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OCC, FDIC provide guidance to institutions affected by California wildfires
On August 9, the OCC issued a statement permitting OCC-regulated institutions to close their offices affected by wildfires in California. OCC Bulletin 2012-28 provides further guidance on natural disasters and other emergency conditions. (See previous InfoBytes coverage here). On the same day, the FDIC also provided guidance related to California wildfires in FIL-41-2018. Among other things, the FDIC is encouraging institutions to consider extending repayment terms and restructuring existing loans that may be affected.
Maryland Court of Appeals holds foreign securitization trusts do not need to be licensed in the state as collection agencies
On August 2, the Maryland Court of Appeals, in a consolidated appeal of four circuit cases, held that foreign statutory trusts are not required to obtain a debt collection agency license under the Maryland Collection Agency Licensing Act (MCALA) before filing foreclosure actions in state circuit courts. The decision results from two cases consolidated before the Court of Special Appeals and two actions appealed directly from circuit court proceedings, in which substitute trustees acting on behalf of two Delaware statutory trusts initiated foreclosure proceedings on homeowners who had defaulted on their mortgage payments. The homeowners challenged the foreclosure actions, arguing that the Delaware statutory trusts acted as collection agencies under MCALA by “obtain[ing] mortgage loans and then collet[ing] mortgage payments through communication and foreclosure actions” without being licensed. The lower courts dismissed all four foreclosure actions, finding the Delaware statutory trusts did not fall under the trust exemption to MCALA and were in the business of collecting consumer debts and therefore, subject to the MCALA licenses requirements, which both trusts had not obtained.
The overarching issue presented in the consolidated appeal was whether the Maryland General Assembly intended a foreign statutory trust, as owner of a delinquent mortgage loan, to obtain a license as a collection agency before directing trustees to initiate foreclosure proceedings. The court concluded that the plain language of MCALA was ambiguous as to the question and therefore, analyzed the legislative history and other similar statutes in order to determine the intent of the 1977 version of the law, as well as the reason the Department of Labor Licensing and Regulation revised the law in 2007 by departmental bill. Ultimately, the appeals court found the lower courts erred in dismissing the foreclosure actions against the homeowners, holding the General Assembly did not intend for MCALA to apply to foreclosure proceedings generally and therefore, foreign statutory trusts are not required to obtain a license under MCALA to initiate foreclosure proceedings.
5th Circuit affirms dismissal of automatic stay violation claim on grounds of judicial estoppel
On July 27, the U.S. Court of Appeals for the 5th Circuit affirmed a district court’s decision following a bench trial to dismiss plaintiffs’ allegations that a bank violated an automatic stay imposed during one of the plaintiff’s (debtor) bankruptcy schedules when it took foreclosure action, holding that the plaintiffs were barred by judicial estoppel from pursuing claims because the debtor failed to amend his bankruptcy schedules to disclose a quitclaim deed for his mortgage or note a change in his financial status. In this case, the debtor filed a Chapter 13 bankruptcy, but failed to list the address or creditor information for a property in which he had entered into an equity sharing agreement with his son. When the son signed a quitclaim deed conveying the property to the debtor, the deed was recorded but not listed on the bankruptcy schedules.
According to the appellate court, the debtor failed to “disclose an asset to a bankruptcy court, but then pursue[d] a claim in a separate tribunal based on that undisclosed asset” when it filed a lawsuit against the bank for wrongful foreclosure. The doctrine of judicial estoppel requires that three elements be met: (i) “the party against whom estoppel is sought has asserted a position plainly inconsistent with a prior position”; (ii) “a court accepted the prior position”; and (iii) "the party did not act inadvertently.” The court held the first two elements were met by the plaintiff’s failure to amend his bankruptcy schedules to disclose the quitclaim deed or his legal action against the bank. The court noted, however, the debtor’s actions were not inadvertent because he was aware of the inconsistency and had a motive to conceal the asset. The appellate court specifically noted the motive to conceal was “self-evident” because the debtor’s failure to disclose his changed financial status had the potential to provide a financial benefit to the debtor. The appellate court further held that the district court did not abuse its discretion in denying plaintiffs' motion for a new trial, and that, moreover, the plaintiffs failed to show that the district court abused its discretion when it chose to exclude several of their exhibits.
