In This Issue:
- OCC Issues Final CRA Rule (But FDIC Takes a Pass)
- OCC Adopts Final Rule to Resolve Uncertainty Created by Madden
- Fannie Mae and Freddie Mac Update COVID-19 Servicing FAQs
- Fannie Mae Updates COVID-19 Payment Deferral Guidance
- Freddie Mac Updates Guidance on Eligibility for New Loans for Borrowers With a Forbearance
- Fannie Mae and Freddie Mac Update Origination Guidance Based on COVID-19
- CFPB Updates HMDA Small Entity Compliance Guide
- This Week’s Podcast: The CFPB’s Loan Originator Rule compensation provisions: assessing compliance risk
- CA Federal District Court Rules Debt Collector’s Use of Email to Send Initial Communication Containing Validation Notice Did Not Violate FDCPA
- VA Issues Additional Lender Guidance in View of COVID-19
- Ballard Spahr to Hold June 5 webinar: State Attorney General Priorities: Coronavirus and Beyond – With Special Guests Bernard Eskandari, Tom James, and Max Weinstein
- Did You Know?
- Looking Ahead
OCC Issues Final CRA Rule (But FDIC Takes a Pass)
The OCC has issued a final rule revising its regulation implementing the Community Reinvestment Act (CRA). The final rule applies to national banks and federal savings associations.
Although the OCC’s proposed revisions were issued jointly with the FDIC, the FDIC did not join in the final rule. FDIC Chairman Jelena McWilliams issued a statement in which she indicated that although the FDIC continues to support CRA reform, “the agency is not prepared to finalize the CRA proposal at this time.” The Fed has not yet issued a separate proposal. Accordingly, Fed-member state banks supervised by the Fed and non-member state banks and savings associations supervised by the FDIC will be subject to different CRA compliance frameworks than national banks and federal savings associations supervised by the OCC.
The final rule is effective October 1, 2020, but sets mandatory compliance dates based on the applicable performance standards. Banks subject to the general performance standards and banks subject to the wholesale and limited purpose bank performance standards must comply with the new CRA framework by January 1, 2023. Banks subject to the small and intermediate bank performance standards must comply with the new CRA framework by January 1, 2024. During the period between October 1, 2020, and the 2023 or 2024 compliance dates, the provisions of the current CRA regulation will remain in effect but the OCC may permit a bank to comply voluntarily, in whole or in part, with the new framework as an alternative compliance option.
While the final rule substantially tracks the OCC’s proposal, it does make some significant changes to the proposal that include:
Qualifying activities. The final rule removes credit cards and overdraft products from the “consumer loans” for which banks can receive CRA credit. It increases the loan size threshold for small loans to businesses and farms to loans of up to $1.6 million and increases the business and farm revenue thresholds to gross annual revenues of up to $1.6 million (with both thresholds to be adjusted for inflation every five years). The “affordable housing” activities that receive CRA credit under the final rule do not include activities that finance or support middle-income rental housing in high-cost areas and the “essential infrastructure” activities that receive CRA credit under the final rule are limited to those that partially or primarily serve low- and moderate-income (LMI) individuals or families or LMI areas or other identified areas of need. The final rule also adds a definition of “CRA desert” (underserved areas) and provides multipliers to increase the amount of CRA credit a bank receives for qualifying activities in these areas. It also limits the qualifying activities that receive CRA credit to those conducted directly by a bank and does not provide credit for activities undertaken by bank affiliates as proposed. For qualifying retail loans, the final rule quantifies originations sold at any time within 365 days at 100 percent of the origination value (in contrast to the proposal’s quantification of loans sold within 90 days of origination at 25 percent).
Qualifying activities list. The final rule is accompanied by an illustrative list of qualifying activities. It provides that the OCC will review the list every five years rather than every three years as proposed but will update the list annually to reflect requests from banks for confirmation that an activity qualifies for CRA credit. The final rule shortens the approval process for such requests from six months to 60 days with the option of a 30-day extension.
