Fair Lending
A firm of preeminent repute in the fair lending space.Chambers USA
Practice Overview
While fair lending has been a major enforcement priority for more than 25 years, the establishment of the Fair Lending Unit in the Housing and Civil Enforcement Section of the Department of Justice’s (DOJ) Civil Rights Division in 2010 and the creation of the Consumer Financial Protection Bureau (CFPB) in 2011 has intensified governmental scrutiny in this area. Since then, Buckley, which Chambers USA calls “a firm of preeminent repute in the fair lending space,” has been leading the way in defending the nation’s top banks, mortgage lenders, auto lenders, credit card issuers, and other consumer finance companies in traditional and emerging areas of fair lending supervision and enforcement.
A history of success before multiple state and federal agencies has made our Fair Lending practice the first call for clients. From redlining and steering allegations to pricing and underwriting discrimination claims, our fair lending lawyers are some of the nation’s foremost authorities on the panoply of federal and state fair and responsible lending laws and regulations. We work closely with our clients not only to address their current challenges, but also to design and implement fair lending compliance and monitoring programs that are forward-looking, including those in emerging areas such as marketplace lending and the alternative financial services space.
Buckley’s Fair Lending practice provides proactive regulatory counseling, compliance advice, examination management support, and enforcement action and litigation representation every day. The comprehensive counseling we provide is shaped by our lawyers’ extensive experience representing clients in federal and state examinations and government enforcement investigations, administrative proceedings, and complex civil litigation encompassing the full spectrum of issues related to fair and equitable treatment of consumers.
Our fair lending engagements include:
- Representing financial services clients in more than 80 DOJ, CFPB, and federal banking agency fair lending enforcement actions and providing counseling and compliance advice to mitigate fair lending risk
- Defending dozens of financial institutions in threatened or actual referrals by the federal banking agencies to DOJ for alleged “pattern or practice” lending discrimination involving mortgage, auto, credit card, small business, and consumer lending for a wide variety of disparate treatment and disparate claims alleging redlining, reverse redlining, pricing and underwriting discrimination, discrimination in loss mitigation and collections, and discriminatory marketing practices
- Defense of class action litigation against mortgage redlining and reverse redlining allegations brought by several municipalities
- Defending numerous financial institutions in fair lending protests to transactional applications filed with the Federal Reserve Board (FRB)
- Representing financial institutions in housing discrimination complaints filed by individuals and consumer advocacy groups with local and state civil rights commissions and the Department of Housing and Urban Development (HUD)
- Defense of mortgage lender in lawsuit alleging discriminatory sales practices
- Assisting dozens of clients in development and oversight of their fair lending monitoring programs, including direction and supervision of external consultants
A firm of preeminent repute in the fair lending space.Chambers USA
Articles
Special Alert: OCC issues CRA final rule
On May 20, the Office of the Comptroller of the Currency announced a final rule to modernize the regulatory framework implementing the Community Reinvestment Act. The final rule marks the culmination of a three-year effort led by the Treasury Department to revamp the CRA and arrives exactly six...
Special Alerts"Ruling on anti-hacking law may guide fair lending tests" by Jeffrey P. Naimon, H Joshua Kotin, and Frida Alim (Law360)
Regulators, consumer groups, academics and private litigants are grappling with the fair lending implications of the credit models powering the explosive growth in online lending by banks and financial technology firms. The U.S. District Court for the District of Columbia in late March concluded...
ArticlesSpecial Alert: OCC and FDIC issue CRA modernization proposal
On December 12, 2019, the OCC and the FDIC jointly issued a notice of proposed rulemaking (NPR) to modernize the regulatory framework implementing the Community Reinvestment Act. The NPR generally focuses on expanding and delineating the activities that qualify for CRA consideration, providing...
Special Alerts"HUD’s disparate impact proposal clarifies fair lending laws" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
The U.S. Department of Housing and Urban Development last month released its long-anticipated proposal to revise its disparate impact rule under the Fair Housing Act. Although the proposal has attracted some criticism from those who believe the proposal would make it more difficult for plaintiffs...