Court rejects mortgage company’s motions to dismiss in two separate TCPA actions
On August 2, the U.S. District Court for the District of New Jersey denied a mortgage company’s motions to dismiss in two putative class actions (opinions available here and here) alleging violations of the Telephone Consumer Protection Act (TCPA) for unsolicited phone calls. In both cases, the mortgage company requested the court dismiss the action or, in the alternative, stay the proceedings pending guidance from the FCC regarding what constitutes an automatic telephone dialing system (autodialer) in light of the D.C. Circuit decision in ACA International v. FCC. (Covered by a Buckley Sandler Special Alert; InfoBytes coverage on the FCC’s notice seeking comment on what constitutes an autodialer, available here.) In each of the actions, consumers allege the company violated the TCPA by placing unsolicited calls to their phones using an autodialer. In denying both motions, the judge rejected the company’s argument, in one case, that it was not using “a random or sequential number generator” because the preloaded numbers belonged to the company’s customers rather than members of the public, reasoning that just because the population of numbers which may be dialed are pre-selected does not make the calling system, the next number being dialed, less random. Moreover, in the second case, the judge rejected the company’s assertion that written consent was not needed because the calls were placed to a number of customers with existing debt. The court noted the calls were regarding refinancing services and “calls to customers soliciting refinance are ‘telemarketing’ calls for a new product requiring prior express written consent under the TCPA.” As for the requests to stay the proceedings, the court held in both cases that it is unnecessary to stay the case because “whatever guidance the FCC may issue in the future will not alter the statutory definition of an [autodialer]” or previous unchanged FCC guidance pursuant to which the court decided the motions to dismiss.
CFPB amends Regulation P, provides exemptions for annual privacy notice requirement
On August 10, the CFPB issued final amendments to Regulation P, which implements the Gramm-Leach-Bliley Act and provides, among other things, exemptions for financial institutions from sending annual privacy notices to consumers provided they meet certain conditions. The final rule—originally proposed in July 2016 (as previously covered in InfoBytes here)—implements a December 2015 statutory change in Section 75001 of the “Fixing America’s Surface Transportation Act,” which permits certain exemptions provided a qualifying financial institution (i) has not changed its privacy notice from the one previously delivered to its customer, and (ii) limits its sharing of a customer’s nonpublic personal information with nonaffiliated third parties so that a customer does not have the right to opt out, as otherwise afforded under the statute and Regulation P. The final rule will not affect the collection or use of a customer’s nonpublic personal information, and all financial institutions are still required to deliver initial privacy notices to customers. Moreover, the final rule establishes requirements for alternative delivery methods and provides deadlines for financial institutions that lose the exception and are required to resume delivery of annual privacy notices.
The amendments to Regulation P will take effect 30 days after publication in the Federal Register.
CFPB announces HMDA File Format Verification Tool and new 2017 data reports and datasets
On August 9, the CFPB released the 2018 File Format Verification Tool (FFVT). The FFVT tests whether HMDA reporters’ files meet formatting requirements, specifically whether the file (i) is pipe-delimited; (ii) has the proper number of data fields; and (iii) has data fields formatted as integers, where necessary. It does not include any data validation or consistency tests. Because the tool has no login functions, no federal agency will receive or review the files tested. Additionally, earlier in the week, the Bureau announced the release of the 2017 HMDA Dynamic National Loan-Level Dataset and the Aggregate & Disclosure reports. The Dynamic National Loan-Level Dataset contains the raw HMDA data reported by all HMDA reporters, redacted by the Bureau to protect applicant and borrower privacy. The Disclosure Reports summarize lending activity for individual institutions by MSA or MD and nationwide and the National Aggregate Reports summarize aggregate lending activity of all institutions, tabulated by a variety of loan, borrower, and geographical characteristics.
