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Fannie Mae Announces New Mortgage Product for Low- and Moderate-Income Borrowers
On August 25, Fannie Mae announced that it will begin offering HomeReady, a mortgage loan product featuring new flexibilities for lower to moderate income borrowers. For the first time, income from a non-borrower household member can be considered as a means to qualify for a Fannie loan. In addition, borrowers can include funds received from other sources, such as income from non-occupant parents or rental income from a basement apartment, to satisfy income requirements. Both first-time and repeat homebuyers can qualify for a HomeReady mortgage with a down payment as low as 3 percent. The new product requires borrowers to complete an online housing-counseling course. Fannie Mae is expecting to begin accepting deliveries under the HomeReady guidelines towards the end of 2015, and will soon issue additional details to assist lenders through a Selling Guide announcement.
FinCEN Issues NPRM Establishing BSA/AML Requirements for Investment Advisers
On August 25, FinCEN issued a Notice of Proposed Rulemaking (NPRM) seeking to adopt minimum Bank Secrecy Act (BSA) and anti-money laundering (AML) standards that would be applicable to investment advisers. Under the proposal, investment advisers would be required to implement AML programs and report suspicious activity, among other safeguards. The NPRM states that the proposal would cover investment advisers registered or required to register with the SEC. The proposal would also add such investment advisers to the definition of “financial institution.” This would result in investment advisers being required to file currency transaction reports and to comply with recordkeeping and other requirements applicable to financial institutions. With respect to supervisory authority, FinCEN stated that it would delegate its authority to the SEC for purposes of examining investment advisers for compliance with the proposed requirements.
CFPB & NYDFS File Suit Against Two Pension Advance Lenders Over Misleading Consumers Related to Costs, Risks Associated to Advance Payments
On August 20, the CFPB, along with the New York Department of Financial Services (NYDFS), filed a joint complaint in federal court against two pension advance lenders and three of their managers for allegedly misleading consumers regarding the costs and risks associated with the companies’ pension advance loans. The CFPB and NYDFS contend that both companies coerced consumers into borrowing against their pensions by marketing the product as a sale rather than a loan, and misrepresented or failed to disclose interest rates and fees on lump-sum cash advances offered for agreeing to redirect the full or partial amount of the consumer’s pension payments over an extended period. In separate allegations, the NYDFS contends that both companies violated New York state specific laws related to usury and deception, and unlawfully transmitted money without a proper license. The complaint follows guidance issued earlier this year highlighting three business practices consumers should avoid when conducting business with pension advance lenders.
Former Bank Executive Sentenced to 30 Months in Prison for Role in TARP Fraud Scheme
On August 20, former bank executive Charles Antonucci was sentenced to 30 months in prison for his role in organizing a scheme involving self-dealing, bank bribery, embezzlement of bank funds, attempting to fraudulently obtain more than $11 million from the Troubled Asset Relief Program (TARP), and participating in a $37.5 million fraud scheme that left an Oklahoma insurance company in receivership. Antonucci pled guilty to the charges in 2010 pursuant to a cooperation agreement with the government. He was the first defendant convicted of fraud of TARP funds, which was a program established in 2008 to provide liquidity to troubled financial institutions during the financial crisis. The judge also ordered Antonucci to forfeit $11.2 million to the United States and to provide $54.6 million in restitution to the victims of his crimes, including, among others, the bank’s shareholders and the FDIC. Antonucci’s plea and sentencing was before U.S. District Judge Naomi Reice Buckwald of the Southern District of New York. The case was handled by the Southern District of New York’s Office of Complex Frauds and Asset Forfeiture Units, with investigative assistance from the Office of the Special Inspector General for TARP.
United States District Court: Mortgagor Lacks Standing to Bring RESPA Claim
On August 11, the U.S. District Court for the District of New Hampshire rejected the addition of a potential RESPA claim to plaintiff’s complaint due to lack of standing, and the court dismissed the remaining counts for failure to state a claim. Sharp v. Deutsche Bank National Trust Company, As Trustee For Morgan Stanley ABS Capital Inc. Trust 2006-HE3, No. 14-cv-369 (D.N.H. Aug. 11, 2015). Although plaintiff and his father were both mortgagors on the mortgage document, the promissory note identified plaintiff’s father as the sole borrower for the loan. After plaintiff’s father died and plaintiff defaulted on the mortgage, plaintiff sought to enjoin the bank’s subsequent foreclosure proceedings. Plaintiff moved to amend his complaint to add a RESPA claim based on the bank’s allegedly inadequate responses to his requests for information pursuant to 12 C.F.R. § 1024.35 and 12 C.F.R. § 1024.36. The court determined that plaintiff lacked standing to assert his RESPA claim because the RESPA provisions at issue only applied to borrowers, not mortgagors like plaintiff. The court also rejected plaintiff’s argument that his status as the successor-in-interest to his father under 12 C.F.R. § 1024.38 established standing to bring the RESPA claim. The court confirmed that plaintiff was protected by 12 C.F.R. § 1024.38, but the court relied on the CFPB’s official interpretation of 12 C.F.R. § 1024.38 to determine that no private right of action existed to enforce the rule. The court also dismissed plaintiff’s original claims that sought to enjoin foreclosure by asserting that the bank (i) lacked authority to foreclose because the bank could not demonstrate that it was an assignee of the mortgage and (ii) it breached the implied covenant of good faith and fair dealing by pursuing foreclosure despite plaintiff’s request to postpone it. The court held that the bank had authority to foreclose because New Hampshire law did not require the bank to record the assignment in order to exercise the statutory power of sale. Regarding plaintiff’s second claim, the court determined that the bank did not breach the implied covenants because its actions were consistent with its contractual rights and there was no duty to postpone the foreclosure sale upon plaintiff’s request.