Delineation of assessment areas. The final rule adopts the proposal’s requirement that a bank that receives more than 50 percent of its retail domestic deposits from outside of its facility-based assessment areas must delineate separate deposit-based assessment areas where it receives 5 percent or more of its retail domestic deposits. Unlike the proposal which would have required a bank to delineate such areas at the smallest geographic area where it receives 5 percent or more of its retail domestic deposits, the final rule gives a bank the option of delineating its deposit-based assessment areas at a larger area that includes such smaller areas, up to an entire state. The final rules allows a bank to change its assessment area designations once a year.
Measuring CRA performance. The final rule:
- Raises the asset threshold for “small banks” and “intermediate banks” that continue to be evaluated under the current small and intermediate bank performance standards (unless they opt into the new general performance standards) to, respectively, $600 million and $2.5 billion.
- Instead of evaluating wholesale and limited purpose banks under the general performance standards or a strategic plan as proposed, evaluates such banks under the current performance standards applicable to them.
- Provides that in applying the retail lending distribution tests, whether a product line qualifies as a “major retail lending product line” will be based on a bank’s originations in the two years preceding the beginning of the evaluation period rather than on originations during the evaluation period as proposed. The final rule also (1) clarifies that when determining which product lines qualify as a “major retail product line,” each of the three consumer lending product lines (considered in the tests) will be treated as a separate product line for purposes of reaching the 15 percent threshold, and (2) provides that a bank will be required to have at most two major retail product lines and if more than two product lines comprise more than 15 percent of a bank’s retail lending, the two largest retail product lines will be considered a “major retail product line.”
- While only counting home mortgages to LMI individuals for purpose of a bank’s CRA evaluation measure, applies a geographic distribution test to a bank’s home mortgage loan product line even though it will result in positive consideration to loans provided to middle- or high-income borrowers in LMI areas.
- Unlike the proposal, does not contain benchmarks for the CRA evaluation measure, a specific community development lending and investment minimum, or thresholds for the retail lending distribution tests. In the Supplementary Information accompanying the final rule, the OCC indicates that these items were not included in the final rule because “the data that the OCC gathered in response [to its RFI to gather additional data] was too limited to reliably calibrate these measures for all banks subject to the general performance standards.” The OCC states that it will “shortly” issue another Notice of Proposed Rulemaking “that will explain the process the agency will engage in to calibrate more precisely the requirements for each of three components of the objective evaluation framework” and will set specific measures once it considers comments and analyzes additional data.
- For banks that use the strategic plan option for their CRA evaluations, shortens the time frame for approval of a plan from the proposed nine months to 90 days with a potential 30-day extension.
Data collection, recordkeeping, and reporting. The final rule requires banks to report the results of their retail lending distribution tests and their presumptive ratings at the end of the evaluation period instead of annually as proposed. The final rule does not specify the length of an evaluation period but the OCC indicates in the Supplementary Information that it expects that, in general, evaluation periods will be between three and five years in length.
We will share our reactions to the final rule in subsequent blog posts.
- Scott A. Coleman & Lori J. Sommerfield
OCC Adopts Final Rule to Resolve Uncertainty Created by Madden
On Brian Brooks’ first day as Acting Comptroller of the Currency, the OCC issued a final rule intended to resolve the legal uncertainty created by the Second Circuit’s decision in Madden v. Midland Funding. In that decision, the Second Circuit held that a nonbank that purchased charged-off loans from a national bank could not charge the same rate of interest on the loan that Section 85 of the National Bank Act allowed the national bank to charge.
The final rule adopts the language in the OCC’s proposal codifying its interpretation of Section 85 and 12 U.S.C. §1463(g) (a provision of the Home Owners’ Loan Act) that the assignee of a loan made by a national bank or federal savings association can charge the same interest rate that the bank or savings association is authorized to charge under federal law. The final rule amends 12 CFR part 7 and part 160 to add, respectively, Section 7.4001(e) and Section 160.110(d), which provide:
Interest on a loan that is permissible under [12 U.S.C. 85] [12 U.S.C 1463(g)(1)] shall not be affected by the sale, assignment, or other transfer of the loan.
