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Department of Education: states do not have the authority to regulate student loan servicers
On March 12, the U.S. Department of Education published an Interpretation in the Federal Register, which takes the position that state regulation of servicers of loans made under the William D. Ford Federal Direct Loan Program (Direct Loans) and the Federal Family Education Loan Program (FFEL Program Loans) is preempted by Federal law. Specifically, the Department noted that state “regulation of the servicing of Direct Loans” is preempted because it “impedes uniquely Federal interests,” and state regulation of the servicing of FFEL Program Loans “is preempted to the extent that it undermines uniform administration of the program.” The Interpretation was issued in response to several states having recently enacted regulatory regimes, or sought to apply existing consumer protection statutes, imposing additional requirements on such student loan servicers. The Ranking Member of the House Committee on Education and the Workforce, Representative Bobby Scott, D-VA, issued a statement following the notice of publication on March 9, disagreeing with the Department’s Interpretation: “Congress has not given the Secretary the authority to preempt state consumer protection law for student borrowers. . . . I urge the Secretary to reverse this egregious overreach of Federal authority to rescind states’ ability to protect student borrowers and hold unscrupulous servicers accountable.”
CFPB releases RFI on rulemaking process
On March 7, the CFPB released its seventh Request for Information (RFI) in a series seeking feedback on the Bureau’s operations. This RFI solicits public comment regarding “the overall efficiency and effectiveness of its rulemaking processes.” The RFI emphasizes that the Bureau is not seeking information related to the particular content of any proposed or final rule—existing rules will be addresses in separate RFIs—or information related to elements of the rulemaking process which are required by law. Specifically, the RFI requests feedback regarding the discretionary aspects of the Bureau’s rulemaking processes, including (i) mechanisms (such as RFIs) the Bureau uses to gather information from stakeholders in advance of initiating a rulemaking; (ii) the Small Business Regulatory Enforcement Fairness Act (SBREFA) panel process; (iii) the content and structure of notices of proposed rulemaking (NPRMs); (iv) the NPRM comment process, including time periods and feedback mechanisms; and (v) the content and structure of notices of final rules. The RFI is expected to be published in the Federal Register on March 9. Comments will be due 90 days from publication.
House passes several bills focused on regulatory relief
On March 6, the House passed H.R. 2226, the “Portfolio Lending and Mortgage Access Act,” amending TILA and expanding the safe harbor provisions provided to qualified residential mortgages held in portfolio by banks with less than $10 billion in assets. Under the bill, a mortgage lender would not be subject to civil liability for violating specified ability-to-repay requirements if, among other things, the loan was originated and held continuously in portfolio by a covered institution and complies with certain limitations and requirements related to prepayment penalties and points and fees..
On the same day, the House also passed H.R. 4725, the “Community Bank Reporting Relief Act,” to amend the Federal Deposit Insurance Act to reduce the regulatory reporting burden on community banks. Specifically, federal banking agencies would be required to issue regulations allowing qualified depository institutions with less than $5 billion in assets to submit abbreviated call reports (consolidated reports of condition and income) every other quarter rather than submitting full call reports every quarter.
Finally, by a vote of 264-143, the House passed H.R. 4607, the “Comprehensive Regulatory Review Act,” a measure to amend the Economic Growth and Regulatory Paperwork Reduction Act of 1996’s regulatory review process. Among other things, the bill requires federal financial regulators to perform a comprehensive review at least every seven years, instead of every ten years as currently required, to identify regulations that may be tailored to limit burdens on insured depository institutions.FHA and VA extend foreclosure moratoriums on certain disaster areas
On March 1, the Federal Housing Administration (FHA) released Mortgagee Letter ML 2018-02 (ML 2018-02), which extends the 180-day foreclosure moratorium on FHA-insured properties in Puerto Rico & the U.S. Virgin Islands affected by Hurricane Maria for an additional 60-days. The foreclosure moratorium is now in effect until May 18.
