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  • Guarding Against Privilege Waiver in Federal Investigations
    September 20, 2016
    Elizabeth McGinn & Tihomir Yankov

    It has been well over a year since Judge Andrew Peck gently excoriated the legal community for underusing the not-so-new privilege waiver protections of Federal Rule of Evidence 502(d). He has fondly referred to it as the “Get Out of Jail Free Card” and offered that “it is akin to malpractice not to get [a Rule 502(d)] order.” It is a powerful hand indeed: a Rule 502(d) order can protect litigants against privilege waiver without having to prove that they have taken reasonable steps to prevent an inadvertent production of privileged documents. While Judge Peck’s remarks may have raised awareness of the rule’s novel and expansive protections for litigants in federal court, Rule 502 as a whole, together with any potential federal agency regulations concerning privilege waiver, offers little peace of mind to parties subject to government investigations.

    Buckets of judicial ink have been spilled lamenting the mounting costs of discovery obligations in the dawn of email and big data. To be sure, technological advances in e-discovery, like predictive coding and advanced analytics, have made great strides in alleviating the pain that technology itself has inflicted on litigants. But technology is no panacea for our discovery system’s ills — the solution lies in its marriage with legal innovation.

    Yet the latter is still not carrying its weight as lawyers continue to fear the prospects of waiving privilege in the 275,801st document of last March’s production. Without a doubt, Rule 502 (and the 2015 revisions to the Federal Rules of Civil Procedure) has marked a solid start in the right direction: it was enacted in 2008 in part to “respond[] to the widespread complaint that litigation costs necessary to protect against waiver of attorney — client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information.”

    While Congress may have enacted Rule 502 to replace the patchwork of federal common law governing privilege waiver in litigation, agencies are left to decide on an individual basis whether, and to what extent, to adopt the rule’s provisions in their own administrative proceedings or investigations.

    Even though the Rules Advisory Committee acknowledges that “[t]he consequences of waiver, and the concomitant costs of pre-production privilege review, can be as great with respect to disclosures to offices and agencies as they are in litigation,” textually, the thrust of Rule 502 governs the existence and reach of privilege waiver only in federal or state proceedings, to the exclusion of agency proceedings or investigations, even in cases where the privileged documents have been produced to a federal office or agency. Put differently, the rule may govern privilege waiver in cases where parties are subject to parallel (or sequential) federal investigation and civil litigation, but it does not address the scope of waiver — or the threshold question of whether there has been a waiver — with respect to the federal agency itself.

    This is not an indictment of Rule 502 itself — it is not designed to govern privilege waiver with respect to agency investigations.

    Unfortunately, federal agencies have not faced a corresponding amount of pressure and scrutiny to reform their investigative rules concerning privilege waiver to bring them in line with the Federal Rules of Evidence: after all, judicial ink rarely splashes on agencies’ investigative turf. As a result, the law on privilege waiver continues to evolve almost exclusively in the context of litigation.

    While courts — and Congress — have been experimenting and tweaking the Rules of Evidence and their application in the dawn of the information revolution, agencies have been slower in making parallel adjustments. This leaves investigated entities with fewer clear protections against privilege waiver, despite the astounding amount of information that is produced in a typical government investigation.

    Even if an agency has taken a step toward harmonization, investigated parties may be marching to a muted tune. For example, the Consumer Financial Protection Bureau has adopted Rules 502(a) and (b) (discussed below) nearly verbatim as part of its investigative procedures, providing investigated parties with protections against subject matter waiver and inadvertent disclosure. But the bureau’s rules do not include the broader protections of Rule 502(e), which allow parties to enter into voluntary agreements governing privilege waiver. Furthermore, the broad protections of Rule 502(d) court orders are usually out of reach for most investigated parties. In some cases, the lack of uniformity in approach as to privilege waiver may also result in conflicts between federal agencies, potentially complicating one’s response in the course of multi-agency investigations.

    On the plus side, to the extent that federal agencies may have adopted parts of Rule 502, investigated parties may not only rely on those protections in nonpublic government investigations, but may also cite to developing case law interpreting Rule 502 provisions to government enforcement lawyers and administrative law judges alike, at least as persuasive authority.

    Originally published in Law360; reprinted with permission.