Large Multinational Financial Services Company Settles FCPA Charges Relating to Internships
On August 18, the SEC announced a settlement with a large multinational financial services company over allegations that the company had violated the FCPA by giving internships to family members of government officials working at a Middle Eastern sovereign wealth fund in hopes of retaining or gaining more business from that fund. The order entered as part of the settlement quoted emails between company employees purportedly demonstrating that the company gave the internships in hopes of keeping and growing the business relationship with the fund. The SEC also alleged that the company gave the internships to the family members without requiring that they pass through the competitive screening process the company typically requires for interns. Finally, the SEC alleged that the company had inadequate controls to prevent the improper hiring of relatives of government officials. The company paid $14.8 million to settle the charges, with $8.3 million in disgorgement, $1.5 million in pre-judgment interest, and a $5 million penalty.
The company previously disclosed in January 2015 that it had received a Wells Notice concerning possible FCPA violations in connection with the internships. The settlement follows earlier press reports of a broad SEC investigation into bank hiring practices in Asia, and appears to be the first settlement resulting from the investigation.
Department of Treasury Extends Comment Period on Expanding Access to Credit Through Online Marketplace Lending
On August 18, the Department of Treasury extended the comment period for the public to respond to its Request for Information (RFI) on online marketplace lending, entitled Public Input on Expanding Access to Credit Through Online Marketplace Lending. Originally published on July 20, the RFI seeks public input on three areas relating to the online marketplace industry: (i) business models of and products offered to consumers and small businesses; (ii) potential expansion of access to credit to the historically underserved; and (iii) the ways in which the financial regulatory framework can develop to support safe growth within the industry. Since the July 20 publication of the RFI, only four (4) comments have been received. Earlier this month, Treasury held a public forum to discuss online marketplace lending, with roughly 80 participants from the marketplace lending industry, consumer advocates, nonprofit public policy organizations, and the financial services industry. Per the August 18 extension, the public will now have until September 30 to provide comments on the RFI.
Financial Consulting Firm Agrees to Pay $15 Million to Resolve NYDFS Investigation
On August 18, a Washington D.C.-based financial consulting firm agreed to pay $15 million to resolve allegations that the firm failed to meet the current requirements of the NY Department of Financial Services (NYDFS) for consultants hired to perform regulatory compliance engagements. In addition to the $15 million penalty, the consulting firm agreed not to accept new engagements which require the NYDFS to disclose confidential supervisory information for six (6) months, and that it will attest that any reports submitted to the NYDFS on behalf of a client is objective and reflects the consulting firm’s best independent judgment. The Agreement follows a report released by the NYDFS detailing the consulting firm’s practices when preparing and submitting to the NYDFS reports of its findings regarding sanctions compliance with respect to certain transactions of a large, multi-national bank.
CFPB Orders Subsidiary of Peer-to Peer Lending Company to Provide $700,000 in Restitution over Practices Related to its Health Care Loan Product
On August 19, the CFPB announced a consent order against a subsidiary of an online lending company, ordering the subsidiary to provide $700,000 in monetary relief to affected consumers. According to the CFPB, the subsidiary marketed two loan products at dental offices as part of its health-care services financing program – an installment loan and a deferred-interest loan – to assist consumers in paying for dental services. The CFPB contended that consumers were provided inaccurate information related to the terms and conditions of the deferred-interest loan product, finding that, in certain instances, the loan product was marketed as a “no-interest” loan. However, the dental service providers who marketed the loan product failed to note that the 22.98 percent interest rate would be added to the principal if consumers failed to pay the loan in full before the end of the promotional period.
CFPB's Office of Older Americans Releases Virginia Guides Designed for Financial Caregivers
On August 17, the CFPB released Virginia state-specific Managing Someone Else’s Money guides, which are designed to make it easier for financial caregivers to follow the state’s unique fiduciary laws and procedures. According to Director Cordray’s remarks, the four guides – (i) Agents under powers of attorney; (ii) Court-appointed guardians; (iii) Trustees; and (iv) Government fiduciaries – will provide fiduciaries with “tips and answers to everyday questions people may have about managing someone else’s bank account, applying for federal benefits, and sharing information with family members.” Additionally, the guides are intended to alert caregivers to potential scams and financial exploitation, while also providing ways to respond if a beneficiary is the victim of either. The CFPB plans to release similar guides for Arizona, Florida, Georgia, Illinois, and Oregon. Following the nationally-applicable 2013 Managing Someone Else’s Money guide, the release of these state-specific guides represents the second phase of the Bureau’s Office of Older Americans’ initiative to assist financial caregivers.