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On September 19, the U.S. District Court for the District of Columbia denied a motion for summary judgment from the National Association of Mutual Insurance Companies arguing that the Department of Housing and Urban Development’s disparate-impact rule conflicts with the limits of the Fair Housing Act as interpreted at the Supreme Court. The rule, promulgated in 2013 and reinstated under the Biden administration, a policy is unlawful if it has a “discriminatory effect” on a protected class and was not necessary to achieve a “substantial, legitimate, nondiscriminatory” interest or if there is a less discriminatory alternative. Judge Richard J. Leon held that the rule does not exceed limitations on disparate-impact liability under the FHA placed by the Supreme Court in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015) where those limitations avoid potential constitutional issues and prevent the Act from forcing housing authorities to reorder their legitimate priorities.
On September 1, the CFPB posted guidance to its website that affirms guidance on the Real Estate Settlement Procedures Act (RESPA) that the Department of Housing and Urban Development previously issued. In 2011, the Dodd-Frank Act transferred responsibility for RESPA from HUD to the CFPB. At the time, the Bureau stated that it would apply “the official commentary, guidance, and policy statements” that HUD had issued on RESPA “pending further CFPB action” and would give “due consideration” to other (i.e., informal) guidance and interpretations. Although the Bureau has issued certain consent orders and other statements that may cast doubt on whether it interprets RESPA in the same manner that HUD did, in the most recent posting, the Bureau confirms that the list of documents posted by the Bureau generally “continue to be applied today by the CFPB.”
On August 2, HUD announced a partnership with the National Association of Real Estate Brokers to address appraisal bias and discrimination in the housing market. The collaboration, launching in October 2023, will include online training, roundtable discussions, and distribution of educational material designed to promote fairness in the housing market. HUD also referenced its involvement in the PAVE task force (covered by InfoBytes here), which is dedicated to ending bias in home valuation and has made critical progress since its launch in 2022.
On July 26, the Senate Banking Committee held a hearing regarding “fees and tactics impacting Americans’ wallets” in relation to financial services and the role of the CFPB in addressing harmful fees. Leading the hearing, Senator Raphael Warnock (D-GA), chairman of the committee, explained that some “excessively high” and unclear fees do not serve an economic value, referring to these as “junk fees.” Senator Warnock shared that 1/3 of households that do not use banks cite high fees as their reason for continuing without a bank account. Senator Thom Tillis (R-N.C.) criticized the CFPB’s attempts at avoiding the oversight of the Administrative Procedures Act in the rule-making process by mislabeling its actions. Tillis added that after the 2008 financial crisis, regulators emphasized the importance of overdraft revenue as, “an appropriate tool for ensuring the stability of the bank’s balance sheets.” He then criticized the shift in guidance, as the CFPB looks to reprimand banks who follow “the established prudential standards for the crime of listening to their previous federal regulators.” He also claimed that the Bureau does not have proper jurisdiction, resources, or staff to make such decisions.
Pennsylvania Attorney General Michelle Henry testified about recent enforcement actions she has taken, including a recently filed suit against a Wall Street private equity-owned installment lender, who allegedly charged consumers “junk fees” for low-value or valueless add-on products. Henry also mentioned entering into a settlement relating to a bank charging “junk fees” in connection with auto finance products. Brian Johnson, a financial regulatory compliance specialist and former deputy director of the CFPB, claimed that the agencies and the White House have failed to provide a consistent definition for the “junk fees” that could subject institutions to scrutiny, and criticized the CFPB, saying that it does not follow its own regulations and laws governing how agencies make rules by publishing interpretive rules as policy statements in bulletins. A final topic raised by Senator Tina Smith (D-MN) regarded land contracts and lease-to-purchase or rent-to-own agreements that she claimed can be exploitative towards underserved communities. Smith noted that such contacts are “designed to fail,” noting that more than 80 percent of the time, people lose all their equity because they do not make it to the last payment of the contract.