In its analysis accompanying the final rule, the OCC observed that, while Section 85 clearly establishes a national bank’s authority to make and transfer loans, it does not expressly address how the exercise of that authority affects the interest term. It concluded that “it is appropriate to resolve the silence in section 85 by providing that when a bank transfers a loan, interest permissible before the transfer continues to be permissible after the transfer.” While the OCC cited ”valid-when-made” and “steps into the shoes” principles in its analysis, it noted that it did not do so “as independent authority for this rulemaking but rather as tenets of common law that inform its reasonable interpretation of section 85.” It also observed that its interpretation is consistent with the purpose of section 85 by facilitating national banks’ ability to operate lending programs on a nationwide basis and also promotes safe and sound operations by supporting national banks’ ability to use loan transfers as a source of liquidity. (The OCC commented that the legal uncertainty created by Madden impairs the ability of many national banks to rely on loan transfers as a risk management tool “which is particularly worrisome in times of economic stress when funding and liquidity challenges may be acute.”)
The OCC indicated that its national bank discussion “applies equally to savings associations” because, in 12 U.S.C. §1463(g), “Congress provided savings associations with authority similar to section 85 to charge interest as permitted by the laws of the state in which the savings association is located.” The OCC observed that Congress modeled section 1463(g) on section 85 to place savings associations “on equal footing with their national bank competitors, and thus, these provisions are interpreted in pari materia.” For these reasons, the OCC concluded “that section 1463(g) should be interpreted coextensively with section 85” and that, “as a matter of Federal law, [national banks and savings associations] may transfer their loans without impacting the permissibility or enforceability of the interest term.”
In addition to rejecting the position of some commenters that the Administrative Procedure Act applies to the rulemaking, the OCC rejected the view expressed by some commenters that its proposal would facilitate predatory lending by promoting “rent-a-charter relationships.” The OCC noted that it “has consistently opposed predatory lending, including through relationships between banks and third parties.” While observing that “[n]othing in this rulemaking in any way alters the OCC’s strong position on this issue,” the OCC also stated that it “understands that appropriate third-party relationships play an important role in banks’ operations and the economy.”
Consistent with its proposal, the OCC’s final rule does not address “which entity is the true lender.” The OCC stated that because the final rule “only applies to bank loans that are permissible under section 85 or 1463(g),” it did not find it necessary, as requested by a commenter, to include a proviso in the rule indicating that it only applies when the bank is the true lender as determined by the law of the state where the borrower resides. The OCC also rejected the request of commenters for it to establish a test for determining when the bank is the true lender, It stated that “[t]his would raise issues distinct from, and outside the scope of, this narrowly tailored rulemaking.”
In November 2019, during the same week as the OCC issued its proposal, the FDIC issued a proposal intended to address the uncertainty created by Madden for loans originated and sold by state banks. The FDIC has not yet acted on its proposal. The FDIC’s proposal interprets Section 27(a) of the Federal Deposit Insurance Act, 12 U.S.C. §1831d(a), which allows an FDIC-insured state bank to export to out-of-state borrowers the interest rate permitted by the state in which the state bank is located to its most favored lender, regardless of any contrary laws of such borrowers’ states. While rejecting calls from commenters for the OCC to coordinate with the FDIC and harmonize their rules, the OCC noted that “it intends that its rule will function in the same way as the FDIC’s proposed regulatory text would, which is consistent with interpreting sections 85 and 1831d in pari materia.”
- Jeremy T. Rosenblum
Fannie Mae and Freddie Mac Update COVID-19 Servicing FAQs
On May 29, 2020, Fannie Mae and Freddie Mac updated their COVID-19 FAQs related to the servicing of mortgage loans. The FAQs cover various topics addressed in the agencies’ more recent updates to their COVID-19 servicing guidance. Among other issues, the agencies address the issues noted below.
Eligibility for COVID-19 Payment Deferral. Fannie Mae includes the following three items in the updated FAQs, and Freddie Mac has substantially similar FAQs:
“Q25. Some borrowers may have experienced a hardship prior to the COVID-19 pandemic but resolved their delinquency related to that hardship in a way that leaves them ineligible per policy for a COVID-19 payment deferral. For instance, a borrower may have successfully completed a modification Trial Period Plan in March and been brought current in April, but then was impacted by COVID-19 in May. Can the servicer consider that borrower current as of Mar. 1, 2020 so that he or she meets the delinquency eligibility requirements for a COVID-19 payment deferral or post-forbearance mortgage loan modification?
