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HUD Delays Reverse Mortgage Requirements
On December 20, HUD announced in Mortgagee Letter 2013-45 that new requirements related to the FHA’s Home Equity Conversion Mortgage program (HECM) are tolled pending further guidance from the agency. Since announcing the new financial assessment requirements and funding requirements for the payment of property charges in September 2013, HUD has received comments that require HUD to update the requirements and guidance. Given those changes, HUD delayed the original date for compliance with the requirements—January 13, 2014—and will set a new effective date when it issues the updated guidance. Mortgagees will have at least 90 days to comply with the new guidance.
Massachusetts AG Obtains Another RMBS Settlement
On December 30, Massachusetts Attorney General (AG) Martha Coakley announced the state’s sixth settlement related to allegedly unlawful RMBS practices, which resulted from the AG’s ongoing review of subprime mortgage securitization practices in Massachusetts. The most recent agreement requires an underwriting firm to pay a total of $17.3 million, which includes $11.3 million to be dedicated to compensate government entities that had invested with the Massachusetts Pension Reserve Investment Management Board and $6 million to be paid to the state.
Eleventh Circuit Certifies Questions On Georgia Business Judgment Rule In Bank Officer Case, Declines To Apply "No Duty" Rule To Bar Affirmative Defenses
On December 23, the U.S. Court of Appeals for the 11th Circuit certified questions to the Georgia Supreme Court regarding whether bank directors and officers can be subject to claims for ordinary negligence under the state banking code. FDIC v. Skow, No.12-15878, 2013 WL 6726918 (11th Cir. Dec. 23, 2013). In this case, former directors and officers of a failed Georgia bank moved to dismiss a suit brought against them by the FDIC as receiver for the failed bank, asserting that the state’s business judgment rule blocked the FDIC’s ordinary negligence allegations. Specifically, the FDIC claimed that the former directors and officers were negligent in pursuing an unsustainable growth strategy that included approving high risk loans that resulted in substantial losses and contributed to the bank’s failure. The appeals court explained that state law appears to provide that a bank director or officer who acts in good faith might still be subject to a claim for ordinary negligence if he failed to act with ordinary diligence. However, given that its reading of the state statute conflicts with state intermediate appellate court holdings, the Eleventh Circuit asked the Supreme Court of Georgia to determine (i) whether a bank director or officer violates the standard of care established by state statute when he acts in good faith but fails to act with “ordinary diligence;” and (ii) whether, in a case applying Georgia’s business judgment rule, the bank officer or director defendants can be held individually liable if they are shown to have been ordinarily negligent or to have breached a fiduciary duty, based on ordinary negligence in performing professional duties. The court also affirmed the district court’s denial of the FDIC’s motion to strike certain affirmative defenses, rejecting the FDIC’s argument that under federal common law it owes “no duty” to bank officers or directors and it therefore is exempt from defenses under state law.
Federal Reserve Board Issues Guidance On Risk Transfers
On December 20, the Federal Reserve Board issued SR 13-23, which clarifies the Federal Reserve’s supervisory expectations when assessing a firm’s capital adequacy in certain circumstances when the risk-based capital framework may not fully capture the residual risks of a transaction. The letter states that, while the Federal Reserve generally views a firm’s engagement in risk-reducing transactions as a sound risk management practice, there are certain risk-reducing transactions for which the risk-based capital framework may not fully capture the residual risks that a firm faces on a post-transaction basis. The letter addresses two specific characteristics of risk transfer transactions that give rise to this concern: (i) a firm transfers the risk of a portfolio to a counterparty that is unable to absorb losses equal to the risk-based capital requirement for the risk transferred; or (ii) a firm transfers the risk of a portfolio to an unconsolidated, “sponsored” affiliate entity. The letter stresses that bank supervisors will strongly scrutinize risk transfer transactions that result in substantial reductions in risk-weighted assets, including in supervisors’ assessment of a firm’s overall capital adequacy, capital planning, and risk management through the Comprehensive Capital Analysis and Review. The Federal Reserve may in certain cases determine not to recognize a transaction as a risk mitigant for risk-based capital purposes. Supervisors will evaluate whether a firm can adequately demonstrate that the firm has taken into account any residual risks in connection with the transaction.
Illinois Extends Foreclosure Protection
On December 26, Illinois Governor Pat Quinn signed SB 1045, which extends through 2015 an existing state foreclosure protection. Under state law, a borrower facing foreclosure can seek to block a judicial foreclosure sale based on a pending federal HAMP modification. The state protection was set to expire at the close of 2013, but was extended to match the federal extension of HAMP through December 31, 2015.
