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FDIC updates Covid-19 FAQs
On May 7, the FDIC updated its list of frequently asked questions for financial institutions affected by Covid-19. The recent updates include the addition of one FAQ describing amendments to Regulation D that remove the six-per-month limit on transfers and withdrawals from savings deposits and one FAQ that discusses additional grace periods for force-placed flood insurance.
California issues guidance for the reopening of real estate businesses
On May 7, California issued updated guidance for real estate transactions and an accompanying checklist for the real estate industry intended to minimize the spread of Covid-19 as these business gradually reopen as part of Stage 2 of the state’s roadmap for modifying the stay home order. The guidance includes protocols for the workplace and shown properties.
FINRA issues proposed rule change regarding timing, method of service, and other procedural requirements
On May 7, FINRA filed a proposed rule change with the SEC to provide temporary relief from certain timing, method of service, and other procedural requirements in FINRA rules during the outbreak of Covid-19. The proposed rule change would (i) allow or require, as applicable, FINRA to serve certain documents by email, (ii) require applicants, respondents, and other parties to file or serve documents by email for certain proceedings and processes, unless otherwise agreed by the parties, (iii) provide extensions of time to FINRA staff, respondents, and other parties in connection with certain adjudicatory and review processes, and permit oral arguments before the National Adjudicatory Council to be conducted by video conference.
Washington Department of Financial Institutions extends guidance regarding remote work for mortgage loan originators
On May 7, the Washington Department of Financial Institutions issued interim regulatory guidance to licensed mortgage loan originators and companies that sponsor them relating to temporary remote work. The guidance extends earlier interim guidance permitting mortgage loan originators to work from home, previously covered here, until July 10, 2020.
6th Circuit holds condo company and law firm did not act as debt collectors in non-judicial foreclosure
On May 4, the U.S. Court of Appeals for the Sixth Circuit held that a condominium management company, condominium association, and its law firm (collectively, “defendants”) acted as “security-interest enforcers” and not debt collectors and therefore, did not violate the FDCPA. According to the opinion, the homeowners lost their condominium to a non-judicial foreclosure after they fell behind on condominium association dues. The homeowners filed suit against the defendants alleging various violations of the FDCPA during the foreclosure process. The homeowners did not assert a violation of Section 1692f(6), which applies to security-interest enforcers. The district court dismissed the action, concluding that the homeowners failed to allege facts that the defendants did more than act as security-interest enforcers.
On appeal, the 6th Circuit agreed, citing to the U.S. Supreme Court’s opinion in Obduskey v. McCarthy & Holthus LLP, which held that parties who assist creditors with the non-judicial foreclosure of a home fall within the separate definition under Section 1692f(6) as security-interest enforcers and not the general debt collector definition (previously covered by InfoBytes here). The appellate court noted that the homeowners’ complaint did not allege the defendants’ regular business activity was debt collection. Moreover, the appellate court rejected the homeowners’ argument that the defendants recording of a lien on their condo was a step beyond enforcing a security interest. According to the court, Michigan law requires the recording of the lien in order to enforce a security-interest and therefore, the action “falls squarely within Obduskey’s central holding.”
Texas amends residential MLO application procedures
On May 1, the Texas Finance Commission adopted amendments related to application procedures for regulated residential mortgage loan originators (MLO). The amendments are intended to reduce costs for residential MLOs and to ensure consistency with current licensing procedures and processes. Among other things, the amendments lower MLO application and annual renewal fees from $300 to $200, and implement statutory changes from HB 1342 (enacted last year) related to criminal background checks for residential MLOs. Specifically, the amendments (i) repeal a provision that allowed for the “denial, suspension, or revocation for any offense occurring in the five years preceding the application”; (ii) add provisions requiring an agency to consider the correlation between the element of a crime and a licensed occupation’s duties and responsibilities; and (iii) remove language related to letters of recommendation provided on behalf of an MLO applicant. The amendments are effective as of May 7.
7th Circuit: Bank avoids breach of contract claims in HAMP loan modification offer
On April 30, in a split opinion, the U.S. Court of Appeals for the Seventh Circuit issued a decision affirming a district court order holding that a consumer’s claims against a bank failed because the bank never counter-signed the Trial Period Plan (TPP) it offered the consumer in connection with the Home Affordable Mortgage Program (HAMP). According to the opinion, the consumer signed his name to the TPP and returned the TPP to the bank along with what the consumer believed to be the other required documents and the first of this three payments. However, the bank never returned a fully executed copy of the TPP to the consumer. Instead, it sent the consumer multiple notices stating that necessary documentation was still missing. Ultimately, the consumer made all three payments required by the TPP, but never received a permanent modification of his loan. On that basis, the consumer filed suit, alleging breach of contract, fraud, and intentional infliction of emotional distress due to the bank’s alleged failure to honor its loan-modification offer. The district court granted judgment on the pleadings for the bank and denied the plaintiff’s request to amend the complaint, concluding, among other things, that the consumer failed to state a plausible claim for relief.
On appeal, the majority agreed with the district court, holding, among other things, that the bank never actually agreed to modify the consumer’s mortgage under HAMP. Specifically, the majority stated that “[i]f an offer contains a conditional precedent, a contract does not form until the condition is satisfied,” referencing language in which the bank reserved the right not to send the consumer a counter-signed copy of the Trial Period Plan (TPP) if the borrower did not qualify for HAMP relief. Because the TPP never went into effect, it imposed no contractual obligations on the bank.
Michigan regulator issues guidance for financial services sector to comply with stay at home orders
On May 6, the director of Michigan’s Department of Insurance and Financial Services issued Bulletin 2020-23-BT/CF/CU to provide guidance to the financial services industry on compliance with the governor’s stay at home orders. The bulletin reiterates that work by the financial services sector should be done remotely to the fullest extent possible and businesses should take other mitigating measures for non-remote workers. It also clarifies that workers in the real estate industry, as opposed to mortgage companies, are not critical infrastructure workers, and should refer to guidance by the Michigan Department of Licensing and Regulatory Affairs.
Pennsylvania State Department permits live streaming of real estate classes
On May 6, the Pennsylvania Department of State announced that it waived the requirement that real estate professionals attend certain required pre-licensing and continuing education courses in person. Such courses may now be live-streamed.
Pennsylvania State Department extends deadlines for notaries
On May 6, the Pennsylvania Department of State extended deadlines for appointed notaries to get sworn in, record a bond, oath and commission with the Recorder of Deeds, and register their signatures with the Prothonotary’s office. Previously, all such actions were required to occur within 45 days of the appointment. The Department of State provided an additional 30 days.