This borrower would not be considered current under the terms of the COVID-19 payment deferral requirements released in Lender Letter 2020-07, COVID-19 Payment Deferral. However, the servicer must submit a request for a COVID-19 payment deferral through Fannie Mae’s servicing solutions system for review and obtain prior approval from Fannie Mae.
Q26. COVID-19 payment deferral requires that the borrower must be current or less than 31 days delinquent as of the effective date of the National Emergency declaration. Does this mean that as of Mar. 1, 2020, the borrower can be due for their Feb. 1, 2020 payment?
Yes, the borrower may be due for his or her Feb. 1, 2020 payment (an LPI of Jan. 1, 2020).
Q27. COVID-19 payment deferral does not have an origination requirement. However, some borrowers impacted by COVID-19 may have mortgage loans that were originated after Mar. 1, 2020, the effective date of the National Emergency declaration related to COVID-19. Can these borrowers still qualify for a COVID-19 payment deferral?
For these borrowers, the servicer must submit a request for a COVID-19 payment deferral through Fannie Mae’s servicing solutions system for review and obtain prior approval from Fannie Mae.”
Borrower Makes Monthly Payment Late and Pays Late Charge. When a borrower with a COVID-19-related hardship makes a monthly mortgage payment late and pays a late charge, Freddie Mac advises that to apply the late charge as a curtailment the servicer would have to obtain the consent of the borrower. However, Freddie Mac also advises that the late charge could not be applied as a curtailment unless the loan is current. If the borrower is delinquent and the borrower wants the fee applied as a curtailment, the servicer could place the funds in suspense until the loan becomes current.
Prior Forbearance Plan or Other Option. The agencies advise that borrowers are not restricted from eligibility for a COVID-19 forbearance based on prior hardships or completed workout options.
Prior Delinquency. The agencies advise that a prior delinquency does not impact forbearance plan eligibility for a borrower with a COVID-19 related hardship.
Escrow Advances. The agencies advise that if a loan has an escrow account, the servicer must ensure the timely payment of all escrow and related charges in accordance with applicable law. The agencies also state that regardless of whether a loan has an escrow account, the servicer must protect the agencies’ mortgage lien and the security property.
Borrower Making a Payment During Forbearance. The agencies confirm that the making of a payment by the borrower during a forbearance does not end the forbearance, and advise there is no effect on the length of the forbearance period. If the borrower requests, the servicer must shorten the forbearance period.
Borrower Who Becomes Ill With COVID-19. The agencies confirm that any financial hardship that impacts the homeowner’s ability to make mortgage payments as a result of COVID-19, including illness of the borrower or a dependent, is an eligible hardship that qualifies the borrower for forbearance and/or consideration for other workout options.
Eligible Disaster Policies. The agencies confirm that their pre-existing policies for eligible disasters do not apply to loans impacted by COVID-19, even though they are aware that certain declarations by the Federal Emergency Management Agency would potentially lead to the COVID-19 national emergency being considered an eligible disaster. Servicers must follow the specific requirements laid out by the agencies for the COVID-19 national emergency.
Fannie Mae Updates COVID-19 Payment Deferral Guidance
As previously reported on May 13, 2020, Fannie Mae and Freddie Mac announced a COVID-19 payment deferral that was developed at the direction of the Federal Housing Finance Agency. Servicers may begin to evaluate borrowers for a COVID-19 payment deferral starting July 1, 2020. On May 27, 2020, Fannie Mae issued a revised version of Lender Letter 2020-07 to update the guidance regarding the COVID-19 payment deferral.