California Appeals Court Holds Injury Required For Standing Under State Shine The Light Law
Recently, the California Court of Appeals, Second District, held that a plaintiff must have suffered a statutory injury to have standing to pursue a cause of action under the state’s “Shine the Light Act” (SLA). Boorstein v. CBS Interactive, Inc., No. B247472, 2013 WL 6680796 (Cal. Ct. App. Dec. 19, 2013). The SLA requires businesses that collect California residents’ personal data and then share that data for marketing purposes to disclose or allow consumers to opt out of that sharing. Specifically, all businesses must make consumers aware of their SLA rights by (i) maintaining a disclosure on their website and providing contact information for consumers to make a request about information shared with direct marketers; (ii) requiring customer service agents to provide the contact information upon request; or (iii) making the contact information available at every place of business in the state. In recent years, consumers filed a series of class actions, including the instant case, alleging that companies failed to properly disclose their contact information on their websites. The class plaintiffs did not, however, allege that they had sought SLA disclosures or would have done so had contact information been available. Consistent with federal district courts that have considered these claims, the state appeals court here determined that a failure to timely, accurately, or completely respond to a disclosure request is a discrete event upon which a court could calculate a civil penalty for each violation, whereas a failure to post information on a website is a continuing event that cannot readily be quantified. The court held that such a continuing violation, without more, is not an actionable violation. The court rejected the plaintiff’s claim that he suffered an "informational injury” because he did not receive information to which he was statutorily entitled, and upheld the trial court’s holding that the alleged failure was merely a procedural injury insufficient to establish standing.
CFPB Increases Asset-Size Thresholds Under HMDA, TILA
On December 30, the CFPB announced final rules adjusting the asset-size thresholds under Regulation C (HMDA) and Regulation Z (TILA). Both rules take effect on January 1, 2014.
HMDA and Regulation C require certain lenders to collect and report data about mortgage application, origination, and purchase activity, and make such data available to the public. Institutions that have an asset level below a certain dollar threshold are exempt from the requirements of Regulation C. The final rule increases the asset-size exemption threshold for banks, savings associations, and credit unions from $42 million to $43 million, thereby exempting institutions with assets of $43 million or less as of December 31, 2013, from collecting HDMA data in 2014.
TILA and Regulation Z, among other things, require creditors to establish escrow accounts when originating higher-priced mortgage loans. However, TILA exempts certain entities from this requirement, including entities that meet an asset-size threshold established by the CFPB. The final rule increases this asset-size exemption threshold from $2 billion to $2.028 billion, thereby exempting creditors with assets of $2.028 billion or less as of December 31, 2013, from the requirement to establish escrow accounts for higher-priced mortgage loans in 2014.
CFPB Continues Add-On Products Crackdown
On December 23, the CFPB announced a coordinated enforcement action taken by federal regulators against a major credit card company and certain subsidiaries alleged to have violated multiple consumer protection laws with respect to credit card add-on products. The action, which is the fourth action taken by the CFPB relating to credit card add-on products, and the fifth add-on product action overall, extends the CFPB’s intense supervisory and enforcement focus on ancillary products and oversight of third-party service providers.
In coordination with the FDIC and the OCC, the CFPB ordered the companies to refund an estimated $59.5 million to more than 335,000 customers for certain credit card practices, including allegedly unfair billing tactics and deceptive marketing. The company must also pay an additional $9.6 million in civil penalties, submit to an independent review of other credit card add-on products, and continue to implement enhanced third-party oversight.
The consent orders allege that the company misled consumers about the benefits, fees, length of coverage, and terms and conditions of certain payment protection products, and that the company billed consumers for services they did not receive, unfairly charged consumers for interest and fees, and failed to comply with federal requirements to inform consumers about their right to a free credit report.
The coordinated action follows another taken by federal regulators last year, in which the same companies were ordered to refund approximately $85 million in connection with alleged UDAAP violations related to the offering of a rewards card and certain debt collection practices.
CFPB, DOJ Announce First Joint Fair Lending Action Against Indirect Auto Finance Company
This morning, the CFPB and the DOJ announced their first ever joint fair lending enforcement action to resolve allegations that an auto finance company’s dealer compensation policy, which allowed for auto dealer discretion in pricing, resulted in a disparate impact on certain minority borrowers. The $98 million settlement is the DOJ’s third largest fair lending action ever and the largest ever auto finance action.