The Department of Veterans Affairs (VA) also released updates to VA circulars 26-17-23, 26-17-27, and 26-17-28, extending the foreclosure moratorium on VA-insured properties affected by Hurricanes Harvey, Irma, and Maria from 180 days to 270 days.
Find continuing InfoBytes coverage on disaster relief here.
Fannie Mae updates Selling Guide with HomeStyle Renovation policy changes
On February 27, Fannie Mae updated its Selling Guide including changes to its HomeStyle Renovation (Renovation) policy. According to Fannie Mae SEL-2018-02, the updates to the Selling Guide include, among other changes, the following: (i) sellers/servicers no longer need to be approved for the Renovation loan through Fannie Mae if they choose to wait to deliver all Renovation loans until after renovations are complete; (ii) fixed-rate mortgages for one-unit, principle residences now have a maximum allowable LTV ratio of 97% if the loan is underwritten through Desktop Underwriter; (iii) manufactured homes that do not require structural changes are eligible for Renovation loans; and (iv) removal of the requirement that the renovation must add value to the property. Lenders are required to be in compliance with the Renovation policy changes by September 1, 2018.
The Selling Guide also (i) added flexibilities in the HomeStyle Energy policy to allow for increased utilization of the program; (ii) added definitions and requirements for business continuity and disaster recovery procedures; and (iii) updated age of document requirements for loans securing properties impacted by a natural disaster.
Buckley Special Alert: Mulvaney says the CFPB will depend heavily on state Attorneys General for enforcement of consumer protection laws
Mick Mulvaney, the acting director of the Consumer Financial Protection Bureau, in a February 28 speech, outlined the Bureau’s overall direction and strategic priorities, and described plans to coordinate with state Attorneys General in enforcing federal consumer financial protection law. Mulvaney made the remarks in Washington, D.C., at the winter meeting of the National Association of Attorneys General (NAAG).
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Click here to read the full special alert.If you have questions about the remarks or other related issues, please visit our State Attorneys General and Consumer Financial Protection Bureau practice pages, or contact a Buckley attorney with whom you have worked in the past.
CFPB releases RFI on complaint reporting
On March 1, the CFPB released its sixth Request for Information (RFI) in a series seeking feedback on the bureau’s operations. This RFI solicits public comment regarding “potential changes that can be implemented to the Bureau’s public reporting practices of consumer complaint information.” Under the Dodd-Frank Act (Dodd-Frank), one of the Bureau’s primary functions is “collecting, investigating, and responding to consumer complaints.” Dodd-Frank requires the Bureau to annually report to Congress information and analysis of the consumer complaints it receives, and to include an analysis of complaints in its semi-annual reports to the president and certain congressional committees. In addition to its specific statutory obligations, the Bureau also produces monthly complaint reports, special edition complaint reports, and a variety of reports from the Bureau’s special population offices relating to consumer complaints.
The RFI broadly requests feedback on all aspects of consumer complaint reporting and publication practices but also highlights specific topics on which comment is requested, including suggestions consistent with the Bureau’s statutory obligations on (i) the frequency of complaint reporting; (ii) the data fields provided in the Consumer Complaint Database; (iii) whether the Bureau should supplement consumer complaints with observations of company responses to complaints; (iv) the inclusion of information related to product and service size and company share; and (v) whether companies should be notified of their inclusion in a public report prior to publication. The RFI is expected to be published in the Federal Register on March 7. Comments will be due 90 days from publication.
FTC issues annual summary of consumer complaints
On March 1, the FTC issued its annual summary on consumer complaints received by the agency over the past year, highlighting trends in various categories such as fraud and identity theft. The report, Consumer Sentinel Network Data Book 2017 (2017 Data Book), provides category breakdowns and national and state specific data extrapolated from the Consumer Sentinel Network (CSN)—a secure online database of millions of consumer complaints available only to law enforcement agencies. In compiling the 2017 Data Book, CSN collected and analyzed nearly 2.7 million consumer complaints—a decrease from the nearly 3 million complaints it received in 2016. However, total loses reported for 2017 increased by $63 million to nearly $905 million in total losses due to fraud.
