Legal Alert

Mortgage Banking Update - September 24, 2020

September 24, 2020
In This Issue:


Ballard Spahr Named Finalist for 2020 LendIt Fintech Top Law Firm Industry Award

We are delighted to share the news that Ballard Spahr has been named a finalist for the 2020 LendIt Fintech Top Law Firm Industry Award. The award is presented to a law firm that has demonstrated deep expertise, commitment to clients, and the fostering of a deeper understanding of fintech.

Earlier this year, Ballard Spahr’s Consumer Financial Services Group and its Fintech & Payments Team received national rankings from The Legal 500 in the financial services regulation and fintech categories. It was our first application for ranking in the fintech category.

Also this year, our Consumer Financial Services Group once again received the highest national ranking from Chambers USA: America’s Leading Lawyers for Business. The Group was ranked in the highest tier nationally in each of the two categories, Compliance and Litigation, used by Chambers USA for Financial Services Regulation. The Fintech & Payments Team also received national ranking from Chambers USA in the fintech legal department category.

- Barbara S. Mishkin

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HUD Issues Final Rule Revising its FHA Disparate Impact Standards to Reflect SCOTUS Inclusive Communities Decision; Ballard Spahr to Hold Oct. 7 Webinar

On September 4, 2020, the Department of Housing and Urban Development (“HUD”) issued a final rule revising its 2013 Fair Housing Act (“FHA”) disparate impact standards (“2013 Rule”) to reflect the U.S. Supreme Court’s 2015 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact claims are cognizable under the FHA. The final rule also establishes a uniform standard for determining when a housing policy or practice with a discriminatory effect violates the FHA and clarifies that application of the disparate impact standard is not intended to affect state laws governing insurance. The final rule largely adopts the proposed disparate impact rule HUD issued in 2019, with several clarifications and certain substantive changes. In the preamble to the final rule, HUD noted that the agency received an unprecedented 45,758 comments on the proposed rule.

On October 7, 2020, from 12:00 p.m. to 1:00 p.m. ET, Ballard Spahr will hold a webinar on the final rule. To register, click here.

HUD’s final rule codifies a new burden-shifting framework for analyzing disparate impact claims to reflect the Inclusive Communities decision, and requires a plaintiff to sufficiently plead facts to support five elements at the pleading stage that “a specific, identifiable policy or practice” has a discriminatory effect on a protected class group under the FHA. Those five elements include that:

  1. the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective;
  2. the challenged policy or practice has a disproportionately adverse effect (i.e., disparate impact) on members of a protected class;
  3. there is a robust causal link between the challenged policy or practice and disparate impact on members of a protected class, meaning the specific policy or practice is the direct cause of the discriminatory effect;
  4. the alleged disparity caused by the policy or practice is significant; and
  5. there is a direct link between the injury asserted and the disparate impact alleged.

These elements are designed to harmonize the existing burden-shifting test with the safeguards against “abusive” disparate impact claims discussed in Inclusive Communities.

To establish that a policy or practice has a discriminatory effect, the plaintiff must prove by a preponderance of the evidence each of the elements in (ii) through (v) above. The defendant may then rebut the plaintiff’s allegation under (i) above that the challenged policy or practice is arbitrary, artificial, and unnecessary by producing evidence showing that the challenged policy or practice advances a valid interest(s) and therefore is not arbitrary, artificial, and unnecessary.

If a defendant successfully does so, the plaintiff must then prove by a preponderance of evidence either that the interest(s) advanced by the defendant are not valid or that a less discriminatory policy or practice exists that would serve the defendant’s identified interest in an equally effective manner without imposing materially greater costs on, or creating other material burdens for, the defendant. In the preamble to the final rule, HUD states that what is considered “valid” is a fact-specific inquiry, and the agency cites to profit as an example of a valid business interest that was expressly recognized by the Supreme Court in Inclusive Communities. However, “an interest that is intentionally discriminatory, non-substantial or otherwise illegitimate would necessarily not be ‘valid.’”

The final rule also clarifies which defenses are available to defendants at each stage of litigation.

At the pleading stage, a defendant can argue that the plaintiff has failed to sufficiently plead facts to support an element of a prima facie case, including by showing that its policy or practice is reasonably necessary to comply with a third-party requirement (such as a federal, state or local law or a binding or controlling court, arbitral, administrative order or opinion or regulatory, administrative or government guidance or requirement). In the preamble to the final rule, HUD stated its belief that this is an appropriate defense at the pleading stage where the defendant can show, as a matter of law, that the plaintiff’s case should not proceed when considered in light of law or binding authority that limits the defendant’s discretion in a manner demonstrating that such discretion could not have been the direct cause of the disparity.

Following the pleading stage, the defendant may establish that the plaintiff has failed to meet the burden of proof to establish a discriminatory effects claim by demonstrating any of the following:

  • The policy or practice is intended to predict an outcome, the prediction represents a valid interest, and the outcome predicted by the policy or practice does not or would not have a disparate impact on protected classes compared to similarly situated individuals not part of the protected class, with respect to the allegations under paragraph (b). To illustrate this defense, HUD uses an example where a plaintiff alleges that a lender rejects members of a protected class at higher rates than non-members. The logical conclusion of such a claim would be that members of the protected class who were approved, having been required to meet an unnecessarily restrictive standard, would default at a lower rate than individuals outside the protected class. Therefore, if the defendant shows that default risk assessment leads to less loans being made to members of a protected class, but similar members of the protected class who did receive loans actually default more or just as often as similarly-situated individuals outside the protected class, then the defendant could show that the predictive model was not overly restrictive.
    • HUD’s final rule provides that this is not an adequate defense, however, if the plaintiff demonstrates that an alternative, less discriminatory policy or practice would result in the same outcome of the policy or practice, without imposing materially greater costs on, or creating other material burdens for the defendant.
    • In the preamble to the final rule, HUD states that this defense is intended to be an alternative to the algorithm defense it eliminated from the proposed rule. In our view, this defense seems just as useful and perhaps easier for a defendant to prove.
  • The plaintiff has failed to establish that the defendant’s policy or practice has a discriminatory effect; or
  • The defendant’s policy or practice is reasonably necessary to comply with a third-party requirement (such as a federal, state or local law or a binding or controlling court, arbitral, administrative order or opinion or regulatory, administrative or government guidance or requirement).

