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The U.S. Court of Appeals for the Ninth Circuit recently held that lender compliance with the Truth In Lending Act’s (TILA) delivery obligation requires that the borrower be permitted to keep written copies of the right-to-rescind notice. Balderas v. Countrywide Bank, N.A., No. 10-55064, 2011 WL 6824977 (9th Cir. Dec. 29, 2011). In this case, the borrowers allege that the lender improperly pressured them into a loan and then refused to grant their request to rescind the loan, which allegedly occurred within the three-day rescission period. The borrowers claim that the lender provided defective copies of the Notice of Right to Cancel, which did not include the closing date or the expiration date for the rescission period. TILA requires that when the rescission notice is provided in writing, as it was in this case, the lender must deliver to the borrower two copies including the rescission expiration date. The district court ruled that a copy of the Notice of Right to Cancel attached to the complaint proved that the rescission notice was delivered to the borrowers, and on that basis dismissed the case. The Ninth Circuit disagreed, holding that the Notice of Right to Cancel in the record proves only that borrowers signed the document possessed by the lender. To “deliver” the notice in compliance with TILA requires a “permanent physical transfer from one party to another”; momentary delivery does not suffice. While the document in the record provides the lender with a rebuttable presumption of delivery, it does not prove that two copies were delivered to the borrowers as required. The court held that the borrowers should be permitted to attempt to rebut the presumption and prove their allegations of improper delivery to a trier of fact.
On January 4, President Obama invoked his office's recess appointment authority and appointed former Ohio Attorney General Richard Cordray as Director of the CFPB. Mr. Cordray had been serving as Assistant Director for Enforcement at the CFPB while his nomination for Director was pending in the Senate. Although approved by the Senate Banking Committee, Mr. Cordray's confirmation had been blocked by lawmakers seeking to make substantive changes to the CFPB, such as replacing the director structure with a five-member commission. Republican senators objected to Cordray's appointment on constitutional grounds. They have argued that because the Senate has been holding "pro forma" sessions during its recess, President Obama lacked the authority to make a recess appointment. Click here for additional explanation from the White House.
On January 6, Mr. Cordray appointed Raj Date as Deputy Director of the CFPB. Most recently, Mr. Date, as Special Advisor to the Treasury Secretary, was responsible for operation of the CFPB pending confirmation of a director. Additionally, Mr. Cordray elevated Kent Markus to Assistant Director of the Office of Enforcement. Mr. Markus had been the CFPB Deputy Assistant Director of the Office of Enforcement.
On January 5, the CFPB announced the launch of its nonbank supervision program. With a Director now in place, the Obama Administration believes that the CFPB can now exercise authority granted to it by the Dodd-Frank Act to supervise companies that offer or provide consumer financial products or services, but that do not have a bank, thrift, or credit union charter. (Republican senators have expressed disagreement; in their view, the Dodd-Frank Act grants that authority only when a CFPB Director has been confirmed by the Senate.) Nonbank supervision will proceed in two phases, with immediate focus on nonbank mortgage, payday lending, and private education companies, regardless of such a company's size. A second phase will expand supervision to large debt collection, consumer reporting, auto financing, and money-service businesses. The CFPB expects soon to propose a rule defining "larger participants" in those second-phase markets, a predicate to exercising its supervisory authority over such institutions. The CFPB also noted that it may supervise any nonbank whose conduct poses risks to consumers with regard to consumer financial products or services. Rules describing procedural guidelines for exercising that authority will be published in the future.
