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Oregon Supreme Court Agrees to Address Electronic Mortgage Registry's Role as Beneficiary; Two California Appellate Courts Affirm Electronic Registry's Beneficiary Role
On July 19, the Oregon Supreme Court accepted certified questions arising from four cases pending in the U.S. District Court for the District of Oregon related to the role of an electronic mortgage registry as beneficiary. Brandrup v. ReconTrust Company, N. A. (S060281) (question certified from D. Or. Case No. 3:11-cv-1390-JE). The judge in those matters asked Oregon’s highest court to determine whether under state law (i) such a registry, that is neither a lender nor successor to a lender, may be a "beneficiary," (ii) an electronic registry may be designated as beneficiary where the trust deed provides the registry holds only the legal title to the interests granted by the borrower, but, if necessary to comply with law or custom, the registry has the right to exercise any or all of those interests, (iii) the transfer of a promissory note from the lender to a successor results in an automatic assignment of the securing trust deed that must be recorded prior to the commencement of nonjudicial foreclosure, and (iv) an electronic registry can retain and transfer legal title to a trust deed as nominee for the lender, after the note secured by the trust deed is transferred from the lender to a successor or series or successors. The court’s decision on these questions may also have implications for a recent decision in which the a state appellate court held that, under Oregon law, the term beneficiary can only mean the person named or otherwise designated in the trust deed as the person to whom the secured obligation is owed. Niday v. GMAC Mortgage LLC, No. CV 10020001, 2012 WL 2915520 (Or. App.Ct. Jul. 18, 2012). As such, the court held, a beneficiary that uses an electronic registry, and does not publicly record assignments of a trust deed, cannot avail itself of the state’s nonjudicial foreclosure process. That holding is contrary to substantialOregon case law.
Recently, in matters pending in California regarding similar issues, two appellate courts rejected challenges to an electronic registry’s role as beneficiary brought by borrowers as a defense in their foreclosure actions. Taasan v. Family Lending Services, Inc. No. A132339, 2012 WL 2774967 (Cal. Ct. App. 1st. Dist. Jul. 10 2012); Skov v. U.S. Bank N.A., No. H036483, 2012 WL 2054996 (Cal. Ct. app. 6th Dist. Jun. 8, 2012). For example, in Taasan, the court held that the foreclosing entity need not have physical possession of the note in order to initiate a nonjudicial foreclosure.
On July 13, the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s dismissal of a Department of Justice suit alleging that two automobile dealers violated the Equal Credit Opportunity Act by charging non-Asian customers higher "overages" or "dealer mark-ups" than similarly-situated Asian customers. United States v. Union Auto Sales, Inc. No. 9-7124, 2012 WL 2870333 (9th Cir. Jul. 13, 2012). A bank within whose network the automobile dealers operated, settled related charges concurrent with the filing of the case. The automobile dealers chose to litigate, eventually succeeding on a motion to dismiss. On appeal, the court reversed the district court’s holding that the complaint lacked sufficient supporting detail to give the defendants fair notice of the claim. Instead, the divided appeals court held that the government need not demonstrate discrimination at the pleading stage, but merely allege facts sufficient to make a discrimination claims plausible, a threshold met by the government’s complaint. One judge dissented from the majority opinion and argued that the government’s conclusory allegations do not meet the plausibility threshold established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and a subsequent Ninth Circuit decision. The majority also held that the district court erred in dismissing the complaint for failing to articulate intent, noting that under both disparate impact and disparate treatment theories, intent is irrelevant. Further, the court held that the link between names and racial categorization for the purposes of discriminatory conduct is well-established. The case was remanded for further proceedings.
