mortgage forbearance than in January 2021, with forbearance rates significantly decreasing in April when many borrowers exited forbearance after reaching 12 months. According to the CFPB, this was a positive indication because many of these borrowers would have qualified for longer extensions of total forbearance. The release also notes, however, that for borrowers who have exited forbearance, payment deferrals or partial claims were the most common repayment option, and that “[o]f the borrowers still in forbearance, many may face a precarious financial situation upon exiting.” Additionally, while indicating that foreclosure rates remained at historic lows during the first quarter of 2021, with 0.54 percent of mortgages in foreclosure, the release also notes that the CARES Act and direction from Fannie Mae and Freddie Mac (GSEs), FHA, VA, and USDA “have prohibited lenders and servicers of GSE and federally-backed loans from beginning or proceeding with foreclosures.” Seriously delinquent mortgage borrowers remain approximately three times higher than before the pandemic, with 1.9 million mortgage borrowers over three months behind on mortgage payments or in active foreclosure, with more than one in 10 borrowers with an FHA loan remaining seriously delinquent on their mortgage, a rate higher than the peak during the Great Recession. The release also notes that during the pandemic, mortgage forbearance and delinquency have been significantly more common in communities of color and lower-income communities (covered by Infobytes here).

    Federal Issues CFPB Covid-19 Mortgages Forbearance CARES Act Consumer Finance

  • Department of Education discharges roughly $500 million in student loan debt

    Federal Issues

    On June 16, the Department of Education announced the approval of 18,000 borrower defense to repayment claims for individuals who attended a now-defunct for-profit educational institution, providing borrowers with 100 percent loan discharges and providing approximately $500 million in relief. The educational institution has been subject to several investigations and settlements related to its private student loan origination practices, including allegations brought by the CFPB claiming the educational institution forced borrowers into “high-interest, high-fee” private student loans knowing that borrowers could not afford them. (See InfoBytes coverage on matters related to the educational institution here and here.) According to the Department’s announcement, the approvals cover two categories of borrower claims related to employment prospects and the ability to transfer credits, and mark “the first approval of a new category of borrower defense claims by the Department since January 2017.” Among other things, the Department found that borrowers’ “job prospects were not improved by attending” the educational institution and that credits from the educational institution rarely transferred.

    Federal Issues Department of Education Student Lending Consumer Finance Debt Relief

  • Waters establishes Digital Assets Working Group

    Federal Issues

    On June 16, Chairwoman of the House Financial Services Committee Maxine Waters (D-CA) announced the organization of the “Digital Assets Working Group of Democratic Members” to develop “legislation and policy solutions” on issues emerging in the digital asset space, including those related to (i) the regulation of cryptocurrency; (ii) the use of blockchain and distributed ledger technology; and (iii) the potential development of a U.S. central bank digital currency (see InfoBytes coverage on matters related to a CBDC here). During the first hearing held by the Task Force on Financial Technology, Waters stated that the working group will “focus on making sure there is responsible innovation in the cryptocurrency and digital asset space,” noting that “[a]s cryptocurrencies, central bank digital currencies and other digital assets enter the mainstream, the Committee will look at how digital assets have begun to enter many aspects of our lives—from payments to investments to remittances—and consider how to devise legislation to support responsible innovation that protects consumers and investors while promoting greater financial inclusion.”

    Federal Issues House Financial Services Committee Fintech Virtual Currency Central Bank Digital Currency Digital Currency Blockchain Digital Assets