Articles"FHA enforcement: What decreased reliance on the False Claims Act means for FHA lenders and servicers" by Melissa Klimkiewicz, Michelle L. Rogers, and Katherine Brockway Katz (HousingWire)
Top offcials at the U.S. Department of Housing and Urban Development are looking to chart a new course to win back banks that have fled the Federal Housing Administration lending program following a series of multimilliondollar False Claims Act settlements. In the past, HUD has partnered with the U...
Articles"Alternative data and fair lending face off: The relationship is complicated" by Jonice Gray Tucker and Caroline M. Stapleton (Mortgage Compliance Magazine)
Thinking of getting into a relationship with alternative data? You're not alone. Use of "alternate data," a term broadly used to describe consumer information gathered from non-conventional sources, is becoming increasingly attractive to mortgage lenders, their service providers, and even consumers...
Articles"TRID 2.0 and the disappearance of the black hole" by Brandy A. Hood (The Business Lawyer)
INTRODUCTION The Know Before You Owe: TILA-RESPA Integrated Disclosures Rule (“TRID Rule”) and its initial accompanying amendments have now been in effect for several years, and the rule continues to evolve. In response to industry requests, the Consumer Financial Protection Bureau (“CFPB”)...
Articles"Breaking down (language) barriers: A practical approach to LEP borrowers" by Jessica L. Pollet and Susanna K. Sedrak (Westlaw Journal)
In roughly 5.3 million households in the United States, the head of the house doesn’t speak English as the primary language or has limited ability to understand it.1 But like most individuals seeking full participation in the U.S. economy, those with limited English proficiency need access to...
Articles"Finding the purpose in bureau civil investigative demands" by Aaron C. Mahler (Bloomberg BNA)
“Why me?” It’s a common refrain whenever something bad happens. It’s also one of the first questions companies ask when finding themselves on the receiving end of a civil investigative demand from the Consumer Financial Protection Bureau. The logical place to look should be the notification of...
Articles"Is the CFPB bound by its non-binding guidance? The implications of the PHH due process decision for TRID and other CFPB rules" by Brandy A. Hood and Steven R. vonBerg
Predictability and certainty are crucial components of the consumer finance market. Consumers crave it, as do industry participants. A common understanding of legal requirements promotes uniformity in the application of consumer protections and allows lenders, servicers, systems providers,...
Buckley Commentary & AnalysisSpecial Alert: Supreme Court Holds Cities Have Standing Under FHA, But Limits Potential Claims
On May 1, the Supreme Court ruled 5-3 that municipal plaintiffs may be “aggrieved persons” authorized to bring suit under the Fair Housing Act against lenders for injuries allegedly flowing from discriminatory lending practices. However, the Court held that such injuries must be proximately caused...
ArticlesSpecial Alert: Maryland Ruling Opens New Front in Battle Over Bank Partnership Model
On June 23, the Maryland Court of Appeals affirmed a lower court judgment holding that a non-bank entity assisting consumers obtain loans from an out-of-state bank and then repurchasing those loans days later qualifies as a “credit service business” under the Maryland Credit Services Business Act (...
ArticlesSpecial Alert: CFPB's Proposed Rule Regarding Payday, Title, and Certain Other Installment Loans
On June 2, 2016, the CFPB published its proposed rule (the “ Proposed Rule ”) addressing payday loans, vehicle title loans, and certain other installment loans (collectively “covered loans”). This alert summarizes the Proposed Rule and compares the Proposed Rule to the CFPB’s March 26, 2015 outline...
ArticlesTILA-RESPA Integrated Disclosures
On December 31, 2013, the Bureau of Consumer Financial Protection (“CFPB”) published its long-awaited TILA-RESPA Integrated Disclosures Rule (“TRID Rule”), combining the mortgage disclosures consumers receive under the Truth in Lending Act (“TILA”) and the Real Estate Settlement Procedures Act (“...
ArticlesHigh Court Silent on Deference to Agency Rule-Making
On March 22, 2016, the U.S. Supreme Court issued a split decision (4-4) in Hawkins v. Community Bank of Raymore.[1] The court’s one-sentence affirmance was a notable anti-climax in a case that had been viewed as likely to elicit guidance regarding limitations on deference to agency statutory...