On July 13, Delaware Attorney General Beau Biden announced a settlement of the state’s lawsuit against a national electronic mortgage registry. The state alleged that the registry system created inaccurate and unreliable records that undermined chain of title in that state. Under the agreement, the registry has agreed to (i) maintain a database that allows homeowners to clearly see who owns the mortgage and who services the loan, (ii) record assignments of mortgages with the county Recorder of Deeds Office before a foreclosure can proceed, (iii) not foreclose in its name for the next five years, (iv) audit its records for accuracy and report results to the Attorney General, and (v) increase oversight and training, including annual examinations of documents signed by employees of its 25 largest members to check the identity and authority of the person who signed the documents. These steps are consistent with those already taken by the registry nationally, and the agreement does not include any monetary payment.
On July 16, Fannie Mae announced its “Know Your Options Customer Care” program, through which Fannie Mae provides training for servicers’ call center employees in an effort to help prevent foreclosures. The program also offers servicers scripting for interactions with homeowners and assistance with quality control implementation. Fannie Mae has already implemented the program with 18 of its largest servicers and is now making the program available to all servicers through online webinars and related materials. Fannie Mae noted that those servicers that have participated in the free program have seen substantial increases in workouts.
On July 13, the parties to the long-running consolidated class action litigation against the two major payment network providers and 17 banks filed a proposed settlement to resolve allegations that the defendants unlawfully conspired to fix the fees that merchants are charged each time a customer uses a card for a purchase, so-called “swipe” or “interchange” fees. Class Settlement Agreement, In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation, No. 05-MD-1720 (E.D.N.Y. Jul. 13, 2012). In total, the settlement is valued at $7.25 billion. Of that total amount, roughly $6 billion would be paid to a class of millions of merchants and certain individual merchants. Another $1.2 billion of the total amount would be used to provide merchants with a temporary reduction in interchange fees. Further, the agreement allows merchants, for the first time, to apply a surcharge to customer transactions processed over the payment networks.
California AG Announces Privacy Enforcement Unit. On July 19, California Attorney General Kamala Harris announced the creation of the Privacy Enforcement and Protection Unit. The unit will combine the various existing privacy functions of the California Department of Justice to centrally enforce and protect consumer privacy. The unit will pursue civil prosecution of state and federal privacy laws regulating the collection, retention, disclosure, and destruction of private or sensitive information by individuals, organizations, and the government. These include laws relating to cyber privacy, financial privacy, identity theft, and data breaches, among others. The new unit will reside within the eCrime Unit, which was created in December 2011 to identify and prosecute identity theft crimes, cyber-crimes and other crimes involving the use of technology.
California Expands Servicemember Protections. On July 13, California enacted AB 2476, which expands the period of time during which servicemembers are protected from high interest rates. Under current law, a creditor cannot charge, during a servicemember’s period of military service, an interest rate in excess of 6% on any obligation or liability incurred by a servicemember before that person’s entry into service. The bill expands the interest rate protections to prevent an increase in any such rate on a mortgage, trust deed, or other security in the nature of a mortgage for one year after the period of military service.
Hawaii Enacts Multiple Mortgage-Related Bills and Legislation to Protect Personal Information. Recently, Hawaii enacted a set of bills related to mortgage origination and servicing. With regard to mortgage origination, S.B. 2763 amends the state SAFE Act to reflect changes to the federal law and to adjust originator registration fees. With regard to mortgage servicers, H.B. 2502 allows the Commissioner of Financial Institutions to require registration with the NMLS and makes it unlawful for a servicer to provide loan modifications without first complying with certain licensing requirements. Another bill, H.B. 1875 makes numerous changes to the state’s foreclosure laws, largely implementing recommendations from the Mortgage Foreclosure Task Force created by the state legislature in 2010. Finally, with regard to mortgages, H.B. 2375 establishes criminal penalties for certain violations of the state’s Mortgage Rescue Fraud Prevention Act. Hawaii also recently enacted S.B. 2419, which prohibits businesses from scanning a customer’s identification card or driver’s license with an electronic device capable of obtaining information electronically encoded on that identification card, except for specific purposes.
