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Financial Services Law Insights and Observations

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  • CFPB Amends Credit Card Ability-to-Pay Rule

    Fintech

    On April 29, the CFPB amended Regulation Z to make it easier for spouses or partners who do not work outside of the home to qualify for credit cards. Regulation Z generally requires that credit card issuers consider an applicant’s independent ability to pay regardless of age. A Federal Reserve Board rule adopted to implement the Credit CARD Act, which took effect on October 1, 2011, required card issuers to consider only an individual card applicant’s independent income or assets. The rule received criticism from members of Congress and other stakeholders who argued the rule limited access to credit for stay-at-home spouses and partners. The CFPB’s revised rule allows credit card issuers to consider third-party income for a consumer who is 21 or older, if the applicant has a reasonable expectation of access to such income. The CFPB rule does not change the independent ability to pay requirement for individuals under 21 years old. The rule is effective as of May 3, 2013 and compliance with the rule is required by November 4, 2013.  Card issuers may, at their option, comply with the rule prior to that date.

    Credit Cards CFPB TILA

  • CSBS Releases Annual Report

    State Issues

    On May 2, the CSBS released its 2012 annual report, which aggregates and reviews the organization’s activities in the prior year, identifies future goals for the organization, and outlines specific priorities for 2013. The paper also incorporates more focused reports on past and future activities by various CSBS divisions and boards, including a report from the Policy and Supervision Division that reviews bank supervision, consumer protection and non-bank supervision, and legislative and regulatory policy, including the CSBS positions on community bank regulatory relief and federal proposed capital rules.

    CSBS Community Banks Bank Supervision

  • CFPB Issues Semiannual Servicemember Complaint Report

    Consumer Finance

    On May 1, the CFPB’s Office of Servicemember Affairs published its Semi-Annual Complaint Report, which states that the volume of complaints from servicemembers, veterans, and their families has steadily increased since the CFPB first started accepting complaints in July 2011. The report provides limited summary information about the complaints, noting that mortgage complaints predominate, followed by credit card and credit reporting complaints. In a related blog post, the CFPB states that it has received more than 5,000 servicemember complaints to date, and calls again for additional questions or complaints from the entire military community.

    CFPB Servicemembers Consumer Complaints

  • Federal District Court Denies Certification in Loan Modification Class Action

    Lending

    On April 29, the U.S. District Court for the Central District of California refused to certify a class seeking to challenge a mortgage servicer’s loan modification practices. Campusano v. BAC Home Loans Servicing, LP, No. 11-4609, slip op. (C.D. Cal. Apr. 29, 2013). The named borrowers allege that their mortgage servicer breached agreements to modify mortgage loans by failing to timely implement the terms of the modification agreements and claim that the servicer’s failures are pervasive and appropriate for class treatment. The court held that the class lacked commonality and typicality because the borrowers failed to demonstrate that their modification agreements were the only ones used by the servicer and that all such agreements contained identical provisions pertaining to effective dates and other material terms. The court also held that the borrowers failed to demonstrate that (i) differences in contract would be immaterial to the question of whether acceptance of a first payment binds the servicer to the agreement regardless of other contract deficiencies and (ii) the borrowers suffered harm as a result of the servicer’s quality control, validation, and repudiation procedures. The court denied the borrowers’ motion for class certification.

    Mortgage Servicing Class Action Mortgage Modification

  • Federal Reserve Board Issues Statement on Deposit Advance Products

    Consumer Finance

    On April 25, the Federal Reserve Board issued a policy statement on deposit advance products. The statement came on the same day that the OCC and the FDIC proposed more formal guidance for such products. The Board statement identifies potential “significant risks” associated with deposit advance products, including UDAP risk and other consumer compliance risk. The statement directs examiners to thoroughly review any deposit advance products offered by supervised institutions for compliance with Section 5 of the FTC Act and reminds banks of their responsibility for vendors hired to offer deposit advance products.

    FDIC Payday Lending Federal Reserve OCC UDAAP

  • President Obama Nominates New FHFA Director

    Lending

    On May 1, President Obama announced the nomination of Representative Mel Watt (D-NC) to serve as Director of the FHFA. Mr. Watt has represented portions of Charlotte and other North Carolina communities since 1993 and currently is a member of the House Committees on Financial Services and Judiciary. He would replace FHFA Acting Director Edward DeMarco, who federal and state Democratic policymakers and housing groups have called on to be replaced, in part based on his decision to not direct Fannie Mae and Freddie Mac to engage in broad principal reduction programs. On the same day as the President’s announcement, the Congressional Budget Office released a report that examined three options for Fannie Mae and Freddie Mac to use principal forgiveness, which the CBO finds would be likely to (i) result in small savings to the government, (ii) slightly reduce mortgage foreclosure and delinquency rates, and (iii) slightly boost overall economic growth.

