InfoBytes Blog
Filter
Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
Tenth Circuit Holds FAA Preempts New Mexico Law On Unenforceability Of Unconscionable Arbitration Provisions
On January 28, the U.S. Court of Appeals for the Tenth Circuit held that the Federal Arbitration Act (FAA) preempts New Mexico common law that a compulsory-arbitration provision in a contract may be unconscionable and therefore unenforceable. THI of New Mexico at Hobbs Center, LCC v. Patton, No. 13-2012, 2014 WL 292660. (10th Cir. Jan. 28, 2014). In this case, a nursing home operator filed suit in federal district court to compel arbitration of claims brought by the widow of a former nursing home resident. The district court initially ruled that the arbitration agreement in the governing contract was not unconscionable and ordered arbitration. After a New Mexico appeals court came to the opposite conclusion, the district court reversed itself and further held that the FAA does not preempt state law because the state appeals court “applied . . . generally applicable unconscionability law against grossly unreasonable one-sided contracts.” On appeal the Tenth Circuit explained that “just as the FAA preempts a state statute that is predicated on the view that arbitration is an inferior means of vindicating rights, it also preempts state common law—including the law regarding unconscionability—that bars an arbitration agreement because of the same view.” Accordingly, the court rejected the state court’s view that the FAA does not limit their ability to hold an arbitration agreement unconscionable provided they are applying a general unconscionability doctrine, explaining that under such reasoning any statute preempted by the FAA could be enforced by applying the “public policy” of the statute under a common-law doctrine such as unconscionability. The court thus held that the FAA preempts the New Mexico common law on unenforceability based on unconscionability and held the operator is entitled to compel arbitration.
Senate Democrats Press FHFA On Housing Trust Fund
On January 24, Senators Warren (D-MA), Reed (D-RI), Boxer (D-CA), and 29 other Senate Democrats sent a letter to FHFA Director Mel Watt asking that he lift the suspension on funding for the National Housing Trust Fund (NHTF) and the Capital Magnet Fund (CMF), in “a manner fully consistent with all applicable laws, rules, and regulations.” The Senators assert that the number of homes that are affordable to renters with incomes at or below 30 percent of area median income has decreased by more than one million units since passage of the Housing and Economic Recovery Act in 2008, resulting in a national shortage of nearly five million units affordable and available to extremely low-income renters, and that funding the NHTF and CMF cannot wait for Congress to agree on broader housing finance reform.
Federal Reserve Supplements Recovery And Resolution Preparedness For Large Banks
On January 24, the Federal Reserve Board issued SR 14-1, which attached new guidance for certain large banks titled Principles and Practices for Recovery and Resolution Preparedness. The document outlines additional expectations for the recovery and resolution preparedness of eight large domestic bank holding companies. The guidance stresses the importance of robust systems to manage collateral, information, and payments, clearing, and settlement activities. It also highlights the importance of adequate liquidity and funding arrangements during times of stress, and robust arrangements for the provision of shared or outsourced services necessary for critical operations. The Federal Reserve will incorporate the guidance into its ongoing recovery and resolution preparedness assessments of large bank holding companies subject to the guidance.
California Attorney General Files Suit Over Untimely Data Breach Notice
On January 24, the California Attorney General (AG) sued a health care company over its alleged failure to timely submit notice of a 2011 data breach. According to the complaint, the company learned of the breach at the end of September 2011, completed a preliminary investigation in December 2011, and subsequently continued the investigation through mid-February 2012. The company allegedly did not begin mailing notice letters to affected individuals until mid-March. The complaint alleges the company failed to provide such notice in the most expedient time possible, which the AG alleges could have commenced in December 2011. The complaint also includes allegations regarding the actual breach at issue. The AG is seeking statutory penalties of $2500 per violation. Among other things, the suit demonstrates the AG’s inclination to take privacy and data security actions beyond the California Online Privacy Protection Act.