2nd Circuit holds NCUA lacks standing to bring derivative suit against two national banks regarding RMBS claims
On August 2, the U.S. Court of Appeals for the 2nd Circuit held that the National Credit Union Administration (NCUA) lacked standing to bring a suit against two national banks on behalf of trusts created by the agency that held residential mortgage-backed securities (RMBS). According to the opinion, in 2009 and 2010, NCUA took control of five failing credit unions, including ownership of certificates the credit unions held in RMBS trusts. NCUA then transferred the certificates into new trusts and a financial institution was appointed, pursuant to an Indenture Agreement, as Indenture Trustee. NCUA subsequently brought derivative claims on behalf of the trusts against two national banks, trustees of the original RMBS trusts. In affirming the lower court’s dismissal of the claims, the appellate panel found that the NCUA did not have derivative standing to sue on behalf of the trusts because the trusts had granted the right, title, and interest to their assets, including the RMBS trusts, to the Indenture Trustee. The 2nd Circuit reasoned that therefore only the Indenture Trustee possesses the claims, and the NCUA did not have the right to sue on behalf of the Indenture Trustee under the Indenture Agreement.
Former Malaysia Prime Minister charged with money laundering
On August 8, Malaysia’s former Prime Minister pleaded not guilty to money laundering charges filed against him in Malaysia in connection with the ongoing investigation of a Malaysian strategic development company. He had previously pleaded not guilty to three charges of criminal breach of trust and one charge of abuse of power. The money laundering charges relate to approximately $10 million that was allegedly deposited into the former Prime Minister’s personal bank account. That is a small portion of the total funds under investigation as misappropriated from the state fund.
The day before, a $250 million super yacht was returned to Malaysia after it was previously seized in Indonesia following claims by the U.S. Department of Justice that is was purchased with funds misappropriated from the company. Back in July 2016, DOJ filed civil forfeiture complaints seeking recovery of more than $1 billion in assets associated with the alleged “international conspiracy to launder funds misappropriated from [the company].” In June 2017, DOJ filed additional civil forfeiture complaints to recover another $540 million in assets. The investigation into assets linked to the company continues with DOJ alleging that more than $3.5 billion in total funds were misappropriated from the company from 2009 through 2015.
Former Barbados Minister of Industry charged with money laundering
On August 6, the Department of Justice announced the arrest and first court appearance of a former Minister of Industry of Barbados who DOJ has charged with “laundering bribes that he allegedly received from a Barbadian insurance company in exchange for official actions he took to secure government contracts for the insurance company.” The indictment, which was initially issued under seal on March 15, charges him with one count of conspiracy to launder money and two counts of money laundering. It also seeks forfeiture of the funds he received as alleged bribes. The indictment alleges that as Minister of Industry, he caused an agency of the Barbados Government to renew two contracts with the Barbadian insurance company. In return, the insurance company purportedly paid him approximately $36,000, routing the payments through a dental company and its bank account located in New York. The indictment also references as co-conspirator, but does not name, the CEO of the dental company, a United States citizen and resident of Tampa, Florida. He is also a lawful permanent resident of Tampa, Florida.
Fannie Mae, Freddie Mac issue forbearance relief to homeowners affected by California wildfires
On August 8, Freddie Mac extended its disaster relief options to homeowners affected by ongoing California wildfires who have access to federal individual assistance programs in FEMA-declared disaster areas. The relief suspends foreclosures by providing forbearance for up to 12 months. Penalties and late fees will also be waived. Freddie Mac also reminded servicers to consider borrowers who work in eligible disaster areas but have homes outside the affected area for standard relief policies. Moreover, servicers may leverage Freddie Mac forbearance programs to provide immediate mortgage relief to those affected by the wildfires in areas where FEMA has not made individual assistance available.
On August 7, Fannie Mae issued a notice to mortgage servicers reminding them that homeowners impacted by the California wildfires are eligible to stop making mortgage payments for up to 12 months, during which time late fees will not be incurred nor delinquencies reported to the credit bureaus. Furthermore, servicers may immediately suspend or reduce mortgage payments for up to 90 days without any contact with homeowners believed to have been affected by the wildfires. Additionally, foreclosures and other legal proceedings must be suspended for impacted homeowners.
Find continuing InfoBytes coverage on disaster relief here.