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CFPB reopens comment period for certain aspects of HMDA rulemaking
On July 31, the CFPB announced that it is reopening the comment period for certain aspects of its May Notice of Proposed Rulemaking (covered by InfoBytes here), which would permanently raise coverage thresholds for collecting and reporting data about closed-end mortgage loans and open-end lines of credit under the HMDA rules. The comment period originally closed on June 12, but to allow for the submission of comments that reflect the national loan level dataset for 2018 (which will be released “later this summer”), the Bureau is reopening the comment period for certain aspects of the May proposal. Specifically, the Bureau is reopening comments on (i) the proposed changes to the permanent coverage threshold for closed-end mortgage loans, which would permanently raise the reporting threshold from 25 loans in each of the two preceding calendar years to either 50 or 100 closed-end loans in each of the preceding two calendar years; (ii) the proposed changes to the permanent coverage threshold for open-end lines of credit, which would extend the temporary threshold of 500 loans for calendar years 2018 and 2019 to January 1, 2022, and then permanently lower the threshold to 200 open-end lines of credit after that date; and (iii) the appropriate effective date for any change to the closed-end coverage threshold. Comments are due by October 15.
CFPB adjusts annual dollar amount thresholds under TILA regulations
On August 1, the CFPB published in the Federal Register the final rule amending Regulation Z, which implements the Truth in Lending Act (TILA), including as amended by the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act), the Home Ownership and Equity Protection Act of 1994 (HOEPA), and the Dodd-Frank Wall Street Reform and Consumer Protection Act’s ability-to-repay and qualified mortgage (ATR/QM) provisions. The CFPB is required to make annual adjustments to dollar amounts in certain provisions in Regulation Z, and has based the adjustments on the annual percentage change reflected in the Consumer Price Index in effect on June 1, 2019. The following thresholds will be effective on January 1, 2020:
- For open-end consumer credit plans under TILA, the threshold for disclosing an interest charge will remain unchanged at $1.00;
- For open-end consumer credit plans under the CARD Act amendments, the adjusted dollar amount for the safe harbor for a first violation penalty fee will increase from $28 to $29, and the adjusted dollar amount for the safe harbor for a subsequent violation penalty fee will increase from $39 to $40;
- For HOEPA loans, the adjusted total loan amount threshold for high-cost mortgages will be $21,980, and the adjusted points and fees dollar trigger for high-cost mortgages will be $1,099; and
- The maximum thresholds for total points and fees for qualified mortgages under the ATR/QM rule will be: (i) 3 percent of the total loan amount for loans greater than or equal to $109,898; (ii) $3,297 for loan amounts greater than or equal to $65,939 but less than $109,898; (iii) 5 percent of the total loan amount for loans greater than or equal to $21,980 but less than $65,939; (iv) $1,099 for loan amounts greater than or equal to $13,737 but less than $21,980; and (v) 8 percent of the total loan amount for loan amounts less than $13,737.
5th Circuit says Congress, not courts, is responsible for changing rules for discharging student loans in bankruptcy
On July 30, the U.S. Court of Appeals for the 5th Circuit affirmed decisions by a bankruptcy court and a district court to dismiss a borrower’s student loan discharge request under the Bankruptcy Code, holding that Congress, not the courts, is responsible for changing the rules for discharging student loan debt in bankruptcy.
The borrower, who became unable to make payments on her student loans and other debts, initiated an adversarial action against the Department of Education in bankruptcy court after receiving a general discharge of her debts, in an attempt to have two student loans discharged as well. While the borrower was able to prove that her monthly expenses exceed her income, the bankruptcy and district courts found that she failed the three-prong test for evaluating claims of “undue hardship” established by the 2nd Circuit in Brunner v. New York State Higher Education Services Corp. and adopted in the 5th Circuit in In re Gerhardt. Primarily, the courts stated that the borrower failed to (i) show that she was “completely incapable of employment now or in the future”; or (ii) prove that her present state of affairs was likely to persist through the bulk of the loan repayment period. The borrower appealed, arguing that the three-prong test “is inconsistent with the plain meaning of the term ‘undue hardship’” and urged the appellate court to adopt instead “a ‘totality of the circumstances’ test.”
On appeal, the 5th Circuit agreed with the lower courts, stating that when Congress amended the bankruptcy law regarding the discharge of federal student loans, the intent was to limit it to cases of “undue hardship” in order to prevent the use of bankruptcy except in the most compelling circumstances. According to the appellate court, until an en banc panel or the Supreme Court reviews the standard, the panel finds no error in the lower courts’ decision. “Policy-based arguments do not change this interpretation; the role of this court is to interpret the laws passed by Congress, not to set bankruptcy policy,” the appellate court wrote. Moreover, reducing the test to a “totality of the circumstances” standard would create an “intolerable inconsistency” in decisions on loan discharges, and expand an area of bankruptcy law that Congress has sought to constrict.