As noted above, HUD did not adopt in the final rule the proposed defense for reliance on a “sound algorithmic model.” HUD stated that this aspect of the proposed rule was “unnecessarily broad,” and the agency expects there will be further developments in the laws governing emerging technologies of algorithms, artificial intelligence, machine learning and similar concepts, so it would be “premature at this time to directly address algorithms.” Therefore, HUD removed that defense option at the pleading stage for defendants. As a practical matter, this means that disparate impact cases based on the use of scoring models will be based on the general burden-shifting framework set forth above, which ultimately would require a plaintiff to show that a model’s predictive ability could be met by a less discriminatory alternative.

In cases where FHA liability is based solely on the disparate impact theory, HUD’s final rule specifies that “remedies should be concentrated on eliminating or reforming the discriminatory practice.” The rule also states that HUD will only pursue civil money penalties in disparate impact cases where the defendant has been determined to have violated the FHA within the past five years.

The final rule becomes effective 30 days from the date of publication in the Federal Register.

As expected, criticism from consumer advocacy groups was swift. For example, the National Fair Housing Alliance’s September 4, 2020 press release condemned the final rule for its “evisceration” of the disparate impact theory as a civil rights legal tool and stated that it was the “worst possible time” for HUD to issue the final rule during the concurrent COVID-19 pandemic, economic crisis and social unrest concerning racial inequalities. In its press release issued on the same date, the National Community Reinvestment Coalition took aim at the final rule as an attack by the Trump Administration on the Fair Housing Act, noting that the rule places an “impossible burden” on plaintiffs in disparate impact cases before discovery can even begin. In their public statements, both organizations emphasized that HUD’s pleading and burden of proof requirements in the final rule will make it significantly more difficult for plaintiffs to challenge discriminatory lending policies and practices going forward.

We believe it is likely that these groups or others may mount a legal challenge to the final rule under the Administrative Procedure Act. Any legal challenge may face obstacles based on the Inclusive Communities decision itself, which is incorporated into HUD’s final rule, and prior Supreme Court precedent. We will discuss these issues during our upcoming webinar.

- Lori J. Sommerfield, Christopher J. Willis & Richard J. Andreano, Jr.

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CFPB Announces Eighth Consent Order for False and Misleading Mortgage Advertising of VA-Guaranteed Mortgages

On September 14, 2020, the CFPB announced a consent order against ClearPath Lending, Inc. (ClearPath), which includes a civil money penalty of $625,000 and requirements to prevent future violations. The consent order represents the CFPB’s eighth consent order since late July, 2020 against a mortgage company to settle allegations by the CFPB that the company engaged in false and misleading advertising to service members and veterans. In all of its announcements regarding the consent orders, the CFPB indicated that the orders originated from “an ongoing sweep” of CFPB investigations into companies allegedly using deceptive direct mail campaigns to advertise VA-guaranteed mortgages.

The ClearPath consent order follows consent orders discussed in previous blog posts against Service 1st Mortgage, Inc. (Service 1st), Hypotec, Inc. (Hypotec), and, Inc. (PHLoans), as well as against Go Direct Lenders, Inc. (Go Direct), and against Sovereign Lending Group, Inc. (Sovereign) and Prime Choice Funding, Inc. (Prime Choice).

As in the first seven consent orders, the CFPB found violations of Regulation Z and the Mortgage Acts and Practices—Advertising Rule (the “MAP Rule” or Regulation N), and Title X of the Dodd-Frank Act (the Consumer Financial Protection Act) in ClearPath’s advertising of VA-guaranteed mortgages to service members and veterans. Significant findings in the ClearPath consent order include “false, misleading and inaccurate representations” about cost and other credit terms, and falsely representing an affiliation with the federal government.

The CFPB found that ClearPath’s advertisements misrepresented the terms actually available to consumers, misstated actual credit terms available, and disclosed inaccurate interest rate and APR combinations. For example, one advertisement sent to 260,000 consumers disclosed an interest rate of 2.25% with an APR of 3.17%. This APR was alleged to be inaccurate because it was not based on the reasonably current index at the time for the variable-rate period or the required discount points. According to the CFPB, the accurate APR, using the correct index and including discount points, was at least 3.516%. In another example cited by the CFPB as false and misleading, a ClearPath advertisement that was sent to over 80,000 consumers disclosed a loan with “NO Lender Fees” and an APR of 3.17% when, in fact, a loan with the disclosed APR would have required the payment of two discount points by the consumer.

As it did in the first seven consent orders, the CFPB found that ClearPath’s advertisements falsely represented that the company was affiliated with the VA. Similar to previous consent orders, the CFPB found that the use of certain phrases were misleading to consumers and misrepresented that ClearPath was affiliated with the VA. Some of the phrases cited by the CFPB in the consent order include “2017 – Eligibility Notification” and “Benefit Allotment” in the header of the advertisement and statements that ClearPath had “important information regarding your VA loan” or that ClearPath had “records” that the consumer had “yet to take advantage of programs sponsored by The Department of Veteran’s Affairs.” One letter that the CFPB cited stated “It is important that you call our VA Loan Service Center toll free (866) 284-9875 within 21 business days. By taking action now your next mortgage payment may not be due until April 2018.”

The continued CFPB focus in this area reinforces the need for lenders to carefully review their advertisements to avoid a violation of the MAP Rule’s prohibition of lender misrepresentations about a government affiliation, and to also review their advertisements for potential violations that have been the basis of the CFPB consent orders. The characteristics of the advertisements cited by the CFPB in the eight consent orders issued over the past eight weeks as the basis for its findings that the advertisements misrepresented a government affiliation deserve close attention because they indicate that the CFPB takes an expansive view of what constitutes such a misrepresentation. As in certain of the prior consent orders, the ClearPath consent order prohibits it to use various terms in advertisements, including the term “VA loan specialist.”

The full content of all eight consent orders can be viewed via the links below.

ClearPath Consent Order

Accelerate Consent Order

Service 1st Consent Order

Hypotec Consent Order

PHLoans Consent Oder

Go Direct Consent Order

Sovereign Consent Order

Prime Choice Consent Order

- Amanda E. Phillips & Richard J. Andreano, Jr.

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NYDFS Publishes Guidance to NY State Regulated Mortgage Lenders and Servicers Relating to Fees Paid to Register Mortgages in Default

On September 1, 2020 the NYDFS published Industry Guidance to the Chief Executive Officers or Equivalents or New York Regulated Mortgage Lenders and Services regarding the unlawful pass through to the mortgagor (“Borrower”) of a default “Registration Fee” that may be charged by a county, city or other municipality where the real property is situated. The Registration Fee is a fee imposed by certain counties, cities and other municipalities in New York State, by ordinance or otherwise, that requires mortgage lenders and servicers, (“Mortgagees”), to register mortgages declared to be in default by the Mortgagee. Any Mortgagees whom are under the supervision of NYDFS that are charging or collecting this prohibited fee from the mortgagors, are on notice by NYDFS to reverse the charge or refund amounts paid by mortgagors (whereby the fee may range from $500 to $3,000 depending on the county, city or municipality).

