Federal Issues
FTC Returns $1.5 Million to Hispanic Consumers from Mortgage Lender Charged with Discrimination. On April 25, the Federal Trade Commission (FTC) announced that, in accordance with the settlement of a lawsuit filed by the FTC against Golden Empire Mortgage, Inc. (Golden Empire) and its owner Howard D. Koostra, the FTC issued 3,162 refund checks to Hispanic borrowers purportedly harmed by discriminatory practices. The lawsuit alleged that Golden Empire and Koostra charged higher prices for mortgage loans to Hispanic borrowers than non-Hispanic white borrowers, and that these price disparities could not be explained by applicants’ credit characteristics or underwriting risk. A settlement order imposing a $5.5 million judgment was suspended when the defendants paid $1.5 million for consumer redress. The settlement order (i) bars the defendants from discriminating on the basis of national origin in credit transactions, and (ii) requires Golden Empire to establish and maintain a policy that restricts loan originators’ pricing discretion, a fair lending monitoring program, a program to ensure the accuracy and completeness of its data, and employee training programs. For a copy of the press release, please see http://www.ftc.gov/opa/2011/04/goldenempire.shtm.
HUD Offers Guidance on RESPA Tolerance Violations, Credit Report Charges, and Tax Transcript Fees. Recently, the U.S. Department of Housing and Urban Development (HUD) published its April issue of RESPA Roundup, providing guidance on RESPA tolerance violations, credit report charges, and tax transcript fees. With respect to RESPA tolerance violations, HUD clarified that curing a tolerance violation on Lines 801 and/or 802 of a HUD-1 settlement statement may also correct a corresponding tolerance violation on Line 803 as long as the settlement agent provides a revised settlement statement to the borrower, the lender, and, as appropriate, the seller. Additionally, if a loan originator fails to provide a consumer with a good faith estimate (GFE), the settlement agent may cure any resulting tolerance violations by reimbursing the borrower the amount by which the tolerance was exceeded. In addition to guidance on RESPA tolerance violations, HUD also explained that a loan originator, when charging a borrower for a credit report, may charge the borrower either the exact cost of obtaining the report or an amount equal to the average cost of obtaining the report (as defined in HUD regulations). Finally, HUD reminded settlement agents that the fee for obtaining a tax transcript using an IRS Form 4506-T would be considered an administrative charge that should be disclosed as part of Block 1, "Our Origination Charge," on the GFE regardless of whether the charge is paid to a third party or directly to the IRS. For a copy of the April issue of RESPA Roundup, please click here.
HUD Guidance Eliminates FHA Origination Fee Cap for 203(k) Rehabilitation Mortgage Insurance Program. On April 26, the U.S. Department of Housing and Urban Development (HUD) published guidance in Mortgagee Letter (ML) 11-18 that eliminates the Federal Housing Administration’s (FHA) one percent origination fee cap for the 203(k) Rehabilitation Mortgage Insurance Program. This ML complies with 24 CFR § 203.27 and amends guidance previously provided in ML 2009-53, which removed the one percent origination fee cap for all standard FHA insurance programs except for the 203(k) Rehabilitation Mortgage Insurance and Home Equity Conversion Mortgage (HECM) programs. The most recent ML adds the Rehabilitation Mortgage Insurance Program to the list of FHA insurance programs to which the statutory origination fee cap does not apply, and instead limits the lender to collecting from the borrower for all origination services only those fees and charges that are "fair, reasonable, and customary." This guidance does not affect the supplemental origination fee permitted under the Rehabilitation Mortgage Insurance Program, nor does it change the established limits for the HECM program. The guidance provided in ML 11-18 is effective immediately for all case numbers regardless of the date it was assigned. For a copy of the letter, please click here.
Fannie Mae and Freddie Mac to Align Delinquent Mortgage Servicing Guidelines. On April 28, Federal Housing Finance Authority (FHFA) Acting Director Edward J. DeMarco announced that he has instructed Fannie Mae and Freddie Mac to align their guidelines for servicing delinquent mortgages. Among the anticipated changes will be (i) limits on "dual track" loss mitigation and foreclosure efforts, (ii) formal reviews to ensure that borrowers are considered for alternatives before loans are referred to foreclosure, and (iii) financial incentives to encourage servicers to help borrowers pursue foreclosure alternatives. The updated framework will (i) streamline borrower outreach, (ii) align mortgage modification terms and requirements, and (iii) establish a schedule of monetary performance incentives and penalties. Both Fannie Mae and Freddie Mac will issue detailed guidelines to their servicers in the second and third quarters of 2011. For a copy of the FHFA’s press release, please click here.