In connection with a COVID-19 payment deferral, the new guidance addresses Fannie Mae requirements with regard to (1) the reporting of a delinquency status code for the loan, (2) the reporting of an eligible COVID-19 payment deferral case, and (3) the reporting on the loan after a deferral. Fannie Mae cautions that if the servicer does not remit and report via a Loan Activity Record the full monthly contractual payment at least one business day prior to the last day of the month, the servicer will not be able to complete the COVID-19 payment deferral case. Fannie Mae also advises that if the unpaid principal balance (UPB) or loan paid installment (LPI) reported in Fannie Mae’s servicing solutions system prior to application of a COVID-19 payment deferral does not agree with the last reported UPB or LPI in Fannie Mae’s investor reporting system, the COVID-19 payment deferral will not be processed in Fannie Mae’s investor reporting system until the discrepancy is resolved.
Freddie Mac Updates Guidance on Eligibility for New Loans for Borrowers With a Forbearance
As previously reported Fannie Mae in an update to Lender Letter 2020-03 and Freddie Mac in Bulletin 2020-17 announced temporary eligibility requirements for new purchase and refinance transactions involving borrowers affected by the COVID-19 pandemic who are, or have been, in a forbearance with their existing mortgage loan. On May 22, 2020 Freddie Mae reissued Bulletin 2020-17 to make two revisions.
Previously the Bulletin indicated that for a borrower subject to repayment plan, under the additional eligibility requirements, the borrower must have (1) made three payments under the plan or (2) completed the plan, whichever occurs first (there is no requirement that the plan actually be completed). The guidance now reflects that the three payments must be consecutive. Additionally, Freddie Mac previously noted that the proceeds from the new mortgage loan may be used to pay off the remaining payments under the repayment plan being refinanced or any other mortgage. The revised guidance simply provides that the proceeds from the new mortgage loan may be used to pay off the remaining payments under the repayment plan.
Fannie Mae and Freddie Mac Update Origination Guidance Based on COVID-19
On May 28, 2020, Fannie Mae in updates to Lender Letter 2020-03 and Lender Letter 2020-04 and Freddie Mac in Bulletin 2020-19 updated their temporary origination requirements based on COVID-19.
Both Fannie Mae and Freddie Mac address the underwriting of borrowers with self-employment income, and advise that the new temporary requirements must be applied to applications made on or after June 11, 2020, and sellers are encouraged to apply the new requirements to existing applications. In view of the continuing impact of COVID-19 on businesses, the agencies are requiring additional documentation regarding self-employment income. In particular, the seller must obtain:
1. An audited year-to-date profit and loss statement reporting business revenue, expenses, and net income that includes the most recent month preceding the loan application date, and is dated no more than 60 days before the note date; or
2. An unaudited year-to-date profit and loss statement signed by the borrower reporting business revenue, expenses, and net income that includes the most recent month preceding the loan application date, and is dated no more than 60 days before the note date. In addition to the unaudited year-to-date profit and loss statement, the seller must obtain two business deposit account statements that are no older than the two latest months represented on the statement. For example, for a profit and loss statement that is dated through May 31, 2020, the business account statements must be no older than April and May 2020.
The agencies also provide guidance on the assessment of the business income, and note that in some cases the seller may need to obtain additional documentation.
Fannie Mae also addresses HomeStyle Renovation loans, and Freddie Mac also addresses CHOICERenovation mortgages, delivery requirements for no cash-out refinance mortgages, and the purchase of delinquent mortgages in forbearance.
CFPB Updates HMDA Small Entity Compliance Guide
As previously reported, in April 2020 the CFPB released a final rule to increase the threshold to report closed-end mortgage loans under the Home Mortgage Disclosure Act (HMDA) from 25 to 100 originated loans in each of the prior two years, and to increase the permanent threshold to report dwelling-secured open-end lines of credit under HMDA from 100 to 200 originated lines in each of the prior two years. The final rule was published in the May 12, 2020 Federal Register.
The CFPB recently issued an updated version of the HMDA Small Entity Compliance Guide to reflect the changes in the thresholds. While the CFPB is required by law to issue guides to help small entities comply with new regulations, the HMDA Small Entity Compliance Guide also is a resource for larger entities.
- Richard J. Andreano, Jr.
We look at why compliance with the compensation provisions remains a high risk area for the mortgage industry. Discussion topics include how the Bureau identifies violations, litigation and enforcement liability, secondary market considerations, the Bureau’s increasing enforcement activity, and the areas likely to be revisited by the Bureau in proposed revisions to the compensation provisions.