Section 419.5 of the Superintendent Regulations (3 NYCRR Part 419), only permits Mortgagees to collect certain specified types of fees from a mortgagor, consisting of attorney’s fees, late and delinquency fees, property valuation fees, and fees for services actually rendered to a mortgagor when such fees are reasonably related to the cost of rendering the service to the borrower. A Registration Fee is neither an attorney fee, late or delinquency fee, property valuation fee, [nor] fee for a service rendered to a mortgagor.”

Of note, the industry guidance states that Mortgagees are also directed to create a log of all mortgagors that were either charged, or actually paid any Registration Fee to a Mortgagee. This log must contain the amounts of the Registration Fees, whether they were collected or charged, and the date(s) the entire amounts of collected Registration Fees were refunded and credited to the mortgagors’ accounts, and the date(s) that any charged Registration Fees were removed or reversed from the mortgagors’ accounts. This log must be made available by Mortgagees, to NYDFS for inspection during their Mortgagees next examination.

- John V. Levonick

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Ballard Spahr Submits Comment Letter to OCC in Support of Proposed True Lender Rule

Ballard Spahr LLP has submitted a comment letter to the OCC in support of its proposed rule, “National Banks and Federal Savings Associations as Lenders” (the “Proposed Rule”). As detailed in our letter, we applaud the Proposed Rule, which would establish a clear and logical bright line confirming and clarifying that a bank (or savings association) is properly regarded as the “true lender” when, as of the date of origination, the bank is named as the lender in a loan agreement or funds the loan. The Proposed Rule, coupled with the OCC’s recently adopted Madden-fix (valid-when-made) rule, would eliminate confusion, uncertainty and legal risk for banks and their counterparties as they work together to make credit more readily available nationwide, a particularly urgent need as we face the economic crisis caused by COVID-19.

As the OCC points out in its notice of proposed rulemaking for the Proposed Rule (the “NPR”), the financial system is most efficient when banks work effectively with other market participants to meet customers’ credit needs: for example, in securitizations and other arrangements where sales of loans to third parties allow banks to manage risk and maintain liquidity; in Bank-Agent Programs (described below) involving fintechs or other third parties that engage in marketing, operational and other support roles; and in private label credit card programs and other programs where banks partner with retailers and other entities to make credit more broadly available. The Proposed Rule, if adopted, would significantly benefit all parties involved in these arrangements, including their ultimate beneficiaries – the borrowers – by removing risks created by those who would undermine the ultimate goals of the National Bank Act.

Our letter draws on Ballard Spahr’s two-plus decades of experience in representing banks and savings associations (“Banks”) in establishing lending programs (“Bank-Agent Programs”) where a Bank obtains substantial assistance from a fintech or other non-Bank company (an “Agent”) to offer Bank loans to consumers or small businesses. The Firm also has defended Banks and Agents in numerous class action and government enforcement proceedings arising from Bank-Agent programs, in particular challenges based on the assertion that the Agent, and not the Bank, is the “true lender” and, accordingly, the home-state interest exportation right provided to Banks under federal law is inapplicable. The Proposed Rule effectively finds these challenges incompatible with the federal laws governing the interest charges Banks are permitted to impose (the “Federal Interest Statutes”).

As our comment letter explains, in a typical Bank-Agent Program, an Agent may serve as marketing and servicing agent to a Bank that charges interest on its loans nationwide at the rates allowed by federal banking law and the law of the state where the Bank is located. After origination, the Bank sells the loans (or an interest in the loans) to the Agent or an institutional investor identified by the Agent. A small but growing number of cases have addressed whether the “true lender” in a Bank-Agent Program is the Bank or its Agent. The better reasoned cases have determined the Bank is the “true lender”, given it is the named lender in the loan agreements, and have accordingly declined to recharacterize the Agent as the “true lender”. Decisions willing to recharacterize the Agent as the “true lender” fail to justify the particular line they have chosen for when the Agent is deemed the “true lender” or to tie their test to any pre-existing legal doctrines. Instead, these decisions have applied widely diverging, fact-intensive tests in an effort to demonstrate that the Agent should be recharacterized as the true lender based on factors such as the level of the Agent’s economic interest arising out of the Bank-Agent Program. The Proposed Rule would provide a bright-line standard confirming and clarifying that the Bank in a Bank-Agent Program (and in any other type of arrangement involving other market participants) is the “true lender” when, as of the date of origination, the Bank is named as the lender in the loan agreement or funds the loan.

Some attacks on Bank-Agent Programs, securitizations and other Bank-counterparty programs also have challenged the validity of the original interest rate after a loan is sold. The OCC’s Madden-fix rule, adopted to address these challenges, clarified that an interest rate permissible at the outset remains valid after a loan sale. However, as noted in the NPR, the OCC recognized that even after it adopted the Madden-fix rule, “uncertainty remains regarding how to determine if a loan is, in fact, made by a bank as opposed to by its relationship partner”, and in the Proposed Rule provides a clear test to determine when a Bank makes a loan.

Three virtually identical Federal Interest Statutes govern interest that may be charged by Banks: Section 85 of the National Bank Act (NBA), 12 U.S.C. § 85 (Section 85) which governs the interest charges of national banks; Section 4(g) of the Home Owners’ Loan Act (HOLA), 12 U.S.C. § 1463(g) (Section 4(g)), which governs the interest charges of federal and state savings associations; and Section 27(a) of the Federal Deposit Insurance Act (the FDIA), 12 U.S.C. § 1831d(a) (Section 27(a)), which governs the interest charges of state-chartered FDIC-insured banks. In our comment letter, we argue that the Proposed Rule and the Madden-fix rule properly effectuate the policies underlying the Federal Interest Statutes. The ability of Banks to sell loans (or interests in loans) serves important economic and safety and soundness goals by affording Banks access to alternative sources of liquidity, helping them manage lending concentrations and improving their financial performance ratios. The threat that a counterparty might be recharacterized as a “true lender” based on the level of its economic interest would interfere with loan sales in Bank-Agent Programs, securitizations and other funding arrangements. The recharacterization threat also diminishes both the opportunity for innovation in lending products and the availability of credit, especially for consumers with risker credit profiles. Bank-Agent Programs give Banks access to cutting-edge technology to better and more efficiently serve customer needs and promote broader access to consumer credit and financial inclusion, but the chilling effect on Bank-Agent Programs caused by the recharacterization threat, if allowed to continue, could deprive Banks and their customers of all these benefits.

