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
"Fairness gone viral: Fair lending considerations for financial institutions amid Covid-19" by Jonice Gray Tucker and Caroline M. Stapleton (American Bar Association Business Law Today)
The COVID-19 pandemic has had a disproportionate impact on certain protected classes in the United States, including, in particular, minority populations. Non-white populations have seen higher hospitalization rates, more deaths, and higher unemployment numbers over the past six months as compared...
ArticlesSpecial Alert: HUD finalizes new disparate impact regulation
The Department of Housing and Urban Development earlier this month issued a final disparate impact regulation under the Fair Housing Act (Final Rule). HUD’s new Final Rule is intended to align its disparate impact regulation, adopted in 2013 (2013 Rule), with the Supreme Court’s 2015 ruling in...
Special AlertsSpecial Alert: CFPB takes first-ever agency redlining action against nonbank lender
On July 15, the Consumer Financial Protection Bureau filed a complaint against a Chicago-based nonbank mortgage company alleging fair lending violations predicated, in part, on statements made by the company’s owner and other employees during radio shows and podcasts from 2014 through 2017. The...
Special AlertsSpecial 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 and H Joshua Kotin (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"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 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...
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
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 regulate...
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...
Articles
News & Blogs
Court stays HUD’s DI rule
On October 25, the U.S. District Court for the District of Massachusetts issued an order granting a preliminary injunction and stay of effective date of HUD’s disparate impact regulation under the Fair Housing Act (Final Rule). As previously covered by a Buckley Special Alert , in September, HUD...
InfoBytesNonbank lender argues CFPB redlining action is flawed
On October 23, a Chicago-based nonbank mortgage company moved to dismiss a CFPB redlining action on the grounds that the Bureau’s complaint “improperly seek[s]” to expand ECOA to “prospective applicants.” As previously covered by a Buckley Special Alert , in July, the Bureau filed a complaint...
InfoBytesDistrict court allows Georgia counties’ disparate impact claims to proceed
On September 18, the U.S. District Court for the Northern District of Georgia denied a national bank’s motion to dismiss claims that the bank and its subsidiaries’ (collectively, “defendants”) mortgage originating and servicing practices and policies had a disparate impact on, and resulted in...
InfoBytesWarren W. Traiger quoted in American Banker article, “CFPB missed opportunity to call out lending discrimination, critics say”
Warren W. Traiger was quoted on September 24, 2020 in an American Banker article, “CFPB missed opportunity to call out lending discrimination, critics say,” which discussed the Consumer Financial Protection Bureau’s recent analysis of the Home Mortgage Disclosure Act’s credit score data for racial...
In The NewsSpecial Alert: HUD finalizes new disparate impact regulation
The Department of Housing and Urban Development earlier this month issued a final disparate impact regulation under the Fair Housing Act (Final Rule). HUD’s new Final Rule is intended to align its disparate impact regulation, adopted in 2013 (2013 Rule), with the Supreme Court’s 2015 ruling in...
InfoBytesHUD finalizes new disparate impact standard
On September 4, HUD released the final rule amending agency’s interpretation of the Fair Housing Act’s disparate impact standard (also known as the “ 2013 Disparate Impact Regulation ”). The final rule, among other things, seeks to (i) codify the burden-shifting framework from the 2015 Supreme...
InfoBytesCFPB issues Summer 2020 Supervisory Highlights
On September 4, the CFPB released its summer 2020 Supervisory Highlights , which details its supervisory and enforcement actions in the areas of consumer reporting, debt collection, deposits, fair lending, mortgage servicing, and payday lending. The findings of the report, which are published to...
InfoBytes9th Circuit affirms some of Oakland’s claims against national bank
On August 26, the U.S. Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the district court’s decision to partially dismiss an action brought by the City of Oakland, alleging a national bank violated the Fair Housing Act (FHA) and California Fair Employment and Housing...
InfoBytesCFPB says it is on track to meet data collection deadlines
On August 24, the CFPB filed another status report in the U.S. District Court for the Northern District of California as required under a stipulated settlement reached in February with a group of plaintiffs, including the California Reinvestment Coalition. The settlement (covered by InfoBytes here...
InfoBytesCFPB requests input on ways to prevent credit discrimination
On July 28, the CFPB issued a request for information (RFI) seeking input on ways to create a regulatory environment that expands credit access and ensures consumers and communities are protected from discrimination with respect to any aspect of a credit transaction. The RFI seeks comments to “...
InfoBytes
Press Releases & Announcements
Legal 500 2020 recognizes 21 Buckley attorneys in six practice areas
“Buckley attorneys are incredibly responsive while providing top quality legal services,” is how respondents described the firm in the 2020 edition of Legal 500, which ranked Buckley as a top law firm and recognized it in six categories:
- Corporate Investigations and White ...
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
"Fairness gone viral: Fair lending considerations for financial institutions amid Covid-19" by Jonice Gray Tucker and Caroline M. Stapleton (American Bar Association Business Law Today)
Special Alert: HUD finalizes new disparate impact regulation
Special Alert: CFPB takes first-ever agency redlining action against nonbank lender
Recent Blog Posts
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October 30, 2020
Court stays HUD’s DI rule
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October 29, 2020
Nonbank lender argues CFPB redlining action is flawed
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September 25, 2020
District court allows Georgia counties’ disparate impact claims to proceed
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September 17, 2020
Special Alert: HUD finalizes new disparate impact regulation
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September 4, 2020
HUD finalizes new disparate impact standard