FDIC Proposes Amendment to Repeal Prohibition on Paying Interest on Demand Deposits. On April 21, the Federal Deposit Insurance Corporation (FDIC) Board of Directors issued a proposed rule to amend its regulations to conform with Section 627 of the Dodd-Frank Wall Street Reform and Consumer Protection Act’s (the Act) repeal of the statutory prohibition against the payment of interest on demand deposits, effective July 21, 2011. The proposed rule, which will apply to all insured, state-charted, nonmember banks, will rescind 12 C.F.R. Part 329, which implements the prohibition against paying interest on demand deposits. The proposed rule transfers the definition of "interest" currently found at Part 329 to Part 330, in order to preserve the regulatory definition, which will still be referenced under the Act’s requirements providing temporary, unlimited deposit insurance coverage for noninterest-bearing transaction accounts. The FDIC will accept comments on the proposed rule through May 16, 2011. A summary of the proposed rule is available at http://www.fdic.gov/news/news/financial/2011/fil11023.html.
Courts
U.S. Supreme Court Rules Consumer Arbitration Agreements with Class Action Waivers are Enforceable. On April 27, the U.S. Supreme Court held that the Federal Arbitration Act (FAA) preempts states from "conditioning the enforcement of an arbitration agreement on the availability of particular procedures," including class actions. AT&T Mobility LLC v. Concepcion, No. 09-893. In Concepcion, the plaintiffs challenged whether a cellular phone provider could assess customers sales tax on phones provided for free under service contracts, and argued that the class action waiver contained in the service contracts was unconscionable under California law. The Court disagreed, reversing a line of California state and federal court decisions, which had limited companies’ rights to arbitrate by finding that, under the FAA, state substantive contract law could render an arbitration clause unenforceable. Justice Scalia, writing for Concepcion’s five-justice majority, explained that "[s]tates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." Accordingly, section 2 of the FAA cannot "stand as an obstacle to the accomplishment of the FAA’s objectives." The Court held that if a contract requires disputes to be arbitrated on an individual basis, proceeding as a class action "interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." The Court further clarified that the FAA applies to all consumer arbitration agreements, including those found in "contracts of adhesion," noting that "the times in which consumer contracts were anything other than adhesive are long past." For a copy of the opinion, please click here.
Court Permits "No-Discharge" Chapter 13 Debtor to Discharge Wholly Unsecured Second Lien. On April 19, a Wisconsin federal court held that a Chapter 13 bankruptcy debtor is permitted to "strip-off" a second lien on the debtor’s principal residence when the lien is wholly unsecured, even where the debtor is ineligible for discharge of the lien because of a recent Chapter 7 discharge. In re Fair, No. 10-C-1128 (E.D. Wis. Apr. 19, 2011). In this case, the borrower filed for Chapter 13 bankruptcy one month after obtaining a Chapter 7 discharge, and asked the court to treat the second mortgage as a wholly unsecured claim and to "strip off" (i.e., avoid) the rights of the second lien, based on the fact that her property value was less than the amount of the first lien and secured no part of the second lien. In reversing the bankruptcy court’s decision, the district court noted that (i) lien stripping is not permitted in Chapter 7 bankruptcy, and (ii) section 1328(f)(1) of the Bankruptcy Code prevents a court from discharging debts in a Chapter 13 plan if the debtor received a discharge under Chapter 7 within the preceding 4 years of filing for relief. Noting the split in authority, the court found that the plain language of the statute only prevents a "discharge" of all debts, and that a discharge only extinguishes an action against the debtor in personam, as opposed to an action in rem, which therefore preserves the ability to enforce the lien against the property. The court further found that Congress was aware of this distinction and did not intend to eliminate the ability to strip off a lien under Chapter 13. However, the court noted that debtors do not enjoy an absolute right to strip off unsecured liens and that courts have a duty to ensure that Chapter 13 proceedings are conducted in good faith. Ultimately, the court reversed and remanded the case to the bankruptcy court to determine whether the borrower filed the Chapter 13 proceeding in good faith. Click here for a copy of the opinion.
Firm News
James Parkinson will participate on a panel entitled "The Role of the Lawyer in Preventing Corruption," at the International Bar Association’s Bar Leaders Conference in Miami, on May 4.