The OCC clearly has the authority to adopt the Proposed Rule. Under 12 U.S.C. § 93a, the OCC is generally “authorized to prescribe rules and regulations to carry out the responsibilities of the office.” And, Congress has charged the OCC “with assuring the safety and soundness of, and compliance with laws and regulations, fair access to financial services, and fair treatment of customers by, the institutions and other persons subject to its jurisdiction.” 12 U.S.C. § 1 (emphasis added). Further, to the extent clarification of Congressional language is necessary, as appears to be the case in this instance given several courts’ opinions reflecting confusion in interpreting the effect of the Federal Interest Statutes on Bank–counterparty arrangements, the Supreme Court has long recognized that judicial deference is warranted to the informed views of agencies such as the OCC. As the Supreme Court instructed in Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, (1996):

It is our practice to defer to the reasonable judgments of agencies with regard to the meaning of ambiguous terms in statutes that they are charged with administering. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842845 (1984). As we observed only last Term, that practice extends to the judgments of the Comptroller of the Currency with regard to the meaning of the banking laws. “The Comptroller of the Currency,” we said, “is charged with the enforcement of banking laws to an extent that warrants the invocation of [the rule of deference] with respect to his deliberative conclusions as to the meaning of these laws.” NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 256-257 (1995) (citations and internal quotation marks omitted).

Significantly, the Supreme Court in Smiley, relying upon Marquette Nat’l Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299 (1978), accorded deference to the OCC with respect to the very statutory provision (Section 85 of the National Bank Act) at issue under the Proposed Rule.

The OCC’s proposed bright-line standard for determining when a bank should be regarded as the “true lender” supports the certainty needed to ensure the effectiveness, and the safety and soundness, of the national banking system. It also would enhance the ability of banks readily to offer credit nationwide on the interest terms allowed by the laws of their home states, serving the public purpose of making credit as widely available as possible on reasonable terms, and subject to the oversight of the OCC to ensure fairness and compliance with applicable laws.

Although the FDIC recently issued a Madden-fix (valid-when-made) rule that reaches the same results under the FDIA as does the OCC’s Madden-fix rule, the FDIC has not proposed a companion “true lender” rule. We urge the FDIC to propose and adopt a true lender rule that mirrors the OCC’s Proposed Rule. This would help effectuate the policy of Section 27 of the FDIA to keep state banks on an equal footing with national banks in terms of nationwide lending rights.

While we believe that adoption of the Proposed Rule would greatly advance the availability of credit and efficient Bank operations, our letter also notes one potentially problematic aspect of the Proposed Rule. In the preamble, the OCC warned that it will be vigilant in addressing unfair, deceptive and abusive acts and practices (“UDAAP”). While we fully support the OCC’s commitment to prevent UDAAP violations through its supervisory and enforcement powers, we have some concern that the language of one factor the OCC proposes to evaluate could be mistakenly read to indicate the OCC would impose a limitation on aggregate interest charges in Bank-Agent Programs and other Bank programs involving third parties. The preamble to the Proposed Rule states:

[T]he OCC evaluates the following as part of its routine supervision of a bank’s lending relationships with third parties:

* * *

Are the bank’s overall returns on the loans reasonably related to the bank’s risks and costs of the loans (e.g., the total credit costs on short term loans, such as 12- to 36- month loans, are not substantial in relation to, or do not exceed, the principal amount of the loan)?

Id. at 44227.

As explained more fully in our letter, we believe these references to overall returns and their relationship to the principal amount of the loan may imply that the OCC might take actions that would infringe on a role Congress has delegated to the CFPB, and would be misguided from a policy perspective. Not only is there no substantive basis to conclude that interest charges in excess of original principal balances evidence UDAAP problems, but an OCC rule to such effect would usurp the exclusive authority of the CFPB to adopt UDAAP rules. Further, such a rule would conflict with the Federal Interest Statutes, which uniformly provide that a Bank may charge and collect interest at the rates authorized by the law of the Bank’s home state. The OCC has no power or authority to impose its own limits on interest charges – even the CFPB is explicitly denied the right to establish usury limits. See 12 U.S.C. § 5517(o).

Accordingly, in our letter, we express our hope that, in its preamble to the final rule it adopts, the OCC will clarify that the interest on loans is not limited to the original principal amount of the loan, and that the OCC would not adopt limits on interest rates.

- Jeremy T. Rosenblum, Mindy Harris & Alan S. Kaplinsky

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HUD Provides Guidance on Making FHA Loans to Borrowers With Forbearances

In Mortgagee Letter 2020-30 dated September 10, 2020, the U.S. Department of Housing and Urban Development (HUD) provides guidance on the underwriting of applicants for FHA insured mortgage loans who were granted a previous mortgage forbearance on the subject property or another residence due to COVID-19 or a presidentially declared major disaster. The guidance applies to FHA Title II single-family forward mortgage loan programs. FHA lenders may implement the guidance immediately and must implement the guidance for loans with case numbers assigned on or after November 9, 2020.

Generally, a borrower who was granted a mortgage forbearance is eligible for a new FHA insured mortgage loan provided

  • for a borrower granted a forbearance who continued to make regularly scheduled payments, the forbearance plan is terminated; or
  • for cash-out refinance loans, the borrower has completed the forbearance plan and made at least 12 consecutive monthly payments post forbearance; or
  • for purchase money loans and no cash-out refinance loans, the borrower has completed the forbearance plan and made at least three consecutive monthly payments post forbearance; or
  • for credit qualifying streamline refinance loans, in addition to the conditions noted below, the borrower either is still in forbearance or has completed the forbearance plan and made less than three consecutive monthly payments post forbearance; and
  • for all streamline refinance transactions, the borrower has made at least six payments on the FHA-insured mortgage being refinanced (when the FHA insured mortgage has been modified after forbearance, the borrower must have made at least six payments under the modification).

The guidance addresses the underwriting of loans using the Technology Open To Approved Lenders (TOTAL) mortgage scorecard and manual underwriting. The guidance also provides details for the situations noted above, including the general standards that apply, payment history requirements, and documentation requirements.

- Mortgage Banking Group

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VA Allows Deferments as Loss Mitigation Options for Borrowers With COVID-19 Forbearances

In Loan Guaranty Circular 26-20-33, the U.S. Department of Veterans Affairs temporarily authorized the use of deferments as a loss mitigation option for borrowers with a COVID-19 forbearance.