On January 4, the CFPB issued Bulletin 12-01 regarding treatment of privileged and confidential information collected during CFPB's supervisory processes. The Bulletin addresses the concern of supervised institutions that providing attorney-client privileged or work product documents during the supervisory process will waive such privileges with respect to third parties. The CFPB contends in the Bulletin that any privilege would not be waived by obligatory production to the CFPB, and that the CFPB "will not consider waiver concerns to be a valid basis for the withholding of privileged information responsive to a supervisory request." Nonetheless, the Bulletin indicates that the CFPB will give "due consideration" to requests to limit the scope of requests for privileged information, and invites institutions to "memorialize privilege claims when conveying privileged documents" to the CFPB. The Bulletin also clarifies all information obtained in the supervisory process will be exempt from production in response to Freedom of Information Act requests, but that sharing of information between federal and state supervisory and enforcement authorities may be required or appropriate in certain circumstances.
Treasury Publishes Proposed Rule Establishing Assessment Schedule for Large Bank Holding Companies and Certain Nonbank Financial Firms
On January 3, the Treasury Department published a proposed rule to implement Section 155 of the Dodd-Frank Act, which requires Treasury to establish an assessment schedule to cover expenses of the Office of Financial Research and the Financial Stability Oversight Council, as well as the costs of implementing the Federal Deposit Insurance Corporation's orderly liquidation authority. Under the proposal, Treasury would collect assessments twice each year from (i) domestic bank holding companies with total consolidated assets of $50 billion or more, (ii) foreign banking organizations with at least $50 billion in total consolidated assets in U.S. operations, and (iii) nonbank financial companies supervised by the Federal Reserve Board. Treasury proposes to establish a flat rate one month prior to each collection date, and to apply that rate to the total consolidated assets of each covered firm to determine each's assessment. For foreign firms, only total U.S. operations would be considered in calculating the assessment. Treasury expects to (i) finalize the rule before the end of May 2012, (ii) announce the first assessment rate in June 2012, and (iii) collect the first assessment on July 20, 2012.
On January 4, the OCC announced that it placed print and radio public service advertisements to inform mortgage borrowers of the Independent Foreclosure Review program launched by the OCC in November 2011. The print feature explains that borrowers foreclosed upon between January 1, 2009 and December 31, 2010 are eligible to have their foreclosures independently reviewed to determine if the borrowers suffered financial injury as a result of any errors by certain large, federally regulated mortgage servicers. The ads will run in Spanish and English in 7,000 small newspapers and on 6,500 small radio stations.
On December 30, Fannie Mae and Freddie Mac announced a 10 basis point increase of the guaranty fee charged for all mortgages delivered for securitization on or after April 1, 2012. The credit fee on whole loans will also increase by the same amount. The increases are required by the Temporary Payroll Tax Cut Continuation Act enacted on December 23, 2011, and a subsequent directive from the Federal Housing Finance Agency. The Act uses the increase in fees to cover fiscal costs associated with a two-month extension of a payroll tax reduction.
On January 5, Freddie Mac issued Bulletin 2012-1, which revises the Freddie Mac Relief Refinance Mortgage - Same Servicer program requirements for mortgages with loan-to-value (LTV) ratios less than or equal to 80 percent. Effective immediately, the minimum Indicator Score requirement for such loans is eliminated, provided the principal and interest payment does not increase by more than 20 percent. Freddie Mac also eliminated the maximum total LTV and Home Equity Line of Credit total LTV ratio requirement of 105 percent for Relief Refinance Mortgages - Same Servicer and Relief Refinance Mortgages - Open Access with LTV ratios of less than or equal to 80 percent.
On January 6, multiple media outlets reported that the Securities and Exchange Commission (SEC) announced a policy change related to settlement of securities fraud cases. Under the new policy, settling defendants no longer will be permitted to neither admit nor deny civil liability, while concurrently being convicted of, or admitting guilt with regard to, criminal charges. The policy change also will apply to civil cases in which a defendant has entered into a deferred or non-prosecution agreement in a parallel criminal matter. Under the traditional SEC approach, a defendant found guilty of criminal conduct still could settle civil claims brought by the SEC without admitting or denying those civil charges. Going forward, in cases with parallel criminal actions, the SEC will (i) remove the "neither admit nor deny" language from its settlement agreements, (ii) recite the fact and nature of the criminal conviction, and (iii) allow staff to determine whether to include in the settlement facts obtained from the criminal conviction. The SEC's current prohibition on defendants denying the SEC's allegations or making statements those allegations are without merit will be retained. The new policy will not alter the "neither admit nor deny" approach used when settling cases that involve neither a criminal conviction nor allegations of criminal law violations.