  • FTC tackles illegal pyramid scheme

    Federal Issues

    On June 16, the FTC and the Arkansas attorney general filed a complaint against the operators of a “blessing loom” investment program (defendants), alleging that they acted as an illegal pyramid scheme that bilked millions of dollars from thousands of consumers. The joint complaint alleges that the defendants violated the FTC Act, Consumer Review Fairness Act, and the Arkansas Deceptive Trade Practices Act by: (i) participating in a pyramid scheme, which constitutes a deceptive act; (ii) prohibiting the ability of an individual to engage in a covered communication; and (iii) falsely representing goods and services. The complaint alleges that the defendants lured people into enrolling in their program by falsely guaranteeing investment returns as high as 800 percent, with some members allegedly paying as much as $62,700 to participate in the program. In addition, the defendants allegedly, among other things, (i) targeted Black communities and stated in the “[program’s] Bible,” which contains program membership bylaws, that all program members must, with no exceptions, be of African-American descent; (ii) targeted financially distressed consumers; (iii) falsely claimed the program provided “a means to achieve financial freedom and generational wealth”; (vi) attempted to hide their illegal activity from law enforcement and payment processors by forbidding certain payment applications to be used by members; and (v) prohibited members from publishing material related to the program online, such as comments and reviews. The complaint seeks to permanently enjoin the defendants’ illegal operation and requests that the court award redress for injured consumers. The complaint also seeks to impose civil penalties on the defendants under Arkansas state law.

    Federal Issues FTC Enforcement FTC Act Deceptive UDAP State Issues State Attorney General

  • FFIEC releases 2020 HMDA data

    Federal Issues

    On June 17, the Federal Financial Institutions Examinations Council (FFIEC) released the 2020 Home Mortgage Disclosure Act (HMDA) data on mortgage lending transactions at 4,475 covered institutions. Available data products include: (i) the HMDA Dynamic National Loan-Level Dataset, which is updated on a weekly basis to reflect late submissions and resubmissions; (ii) the Snapshot National Loan-Level Dataset, which contains the national HMDA datasets as of a fixed date, in the case of 2020 data, May 1, 2021; (iii) the Aggregate and Disclosure Reports, which provides summaries on individual institutions and geographies; (vi) the HMDA Data Browser where users can customize tables and download datasets for further analysis; and (v) the modified Loan/Application Registers for filers of 2020 HMDA data.

    The data currently includes “a total of 48 data points providing information about the applicants, the property securing the loan or proposed to secure the loan in the case of non-originated applications, the transaction, and identifiers.” The 2020 data includes information on 22.7 million home loan applications, 14.5 million of which resulted in loan originations, and 2.8 million purchased loans. Among the observations from the data relative to the prior year: (i) the number of reporting institutions decreased by roughly 19 percent; (ii) closed-end loan applications increased by roughly 63 percent, while open-end line of credit applications decreased by 19 percent; (iii) the total number of originated closed-end loans increased by roughly 67 percent; (iv) refinance originations for 1-4 family properties increased by 150 percent; (v) home purchase lending increased by almost 7 percent; and (vi) non-depository, independent mortgage companies accounted for approximately 60 percent of first-lien owner-occupied home purchase loans (up from approximately 56 percent in 2019).

    Federal Issues FFIEC HMDA Mortgages CFPB Bank Regulatory

  • HUD issues mortgagee letter on student loan payments

    Federal Issues

    On June 18, HUD issued Mortgagee Letter 2021-13, which provides updates to its student loan monthly payment calculations to offer greater access to affordable single family FHA-insured mortgage financing for creditworthy individuals with student loan debt. According to HUD, the revised policy more closely aligns FHA student loan debt calculation policies with other housing agencies, which further helps clarify originations for borrowers with student loan debt obligations. The updated policy eliminates a current requirement “that lenders calculate a borrower’s student loan monthly payment of one percent of the outstanding student loan balance for student loans that are not fully amortizing or are not in repayment.” According to HUD, the updated policy “bases the monthly payment on the actual student loan payment, which is often lower, and helps home buyers who, with student debt, meet minimum eligibility requirements for an FHA-insured mortgage.”

    Federal Issues HUD Student Lending Mortgages FHA Consumer Finance

  • Juneteenth creates compliance challenges for mortgage industry

    Federal Issues

    On June 17, President Biden signed S. 475 establishing June 19, Juneteenth, as a federal holiday. The “Juneteenth National Independence Day Act” amends 5 U.S.C. § 6103(a) which codifies the legal public holidays. Because June 19 falls on a Saturday this year, the holiday will be observed on Friday, June 18.

    The establishment of a new federal holiday mere hours before the first observance of that holiday poses novel compliance challenges for the mortgage industry. Notably, both TRID and TILA rescission requirements have important timing standards that reference federal holidays.