A deferment may be used only with a borrower who can resume making the regularly scheduled loan payments. Pursuant to a deferment, the servicer would defer payment of the total amount of forborne payments (including principal, interest, taxes, and insurance) to the loan maturity date, or until the borrower refinances the loan, transfers the property, or otherwise pays off the loan, whichever occurs first. There may not be any added cost, fees, or interest to the borrower, nor any penalty for early payment of the deferred amount.

VA advises that servicers should not enter into a modification agreement that alters the terms of the existing loan for the purpose of applying a deferment. To ensure compliance with servicing laws, the VA also advises servicers to seek specific advice from their legal counsel. Additionally, the VA cautions that the servicer must ensure that a deferment will not adversely affect the government’s interest in the VA loan and/or impair the vested rights of any other person.

Deferments may not be used for borrowers who are unable to resume making the regularly scheduled payments. Servicers must assess the suitability of other loss mitigation options for such borrowers.

The VA notes that a deferment under this temporary authority is not a loss mitigation option for which the VA has authorized an incentive payment.

As previously reported, in Loan Guaranty Circular 26-20-25 the VA addressed the eligibility for VA loans of borrowers with a CARES Act forbearance or some other type of COVID-19 credit relief. Among other guidance, the VA advises in the Circular that any periods of forbearance do not count toward the loan seasoning requirement for an Interest Rate Reduction Refinance Loan, often referred to as an IRRRL. In Change 1 to the Circular, the VA advises that any periods of forbearance also do not count toward the loan seasoning requirement for a cash-out refinance loan.

- Mortgage Banking Group

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CFPB Summer 2020 Highlights Looks at Consumer Reporting, Debt Collection, Deposits, Fair Lending, Mortgage Servicing, and Payday Lending

The CFPB has released the Summer 2020 edition of its Supervisory Highlights. The report discusses the Bureau’s examinations in the areas of consumer reporting, debt collection, deposits, fair lending, mortgage servicing, and payday lending that were completed between September 2019 and December 2019.

Key findings are described below.

Consumer reporting. CFPB examiners found:

  • One or more lenders violated the FCRA by obtaining credit reports without a permissible purpose as a result of the lender’s employees having obtained credit reports without first establishing that the lender had a permissible purpose to do so. The CFPB notes that while consumer consent to obtain a credit report is not required where a lender has another permissible purpose, one or more mortgage lenders decided to require their employees to obtain consumer consent before obtaining credit reports “as an additional precaution to ensure that the lender had a permissible purpose to obtain the consumers’ reports.”
  • Third party debt collection furnishers of information about cable, satellite, and telecommunications accounts violated the FCRA requirement for furnishers of information about delinquent accounts to report the date of first delinquency to the consumer reporting companies (CRC) within 90 days. The date of first delinquency is “the month and year of commencement of the delinquency on the account that immediately preceded the action.” The CFPB found the furnishers were incorrectly reporting, as the date of first delinquency, the date that the consumer’s service was disconnected even though service was not disconnected until several months after the first missed payment that commenced the delinquency. In addition, one or more furnishers were found to have incorrectly provided the charge-off date as the date of first delinquency, which was often several months after the delinquency commenced.
  • One or more furnishers violated the FCRA requirement to conduct a reasonable investigation of direct and indirect disputes. CFPB examiners found that for both direct and indirect disputes, the furnishers failed to review underlying account information and documentation, account history notes, or dispute-related correspondence provided by the consumer. The CFPB notes that inadequate staffing and high daily dispute resolution requirements contributed to the furnishers’ failures.

Debt collection. CFPB examiners found that one or more debt collectors engaged in the following violations:

  • Violations of the FDCPA prohibitions regarding threatening actions that cannot legally be taken or are not intended to be taken and using false representations to collect a debt by (1) falsely threatened consumers with lawsuits that the collectors could not legally file or did not intend to file, (2) made false representations regarding the litigation process and a consumer’s obligations in the event of litigation, and (3) made implied representations to consumers that debts would be reported to CRCs if not paid by a certain date when the collectors did not report the debts.
  • Violations of the FDCPA prohibitions regarding making false representations that a debt collector operates or is employed by a CRC by falsely representing or implying to consumers that that they operated or were employed by CRCs.

Deposits. CFPB examiners found that one or more financial institutions had engaged in the following violations:

  • Violations of the EFTA provision that prohibits the use of agreements that contain a waiver of a consumer’s EFTA rights by requiring consumers to (1) sign deposit agreements stating that consumers would cooperate with the institution’s investigation of any errors alleged by the consumer, including by providing affidavits and notifying law enforcement authorities, and (2) sign stop payment request forms and deposit agreements in which the consumer agreed to indemnify and hold the institutions harmless for various claims and expenses arising from honoring the stop payment request, including not holding the institution liable if it was unable to stop the payment due to inadvertence, accident, or oversight. The CFPB deemed such requirements to be provisions that waived consumer rights in violation of the EFTA because they required consumers to do more than what the EFTA and Regulation E allow to assert their rights.
  • Violations of Regulation E requirements regarding qualifying notices of EFTA errors. CFPB examiners found that although the EFTA and Regulation E provide that a qualifying notice is one that is received within 60 days after the institution sends the statement on which the alleged error is first reflected, the institutions required that error notices relating to ACH transactions had to be received within 60 days from the transaction date.
  • Violations of the EFTA/Regulation E requirement that an institution investigating an alleged error must provide to consumers the investigation determination, an explanation for the determination when it determines there was no error or a different error occurred, and notice of the consumer’s right to request the documents relied on by the institution to make its determination when it determines no error or a different error occurred. CFPB examiners found that the institutions failed to provide an explanation for their determinations and/or provided inaccurate or irrelevant responses and did not provide consumers with notice of their right to request documents relied on by the institutions.
  • Violations of the Regulation DD requirement that deposit account advertisements not mislead, be inaccurate, or misrepresent the deposit account terms by failing to provide advertised bonuses to consumers. The CFPB attributed the violations to quality control and monitoring procedures that did not appropriately ensure that all eligible consumers received the bonus.