In late December, The Federal Financial Institutions Examination Council's (FFIEC) Consumer Compliance Task Force approved revised interagency examination procedures for Regulation Z, Truth in Lending. The new procedures reflect changes to rules implementing the Credit Card Accountability Responsibility and Disclosure Act, as well as revisions required by the Dodd-Frank Act, including an increased threshold for exempt consumer credit transactions.
- Benjamin W. Hutten to discuss "Requirements for banking inherently high-risk relationships" at the Georgia Bankers Association BSA Experience Program
- Benjamin W. Hutten to discuss "BSA program reporting, management and board of directors responsibilities" at the Georgia Bankers Association BSA Experience Program
- Hank Asbill to discuss "Ethical guidance in conducting internal investigations – The intersection of Yates and Upjohn" at the American Bar Association Southeastern White Collar Crime Institute
- H Joshua Kotin to discuss "Recent developments in fair lending and avoiding the pitfalls" at the Arkansas Community Bankers/Bankers Assurance 2019 Compliance Conference
- Brandy A. Hood to discuss "RESPA Section 8/referrals: How do you stay compliant?" at the New England Mortgage Bankers Conference
- Daniel P. Stipano to discuss "Risk management in enforcement actions: Managing risk or micromanaging it" at the American Bar Association Business Law Section Annual Meeting
- Valerie L. Hletko to discuss "Banking on guns ‘n drugs: Social policy meets financial services" at the American Bar Association Business Law Section Annual Meeting
- Daniel P. Stipano to discuss "Navigating the conflicting federal and state laws for doing business with cannabis companies" at the American Bar Association Business Law Section Annual Meeting
- Tim Lange to discuss "Services and value" at the North American Collection Agency Regulatory Association Annual Conference
- Katherine L. Halliday to discuss "UDAP, UDAAP & the Map rule compliance basics" at the Mortgage Bankers Association Regulatory Compliance Conference
- Brandy A. Hood to discuss "How to ace your TRID exam" at the Mortgage Bankers Association Regulatory Compliance Conference
- Amanda R. Lawrence to discuss "Data privacy litigation" at the Mortgage Bankers Association Regulatory Compliance Conference
- Melissa Klimkiewicz to discuss "Navigating FHA rules and regs" at the Mortgage Bankers Association Regulatory Compliance Conference
- Jeffrey P. Naimon to discuss "Washington regulatory overview" at the Mortgage Bankers Association Regulatory Compliance Conference
- Jonice Gray Tucker to discuss "HMDA data is out, now what?" at the Mortgage Bankers Association Regulatory Compliance Conference
- Daniel P. Stipano to discuss "Assessing the CDD final rule: A year of transitions" at the ACAMS AML & Financial Crime Conference
- Daniel P. Stipano to discuss "Lessons learned from recent enforcement actions and CMPs" at the ACAMS AML & Financial Crime Conference
- Kathryn L. Ryan to discuss "The state’s role in fintech: Providing an industry framework for innovation" at Lend360
- Jeffrey P. Naimon to discuss "Truth in lending" at the American Bar Association National Institute on Consumer Financial Services Basics
- Daniel P. Stipano to discuss "Lessons learned from recent enforcement actions" at the Institute of International Bankers Risk Management and Regulatory Examination/Compliance Seminar
- Jonice Gray Tucker to discuss "Fintech regulatory developments, crypto-assets, blockchain and digital banking, and consumer issues" at the Practising Law Institute Banking Law Institute
- Amanda R. Lawrence to discuss "How to balance a successful (and stressful) career with greater personal well-being" at the American Bar Association Women in Litigation Joint CLE Conference