  • Challenges to the DOJ's Jurisdiction Over Extraterritorial Conduct
    September 1, 2016
    David S. Krakoff, James T. Parkinson, Lauren R. Randell, Veena Viswanatha, & Bree Murphy

    Part One of a Two-Part Article

    The United States is often criticized for trying to be the world’s policeman — for trying to prosecute wrongdoing all over the world, even when the connection to U.S. interests is, at best, tenuous. The Supreme Court has in recent years begun imposing limits on the application of federal laws to wide swaths of extraterritorial conduct, in Morrison v. National Australia Bank, 561 U.S. 247 (2010), and related cases. The Court limited the extraterritorial reach of the federal securities laws (Morrison); limited the extraterritorial reach of the Alien Tort Statute (Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013)); and made it harder for U.S. courts to get personal jurisdiction over foreign defendants (Daimler AG v. Bauman, 134 S. Ct. 746 (2014). But to what extent does the Morrison line of cases help challenge the notion of the United States as the world’s policeman?

    Our answer is, not much. The Supreme Court’s focus in recent years appears to be on limiting the ability of foreign civil plaintiffs to recover under U.S. law for wrongs committed abroad, leaving the DOJ’s ability to prosecute misconduct around the world relatively intact. The most recent case in the Morrison line — RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016) — was the first to address a criminal statute, and that case ended up barring civil plaintiffs from recovering under RICO for injuries that only took place abroad, while at the same time preserving the DOJ’s ability to pursue criminal RICO charges stemming from the same conduct.

    The case led some commentators to conclude that the DOJ was getting everything it wanted — the ability to use RICO extraterritorially, while getting “pesky” civil plaintiffs out of the way of criminal enforcement actions. See, e.g., Amy Howe, Opinion Analysis: In the End, RJR Prevails in European Community’s RICO Lawsuit, SCOTUSblog, June 20, 2016; see also Peter J. Henning, RJR Nabisco Ruling Bolsters Justice Dept.’s Pursuit of FIFA, New York Times, June 27, 2016.

    Coupled with the fact that the DOJ’s jurisdiction is rarely challenged in court because so many defendants choose to settle, the outlook may appear bleak for foreign criminal defendants challenging the DOJ’s seemingly expansive jurisdiction. But RJR Nabisco and other recent decisions of lower federal courts still provide hope for successful challenges to extraterritorial criminal jurisdiction in certain cases. This article examines a few of those options — specifically, the extent to which the presumption against extraterritoriality from the Morrison line of cases applies to criminal statutes; the fruitful challenges that remain apart from the presumption against extraterritoriality; and due process limits on the DOJ’s ability to prosecute extraterritorial conduct.

    Morrison and Related Cases

    At first glance, Morrison and its progeny seem to reflect a Supreme Court concerned with how far U.S. courts can reach around the world. Morrison involved alleged civil violations of federal securities laws by National Australia Bank, a foreign bank whose shares were not traded on any U.S. exchange. The plaintiffs, Australians who purchased the bank’s shares on a foreign exchange, alleged that the bank had made actionable misrepresentations in connection with the acquisition of a U.S.-based mortgage servicer. The Supreme Court held that the plaintiffs could not sue under the federal securities laws for trades that took place on foreign exchanges; rather, federal securities laws are subject to the presumption against extraterritorial application, and nothing in the relevant statute indicated that it should apply extraterritorially. The Court heard Kiobel a few years later. Kiobel concerned claims brought by Nigerian nationals under the Alien Tort Statute for violations committed by the Nigerian government in that country. The Court applied the presumption against extraterritoriality to the Alien Tort Statute and held that nothing in the statute allowed plaintiffs to bring claims for violations that occurred abroad. During the very next term, the Court heard Daimler, in which Argentinian nationals sought to sue a German car manufacturer and its Argentine subsidiary for violations of the Alien Tort Statute and the Torture Victim Protection Act committed in Argentina. Ultimately, the Court rejected the plaintiffs’ argument that a California federal court could exercise jurisdiction over the German corporation because it had a subsidiary in California, when the claims only concerned extraterritorial conduct by a foreign entity.

    From Morrison through Daimler, each case involved barring foreign civil plaintiffs seeking relief under U.S. federal law for misconduct that took place overseas. None of the cases addressed the ability of the DOJ to prosecute foreign misconduct, and the DOJ has argued that those cases did not impact its reach. See, e.g., United States v. Harder, __ F. Supp. 3d __, 2016 WL 807942, at *8 (E.D. Pa. Mar. 2, 2016).