Click here to listen to the podcast.
- Presented by Alan S. Kaplinsky, Christopher J. Willis, and Richard J. Andreano, Jr.
In a recent decision, a California federal district court ruled that a debt collector’s use of email to send the initial communication containing the validation notice without first obtaining the plaintiff’s consent to receive the notice electronically under the E-SIGN Act did not violate the FDCPA.
The FDCPA requires a debt collector to provide the validation notice in the initial communication or within five days thereafter. In Greene v. TrueAccord Corp., the court agreed with the debt collector that although the FDCPA requires the validation notice to be provided in writing when it is sent after the initial communication, the FDCPA does not prescribe how a validation notice can be provided when it is part of the initial communication. The court observed that “if there are no express restrictions as to how an initial communication can be made—and an oral initial communication is explicitly recognized—then it is a reasonable argument that an initial communication can also be made electronically.” As support for this argument, the court referred to the CFPB’s proposed debt collection rule that would allow a debt collector to satisfy the FDCPA validation notice requirement by providing it by email or text as part of the initial communication. According to the court, it was “reasonable and persuasive” for the CFPB to conclude that E-SIGN consent is not required to send the validation notice by email as part of the initial communication because the debt collector is not required to provide the notice in writing when it is provided with the initial communication.
The district court distinguished the Seventh Circuit’s decision in Lavallee v. Med-1 Solutions, LLC., which held that emails sent by a debt collector to the plaintiff containing hyperlinks to a server on which the plaintiff could access and download the validation notices did not satisfy the FDCPA validation notice requirement. In Lavallee, the Seventh Circuit ruled that, under the specific circumstances of that case only, the contested emails were not “communications” under the FDCPA because they did not “at least imply the existence of a debt” and did not “contain” the validation notice. In Greene, however, the district court observed that the Seventh Circuit had not held that the use of email to send the validation notice as part of the initial communication is not permitted by the FDCPA.
The district court also concluded that the plaintiff had no standing to argue that the validation notice was not effectively conveyed to her because the email subject line stated “This needs your attention.” According to the court, even if the subject line did not convey that the purpose of the email was to collect a debt (which the court seemed to imply might have been the case), the plaintiff had opened and read the email, thereby mooting the issue. The district court further noted that the CFPB’s proposal requires a debt collector that sends the validation notice electronically to identify the purpose of the communication by including the name of the creditor and one additional piece of information about the debt other than the amount in the email subject line or the first line of the text message. In the court’s view, this requirement “ensures that the consumer’s attention is focused on the email or text as many recipients of emails make decisions to read, ignore, or delete emails on the basis of the subject line and recipients of text messages look only at the first line.”
The plaintiff also argued that the debt collector’s use of the term “send” instead of “mailed” in the body of the validation notice violated the FDCPA. The FDCPA provides that the validation notice must include a statement describing when a debt collector must obtain verification of the debt and indicating that “a copy of such verification . . . will be mailed to the consumer by the debt collector.” The debt collector’s validation notice informed the plaintiff when it would obtain verification of the debt and that it would then “send [the plaintiff] a copy of such verification.”
After noting that there is no requirement for a validation notice to track verbatim the FDCPA’s language, the court, applying the “least sophisticated debtor” standard, found the plaintiff’s argument that the debt collector’s use of the word “send” instead of “mailed” was likely to deceive or mislead not to be plausible. In the court’s view, even the least sophisticated debtor would understand from the use of the word “send” that a copy of the verification could be physically or electronically mailed.
Finally, the plaintiff claimed that the debt collector violated the FDCPA by sending seven emails seeking payment during the 30-day validation period. In rejecting the plaintiff’s argument that such emails overshadowed the initial communication containing the validation notice, the court noted that the FDCPA does expressly limit the number of times a debt collector can communicate with a consumer during the validation period. While also noting that the number and timing of communications to a consumer could be a relevant factor in whether those communications overshadow the validation notice, the court did not find it plausible that even the least sophisticated debtor could be misled by the debt collector’s emails. It concluded that seven communications was not excessive, the emails did not contain language requiring a payment, or suggesting that a payment should be made, prior to the expiration of the 30-day validation period, and there was no real expression of urgency in the emails which all contained a prominent disclosure stating that, because of the debt’s age, the creditor would not sue the plaintiff for the debt or report it to a credit reporting agency.