New Jersey establishes Office of the Student Loan Ombudsman, provides student loan servicer regulations
On July 30, the New Jersey governor signed S1149 to, among other things, establish the Office of the Student Loan Ombudsman within the Department of Banking and Insurance and provide licensing requirements for student loan servicers. Notably, federal or state chartered banks, savings banks, savings and loan associations, and credit unions, as well as their wholly owned subsidiaries, are exempt from the bill’s licensure requirements
The appointed ombudsman’s responsibilities will include (i) reviewing, analyzing, and resolving borrower complaints; (ii) providing information to the public, agencies, legislators, and others regarding borrower concerns; (iii) reviewing complete student loan histories for borrowers who have provided written consent; (iv) establishing and maintaining a student loan borrower education course, including providing information on “monthly payment obligations, income-based repayment options, loan forgiveness, and disclosure requirements”; and (v) providing a report 12 months following the date of appointment to the Commissioner of Banking and Insurance (Commissioner) conveying any additional steps that may be necessary to address the licensing and enforcement of student loan servicers.
Additionally, the bill establishes licensing provisions for student loan servicers, and requires all servicers and certain other exempt entities to maintain student loan records for at least two years after the final payment or assignment of the loan, whichever comes first.
The bill also gives the Commissioner authority to conduct investigations and examinations of licensed servicers, as well as impose fines of not more than $10,000 for the first violation, and $20,000 for the second and for offenses thereafter. Student loan servicers must also comply with applicable federal laws, including the Truth in Lending Act. The bill notes that “any violation of any federal law or regulation shall be deemed a violation of this section and a basis upon which the [C]ommissioner may take enforcement action.”
The bill will take effect November 27.
1st Circuit asks Massachusetts high court to resolve foreclosure question
On July 29, the U.S. Court of Appeals for the 1st Circuit certified to the Massachusetts Supreme Judicial Court the question of whether a national bank’s foreclosure notice was valid under Massachusetts law. According to the order, the appellate court granted the bank an en banc rehearing of its February decision, which concluded that the bank’s foreclosure notice was defective and therefore, it could not properly foreclose the mortgage. The court had reasoned that the notice, which stated that the homeowners “could avoid foreclosure if, but only if, the [homeowners] paid the balance due on or before the specified foreclosure date,” was defective because the mortgage required the homeowners to pay the amount at least five days before the foreclosure date. In its petition for rehearing en banc, the bank argued that a Massachusetts state banking regulation required it to use the specific language it had in the notice and that the panel erred in its reading of existing state court precedent. The appellate court noted that the position is debatable and that in a diversity jurisdiction action the court “cannot properly overturn governing state precedent.” Therefore, the appellate court withdrew its earlier opinion, vacated the judgment, and certified to the Massachusetts Supreme Judicial Court the question of whether the statement in the foreclosure notice would render the notice inaccurate or deceptive, voiding the subsequent foreclosure sale under Massachusetts law.
National bank announces data breach
On July 29, a national bank announced a data breach affecting approximately 100 million individuals in the United States and approximately six million in Canada. According to the announcement, the incident occurred on July 19 when an unauthorized individual obtained personal information of credit card customers and people who had applied for credit card products. The bank noted that no credit card account numbers or log-in credentials were compromised and over 99 percent of social security numbers were not compromised. The largest category of information accessed was consumer and small business information from applications submitted from 2005 through early 2019, including names, addresses, zip codes/postal codes, phone numbers, email addresses, dates of birth, and self-reported income.
Upon discovery of the breach, the bank fixed the vulnerability that allowed for the individual to gain access and worked with the federal authorities, resulting in the arrest of the person allegedly responsible. The bank will notify and make free credit monitoring and identity protection available to those affected.
HUD approves settlement resolving redlining allegations
On July 29, HUD announced a conciliation agreement to resolve allegations that a California-based bank engaged in redlining practices from 2014 to at least 2017 against African-American and Latino mortgage applicants in the Los Angeles region. In 2017, a California-based community advocacy organization filed a complaint with HUD asserting that the bank violated the Fair Housing Act by engaging in discriminatory acts, which allegedly resulted in a lower number of mortgages made to African-American and Latino borrowers relative to the area’s demographics and to the industry as a whole. Additionally, the complaint claimed that the bank located and maintained its branches in areas that do not serve minority neighborhoods or borrowers. While the bank denies having engaged in any discriminatory behavior, it agreed to (i) invest $5 million in a loan subsidy fund to increase credit opportunities for residents of majority-minority neighborhoods; (ii) contribute $1.3 million to advertising and community outreach; and (iii) provide $1 million in grants for various financial education, counseling, community revitalization, and homelessness programs. The bank also committed to originating “$100,000,000 in home purchase, home improvement and home refinance loans to borrowers in majority-minority areas, and to open a full-service branch serving the banking and credit needs of residents in a majority-minority and low- and moderate-income neighborhood.”