California Appeals Court Revives Tenants' Claims Against Foreclosing Bank
On January 23, the California Court of Appeal, Sixth District, held that under the federal Protecting Tenants Against Foreclosure Act (PTFA) a lease survives foreclosure through the end of the lease term, except under limited circumstances, and allows tenants to bring state law claims for violation of the federal law. Nativi v. Deutsche Bank Nat’l Trust Co., No. H037715, 2014 WL 255587 (Cal. Ct. App. Jan. 23, 2014). Two tenants sued to challenge their eviction by a bank that through a nonjudicial foreclosure sale purchased the property the tenants were renting. The trial court held that the eviction was not improper because the foreclosure sale extinguished the lease under California law and, therefore, the bank, as immediate successor in interest did not step into the shoes of the landlord. The trial court held that the PTFA only required the bank to give a 90-day notice to vacate the premises; the PTFA did not require the bank to assist the tenants in recovering possession of the leased premises. On appeal, the tenants challenged the trial court’s interpretation of the PTFA. The appeals court held that the PTFA causes a bona fide lease for a term to survive foreclosure through the end of the lease term, and grants only limited authority of the immediate successor in interest to terminate the lease, with proper notice, upon sale to a purchaser who intends to occupy the unit as a primary residence. The court explained that while the PTFA impliedly overrides state laws that provide less protection, it expressly allows states to retain the authority to enact greater protections. The court added that California law protects bona fide tenancies for a term that continue by operation of the PTFA, and explained that although the PTFA does not itself provide a private right of action, it can be enforced through litigation under state law claims. After finding that there were triable issues of fact, the court reversed the trial court’s order granting summary judgment to the bank and reinstated the tenants’ claims.
New York DFS Hearing Considers Potential Regulation Of Virtual Currency
This week, New York State Department of Financial Services (NY DFS) Superintendent Benjamin Lawsky presided over a two-day hearing regarding emerging virtual currencies and the appropriate role of regulation. The hearing was the next step in an inquiry announced last August, and was held as the NY DFS considers developing a state license specific to virtual currency that would subject operators to state oversight. The panels featured the views of private investors, virtual currency firms, regulatory experts, and law enforcement officials. From our view inside the room, the most prominent, theme to emerge is that regulators will need to strike a balance between protecting the public interest—both from a consumer protection standpoint and with regard to the potential for criminal activity—while allowing emerging virtual currency technologies to develop, evolve, and thrive.
Panelists agreed that bringing virtual currency activity into a regulatory framework is necessary, particularly with regard to ensure AML compliance. However, they added that recent criminal AML enforcement actions against virtual currency market participants suggested existing laws may be sufficient to meet the challenge. In general, they urged the NY DFS to apply existing laws and requirements and to otherwise “only regulate at the edges.” One panelist suggested implementing any new rules in tiered manner, allowing smaller players an “onramp” to compliance. All panelists stressed the potential economic benefits to allowing robust virtual currency markets to evolve domestically, and some panelists touted the potential broader positive impacts on ecommerce and the potential to reach individuals not served by the traditional banking sector.
Though cognizant of the potential economic benefits of allowing virtual currencies to take hold, NY DFS expressed concerns about too loose a regulatory structure, particularly with regard to the perceived risks of virtual currency to more easily facilitate money laundering and related illicit activity. In an interview between panels Mr. Lawsky stated: “It’s feeling more like little tweaks around the edges are not enough.” Federal and state law enforcement officials echoed those concerns. While they vowed to use existing laws to pursue wrongdoers, Deputy U.S. Attorney Richard Zabel and New York County District Attorney Cyrus Vance, Jr., challenged the assertion that enforcement of existing laws is sufficient to meet the challenges posed by virtual currencies.
Click here for links to written testimony and other hearing materials.
The hearing coincided with other events focused on virtual currency, including one co-hosted by BuckleySandler and Wells Fargo. Other industry experts discussed the rapidly emerging field of virtual currency. Panelists weighed-in on market trends, investment opportunities, compliance imperatives, and interoperability with traditional fiat currencies. Particular attention focused on regulatory compliance considerations, risk management, and policy frameworks.
* * *
For additional information about the events above, or if you have questions about virtual currencies and other emerging financial services technologies, please contact any of the lawyers in our E-Commerce or Anti-Money Laundering practice areas, or any other BuckleySandler attorney with whom you have consulted in the past.
NADA Proposes Fair Credit Compliance Policy And Program For Its Member Dealers
On January 24, the National Automobile Dealers Association (NADA) distributed a proposed compliance program to its members aimed at reducing the risk of discrimination allegations stemming from CFPB Bulletin 2013-02, which places limits on how sources of indirect auto financing may compensate dealers. The bulletin and proposed program address the practice by which auto dealers “markup” an indirect lender’s risk-based buy rate and receive compensation based on the increased interest revenues. The NADA program recommends that dealerships adopt fixed markup limits and only exceed those limits if a legitimate business reason completely unrelated to a customer’s background is present. The proposal identifies seven “good faith” reasons for deviation—including a more competitive offer and generally-applicable promotional offers—which mirror those set forth in consent orders entered into between the DOJ and two automobile dealers accused of disparate impact discrimination in 2007. The CFPB has not commented on whether the program as proposed will satisfy regulatory scrutiny but plans to do so.