    RJR Nabisco

    The recent RJR Nabisco decision is the first of the post-Morrison Supreme Court decisions to address a criminal statute. RJR Nabisco, Inc. v. European Cmty., 136 S. Ct.2090 (2016). The European Community and several of its member states sued RJR Nabisco for engaging in money laundering and mail and wire fraud, among other things, primarily in Europe. Because the plaintiffs had to prove predicate criminal acts to recover civil damages, the Court analyzed both the criminal and civil aspects of RICO. It again applied the presumption against extraterritoriality reaching a split result — civil plaintiffs could not recover without showing a domestic injury, but there was sufficient evidence to rebut the presumption against extraterritoriality on the criminal side. The Court held that Congress had intended that RICO reach foreign criminal racketeering activity in many instances.

    The conventional wisdom is that not only RJR Nabisco, but also the DOJ scored major victories with the Supreme Court’s ruling. See, e.g., Peter J. Henning, RJR Nabisco Ruling Bolsters Justice Dept.’s Pursuit of FIFA, New York Times, June 27, 2016. As noted above, the DOJ was able to ensure it could continue to prosecute foreign racketeering under RICO, while also getting private plaintiffs out of the way, thereby ensuring that civil RICO litigation did not interfere with criminal enforcement actions.

    Editor’s Note: In next month’s issue, the authors discuss the presumption against extraterritoriality in criminal cases, as well as exceptions to this “rule” that some courts have been more than willing to embrace. Yet, despite the trend toward increased application of American federal laws to extraterritorial conduct, there has also been some judicial pushback against overreaching federal prosecutors. In this regard, the authors will look at defenses that have shown some success and could be used in future cases — as long as a defendant is willing to go through the litigation process rather than settling.

    Reprinted with permission from the September 2016 edition of the Business Crimes Bulletin© 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

  • 5 Tips to Prepare for New HMDA Reporting
    August 15, 2016
    Kathleen C. Ryan & Sherry-Maria Safchuk

    Last October, the Consumer Financial Protection Bureau published a final rule amending Regulation C, which implements the Home Mortgage Disclosure Act. The CFPB drafted the amendments in response to specific congressional directives in the Dodd-Frank Wall Street Reform and Consumer Protection Act, and under its discretionary authority to implement HMDA through Regulation C. Broadly, the new rules change:

    • Who must report HMDA data, by setting uniform loan-volume thresholds for depository and nondepository institutions, including thresholds for open-end lines of credit
    • The data elements that must be reported, by adding new data elements and modifying existing ones
    • What types of loans and applications (transactions) must be reported
    • When HMDA data must be submitted to the CFPB, for certain large-volume HMDA filers

    Given the magnitude of these changes to Regulation C, financial institutions should take steps now to ensure that they are prepared to submit accurate and complete HMDA data under the new rules. Violations of Regulation C can result in administrative sanctions, including fines and resubmission requirements. In addition, inaccurate HMDA data can also impair analyses of an institution’s performance under fair lending laws, including the Equal Credit Opportunity Act, the Fair Housing Act and the Community Reinvestment Act, which may negatively impact an institution.

    The following are five tips to consider when preparing for reporting under the new HMDA rule. Most of the CFPB’s changes to Regulation C take effect on Jan. 1, 2018, with certain exceptions, as discussed below.

    Tip 1 — Understand How the Effective Dates Work: The CFPB’s final rule contains several effective dates. Not only does an institution need to be aware of these dates, but it also needs to understand how the new rule will apply on each date so that it can plan and implement changes to systems, operations and training accordingly.

    • Jan. 1, 2017: Depository institutions with low-loan volumes in 2015 and 2016 will be excluded from HMDA’s coverage for 2017 and will not have to collect and report data for 2017.
    • Jan. 1, 2018: An institution covered by HMDA must collect and report the new and modified data points, and newly covered transactions, if the institution takes final action on the covered application, closed-end mortgage loan, or open-end line of credit on or after Jan. 1, 2018. Notably, however, an institution must not begin collecting information on ethnicity and race using the new HMDA rule’s expanded ethnicity and race subcategories until Jan. 1, 2018.
    • Jan. 1, 2020: Financial institutions with large HMDA filings must begin submitting their HMDA data on a quarterly basis in 2020. Such an institution will submit its data for a calendar quarter within 60 days of the end of the quarter, except for the fourth quarter — the institution will submit its data for that quarter by March 1 of the next calendar year with its annual report.