Jonathan Jerison will be presenting a webinar on "Update on Managing HELOCs - Consumer Laws and Recent Litigation on May 5 at 11am CT. For more information, and to register, please see http://www.smslp.com/events/HELOCs-management
Margo Tank will be speaking at the Mortgage Bankers Association’s Legal Issues and Regulatory Compliance Conference on May 15 in Boca Raton, Florida. Her remarks will focus on a legal and regulatory update on mortgage implementation issues.
Ben Klubes will be speaking at the Mortgage Bankers Association’s Legal Issues and Regulatory Compliance Conference on May 15 in Boca Raton, Florida on "Litigation Challenges Involving the Mortgage Origination Process".
Jonice Gray Tucker will be speaking at the Mortgage Bankers Association’s Legal Issues and Regulatory Compliance Conference on May 15 in Boca Raton, Florida. Her remarks will focus on Litigation Involving Servicing and Foreclosure.
Warren Traiger will be speaking about potential changes to the CRA regulations and the current regulatory environment during a webinar hosted by the CRA Qualified Investment Fund, on Thursday, May 19 at 2pm.
Donna Wilson will be presenting at a CLE webinar on "Emerging Class Action Threat: Consumer Personal Identification Data Strategies to Minimize Litigation Risks and Maximize Insurance Coverage" on Tuesday, May 24. This seminar will analyze the Song-Beverly Act and its impact of ruling on class action litigation under other state privacy statutes. The Webinar is sponsored by the Legal Publishing Group of Strafford Publications.
James Parkinson will be speaking at the ACI’s "FCPA Compliance in Emerging Markets" program in Washington, D.C., on June 15 -16.
Andrew Sandler will be speaking at CBA Live 2011 and presenting an Annual Fair Lending Report on Tuesday, June 14 at 3:30 pm in Orlando, Florida. Mr. Sandler will be giving an overview of current regulatory and enforcement developments and discussing the most significant fair lending risks confronting consumer lenders in the next twelve months.
Andrew Sandler will be participating on a panel at the Florida Bar Annual Convention on Friday, June 24 as part of the "Presidential Showcase". On the panel with Mr. Sandler is Paul Bland, Public Justice. The Moderator is Justice R. Fred Lewis, a Justice of the Florida Supreme Court, a former Chief Justice and founder of Justice Teaching.
Andrew Sandler will be teaching the Litigation Strategy Session: Developing Strong Protocols, Admissible Documentation & Comprehensive Strategies in Order to Survive Regulatory Enforcement Actions & Litigation Workshop on Tuesday, July 26 in Chicago. This workshop precedes ACI’s Consumer Finance Class Actions & Litigation Conference taking place July 27-28 at the Sutton Place Hotel, Chicago, IL.
Jonice Gray Tucker will be moderating a panel focusing on Regulatory and Litigation Developments in Servicing at the California Mortgage Bankers’ Servicing Conference on August 29 in Las Vegas.
Miscellany
Bank Pays Restitution for Failure to Detect and Report Investment Fraud Scheme. On April 27, the Department of Justice (DOJ) announced that a North Carolina bank has entered into a deferred prosecution agreement for failure to file a suspicious activity report (SAR) and maintain an effective anti-money laundering program. The bank will pay $400,000, which is 16% of its value, toward restitution for victims of a $40 million ponzi scheme operated by a bank customer through accounts at the bank. The Bank Secrecy Act requires banks to maintain programs designed to detect and report suspicious activity. Under the agreement, the bank, which had been critically undercapitalized, will be allowed to undergo a merger and recapitalization to survive. In a separate action, the customer was convicted of securities fraud, wire fraud and money laundering, and faces a maximum prison sentence of 80 years. For a copy of the DOJ press release, please click here.
Mortgages
FTC Returns $1.5 Million to Hispanic Consumers from Mortgage Lender Charged with Discrimination. On April 25, the Federal Trade Commission (FTC) announced that, in accordance with the settlement of a lawsuit filed by the FTC against Golden Empire Mortgage, Inc. (Golden Empire) and its owner Howard D. Koostra, the FTC issued 3,162 refund checks to Hispanic borrowers purportedly harmed by discriminatory practices. The lawsuit alleged that Golden Empire and Koostra charged higher prices for mortgage loans to Hispanic borrowers than non-Hispanic white borrowers, and that these price disparities could not be explained by applicants’ credit characteristics or underwriting risk. A settlement order imposing a $5.5 million judgment was suspended when the defendants paid $1.5 million for consumer redress. The settlement order (i) bars the defendants from discriminating on the basis of national origin in credit transactions, and (ii) requires Golden Empire to establish and maintain a policy that restricts loan originators’ pricing discretion, a fair lending monitoring program, a program to ensure the accuracy and completeness of its data, and employee training programs. For a copy of the press release, please see http://www.ftc.gov/opa/2011/04/goldenempire.shtm.