Fannie Mae Issues Numerous Servicing Policy Updates
On January 24, Fannie Mae issued Servicing Guide Announcements SVC-2014-01 and SVC-2014-02, and on January 29 issued SVC-2014-03. Effective April 1, 2014, the first announcement revises Fannie Mae’s requirements for borrower notification of the interest rate adjustment for a mortgage loan that has been modified and is subject to step interest rate adjustments, including Fannie Mae HAMP modifications. SVC-2014-02 updates Fannie Mae policies regarding (i) refunding overcharges for special adjustable-rate mortgage loans; (ii) bankruptcy schedules of assets and liabilities; (iii) foreclosure prevention opportunities; and (iv) third-party sales proceeds. For example, effective May 1, 2014, when an adjustable-rate mortgage loan error is identified, servicers are no longer required to contact Fannie Mae to determine if foreclosure proceedings should be discontinued or stayed, regardless of the stage of delinquency, including cases where the loan has been referred for foreclosure and the application of any payment as a result of corrections reduces the delinquency. The servicer must establish its own procedures to ensure compliance with Fannie Mae’s requirements regarding the correction of adjustment errors for all mortgage loans serviced for Fannie Mae. Through SVC-2014-03, Fannie Mae increased the repayment plan incentive fee to $500 for each new and existing repayment plan that meets Fannie Mae’s criteria and that successfully brings a mortgage loan current. The increased repayment plan incentive amount will be effective for each repayment plan that meets Fannie Mae’s criteria and successfully brings the mortgage loan current on or after March 1, 2014. Fannie Mae is also adjusting servicer incentives on short sales and Mortgage Releases.
Freddie Mac Updates Several Servicing Policies
On January 24, Freddie Mac issued Bulletin 2014-01, which updates and revises servicing requirements related to (i) step-rate mortgages; (ii) foreclosures; (iii) third-party use of Workout Prospector and BPOdirect; and (iv) electronic default reporting requirements. Effective April 1, 2014, servicers must provide notification of an initial interest rate adjustment for a step-rate mortgage to the borrower as early as 150 days, but no less than 90 days, prior to the first payment due date at the adjusted interest rate. A second notification of the initial interest rate adjustment must be provided as early as 75 days, but no less than 60 days, prior to the first scheduled payment at the new rate. For mortgages requiring two or more interest rate adjustments to reach the corresponding interest rate cap, servicers must provide borrowers written notification of the upcoming interest rate change for each subsequent rate adjustment as early as 120 days, but no less than 60 days, prior to the first payment due date at the re-adjusted rate. In addition, servicers’ staff must be adequately trained to discuss interest rate adjustments with borrowers. Among the foreclosure-related updates, the Bulletin provides notice to servicers regarding changes in state foreclosure time lines, updates requirements for reimbursement of costs associated with the posting and publication of foreclosure notices, and updates provisions for expediting default legal matters and foreclosure sale bidding. With regard to Workout Prospector and BPOdirect, effective immediately Freddie Mac is allowing authorized third-party service providers to access those tools. Finally, the Bulletin updates certain default action codes, which servicers must use beginning May 1, 2014.
Washington Clarifies Mortgage Loan Originator Rule
On January 24, the Washington State Department of Financial Institutions issued a clarification regarding an aspect of its mortgage originator rules and guidance. The Department previously advised that managers, including branch managers, must license individually as mortgage loan originators if they (i) take residential mortgage loan applications, negotiate the terms or conditions of residential mortgage loans, or hold themselves out as being able to conduct these activities; (ii) supervise loan processors or underwriting employees; or (iii) supervise licensed mortgage loan originators. The Department now states that (i) any manager or any person who takes a residential mortgage loan application in Washington, negotiates the terms or conditions of a residential mortgage loan on Washington property, or holds themselves out as being able to conduct those activities, must have a Washington MLO license, and that Washington licensed MLOs must work from a licensed location; (ii) any manager who directly supervises loan processor or underwriting employees must hold an MLO license, which can be from any state, and Washington licensed MLOs must work from a licensed location; and (iii) any manager who directly supervises Washington licensed MLOs must themselves hold a Washington MLO license and must work from a licensed location. For items (ii) and (iii) the Department states that it is looking for licensure of the day to day operational supervisors. Supervisory plans must be written and maintained as part of business books and records, and must include consideration of the location of the supervisor and employees supervised, the number of employees supervised, and the volume of work performed by the supervised employees.