    As a result, institutions must be prepared to distinguish between loans for which the institution must comply with the 2017 requirements of HMDA as compared to the loans that must comply with the 2018 version of HMDA. This is especially important for the requirements that apply effective Jan. 1, 2018. Lenders are required to begin collecting, recording and reporting the new and modified data points for applications on which final action is taken on or after this implementation date. Therefore, an application for a home purchase in late November 2017 could close in December 2017 or January 2018. For such loans, lenders will need to be ready to collect the new data (with some exception as discussed above) and track the application to determine how it should report the information based on whether final action was taken in 2017 or 2018.

    Click here to read the full article at www.law360.com.

  • Corporations May Be People, But They Are Not Servicemembers
    August 7, 2016
    Valerie Hletko & Sasha Leonhardt

    The Servicemembers Civil Relief Act enables servicemembers “to devote their entire energy to the defense needs of the Nation” by deferring or suspending certain obligations during active duty and for certain periods after the end of active duty. The SCRA’s core protections include interest-rate reductions on certain credit obligations, and the prevention of foreclosure and repossession of certain property.

    Both federal regulators and individual plaintiffs have pushed to expand the SCRA’s protections to cover a broader range of obligations and liabilities. The business obligations of individual servicemembers is one area of increasing focus, as typified by a recent case, Davis v. City of Philadelphia. A servicemember attempted to reduce the risk of personal liability by transferring property to a corporation that he owned. He did not realize, however, that the transfer would operate to remove the property from potential future SCRA protections.

    The 3d U.S. Circuit Court of Appeals delivered the first appellate opinion on the issue, affirming a district court’s order dismissing the case and holding that SCRA protections do not attach to property owned by a corporation — and provided much-needed guidance on the limits of the SCRA’s reach.

    Michael Davis and his wife attempted to “insulate themselves from liability” by transferring full ownership of their rental property to Global Sales Call Center, a Pennsylvania corporation solely owned and managed by Davis. In 2009, after several periods of military service, Davis requested that the Philadelphia Department of Revenue reduce the interest accruing on Global’s property tax debt under the SCRA because Davis was a servicemember.

    The city department denied Davis’s request on the basis that Global was a corporation and not a servicemember entitled to the SCRA’s benefits and protections. Davis’ ownership of Global did not change the analysis. Davis, at the direction of the revenue department, filed a tax abatement petition with the Philadelphia Tax Review Board in 2010, requesting a recalculation of the interest and penalties against his property. The Review Board agreed with the revenue department and denied Davis’s petition.

    Originally published in Consumer Financial Services Law Report; reprinted with permission.

  • FinCEN’s Lack of Policies and Procedures for Assessing Civil Money Penalties In Need of Reform
    July 25, 2016
    Robert B. Serino

    In remembrance of Bob Serino and his many contributions to both the field of banking law and the financial services community, the ABA Banking Law Committee would like to honor his accomplishments and rich life and career. After a long illness, Bob recently passed away while this article was pending publication.

    There are few in our profession so universally liked and respected as Bob. His long career at the Office of the Comptroller of the Currency (OCC) made a lasting mark. He set up the OCC’s first formal enforcement office, pioneered anti-money laundering enforcement, and served for many years as deputy chief counsel. When he left the agency, he established the OCC Alumni Association, which last year was renamed the Robert Serino OCC Alumni Association. Bob subsequently joined BuckleySandler LLP, where he was a partner. He also served as a captain in the U.S. Navy Reserves.

    What engaged Bob most was connecting with other people. He mentored many young lawyers and gave generously of his time and advice to colleagues. He knew how to nurture a friendship and had a wide circle of friends and colleagues, all of whom will deeply miss him.

    For many years, federal banking agencies have used publicly available processes, procedures, and matrices to determine both whether a Civil Money Penalty (CMP) is justified and, if so, the size of the penalty. Most recently, on February 26, 2016, the OCC published a revised Policies and Procedures Manual “to ensure the statutory and 1998 FFIEC Interagency Policy factors are considered in CMP decisions, and to enhance the consistency of CMP decisions.”