HUD Offers Guidance on RESPA Tolerance Violations, Credit Report Charges, and Tax Transcript Fees. Recently, the U.S. Department of Housing and Urban Development (HUD) published its April issue of RESPA Roundup, providing guidance on RESPA tolerance violations, credit report charges, and tax transcript fees. With respect to RESPA tolerance violations, HUD clarified that curing a tolerance violation on Lines 801 and/or 802 of a HUD-1 settlement statement may also correct a corresponding tolerance violation on Line 803 as long as the settlement agent provides a revised settlement statement to the borrower, the lender, and, as appropriate, the seller. Additionally, if a loan originator fails to provide a consumer with a good faith estimate (GFE), the settlement agent may cure any resulting tolerance violations by reimbursing the borrower the amount by which the tolerance was exceeded. In addition to guidance on RESPA tolerance violations, HUD also explained that a loan originator, when charging a borrower for a credit report, may charge the borrower either the exact cost of obtaining the report or an amount equal to the average cost of obtaining the report (as defined in HUD regulations). Finally, HUD reminded settlement agents that the fee for obtaining a tax transcript using an IRS Form 4506-T would be considered an administrative charge that should be disclosed as part of Block 1, "Our Origination Charge," on the GFE regardless of whether the charge is paid to a third party or directly to the IRS. For a copy of the April issue of RESPA Roundup, please click here.
HUD Guidance Eliminates FHA Origination Fee Cap for 203(k) Rehabilitation Mortgage Insurance Program. On April 26, the U.S. Department of Housing and Urban Development (HUD) published guidance in Mortgagee Letter (ML) 11-18 that eliminates the Federal Housing Administration’s (FHA) one percent origination fee cap for the 203(k) Rehabilitation Mortgage Insurance Program. This ML complies with 24 CFR § 203.27 and amends guidance previously provided in ML 2009-53, which removed the one percent origination fee cap for all standard FHA insurance programs except for the 203(k) Rehabilitation Mortgage Insurance and Home Equity Conversion Mortgage (HECM) programs. The most recent ML adds the Rehabilitation Mortgage Insurance Program to the list of FHA insurance programs to which the statutory origination fee cap does not apply, and instead limits the lender to collecting from the borrower for all origination services only those fees and charges that are "fair, reasonable, and customary." This guidance does not affect the supplemental origination fee permitted under the Rehabilitation Mortgage Insurance Program, nor does it change the established limits for the HECM program. The guidance provided in ML 11-18 is effective immediately for all case numbers regardless of the date it was assigned. For a copy of the letter, please click here.
Fannie Mae and Freddie Mac to Align Delinquent Mortgage Servicing Guidelines. On April 28, Federal Housing Finance Authority (FHFA) Acting Director Edward J. DeMarco announced that he has instructed Fannie Mae and Freddie Mac to align their guidelines for servicing delinquent mortgages. Among the anticipated changes will be (i) limits on "dual track" loss mitigation and foreclosure efforts, (ii) formal reviews to ensure that borrowers are considered for alternatives before loans are referred to foreclosure, and (iii) financial incentives to encourage servicers to help borrowers pursue foreclosure alternatives. The updated framework will (i) streamline borrower outreach, (ii) align mortgage modification terms and requirements, and (iii) establish a schedule of monetary performance incentives and penalties. Both Fannie Mae and Freddie Mac will issue detailed guidelines to their servicers in the second and third quarters of 2011. For a copy of the FHFA’s press release, please click here.
Banking
FDIC Proposes Amendment to Repeal Prohibition on Paying Interest on Demand Deposits. On April 21, the Federal Deposit Insurance Corporation (FDIC) Board of Directors issued a proposed rule to amend its regulations to conform with Section 627 of the Dodd-Frank Wall Street Reform and Consumer Protection Act’s (the Act) repeal of the statutory prohibition against the payment of interest on demand deposits, effective July 21, 2011. The proposed rule, which will apply to all insured, state-charted, nonmember banks, will rescind 12 C.F.R. Part 329, which implements the prohibition against paying interest on demand deposits. The proposed rule transfers the definition of "interest" currently found at Part 329 to Part 330, in order to preserve the regulatory definition, which will still be referenced under the Act’s requirements providing temporary, unlimited deposit insurance coverage for noninterest-bearing transaction accounts. The FDIC will accept comments on the proposed rule through May 16, 2011. A summary of the proposed rule is available at http://www.fdic.gov/news/news/financial/2011/fil11023.html.