Federal Reserve seeks comments on capital assessments and stress testing reporting for U.S. subsidiaries of foreign banking organizations
On July 31, the Federal Reserve Board published two notices and requests for comments in the Federal Register seeking input on information collections that would affect reporting requirements for bank holding companies with total consolidated assets of $100 billion or more as well as U.S. intermediate holding companies with $50 billion or more in total consolidated assets that are subsidiaries of foreign banking organizations. The Fed uses the information in the Capital Assessments and Stress Testing Reports (FR Y-14A/Q/M) to help ensure that these firms implement “strong, firm-wide risk measurement and management processes [that support] their internal assessments of capital adequacy and that their capital resources are sufficient given their business focus, activities, and resulting risk exposures.” These reports are also used to support the Fed’s annual Comprehensive Capital Analysis and Review exercise.
The first notice announces several proposed schedule changes, as well as the Fed’s intent to modify and clarify instructions for existing data items in the FR Y-14A/Q/M reports. These changes, the Fed notes, are designed to reduce reporting burdens, clarify reporting requirements, address inconsistencies between FR Y-14 reports and other regulatory reports, and account for revised rules and accounting principles. The Fed proposes to implement these revisions as of September 30.
The second notice addresses, among other things, the revised accounting for credit losses under the Financial Accounting Standards Board’s Accounting Standards Update No. 2016-13 and will implement the current expected credit loss accounting methodology across all of the FR Y-14 reports. According to the Fed, these revisions will “address the broadening of the scope of financial assets for which an allowance for credit losses assessment must be established and maintained, along with the elimination of the existing model for [purchased credit-impaired] assets.”
Comments on both notices must be received by September 30.
House Fintech Task Force holds hearing on alternative data
On July 25, the House Financial Services Committee’s Task Force on Financial Technology held a hearing, entitled “Examining the Use of Alternative Data in Underwriting and Credit Scoring to Expand Access to Credit.” As noted by the hearing committee memorandum, credit reporting agencies (CRAs) have started using alternative data to make lending decisions and determine credit scores, in order to expand consumer access to credit. The memorandum points to some commonly used alternative data factors, including (i) utility bill payments; (ii) online behavioral data, such as shopping habits; (iii) educational or occupational attainment; and (iv) social network connections. The memorandum notes that while there are potential benefits to using this data, “its use in financial services can also pose risks to protected classes and consumer data privacy.” The committee also presented two draft bills from its members that address relevant issues, including a draft bill from Representative Green (D-TX) that would establish a process for providing additional credit rating information in mortgage lending through a five-year pilot program with the FHA, and a draft bill from Representative Gottheimer (D-N.J.) that would amend the FCRA to authorize telecom, utility, or residential lease companies to furnish payment information to CRAs.
During the hearing, a range of witnesses commented on financial institutions’ concerns with using alternative data in credit decisions without clear, coordinated guidance from federal financial regulators. Additionally, witnesses discussed the concerns that using alternative data could produce outcomes that result in disparate impacts or violations of fair lending laws, noting that there should be high standards for validation of credit models in order to prevent discrimination resulting from neutral algorithms. One witness argued that while the concern of whether using alternative data and “algorithmic decisioning” can replicate human bias is well founded, the artificial intelligence model their company created “doesn’t result in unlawful disparate impact against protected classes of consumers” and noted that the traditional use of a consumer’s FICO score is “extremely limited in its ability to predict credit performance because its narrow in scope and inherently backward looking.” The key to controlling algorithmic decision making is transparency, another witness argued, stating that if the machine is deciding what credit factors are more important or not, the lender has “got to be able to put it on a piece of paper and explain to the consumer what was more important,” as legally required for “transparency in lending.”
DOJ announces settlements to resolve predatory loan modification allegations
On July 30, the DOJ announced several settlements with a group of California-based mortgage loan modification service providers to resolve allegations that the defendants violated the Fair Housing Act by targeting Hispanic homeowners for predatory mortgage loan modification services and interfering with the homeowners’ ability to keep their homes. According to the DOJ, the defendants persuaded as many as 400 Hispanic homeowners to pay approximately $5,000 for audits advertised as essential for loan modifications, but in actuality had no impact on the modification process and provided no financial benefit. Additionally, the DOJ claimed that the defendants “encouraged their clients to stop making mortgage payments and instructed them to cease contact with their lenders,” which led to many homeowners losing their homes due to defaulted mortgages. The lawsuit stemmed from complaints filed with HUD by two of the defendants’ former clients, who intervened in the lawsuit, along with their attorney, Housing and Economic Rights Advocates (HERA), and members of one of the former client’s family.
While three of the companies identified as defendants in the complaint ceased operations, the settlement agreements resolve allegations against the individuals responsible for owning and operating the now-defunct companies. Under the terms of the agreements, the individual defendants have agreed to, among other things, (i) refrain from engaging in the discriminatory conduct; and (ii) contribute more than $148,000 towards a restitution fund to reimburse fees paid to the defendants by former clients. Additionally, five of the individual defendants have agreed to pay an additional $405,699 in suspended judgments should it be determined the defendants misrepresented their current financial situations. The DOJ noted that the individual defendants have also agreed to an additional $91,650 in compensation in separate settlements reached with their former clients and HERA.