On July 26, a federal judge in the U.S. District Court for the District of Massachusetts ruled that a tenant screening algorithm is subject to the Fair Housing Act, including the FHA's ban on racial discrimination in housing. The court held that even though the company is not itself is not a landlord, as property owners allegedly relied solely on the company's decisions to deny prospective renters' applications, the company was effectively granting it authority to make housing decisions.
Plaintiffs alleged in an amended complaint that a tenant-screening service operated by the defendants violated the Fair Housing Act, 42 U.S.C. § 3604 and Massachusetts anti-discrimination and consumer protection laws. The Plaintiffs claimed that the services discriminate against holders of rental vouchers and applicants of certain races and income classes, in violation of the FHA, resulting in less housing availability, less favorable terms and conditions in rental agreements, and discriminatory provision of services in connection with housing, in each case based on race and national origin.
Defendants, in their respective motions to dismiss, argued that the FHA does not apply to a tenant-screening service, such as the defendant, because the service does not “make housing decisions.” In denying the motion to dismiss on this count, the court reasoned that the FHA provisions do not limit liability to people or entities that “make housing decisions” but rather “focuses on prohibited acts,” and reiterated that the Supreme Court has already held that “language of the Act is broad and inclusive.” The court observed that while housing providers are the typical target of FHA claims, other entities are often held liable under the Act. The court reasoned that the application of the FHA “beyond direct housing providers” is a “logical extension which effectuate[s] the purpose of the FHA,” as “a housing provider could simply use an intermediary to take discriminatory and prohibited actions on its behalf and defeat the purpose of the FHA.”
Massachusetts antidiscrimination laws, among other things, make it unlawful to discriminate in the “terms, conditions, or privileges” of the sale or rental of housing or provision of such services “to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter,” which includes Sections 4(6) and 4(10). Plaintiffs allege that the discriminatory rental application process was facilitated by the tenant score produced by the defendants. The court held that the chapter is construed broadly and reiterated the Massachusetts Supreme Court finding that defendants who play a role in the tenant selection process may be held liable under certain sections even if they only “aid[ed] or abet[ted]” a violation of Section 4(10). As such, the court held that the plaintiff’s claims for disparate impact discrimination for race or source of income under both FHA and Massachusetts antidiscrimination laws were sufficient to survive the motion to dismiss.
On July 19, the White House released a Fact Sheet announcing that the Biden-Harris administration is cracking down on junk fees in rental housing to lower costs for renters. The administration explained how rental housing fees can be burdensome for renters, with application fees often exceeding the actual cost of background checks, accumulating to hundreds of dollars as prospective renters apply for multiple units. Additionally, mandatory fees, such as convenience fees for online rent payment, mail sorting, trash collection, and obscure charges like "January fees," further strain renters' finances and hinder comparison shopping, as the true cost of renting may be higher than expected or affordable, the announcement states. The Fact Sheet outlines the president’s steps for taking action: (i) major rental housing platforms will disclose total upfront costs in addition to the advertised rent; (ii) legislative efforts to regulate rental housing fees and safeguard consumer interests are underway in several states; and (iii) HUD presented new research outlining a blueprint for a nationwide initiative to tackle rental housing fees. HUD’s new research presents an extensive review of rental fees, emphasizing strategies adopted by state, local, and private sectors to promote transparency and equity in the rental market. These strategies encompass measures like capping or abolishing rental application fees, enabling renters to submit their own screening reports, utilizing a single application fee for multiple applications, and ensuring clear disclosure of total move-in and monthly rent costs. HUD's research serves as a guide for local authorities and landlords alike to enhance conditions for renters.