Fair lending. CFPB examiners found:

  • One or more bank or nonbank mortgage lenders violated the ECOA/Regulation B prohibition against using advertising that discourages prospective applicants on a prohibited basis. CFPB examiners found the lenders had “intentionally redlin[ed] majority-minority neighborhoods in two Metropolitan Statistical Areas (MSAs) by engaging in acts or practices directed at prospective applicants that may have discouraged reasonable people from applying for credit.” Those acts or practices consisted of: (1) prominently featuring a white model in ads run on a weekly basis for two years in a publication with wide circulation in the MSAs, (2) featuring almost exclusively white models in marketing materials intended to be distributed to consumers by the lenders’ retail loan originators, and (3) including headshots of the lenders’ mortgage professionals who appeared to be white in almost all of the lenders’ open house marketing materials. The CFPB states that (1) a statistical analysis of HMDA and U.S. census data provided evidence of the lenders’ intent to discourage prospective applicants from majority-minority neighborhoods, (2) general and refined peer analysis showed the lenders received significantly fewer applications from majority-minority neighborhoods and high-minority neighborhoods relative to other peer lenders in the MSAs, and (3) the lender’s direct marketing campaign that focused on majority-white areas in the MSAs was additional evidence of the lenders’ intent to discourage prospective applicants on a prohibited basis. (The CFPB indicates that the lenders have implemented outreach and marketing programs focused on increasing their visibility among consumers living in or seeking credit in majority-minority census tracts in the MSAs.)
  • One or more lenders violated the ECOA prohibition against discrimination against an applicant because the applicant’s income is based entirely or in part on the receipt of public assistance. CFPB examiners found that the lenders had a policy or practice of excluding certain forms of public assistance without considering the applicant’s actual circumstances in determining a borrower’s eligibility for mortgage modification programs. (The CFPB indicates that borrowers who were denied mortgage modifications or otherwise harmed by this practice were provided with “financial remuneration and an appropriate mortgage modification.”)

Mortgage servicing. CFPB examiners found that one or more servicers had engaged in the following violations:

  • Violations of the Regulation Z requirement to provide periodic statements to certain consumers in bankruptcy. CFPB examiners attributed the violations to system limitations, and in some cases, a failure to reconcile accounting records of bankruptcy costs maintained by third parties with the servicers’ systems of record.
  • Violations of the Regulation X provision that prohibits a servicer from assessing a premium charge or fee for force-placed insurance unless the servicer has a reasonable basis to believe the borrower failed to maintain required hazard insurance. CFPB examiners found that servicers had charged borrowers for force-placed insurance who had provided the servicers with proof of required hazard insurance. Other servicers were found to have charged borrowers for forced-placed insurance where the servicers had received a bill for the borrowers’ hazard insurance but did not assign the bill to the proper account. CFPB examiners attributed these violations to inadequate procedures and staffing and weak service provider oversight.
  • Violations of the Regulation X requirement to cancel force-placed insurance and refund premiums for any period where a consumer provides evidence of overlapping coverage within 15 days of receiving such evidence. CFPB examiners attributed these violations to failure to process proof of insurance and inadequate staffing.
  • One or more servicers violated Regulation X requirements regarding the treatment of escrow account shortages and deficiencies. CFPB examiners found that for borrowers with either shortages or deficiencies equal to or greater than one month’s escrow payment, the servicers had included a lump sum repayment option in the borrowers’ annual account statements, which servicers cannot not require under Regulation X in that scenario.
  • Various violations after servicing transfers, including: failing to provide an accurate effective date for the transfer of servicing in the notice of servicing transfer; failing to exercise reasonable diligence to obtain documents and information necessary to complete a loss mitigation application; failing to credit a periodic payment as of the date of receipt; and when acting as a debt collector, failing to provide a validation notice in accordance with the FDCPA’s timing requirements. The CFPB noted that its examiners’ conclusion that servicers had failed to exercise reasonable diligence was based on the servicers’ request for consumers to submit a new application when an application was virtually complete at the time of servicing transfer. The CFPB attributed the post-transfer violations to errors during the onboarding process and inadequate policies and procedures.
  • Violations of the Regulation Z requirement for a new owner to send a mortgage transfer disclosure after acquiring a loan.

Payday lending. CFPB examiners found that one or more lenders engaged in the following violations:

  • Violations of the Dodd-Frank UDAAP prohibition of deceptive practices by:
    • representing on websites and in mailed advertisements that consumers could apply for loans online. CFPB examiners found that although consumers could enter some information online, the lenders required them to visit a storefront location to re-enter information and complete the loan application process
    • falsely representing on proprietary websites, on social media, and in other advertising that they would not conduct a credit check when, in fact, the lenders used consumer reports in determining whether to extend credit
    • sending collection letters that falsely threatened lien placement or asset seizure if consumers did not make payments where the lenders did not take such actions and certain assets may have been exempt from lien or seizure under state law
    • sending collection letters that falsely threatened to charge late fees if consumers did not make payments when the lenders did not charge late fees
  • Violations of the Regulation Z advertising requirement to include certain additional information when certain “trigger terms” appear in an advertisement.
  • Violations of the Regulation Z requirement for an advertisement that states specific credit terms to state terms that actually are or will be arranged or offered by the creditor. CFPB examiners found that the lenders had advertised that a new customer’s first loan would be free but were not actually prepared to offer the advertised terms. Instead, the lenders offered consumers one free week for loans with a term longer than one week, with such loans carrying “considerable APRs.”

- John L. Culhane, Jr. & Reid F. Herlihy

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Upcoming FTC Workshop to Address Advertising and Data Security

On October 29, 2020, the Federal Trade Commission (FTC) will host a virtual workshop entitled, “Green Lights & Red Flags: FTC Rules of the Road for Business.” The workshop will cover a broad array of topics within the FTC’s jurisdiction, including truth-in-advertising law, social media marketing, data security, business-to-business fraud, and other business basics.

The scheduled sessions for the workshop will address:

  • Protecting Small Business From Scams (how the FTC is protecting companies from business-to-business fraud and steps companies can take to protect themselves)
  • The Truth About False Advertising (an overview of the FTC’s truth-in-advertising expectations)
  • Avoiding a Promotion Commotion (social media marketing, consumer reviews, children’s online privacy, email marketing, etc.)
  • The Secure Entrepreneur (an overview of data security basics and practical tips on responding to a cyberattack)

In the wake of the COVID-19 pandemic, businesses have moved swiftly to expand their ability to engage in e-commerce. The FTC’s workshop will offer practical insights for businesses on how to do so while staying focused on consumer protection and cybersecurity.

Featured speakers include Andrew Smith, Director of the FTC Bureau of Consumer Protection.