Litigation
U.S. Supreme Court Rules Consumer Arbitration Agreements with Class Action Waivers are Enforceable. On April 27, the U.S. Supreme Court held that the Federal Arbitration Act (FAA) preempts states from "conditioning the enforcement of an arbitration agreement on the availability of particular procedures," including class actions. AT&T Mobility LLC v. Concepcion, No. 09-893. In Concepcion, the plaintiffs challenged whether a cellular phone provider could assess customers sales tax on phones provided for free under service contracts, and argued that the class action waiver contained in the service contracts was unconscionable under California law. The Court disagreed, reversing a line of California state and federal court decisions, which had limited companies’ rights to arbitrate by finding that, under the FAA, state substantive contract law could render an arbitration clause unenforceable. Justice Scalia, writing for Concepcion’s five-justice majority, explained that "[s]tates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." Accordingly, section 2 of the FAA cannot "stand as an obstacle to the accomplishment of the FAA’s objectives." The Court held that if a contract requires disputes to be arbitrated on an individual basis, proceeding as a class action "interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." The Court further clarified that the FAA applies to all consumer arbitration agreements, including those found in "contracts of adhesion," noting that "the times in which consumer contracts were anything other than adhesive are long past." For a copy of the opinion, please click here.
Court Permits "No-Discharge" Chapter 13 Debtor to Discharge Wholly Unsecured Second Lien. On April 19, a Wisconsin federal court held that a Chapter 13 bankruptcy debtor is permitted to "strip-off" a second lien on the debtor’s principal residence when the lien is wholly unsecured, even where the debtor is ineligible for discharge of the lien because of a recent Chapter 7 discharge. In re Fair, No. 10-C-1128 (E.D. Wis. Apr. 19, 2011). In this case, the borrower filed for Chapter 13 bankruptcy one month after obtaining a Chapter 7 discharge, and asked the court to treat the second mortgage as a wholly unsecured claim and to "strip off" (i.e., avoid) the rights of the second lien, based on the fact that her property value was less than the amount of the first lien and secured no part of the second lien. In reversing the bankruptcy court’s decision, the district court noted that (i) lien stripping is not permitted in Chapter 7 bankruptcy, and (ii) section 1328(f)(1) of the Bankruptcy Code prevents a court from discharging debts in a Chapter 13 plan if the debtor received a discharge under Chapter 7 within the preceding 4 years of filing for relief. Noting the split in authority, the court found that the plain language of the statute only prevents a "discharge" of all debts, and that a discharge only extinguishes an action against the debtor in personam, as opposed to an action in rem, which therefore preserves the ability to enforce the lien against the property. The court further found that Congress was aware of this distinction and did not intend to eliminate the ability to strip off a lien under Chapter 13. However, the court noted that debtors do not enjoy an absolute right to strip off unsecured liens and that courts have a duty to ensure that Chapter 13 proceedings are conducted in good faith. Ultimately, the court reversed and remanded the case to the bankruptcy court to determine whether the borrower filed the Chapter 13 proceeding in good faith. Click here for a copy of the opinion.
Criminal Enforcement Action
Bank Pays Restitution for Failure to Detect and Report Investment Fraud Scheme. On April 27, the Department of Justice (DOJ) announced that a North Carolina bank has entered into a deferred prosecution agreement for failure to file a suspicious activity report (SAR) and maintain an effective anti-money laundering program. The bank will pay $400,000, which is 16% of its value, toward restitution for victims of a $40 million ponzi scheme operated by a bank customer through accounts at the bank. The Bank Secrecy Act requires banks to maintain programs designed to detect and report suspicious activity. Under the agreement, the bank, which had been critically undercapitalized, will be allowed to undergo a merger and recapitalization to survive. In a separate action, the customer was convicted of securities fraud, wire fraud and money laundering, and faces a maximum prison sentence of 80 years. For a copy of the DOJ press release, please see http://www.justice.gov/opa/pr/2011/April/11-crm-533.html.