On July 11, FHA announced modifications to certain FHA home equity conversion mortgage requirements in Mortgagee Letter (ML) 2023-15, entitled “Modifications to FHA Home Equity Conversion Mortgage (HECM) Requirements Related to Secretary Payment of Borrower Disbursements Due to Mortgagee Default.” The letter updates FHA’s investigation requirements regarding situations where a mortgage lender is unable or unwilling to fulfill a borrower’s payment obligations required under an HECM. Mortgagees that fail to make a necessary payment to a borrower must now furnish specific information to FHA. The modifications provide additional sources where FHA can receive notice of a mortgagee’s anticipated or actual default on borrower payments and are designed to improve FHA’s ability to make prompt payments in the event of mortgagee default to ensure HECM borrowers timely receive scheduled or requested funds. ML 2023-15 is effective immediately.
On June 29, the DOJ announced a $23.75 million settlement with a South Carolina-based mortgage lender to resolve alleged False Claims Act (FCA) violations related to its origination and underwriting of mortgages insured by the Federal Housing Administration (FHA). According to the DOJ, two former employees filed a lawsuit under the FCA’s whistleblower provisions alleging the lender failed to maintain quality control programs for preventing and correcting underwriting deficiencies. As part of the settlement, the lender admitted that it certified loans that did not meet the applicable requirements for FHA mortgage insurance and VA home loan guarantees. The lender also acknowledged that these loans would not have been insured or guaranteed by the agencies were it not for the submission of false certificates. While the conduct began in July 2008, the DOJ recognized that the lender has taken significant measures to stop the violations, both before and after being told of the investigation, and gave the lender credit for doing so. Under the terms of the settlement, the lender will pay $23.75 million to the U.S., with the whistleblowers receiving a total of $4.04 million of the settlement proceeds.
On June 27, FHA announced lenders will have to submit information about borrowers’ language preferences and homeownership education or housing counseling history through the Supplemental Consumer Information Form when originating mortgages for FHA insurance. According to FHA, borrowers may choose to provide all, some, or none of the information requested on the form, and lenders must transmit any information the borrower disclosed. The information collected from the form will allow the administration to have a better aggregate view of language preferences, which FHA stated, “will influence its future actions to continue breaking down language and other barriers to homeownership.” On June 13, FHA also announced the availability of Chinese, Korean, Spanish, Tagalog, and Vietnamese versions of more than 30 single family mortgage documents and related resources associated with FHA programs.
On June 14, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s grant of summary judgment in favor of a defendant mortgage servicer, holding that while the plaintiff had sufficient proof of materiality with respect to alleged violations of the False Claims Act (FCA), plaintiff failed to meet her burden of proof on the element of causation. Plaintiff (formerly employed by the defendant as an underwriter) alleged the defendant made false representations to HUD in the course of certifying residential mortgage loans for federal insurance coverage. She maintained that HUD would not have endorsed the loans for federal insurance if it had known defendant was not satisfying the agency’s minimum underwriting guidelines. Defendant moved for summary judgment after the district court excluded the bulk of plaintiff’s “expert opinion,” arguing that plaintiff could not meet her evidentiary burden on the available record. The district court sided with defendant, ruling that as a matter of law, plaintiff could not prove either materiality (due to the lack of evidence that would allow “a reasonable factfinder to conclude that HUD viewed the alleged underwriting deficiencies as important”) or causation (the false statement caused the government’s loss).
On appeal, the 7th Circuit explained that to show proximate causation, plaintiff was required to identify evidence indicating that the alleged false certifications in reviewed loans were the foreseeable cause of later defaults, as defaults trigger HUD’s payment obligations. The appellate court noted that “it is not clear how a factfinder would even spot the alleged false statement in each loan file, let alone evaluate its seriousness and scope.” Without further evidence indicating how defendant’s alleged misrepresentations caused subsequent defaults, the plaintiff’s claims could not survive summary judgment.
However, the 7th Circuit disagreed with the district court’s reasoning with respect to materiality under the FCA. Although the district court held that plaintiff had failed to establish materiality, the appellate court determined that because HUD’s regulations “provide some guidance, in HUD’s own voice, about the false certifications that improperly induce the issuance of federal insurance, and those are precisely the false certifications present here” there was enough evidence to “clear the summary judgment hurdle” on this issue.