    In contrast, the Financial Crimes Enforcement Network (FinCEN) has no publicly disclosed CMP matrix or procedures to determine either a penalty is warranted or, if so, the appropriate amount. Thus, there is no publicly known process in place to ensure that FinCEN’s vast power is applied consistently and equitably. There is an urgent need for FinCEN to bring its CMP assessment process into alignment with other regulators.

    Banks, Bank Secrecy Act officers, and other institution-affiliated parties live under constant threat of a FinCEN CMP, yet have no inkling whether they are, in fact, at risk and the extent of the risk. The agency’s reluctance to publish its CMP standards and procedures perpetuates banks’ and other regulated entities’ perceived lack of due process. Moreover, the uncertainty created by FinCEN’s opacity is causing havoc among compliance officers. FinCEN’s failure to act contributes to the exodus of compliance officers who face a high degree of uncertainty because of the lack of guidance on whether they may be subject to a FinCEN CMP and the amount of the penalty. Lalita Clozel,Exodus of Compliance Officers Seen if NY Plan Goes Through, American Banker, Feb. 24, 2016 (discussing potential effects on compliance officers if New York implements regulation requiring compliance officers to certify compliance with bank secrecy laws with the threat of criminal action if a problem arises); Jerry Buckley, The Compliance Officers Bill of Rights, American Banker, Feb. 22, 2016 discussing concerns of compliance officers and need to establish protections for them so that they can perform their duties in good faith and without fear of the unknown).To illustrate, in December 2014, FinCEN assessed a $1 million civil money penalty against the chief compliance officer/senior vice president of government affairs at a major money transmitter. And in January 2016, a U.S. district court ruled that the corporate officers could be held personally liable for Bank Secrecy Act compliance failures.

    Click here to read the full article at www.americanbar.org.

Knowledge + Insights

  • Special Alert: NYDFS Stakes Claim on Cybersecurity Regulation
    September 16, 2016

    On September 13, the New York Department of Financial Services (DFS) issued a proposed rule establishing cybersecurity requirements for financial services companies, and has thus ventured into new territory for state regulators. In the words of Governor Cuomo, “New York, the financial capital of the world, is leading the nation in taking decisive action to protect consumers and our financial system from serious economic harm that is often perpetrated by state-sponsored organizations, global terrorist networks, and other criminal enterprises."

    Given the concentrated position of financial service companies in New York and the regulation’s definition of a Covered Entity – which includes “any Person operating under or required to operate under a license, registration, charter, certificate, permit, accreditation or similar authorization under the banking law, the insurance law or the financial services law” – it could create an almost de facto national standard for medium to large financial services companies, regardless of where they keep their servers or suffer a cyberattack. This type of state-level regulation is not unprecedented. In 2003, California passed a data breach notification law that requires companies doing business in California to notify California residents of the breach and more recently amended the law to require 12 months of identity protection and strengthen data security requirements. In 2009, Massachusetts enacted a regulation mandating businesses implement security controls to protect personal information relating to state residents.

    The DFS designed the regulation to protect both consumers and the financial industry by establishing minimum cybersecurity standards and processes, while allowing for innovative and flexible compliance strategies by each regulated entity. Yet the proposed regulation goes further than to just ask financial entities to conduct a risk assessment and to design measures to address the identified risks.

    Click here to view the full Special Alert.

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    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert: More Turbulence for Marketplace Lending - CFPB Prevails in "True Lender" Litigation
    September 2, 2016

    After what seems to be an extended season of heavy weather for marketplace lending, a federal district court in California unleashed a late-Summer lightning storm in Consumer Financial Protection Bureau v. CashCall, Inc. In a CFPB action leveled against the so-called “tribal model” of online lending, the court held that defendants, CashCall and its affiliated entities and owner, engaged in deceptive practices by collecting on loans that exceeded the usury limits in various states. Although the case focused on the tribal model – a structure where the loan is made by an entity located on tribal land and subsequently transferred to an assignee not affiliated with the tribe – the court’s opinion raises critical issues about the extent to which its analysis applies to the more common “bank partnership model” of marketplace lending.

    Click here to view the full Special Alert.