Congress Acts on Bills Regarding Protection of Information Submitted to CFPB and ATM Fee Disclosure Requirements
On July 12, Representatives Renacci (R-OH) and Perlmutter (D-CO) introduced H.R. 6125, a bill that would amend the Federal Deposit Insurance Act to grant protections to documents and information submitted by banks and nonbanks to the CFPB and state bank and financial regulators. H.R. 4014, a similar bill, previously passed the House with broad bipartisan support. The House also recently passed by a wide margin H.R. 4367, a bill to eliminate the EFTA requirement that ATM providers attach a fee disclosure placard to their machines. On July 17, Senate Banking Committee Chairman Johnson (D-SD) introduced with the support of Ranking Member Shelby (R-AL) S. 3394, which combines versions of H.R. 4014 and H.R. 4367 for Senate consideration.
On July 11, four former bank officers and two of their former customers were indicted in the U.S. District Court for the Eastern District of Virginia on eighteen counts of fraud. Indictment, United States v. Woodard, No. 12-105 (E.D. Va.). The indictment alleges that in the run-up to the financial crisis, the bank more than doubled its assets primarily through brokered deposits, while the directors administered a lending program that violated industry standards and the bank’s internal controls. In connection with the financial crisis, the indictment states, the bank’s loan portfolio deteriorated and the directors conspired to conceal the institution’s financial condition. Ultimately, the bank failed, leaving the federal government insurance fund to cover approximately $260 million in deposits, the indictment claims. In addition to the criminal charges, the U.S. Attorney is seeking forfeiture of the defendants’ assets. Other bank officers, employees, and customers already have pled guilty to related charges.
On July 11, the U.S. District Court for the Southern District of New York declined to dismiss the majority of the claims brought by a putative class alleging that a national bank, certain of its current and former officers and directors, multiple underwriters, and the bank’s third-party accounting auditor, deliberately concealed the bank’s reliance on an electronic registry system and its exposure to MBS loan repurchase claims. Pa. Pub. Sch. Employee’s Ret. Sys. v. Bank of Am. Corp. No. 11-733, 2012 WL 2847732 (S.D.N.Y. Jul. 11, 2012). In this case, a state retirement system alleges on behalf of similarly situated shareholders that the bank misrepresented that it had “good title” to loans even though multiple courts had blocked the bank’s attempts to foreclosure based on the bank’s use of an electronic registry system. The court, in declining to dismiss these claims, held that the use of the registry system “clouded” the bank’s ownership of many loans, thereby causing the bank to publish misleading shareholder information. The court also declined to dismiss allegations that the defendants misstated or omitted the bank’s exposure to repurchase claims. Further, claims that the bank misled investors about its internal controls also survived. Several other claims, including certain claims against the directors and officers were dismissed without prejudice, while other certain other claims against the defendants were dismissed with prejudice.
On July 18, the CFPB announced its first public enforcement action - a Consent Order entered into by a major credit card issuer to resolve allegations that the issuer’s vendors deceptively marketed ancillary products such as payment protection and credit monitoring. The OCC made a corresponding enforcement announcement and released a Cease and Desist Order and Civil Money Penalty to resolve related charges. Under the CFPB order, the issuer will refund approximately $140 million to roughly two million customers, and will pay a $25 million penalty. The OCC order requires restitution of approximately $150 million (of which $140 million overlaps with the CFPB order) and an additional $35 million civil money penalty. Under both agencies’ actions, the issuer is prohibited from selling and marketing certain ancillary products until it obtains approval to do so from the regulators, and the issuer must take specific actions to enhance compliance with consumer financial laws.
Concurrently, the CFPB issued Bulletin 2012-06, which states that the CFPB expects supervised institutions and their vendors to offer ancillary products in compliance with federal consumer financial laws. The guidance cites “CFPB supervisory experience [that] indicates that some credit card issuers have employed deceptive promotional practices when marketing” such products, including (i) failing to adequately disclose terms and conditions, (ii) enrolling customers without their consent, and (iii) billing for services not performed. The Bulletin reviews applicable federal law and outlines the compliance program components that the CFPB expects supervised institutions to maintain.