ArticlesThe Impending Impact of Section 1071 and Creeping Consumerism on Equipment Finance
John Redding, Moorari Shah, and Mitchell Grod authored "The Impending Impact of Section 1071 and Creeping Consumerism on Equipment Finance," which was published in the Winter 2016 issue of the Journal of Equipment Lease Financing. Section 1071 of the Dodd-Frank Act goes beyond consumer lending to...
ArticlesCitizen, Soldier, Small Business Owner? Commercial Lending and the Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act, 50 U.S.C.A. § 3901, provides certain protections to military servicemembers regarding their financial obligations. The act applies to virtually every type of debt that a service member may obtain. It provides benefits such as an interest rate cap and procedural...
ArticlesInclusive Communities and Disparate Impact Under the Fair Housing Act
On June 25, 2015, the Supreme Court announced its highly anticipated opinion in Texas Dept. of Housing and Comm. Affairs v. Inclusive Comm. Project, Inc. The question presented to the Court was whether plaintiffs bringing suits under the Fair Housing Act (the “Act”) would be permitted to continue...
ArticlesSpecial Alert: Supreme Court Upholds Disparate Impact Under Fair Housing Act, But Emphasizes Limits on Such Claims
Today, the Supreme Court in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. held that disparate-impact claims are cognizable under the Fair Housing Act (FHA). In a 5-4 decision, the Court concluded that the use of the phrase “otherwise make available” in...
ArticlesHigh Court Win is No Cure-All for Subordinate-Lien Market
Lenders in both consumer and commercial real estate markets have reason to celebrate the U.S. Supreme Court’s unanimous ruling in Bank of America NA v. Caulkett, (U.S. June 1, 2015), reversing a contrary ruling of the Eleventh Circuit. The court backed a second-lien lender’s right to maintain its...
Articles
News & Blogs
11th Circuit will not rehear en banc city’s Fair Housing Act suit
On April 27, a majority panel for the U.S. Court of Appeals for the Eleventh Circuit denied the City of Miami Gardens’s petition for rehearing en banc after determining that the City “faced an uphill battle” to establish standing to bring a Fair Housing Act lawsuit against a national bank because...
InfoBytesCFPB issues 2019 fair lending report to Congress
On April 30, the CFPB issued its annual fair lending report to Congress, which outlines the Bureau’s efforts in 2019 to fulfill its fair lending mandate. According to the report, in 2019 the Bureau continued to focus on promoting fair, equitable, and nondiscriminatory access to credit, highlighting...
InfoBytesCFPB outlines lending discrimination warning signs for small businesses applying for PPP loans
On April 27, the CFPB posted a reminder that federal laws such as ECOA protect business owners from discrimination on the basis of protected characteristics when applying for loans under the CARES Act Small Business Administration’s Paycheck Protection Program or other loan programs. The Bureau’s...
InfoBytesNYDFS strongly opposes OCC’s proposed CRA rulemaking
On April 8, NYDFS Superintendent Linda Lacewell sent a letter to OCC Comptroller Joseph Otting expressing her “strong opposition” to the OCC’s notice of proposed rulemaking (NPR) issued last December to modernize the Community Reinvestment Act (CRA). (See Buckley Special Alert discussing the NPR)...
InfoBytesSenators urge HUD to withdraw new version of AFFH rule
On March 16, thirty-seven Senators led by Senator Sherrod Brown (D-OH) sent a letter to HUD in response to the agency’s proposed replacement for the 2015 version of the Affirmatively Furthering Fair Housing (AFFH) rule (proposed rule). As previously covered by InfoBytes , in January, HUD announced...
InfoBytesMassachusetts AG fines auto dealer $1.5 million for predatory lending
On March 9, the Massachusetts attorney general announced a consent judgment to resolve a 2017 lawsuit brought against an auto dealership and its in-house lender alleging that the dealership misled consumers into purchasing unfavorable sale packages in violation of Massachusetts’ consumer protection...