- Kim Phan

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Industry Trade Groups Urge Congress to Extend National Flood Insurance Program

As previously reported, unable to agree on long-term reforms for the National Flood Insurance Program (NFIP), at the end of last year Congress extended the NFIP through September 30, 2020, which is the end of the current federal government fiscal year. With that date looming, in a letter to majority and minority leaders in the U.S. Senate and U.S. House of Representatives, industry trade groups urge that Congress further extend the NFIP. While the trade groups note that the NFIP “should undergo a number of significant reforms designed to create long-term stability for policyholders,” they also state that “allowing the program to lapse would be devastating to the policyholders across the nation who have already been impacted by COVID-19 and are facing an increasing number of severe flooding events.” The trade groups ask Congress to extend the NFIP before September 30 “to provide some continuity and certainty to the millions of policyholders who rely on a functioning NFIP.”

- Richard J. Andreano, Jr.

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This Week’s Podcast: Federal Banking Regulators and FinCEN Issue New Statements on Bank Secrecy Act/Anti-Money Laundering Enforcement: a Look at Highlights

Topics discussed include how the banking regulators and FinCEN will approach the decision whether to take enforcement action against a financial institution (including what BSA/AML program failures typically would (or would not) result in cease and desist orders), how the regulators’ statement differs from 2007 guidance, how the enforcement statements relate to recent updates to the BSA/AML examination manual, suggested practices for reducing compliance risk for institutions and individuals, and the Presidential election’s potential impact on BSA/AML enforcement.

Click here to listen to the podcast.

- Presented by Alan S. Kaplinsky, Christopher J. Willis, Peter D. Hardy & Beth Moskow-Schnoll

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CFPB Announces Advisory Committee Members

The CFPB announced the appointment of new members to its advisory committees: Consumer Advisory Board (CAB), Community Bank Advisory Council (CBAC), Credit Union Advisory Council (CUAC), and Academic Research Council (ARC).

In 2019, Director Kraninger announced a series of enhancements to the Bureau’s advisory committee charters, including: expanding the focus of the meetings to cover broad policy matters; increasing the frequency of in-person meetings from two times a year to three times a year for the CAB, CBAC, and CUAC; elevating the ARC to a Director-level advisory committee and increasing its meeting frequency; and increasing term lengths from one year to two years. The enhancements followed steps taken by the CFPB under former Acting Director Mulvaney to reconstitute the committees that were criticized by consumer advocates and former committee members.

The Dodd-Frank Act mandated the creation of the CAB to advise and consult with the Bureau’s Director on a variety of consumer financial issues. The CBAC, CUAC, and ARC are discretionary councils created by the Bureau. The CBAC and CUAC advise and consult with the Bureau on consumer financial issues related to community banks and credit unions. The ARC advises the Bureau on its strategic research planning process and research agenda and provides feedback on research methodologies, data collection strategies, and methods of analysis, including methodologies and strategies for quantifying the costs and benefits of regulatory actions.

The following members will serve on each of their respective committees:

Consumer Advisory Board

Eric Kaplan, Director of the Housing Finance Program, Milken Institute (Washington, DC), was appointed to serve as CAB Chairperson. The other individuals appointed to the CAB are:

  • Joaquin Altoro, CEO, Wisconsin Housing & Economic Development Authority (Madison, WI)
  • Nikitra Bailey, EVP, Center for Responsible Lending (Durham, NC)
  • Lorray Brown, Attorney/Consumer Law Attorney, Co-Director, Michigan Poverty Law Program (Ypsilanti, MI)
  • Nadine Cohen, Managing Attorney, Greater Boston Legal Services (Boston, MA)
  • Mae Watson Grote, Founder and CEO, The Financial Clinic (Brooklyn, NY)
  • Tim Lampkin, CEO, Higher Purpose Co. (Clarksdale, MS)
  • Leigh Phillips, President and CEO, EARN DBA SaverLife (San Francisco, CA)
  • Jean Setzfand, Senior Vice President, AARP (Washington, DC)
  • Rebecca Steele, President/CEO, National Foundation for Credit Counseling (Washington, DC)
  • Tim Welsh, Vice Chairman Consumer and Business Banking, U.S. Bank (Minneapolis, MN)

Community Bank Advisory Council

Valerie Quiett, SVP and Chief Legal Officer, Mechanics and Farmers (M&F) Bank (Durham, NC), was appointed to serve as CBAC Chairperson. The other individuals appointed to the CBAC are:

  • John Buhrmaster, President & CEO, First National Bank of Scotia (Scotia, NY)
  • Patrick Ervin, EVP, Independent Bank (Troy, MI)
  • Shan Hayes, President and CEO, Heartland Tri-State Bank (Elkhart, KS)
  • Ronette Hauser-Jones, Mortgage Division President, Great Plains Bank (Oklahoma City, OK)
  • Bruce Ocko, Senior VP Director of Mortgage & Consumer Lending, Bangor Savings Bank (Bangor, ME)
  • Kristina Schaefer, General Counsel & Chief Risk Officer, Fishback Financial Corporation/First Bank & Trust (Brookings, SD)
  • Brad Williamson, CEO & President, Islanders Bank (Friday Harbor, WA)

Credit Union Advisory Council

Racardo McLaughlin, VP Mortgage Originations/Operations, TwinStar Credit Union (Lacey, WA), was appointed to serve as CUAC Chairperson. The other individuals appointed to the CUAC are:

  • Monica Davis, Senior Vice President Risk management, Union Square Credit Union (Wichita Falls, TX)
  • Michelle Dwyer, President/CEO, Franklin First Federal Credit Union (Greenfield, MA)
  • Rick Durante, VP, Director of Corporate Social Responsibility and Government Affairs, Franklin Mint Federal Credit Union (Chadds Ford, PA)
  • Doe Gregersen, Vice President & General Counsel, Landmark Credit Union (New Berlin, WI)
  • Brian Holst, General Counsel, Elevations Credit Union (Boulder, CO)
  • Jose Iregui, Vice President of Loan Servicing and Collections, Langley Federal Credit Union (Newport News, VA)
  • Jeremiah Kossen, President & CEO, Town and Country Credit Union (Minot, ND)

Academic Research Council

Joshua Wright, Professor, Scalia Law School at George Mason University (Arlington, VA), was appointed to serve as ARC Chairperson. The other individuals appointed to the ARC are:

  • Michael Baye, Bert Elwert Professor of Business Economics, Indiana University (Bloomington, IN)
  • Vicki Bogan, Associate Professor, Cornell University (Ithaca, NY)
  • Terri Friedline, Associate Professor, University of Michigan (Ann Arbor, MI)
  • Tom Miller, Professor of Finance and Jack R. Lee Chair, Mississippi State University (Mississippi State, MS)
  • Michael Staten, Professor and Associate Dean, University of Arizona (Tucson, AZ)
  • Anthony Yezer, Professor of Economics, George Washington University (Washington, DC)

- Barbara S. Mishkin

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NYDFS Brings First Action to Enforce State’s Debt Collection Regulation

The New York Department of Financial Services (DFS) announced on September 16 that it has filed a Statement of Charges against debt collector Forster & Garbus LLP (Forster) for alleged violations of the state’s Debt Collection Regulation, Part 1 of Title 23 of the New York Codes, Rules, and Regulations, promulgated in 2015. The alleged violations involve Forster’s collection of student loans. The DFS states in its press release that the charges are the first brought by the DFS alleging violations of the Debt Collection Regulation.