Investigation and Claims
As part of the CFPB’s ongoing targeted examinations of auto finance companies’ ECOA compliance, the CFPB conducted an examination of this auto finance company in the fall of 2012. This finance company is one of the largest indirect automobile finance companies in the country which, according to the CFPB and DOJ’s estimates, purchased over 2.1 million non-subvented retail installment contracts from approximately 12,000 dealers between April 1, 2011 and present. The CFPB’s investigation of the finance company allegedly revealed pricing disparities in the finance company’s portfolio with regard to auto loans made by dealers to African-American, Hispanic, and Asian and Pacific Islander borrowers. The CFPB referred the matter to the DOJ just last month, and the DOJ’s own investigation resulted in findings that mirrored the CFPB’s.
Specifically, the federal authorities claim that, based on statistical analysis of the loan portfolios, using controversial proxy methodologies, the investigations showed that African-American borrowers were charged on average approximately 29 basis points more in dealer markup than similarly situated non-Hispanic whites for non-subvented retail installment contracts, while Hispanic borrowers and Asian/Pacific Islander borrowers were charged on average approximately 20 and 22 basis points more, respectively. The complaint also faults the finance company for not appropriately monitoring pricing disparities or providing fair lending training to dealers.
The CFPB and the DOJ did not claim that the finance company intentionally discriminated against any borrowers. Instead the federal agencies alleged that the finance company’s facially neutral pricing policy allowed auto dealers to price in such a manner that resulted in certain minority groups, on average, paying more for credit than non-Hispanic white borrowers. The federal authorities employed disparate impact theory of discrimination, which allows government and private plaintiffs to establish “discrimination” based solely on the results of a neutral policy without having to show any intent to discriminate (or even in the demonstrated absence of intent to discriminate). When announcing the settlement, CFPB Director Cordray stated that “[w]hether or not [the finance company] consciously intended to discriminate makes no practical difference. In fact, we do not allege that [the finance company] did so. Yet the outcome, and the harm to consumers, is the very same here.”
Resolution
The investigation and potential enforcement action were disclosed by the finance company earlier this year. The final terms, formalized in a CFPB administrative consent order and a DOJ consent order filed in the U.S. District Court for the Eastern District of Michigan, require the finance company to pay an $18 million penalty and provide $80 million for a settlement fund to compensate borrowers allegedly harmed between April 2011 and December 2013. The CFPB and the DOJ will identify borrowers to be compensated and the amount to be paid to each identified borrower using an undisclosed methodology, and the payments will be administered by a third party administrator paid for by the finance company.
In addition, the finance company is required to adopt and implement a compliance plan pursuant to which the finance company must: (i) establish a dealer compensation policy that limits the maximum spread between the buy rate and the contract rate to no more than the spread currently permitted; (ii) provide regular notices to dealers explaining ECOA and dealer pricing obligations; (iii) establish quarterly and annual portfolio-wide analysis of markups based on the CFPB and the DOJ statistical methodologies; (iv) take prompt corrective action with respect to dealers identified in such quarterly analysis that culminates in prohibiting a dealer’s ability to mark up the rate or termination of the dealer relationship; and, (v) providing remuneration for affected customers.
While the settlements do not bar discretionary dealer compensation, they provide an incentive for the finance company to eliminate the practice. The agreements permit the finance company to develop a non-discretionary compensation plan for approval by the CFPB and the DOJ, subsequent to which the finance company no longer is required to implement the majority of the compliance plan.
Looking Ahead
Dealer compensation practices have been targeted by the CFPB for the past year, including in guidance issued earlier this year, which the CFPB recently defended at a public forum. We expect the CFPB’s scrutiny of dealer compensation and auto finance companies more generally to continue into next year. Questions regarding the matters discussed in this alert may be directed to any of the lawyers in our Auto Finance or CFPB practices, or to any other BuckleySandler attorney with whom you have consulted in the past.
CFPB Adjusts CARD Act, HOEPA Thresholds
On December 16, the CFPB published a final rule to review and adjust provisions of Regulation Z that implement amendments to TILA under the CARD Act and HOEPA. Specifically, the CFPB is required to adjust, as appropriate based on the annual percentage change reflected in the Consumer Price Index in effect on June 1, 2013, (i) the threshold amount that triggers requirements for the disclosure of minimum interest charges and (ii) the maximum penalty fee card issuers can impose for violating account terms without violating the restrictions on penalty fees established by the CARD Act. For 2014, the minimum interest charge disclosure threshold will remain unchanged, while the permissible penalty fees will increase to $26 for a first late payment and $37 for each subsequent violation within the following six months. Similarly, the CFPB is required to adjust the combined points and fees threshold that triggers compliance with HOEPA. Effective January 1, 2014, that threshold will be $632.