InfoBytesSenate Democrats ask Office of Civil Rights to address student lending racial disparities
On February 27, Senators Elizabeth Warren (D-MA), Kamala Harris (D-CA), and Cory Booker (D-NJ) sent a letter to the Department of Education’s Office of Civil Rights (OCR) asking how the office plans to address reports of racial disparities within the federal student loan industry. The letter...
InfoBytesSupreme Court vacates as moot 11th Circuit’s FHA decision
On March 2, the U.S. Supreme Court vacated as moot a 2019 judgment of the U.S. Court of Appeals for the Eleventh Circuit, which had held that the City of Miami plausibly alleged that two national banks’ lending practices violated the Fair Housing Act (FHA) and led to defaults, foreclosures, and...
InfoBytesFTC gives annual ECOA summary to CFPB
On February 21, the FTC announced it recently provided the CFPB with its annual summary of work on ECOA-related policy issues, focusing specifically on the Commission’s activities with respect to Regulation B. The summary discusses, among other things, the following FTC research and policy...
InfoBytesMiami voluntarily dismisses FHA suits against banks
On January 30, the city of Miami dismissed fair housing lawsuits against four of the largest banks in the U.S. (see orders here , here , here and here ). The suits—filed in 2013—claimed that redlining by the banks led to a high rate of mortgage loan defaults, foreclosures, and property vacancies,...
InfoBytes
Press Releases & Announcements
The Legal 500 2019 recognizes 17 Buckley attorneys in five practice areas
The Legal 500 once again ranked Buckley as a top law firm and recognized it in five categories:
- Corporate Investigations and White Collar Criminal Defense: Corporate – Tier 4
- Corporate Investigations and White Collar Criminal Defense: Individuals – Tier 2 ...
The Legal 500 2018 recognizes five practice areas and 17 attorneys at Buckley Sandler
Buckley Sandler LLP again has been noted as one of the nation’s top law firms by The Legal 500 in its 2018 rankings, with recognition in five practice areas:
- Financial Services: Litigation
- Financial Services: Regulation
- Corporate ...
The Legal 500 2017 Recognizes Four Practice Areas and 20 Attorneys at Buckley Sandler
Buckley Sandler has again been cited as one of the nation’s top law firms by The Legal 500 in its 2017 rankings, with the recognition of four practice areas:
- Financial Services: Litigation
- Financial Services: Regulatory
- Cyber Law (Data Protection and ...
Former Deputy Chief Counsel for Office of the Comptroller Joins BuckleySandler
WASHINGTON, DC (January 3, 2017) – BuckleySandler LLP, a premier financial services, government enforcement and litigation law firm, announced today that former Deputy Chief Counsel for the Office of the Comptroller of the Currency (OCC), Daniel P. Stipano has joined the firm as a Partner in its...
Press ReleasesBuckleySandler Hosts Eighth Annual Fair Lending Today Conference
BuckleySandler LLP hosted its eighth annual Fair Lending Today conference in Washington, DC on March 13-14, 2016. The two-day event featured an evening of interactive roundtable discussions on fair lending issues, followed by a full day of seminars. The sessions were led by BuckleySandler attorneys...
Press ReleasesBuckley Sandler Hosts Annual Fair Lending Today Conference
Buckley Sandler LLP hosted its annual Fair Lending Today conference in Washington, DC, March 15-16, 2015. The two-day event featured an evening of interactive roundtable discussions on fair lending issues, followed by a full day of seminars. The roundtables and seminars were led by Buckley Sandler...
Press Releases
Our Fair Lending Team
Partners
Counsel
FYI
Special Alert: OCC issues CRA final rule
"Ruling on anti-hacking law may guide fair lending tests" by Jeffrey P. Naimon, H Joshua Kotin, and Frida Alim (Law360)
Recent Blog Posts
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May 6, 2020
11th Circuit will not rehear en banc city’s Fair Housing Act suit
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May 6, 2020
CFPB issues 2019 fair lending report to Congress
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April 27, 2020
CFPB outlines lending discrimination warning signs for small businesses applying for PPP loans
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April 10, 2020
NYDFS strongly opposes OCC’s proposed CRA rulemaking
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March 20, 2020
Senators urge HUD to withdraw new version of AFFH rule