The Debt Collection Regulation, in Section 1.4, requires a debt collector to inform the consumer of his or her right to request substantiation of a debt if the consumer disputes, orally or in writing, the validity of a charged-off debt or the debt collector’s right to collect a charged-off debt. The debt collector can treat such dispute as a request for substantiation or must follow the requirements in Section 1.4 for providing the consumer with instructions on how to request substantiation. The debt collector must provide written substantiation of a charged-off debt to a consumer within 60 days of receiving a request for substantiation and must cease collection of the debt until the written substantiation has been provided to the consumer.

Section 1.4 provides that substantiation of a charged-off debt includes:

  • the signed contract or signed application that created the debt or, if no signed contract or application exists, a copy of a document provided to the alleged debtor while the account was active, demonstrating that the debt was incurred by the debtor (For a revolving credit account, the most recent monthly statement recording a purchase transaction, payment or balance transfer will satisfy this requirement);
  • the charge-off account statement, or equivalent document, issued by the original creditor to the consumer;
  • a statement describing the complete chain of title from the original creditor to the present creditor, including the date of each assignment, sale, and transfer; and
  • records reflecting the amount and date of any prior settlement agreement reached in connection with the debt pursuant to section 1.5 of this Part.

According to the Statement of Charges, Forster’s written policies included a provision setting forth its obligation under the DFS regulation to provide a consumer with written substantiation of a charged-off debt within 60 days of receiving a request for substantiation and to cease collection of the debt until written substantiation has been provided. The policies also stated that Forster would request documentation to substantiate a debt from its client and would review the documents received to determine if they comply with DFS requirements.

The DFS alleges that despite its written policies, the DFS found numerous instances in which Forster failed to provide consumers with any substantiation, failed to provide sufficient documentation to consumers to substantiate debts, or failed to provide written substantiation within the 60-day timeframe. As “frequently-occurring examples” of Forster’s provision of insufficient documents, the Statement of Charges cites:

  • Providing consumers with the application and a document titled “Statement of Purchased Account” which failed to clearly identify the creditors who purchased the consumer’s student loan
  • Failing to provide the underlying transaction documents, such as a loan application, which created the debts to be collected
  • Failing to provide complete chain of title, omitting assignments, sales and transfers of title of the debt
  • Merely providing a court document, such as a court judgment, with little or no other documentation

Under Section 408 of the Financial Services Law, the DFS can impose a civil penalty of up to $1,000 for a violation of the Debt Collection Regulation. The DFS alleges in the Statement of Charges that “each failure to provide any substantiation, timely substantiation, or sufficient substantiation of debt constitutes an independent offense.” The Statement of Charges sets a hearing date of January 12, 2021 on the DFS’s charges.

- Stefanie Jackman

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Ballard Spahr to Hold Sept. 29 Webinar on Ramp Up in CA Consumer Financial Protection Laws With Special Guests Former CFPB Director Richard Cordray and CA Department of Business Oversight General Counsel Bret Ladine

Earlier this month, the California legislature passed three bills that will significantly impact consumer financial service providers in the state. AB-1864 creates the Department of Financial Protection and Innovation (DFPI), widely named a “mini-CFPB” because of its broad jurisdiction and sweeping new authorities that closely resemble those of the CFPB. The two other major bills are SB-908, which will require debt collectors to be licensed in California, and AB-376, which establishes a Student Loan Borrower Bill of Rights. California Governor Gavin Newsom is expected to sign the three bills by the end of this month.

In the webinar, we will provide a comprehensive overview of the three bills, with a special focus on the scope of the DFPI’s jurisdiction, its new authorities, consider how the three bills will impact industry, and whether other states are likely to create their own “mini-CFPBs.” We are delighted to be joined by Richard Cordray, former CFPB Director, author of “Watchdog: How Protecting Consumers Can Save Our Families, Our Economy, and Our Democracy,” and who worked closely with California lawmakers in drafting AB-1864, and Bret Ladine, General Counsel of the California Department of Business Oversight.

The webinar will be held on Tuesday, September 29, 2020 from 3:00 p.m. to 4:30 p.m. ET. Click here to register.

- Michael R. Guerrero

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CFPB Extends Seasoned Loan Proposal Comment Deadline by Three Days

As previously reported, in August 2020 the CFPB issued a proposed rule to create a new seasoned loan qualified mortgage (QM) under the Regulation Z ability to repay rule. Initially, comments on the proposal were due by September 28, 2020. The CFPB has now extended the comment deadline to October 1, 2020. The CFPB advises that it received requests to change the original comment deadline because September 28, 2020 is the date this year of the Jewish holiday Yom Kippur.

- Richard J. Andreano, Jr.

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Did You Know?

Highlights from the NMLS Ombudsman Meeting

The NMLS Ombudsman Virtual Meeting was held on September 9, 2020, with industry experts and state regulators. The discussion focused on topics relating to remote working and remote supervision in a post-pandemic environment. A recording of the meeting is available here.

Preparing for NMLS 2021 Annual Renewal Period

The NMLS 2021 Renewal Period begins soon on November 1 and ends December 31. To prepare for renewals, companies should review all company, branch, and individual records in NMLS and make any necessary charges to ensure accuracy. For more information and guidance for a specific license, visit the NMLS Annual Renewal webpage.

- Aileen Ng

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Looking Ahead

The Future of Regulation

HousingWire Annual 2020

October 8, 2020, 12:20 PM – 12:50 PM ET

Speaker: Richard J. Andreano, Jr.

MBA’s Regulatory Compliance Conference 2020

Online Only | November 9-10, 2020

Breakout: Pandemic Fallout - Navigating Practical Operational Challenges

Speaker: Meredith S. Dante

Applied Compliance – LO Comp

Speaker: Richard J. Andreano, Jr.


Practising Law Institute Seminar

Practising Law Institute’s 25th Annual Consumer Financial Services Institute

December 7-8, 2020

Speakers: Alan Kaplinsky, Christopher J. Willis



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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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