- Stefanie Jackman
VA Issues Additional Lender Guidance in View of COVID-19
On May 20, 2020, the U.S. Department of Veterans Affairs (VA) issued Loan Guaranty Circular 26-20-19, dated May 19, 2020, to provide additional guidance to lenders regarding VA policies during the COVID-19 emergency.
Renewal Applications. The VA reminds lenders to timely submit their annual renewal applications and fees. For the period from March 13, 2020 through June 13, 2020, deadlines for applications, renewals, and fees are automatically extended by 60 days. For example, if a lender’s renewal fees and financial documents were due on May 1, 2020, the due date is extended to June 30, 2020 without penalty. The VA cautions that, if there is a lapse in VA approval/registration of any company or individual because of the failure to submit timely annual renewal applications and fees, this may result in life of loan indemnification for applicable loans.
VA-Approved Underwriter. VA notes that while non-supervised automatic lenders must have a VA-approved underwriter, it recently has observed a number of loans underwritten by (1) individuals who are not registered with the VA, or (2) individuals who were registered with the VA for a former employer but not for their current employer (VA underwriter approval does not carry over from the old employer to the new employer). VA advises that loans underwritten by underwriters not registered with VA as an employee of their current lender, or by underwriters whose approval has lapsed, as of the date of loan closing are subject to indemnification for the life of the loan.
IRS Form 4506-T. The VA advises that the use of IRS Form 4506-T, which is for requesting a transcript of a tax return, is not required by VA guidelines. The VA acknowledges that the VA Lenders Handbook references IRS Form 4506-T in documentation guidelines that apply when using automated underwriting under certain conditions. Nevertheless, the VA states that “[i]t is important to note that even if this condition exists, it would be considered an investor or lender overlay exceeding the guidelines established by VA.”
This Friday, June 5, from 12:00 p.m. to 1:00 p.m. ET, Ballard Spahr will hold a webinar, “State Attorney General Priorities: Coronavirus and Beyond.” Our special guest speakers will be three representatives from state Attorney Generals’ offices: Bernard Eskandari from California, Tom James from Illinois, and Max Weinstein from Massachusetts. Our guests will discuss their consumer financial services priorities and focus areas arising from the COVID-19 crisis and beyond with leaders of Ballard Spahr’s Consumer Financial Services Group.
Discussion topics will include:
- A comparison between the current crisis and the 2008 recession, and how the lessons of 2008 apply to the current situation
- Complaint trends in state attorney generals’ offices
- Expected enforcement activity relating to mortgage servicing and foreclosures, including a discussion of non-English language support and ability to repay in connection with mortgage loan modifications
- Ability-to-repay issues affecting all types of consumer lending, in light of 2008-era enforcement actions and a recent multi-state settlement with a large subprime auto finance company
- State restrictions on debt collection, and collection-related enforcement likely to follow
- Student loan servicing and collection issues
- Auto leasing issues, including returns of leased vehicles
Click here to register.
- Barbara S. Mishkin
Newly Elected CSBS Chairman Hagler Sets Priorities in Initial Remarks
The Conference of State Bank Supervisors (CSBS) recently elected Kevin B. Hagler, the Commissioner of the Georgia Department of Banking and Finance, as the new Chairman of the CSBS Board of Directors for 2020-2021. In Chairman Hagler’s initial remarks, he addresses the state of financial supervision during COVID-19, how CSBS will be moving faster to support state regulators with the adoption of the State Examination System (SES), and that CSBS will place an emphasis on creating prudential standards for nonbank mortgage servicers, among other topics. Of note for users of the NMLS system, Chairman Hagler also states that the CSBS is close to selecting a vendor for the development of the new NMLS, the launch of which has been delayed from the initial anticipated roll-out date in 2018.
- Aileen Ng
RESPRO27
Virtual Conference, Online | June 23-24, 2020
Social Media – Staying Compliant While Staying Connected
Speakers: Richard J. Andreano, Jr.
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