    TRID

    Under TRID, the Loan Estimate must be provided to the consumer at least seven business days prior to consummation, and the Closing Disclosure must be provided to the consumer at least three business days prior to consummation. For purposes of these requirements, “business day” is defined as “all calendar days except Sundays and legal public holidays” as specified in 5 U.S.C. § 6103(a). As the holiday occurs on a Saturday this year, Saturday, June 19 is not a “business day” for purposes of calculating either the 7-business day waiting period after delivery of the Loan Estimate or the 3-business-day waiting period after delivery of the Closing Disclosure. Commentary to Regulation Z also states that, for purposes of rescission and the provision of mortgage disclosures, when a federal holiday falls on a Saturday but is observed on the preceding Friday, the observed holiday is a business day.

    Accordingly, for purposes of providing the Loan Estimate at least seven business days prior to closing and the Closing Disclosure at least three business days prior to closing, lenders may not count Saturday, June 19, as a business day, but must count Friday, June 18, as a business day. Absent clarification from the CFPB, lenders are advised to push closings back one day where they were previously counting Saturday (June 19) as a business day. For example, if a Closing Disclosure was received by the consumer on Thursday, June 17, closing may not occur until Tuesday, June 22.  

    Rescission

    A rescission period expires on midnight on the third business day after closing and uses the same definition of business days, which is “all calendar days except Sundays and legal public holidays.” As such, Saturday, June 19 this year is not a “business day” for purposes of the 3-business day rescission period and lenders should ensure that consumers are provided an extra day where the rescission period encompasses June 19, and are made aware of that extension. This raises unique funding and Notice of Right to Cancel disclosure related questions, the answers to which may depend on individual facts and circumstances. Absent further guidance from the CFPB, creditors may wish to delay closing by one day for those transactions where the three-day Closing Disclosure period is relevant, as well as consider providing updated Notices of Right to Cancel with a new rescission period taking into account both the new public holiday and when such new notice is sent.

    On June 18, CFPB acting Director Dave Uejio issued a statement recognizing that "some lenders did not have sufficient time after the Federal holiday declaration to consider whether and how to adjust closing timelines" and that "some lenders may delay closings to accommodate the reissuance of disclosures adjusted for the new Federal holiday." Uejio further noted that "TILA and TRID requirements generally protect creditors from liability for bona fide errors and permit redisclosure after closing to correct errors." He added that any guidance ultimately issued by the Bureau "would take into account the limited implementation period before the holiday and would be issued after consultation with the other FIRREA regulators and the Conference of State Bank Supervisors to ensure consistency of interpretation for all regulated entities."

    Federal Issues Federal Legislation Biden TRID CFPB TILA Disclosures Mortgages Consumer Finance

  • SEC charges settlement company with cybersecurity disclosure violations

    Securities

    On June 15, the SEC announced charges against a real estate settlement services company for its role in allegedly failing to disclose controls and procedures related to a cybersecurity vulnerability that exposed sensitive customer information. According to the SEC’s order, an independent cybersecurity journalist warned the company in May 2019 of a vulnerability concerning its system for sharing document images that exposed over 800 million images dating back to 2003, including images containing sensitive personal data such as social security numbers and financial information. In response, the company allegedly issued a press release for inclusion in the cybersecurity journalist’s report published in May 2019 and furnished a Form 8-K to the Commission on May 28, 2019. However, according to the order, the company’s senior executives responsible for these kinds of releases “were not apprised of certain information that was relevant to their assessment of the company’s disclosure response to the vulnerability and the magnitude of the resulting risk.” Specifically, the order states that senior executives were not informed that the company’s information security personnel had identified a vulnerability several months earlier, in January 2019, but failed to remediate the vulnerability in accordance with the company’s policies. The order finds that the company “failed to maintain disclosure controls and procedures designed to ensure that all available, relevant information concerning the vulnerability was analyzed for disclosure in the company’s public reports filed with the Commission.” The SEC charged the company with violating Rule 13a-15(a) of the Exchange Act and ordered the company, who agreed to a cease-and-desist order, to pay a $487,616 penalty.

    Securities Federal Issues SEC Enforcement Courts Cease and Desist Privacy/Cyber Risk & Data Security Data Breach

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