The 2017 Data Book provides a breakdown of complaints sorted into 30 top categories. Highlights include the following:
- States. Florida, Georgia, and Nevada were the top states for fraud complaints, while Michigan, Florida, and California were the top states for identity theft complaints.
- Top categories. While there were 1.1 million fraud reports filed overall (42.5 percent of all reports), debt collection remained the top complaint in 2017, amounting to 22.7 percent of all complaints. Identity theft (13.8 percent) and imposter scams (13 percent) rounded out the top three. “While we received fewer overall complaints in 2017, consumers reported losing more money to fraud than they did the year before,” said Tom Pahl, Acting Director of the FTC’s Bureau of Consumer Protection in a press release issued by the agency. “This underscores the importance of the FTC’s work in educating consumers and cracking down on the scammers who try to take their money.” Rounding out the top ten consumer complaints for 2017 were: telephone and mobile services; banks and lenders; prizes, sweepstakes, and lotteries; shop-at-home and catalog sales; credit bureaus, information furnishers, and report users, auto related complaints, and television and electronic media.
- Military. Fraud and identify theft were the largest category of complaints from military consumers—the majority reporting imposter scams, credit card fraud, and bank fraud. Military retirees and veterans submitted the highest number of reports.
- Fraud losses by age. The 2017 Data Book includes data broken out by age groups for the first time. Younger consumers aged 20-29 reported losing money to fraud more than consumers over age 70, but for older consumers who reported losing money, the median amount lost was greater.
Additional information about the 2017 Data Book is available here.
Independent auditor agrees to $149.5 million settlement with DOJ over potential FCA liability
On February 28, the DOJ announced a $149.5 million settlement with an independent auditor for potential False Claims Act (FCA) liability related to its auditing work of a failed mortgage origination company. According to the announcement, between 2002 and 2008, the company served as an independent auditor of a mortgage originator, which issued Fair Housing Administration (FHA) insured loans through HUD’s Direct Endorsement Lender program. The program requires mortgage companies to submit to HUD annual audit reports on financial statements and compliance with certain HUD requirements. The DOJ alleges that during that time, the now failed mortgage originator engaged in a fraudulent scheme, which, among other things, resulted in the originator’s financial distress to not be reflected in its financial statements. The DOJ alleges that the independent auditor “knowingly deviated from applicable auditing standards” and therefore, failed to detect the misleading financial statements and the originator’s allegedly fraudulent conduct, which allowed the originator to continue issuing FHA loans until it declared bankruptcy in 2009. The DOJ notes that the settlement relates to allegations only and there was no determination of actual liability against the independent auditor.
GAO recommends the CFPB review the effectiveness of TRID guidance for small institutions
On February 27, the U.S. Government Accountability Office (GAO) released a report of recommendations to financial regulators on actions to take related to the compliance burdens faced by certain small financial institutions. The report is the result of a study the GAO initiated with over 60 community banks and credit unions (collectively, “institutions”) regarding which financial regulations were viewed as the most burdensome. Among others, the report includes a recommendation to the CFPB that it should assess the effectiveness of its TILA/RESPA Integrated Disclosure Rule (TRID) guidance and take affirmative steps to address any issues that are necessary. In a response to the GAO that is included in the report, the CFPB Associate Director David Silberman said, “the Bureau agrees with this recommendation and commits to evaluating the effectiveness of its guidance and updating it as appropriate.” Among other recommendations, the GAO highlights the need for the CFPB to coordinate with the other financial regulators on their periodic Economic Growth and Regulatory Paperwork Reduction Act (EGRPRA) reviews.
In addition to the compliance concerns with TRID disclosures, the GAO reports that the institutions also consider the data reporting requirements under HMDA, and the transaction reporting and customer due diligence requirements of the Bank Secrecy Act and related anti-money laundering laws the most burdensome. The GAO includes specific recommendations to the other financial regulators to strengthen and streamline regulations through the EGRPRA process.