    Mortgage Origination Mortgage Servicing FHFA

  • FHFA Updates Securitization Platform, Contractual and Disclosure Framework Progress

    Lending

    On April 30, the FHFA published a progress report on the current design principles and functions on the common securitization platform for residential mortgage-backed securities that it is building. The report explains that Fannie Mae, Freddie Mac, and the FHFA are working to (i) establish an initial ownership and governance structure, (ii) design dedicated resources and establish an independent location site for the platform team, (iii) develop the design, scope and functional requirements for the platform’s modules and develop the initial business operational process model, (iv) develop a multi-year plan for building, testing and deployment of the system, and (v) develop and begin testing the platform. The report also reviews the status of the alignment of Fannie Mae’s and Freddie Mac’s securitization contracts and standards, including ongoing efforts to align (i) solicitation of borrower refinances of loans in a pool, (ii) repurchases and substitutions of loans from a pool, (iii) representations and warranties, and (iv) pooling practices. According to the report, the FHFA also will continue to (i) identify and develop standards in data, disclosure and seller/servicer contracts, (ii) develop and execute work plans for alignment activities with regard to common standards and creation of legal/contractual documents to facilitate varied credit risk transfer transactions, and (iii) engage with the public in a variety of forums to seek feedback and incorporate revisions and support FHFA progress reports to the public. The report also discusses efforts to respond to concerns about non-guaranteed residential mortgage-backed securities.

    RMBS FHFA

  • Fannie Mae Releases Loan Performance Data

    Lending

    On April 30, Fannie Mae released loan performance data on a portion of its single-family mortgage loans, which includes a subset of Fannie Mae’s 30-year, fully amortizing, full documentation, single-family, conventional fixed-rate mortgages. The initial population is comprised of loans acquired between January 1, 2000 and March 31, 2012 with corresponding monthly performance data as of December 31, 2012. The loan performance data is divided into two files for each acquisition quarter: (i) the “Acquisition file” includes static data at the time of a mortgage loan’s origination and delivery to Fannie Mae; and (ii) the “Performance” file contains monthly performance data of each mortgage loan from the time of Fannie Mae’s acquisition up until its current status as of the previous quarter, until the mortgage loan has been liquidated, or until it has become 180 days or more delinquent. Fannie Mae expects to update the acquisitions data each quarter to include a new quarter of acquired mortgage loans as of the prior year in addition to updated performance data as of the previous quarter. Certain data attributes also will be updated to reflect new terms, if applicable, as a result of a modification.

    Fannie Mae Mortgage Origination

  • Fannie Mae Announces Miscellaneous Servicing Policy Changes

    Lending

    On May 1, Fannie Mae issued Servicing Guide Announcement SVC-2013-10, which includes numerous servicing policy changes. The announcement informs servicers that they must (i) conduct regular testing of compliance with applicable laws in all jurisdictions in which they service mortgage loans for Fannie Mae, (ii) provide test results to senior management and, upon request, to Fannie Mae, and (iii) maintain evidence of any corrective actions. For eMortgages, the Announcement explains that servicers must obtain special approval to service such mortgages by contacting their Servicing Consultant, Portfolio Manager, or Fannie Mae’s National Servicing Organization’s Servicing Solutions Center. The Announcement also (i) provides new requirements for repayments of escrow deficits and shortages for all conventional loan modifications, (ii) requires servicers to obtain the results of property valuation order requests for the purposes of bidding instructions through HomeSaver Solutions® Network within 7 to 10 calendar days from the date the servicer submits the request, (iii) clarifies delinquency management and default prevention policies outlined in SVC-2012-18, (iv) removes Guide language regarding temporary possession of mortgage notes, and (v) incorporates a recent change to Moody’s rating system.

    Fannie Mae Mortgage Servicing Servicing Guide

  • HUD Supplements Guidance on FHA Lender Insurance Program

    Lending

    On May 1, HUD issued Mortgagee Letter 2013-12, which updates and replaces another recently issued letter – 2013-10 – on the FHA’s Lender Insurance Program. The letter explains enhancements to that program, which allows high-performing mortgagees to conduct pre-endorsement reviews and insure loans. Those enhancements were implemented by a January 2012 HUD rule. The letter summarizes changes made by that rule, reviews mortgagee eligibility requirements for participation in the Lender Insurance program, and outlines the initial application process. Among other things, the letter also discusses the conditions under which a mortgagee’s lender insurance authority can be terminated or suspended and explains how mortgages with such authority are subject to a revised indemnification policy.

    HUD FHA

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