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    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert: Department of Defense Issues Interpretive Rule Regarding Compliance with the Military Lending Act
    August 26, 2016

    Today, the Department of Defense (“DoD” or “Department”) published in the Federal Register an interpretive rule regarding compliance with its July 2015 amendments to the regulations implementing the Military Lending Act (“MLA”). The July 2015 amendments will extend the MLA’s 36% military annual percentage rate (“MAPR”) cap, ban on mandatory arbitration, and other limitations to a wider range of credit products—including open-end credit—offered or extended to active duty service members and their dependents (“covered borrowers”). Compliance is mandatory beginning on October 3, 2016, except that credit card issuers have until October 3, 2017 to comply. Additional BuckleySandler materials on the MLA amendments are available here, here, and here.

    DoD stated that the interpretive rule “does not substantively change the [July 2015] regulation implementing the MLA, but rather merely states the Department’s preexisting interpretations of an existing regulation” and thus is effective immediately upon publication. The DoD also emphasized that the guidance provided in the rule “represent[s] official interpretations of the Department….”

    Click here to view the full Special Alert.

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    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert: CFPB Finalizes Amendments to Mortgage Servicing Rules
    August 9, 2016

    On Thursday, the CFPB issued its long-awaited final amendments to the mortgage servicing provisions of Regulations X and Z. The Bureau had sought comment on the proposed rule in December 2014, more than 18 months ago. Spanning 900 pages, the final rule makes significant changes that will impact servicers even as it clarifies several points of confusion with the existing regulations. Most significantly, the amendments extend existing protections to successors in interest and borrowers who have previously been evaluated for loss mitigation under the rules, brought their loans current, and then experienced new delinquencies. The amendments also require servicers to provide modified periodic statements to borrowers in bankruptcy. In coordination with the final amendments, the Bureau published an interpretive rule under the Fair Debt Collections Practices Act (FDCPA) to address industry concerns about conflicts with the servicing rules.

    A summary of the key amendments is provided below. Unless otherwise stated below, the amendments take effect 12 months from the date of publication of the rule in the Federal Register, which has not yet occurred. If recent experience is any guide, we anticipate that publication in the Federal Register may be delayed for as long as a month, given the length of the final rule, commentary, and preamble.

    Please join BuckleySandler attorneys Ben Olson, Michelle Rogers and Kitty Ryan for a webinar on September 7 to further discuss the amended rules and their compliance, examination and enforcement implications. Invitation and registration information to follow.

    Click here to view the full Special Alert.

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    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert: CFPB Proposes Amendments to Know Before You Owe/TRID Rule
    August 3, 2016

    On Friday, the CFPB issued its much anticipated proposal to amend the KBYO/TRID rule. The CFPB crowded dozens of proposed changes into the almost 300 page proposal, most of which are highly technical and require careful examination. As the Bureau has signaled since its intention to issue amendments was first announced, the proposal is not intended “to revisit major policy decisions” because “[t]he Bureau is reluctant to entertain major changes that could involve substantial reprogramming of systems so soon after the October 2015 effective date or to otherwise distract from industry’s intense and very productive efforts to resolve outstanding implementation issues.” However, it has “proposed a handful of substantive changes where it has identified a potential discrete solution to a specific implementation challenge.”

    If finalized, the amendments should resolve a number of significant ambiguities that have generated concerns about the liability of lenders and purchasers of mortgage loans and hampered loan sales, particularly the so-called “Black Hole” that can arise when closing is unexpectedly delayed. However, because it is unclear in most cases whether the Bureau intends the amendments to apply only prospectively and because the amendments would not alter the provisions for “curing” errors, these liability concerns will remain for loans originated prior to the effective date of the amendments. Furthermore, because the industry has been forced to make loans since October 2015 despite these ambiguities, it will be necessary in many cases to revise existing systems and practices to comply with the amended rule. Finally, in some cases, the Bureau seems to have gone beyond resolving ambiguities and is instead seeking to make targeted policy changes to the rule.

    Although the proposed amendments are too voluminous and technical to be summarized comprehensively, we have highlighted a number of the more significant proposed changes below. Note that the CFPB specifically requested feedback on a number of the issues addressed in the proposal. Comments are due on or before October 18, 2016.

    Click here to view the full Special Alert.

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    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.