In its recently published Fall 2018 Rulemaking Agenda, the Bureau of Consumer Financial Protection announced that it is considering future rulemaking activity regarding the requirements of the Equal Credit Opportunity Act (“ECOA”) – specifically, “concerning the disparate impact doctrine in light of recent Supreme Court case law and the Congressional disapproval of a prior Bureau bulletin concerning indirect auto lender compliance with ECOA and its implementing regulations.”

In May, President Trump signed a joint resolution passed by Congress disapproving the Bureau’s March 21, 2013 Bulletin titled “Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act.” The Bulletin’s purpose was to “provide[] guidance for indirect auto lenders within the Bureau’s jurisdiction on ways to limit fair lending risk under the ECOA.” The Bulletin had been controversial from the start, suggesting that indirect auto lenders — who purchase and service loans made by auto dealers that fit criteria agreed to between the dealer and lender — consider imposing controls on dealer markup and eliminate the dealer’s discretion to markup buy rates.

Acting Bureau Director Mick Mulvaney praised the congressional resolution, continuing the Bureau’s move away from the fair lending enforcement priorities of the Bureau’s first Director, Richard Cordray (who, as an aside, was just defeated this past Election Day as the Democratic nominee for Governor of Ohio). Mulvaney thanked President Trump and Congress “for reaffirming that the Bureau lacks the power to act outside of federal statutes.” Mulvaney also referred to the Bulletin as an “instance of Bureau overreach,” and asserted that the initiative “seemed like a solution in search of a problem.” He indicated then that Bureau rulemaking on disparate impact would reflect another theme of his approach: a move toward formal rulemaking in lieu of bulletin issuance or “regulation by enforcement.”

Although the Bureau’s Rulemaking Agenda does not address the details of the contemplated rulemaking activity around ECOA, the Agenda’s reference to “recent Supreme Court case law” suggests that any rulemaking may be designed to address unanswered questions following the Supreme Court’s 2015 decision in Tex. Dep’t of Housing & Community Aff. v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), in which the Court upheld the concept of disparate impact liability under the other principal federal lending discrimination law, the Fair Housing Act, but also emphasized that disparate impact litigants must prove causation – in other words, proof of a statistical disparity among racial groups alone is not sufficient. Inclusive Communities also imposed other restrictions on disparate impact liability.

Potential Bureau rulemaking might focus on application of the Court’s holdings to ECOA. Such a rule would be more durable than the Bureau’s earlier fair lending bulletin, remaining in effect unless altered by later rulemaking (and thus surviving any future leadership change at the Bureau). A rule would also be binding on other federal agencies and the courts, and thus could provide much-desired clarity for lenders.

Update: On July 23, 2020, the New York Department of Financial Services (“DFS”) filed its appellate brief asking the Second Circuit Court of Appeals to uphold the lower court’s decision to block the Office of Comptroller of the Currency’s (“OCC”)’s special purpose national bank charter (“fintech charter”). Please see our July 28 post for more details.

On October 25, 2018, the Conference of State Bank Supervisors (CSBS) renewed its lawsuit against the Office of the Comptroller of the Currency (OCC) seeking to prevent the OCC from issuing its long awaited special-purpose bank charters to fintech companies. The OCC recently announced that it would begin accepting applications for the special-purpose charter, a move that would allow the OCC to regulate fintech companies similar to their supervision of national banks.

The lawsuit, filed in the U.S. District Court for the District of Columbia, comes on the heels of a similar suit brought against the OCC in the Southern District of New York by the New York State Department of Financial Services (DFS) Superintendent Maria T. Vullo. Both complaints challenge the OCC’s authority in providing the special-purpose charter under the National Bank Act (NBA) arguing that fintech “nonbanks” do not fall within the “business of banking” or any other authorized special-purpose provision. The lawsuits place a significant emphasis on the role of the state regulator in the U.S. dual-banking system, arguing that states are uniquely qualified to regulate banking practices and enable financial innovation. In addition to lacking statutory authority, the lawsuits argue that the OCC’s actions were arbitrary, unconstitutional, and procedurally defective, as the OCC failed to adhere to notice provisions under the NBA.

Since the OCC’s first public announcement of the charter in 2016, the special-purpose charter has faced criticism from state regulators. Both the CSBS and DFS previously filed complaints questioning the OCC’s statutory authority, but the complaints were dismissed as speculative and unripe for judicial review.

On September 30, 2018, California enacted the nation’s first small business truth-in-lending law when Governor Jerry Brown signed into law SB 1235. The law aims to protect small businesses from predatory lending practices by requiring increased transparency of certain business-purpose loans marketed to small businesses.

SB 1235 draws comparisons to the federal Truth in Lending Act, which imposes disclosure requirements for consumer-purpose, but not business-purpose loans.  SB 1235 covers “commercial financing,” defined to include commercial loans, commercial open-end credit plans, factoring, and merchant cash advances, for transactions less than $500,000.  Of note, SB 1235 applies to nondepository institutions, such as an “online lending platform,” and exempts traditional depository institutions.

Disclosures required by the law include: (i) the total amount of funds provided, (ii) the total dollar cost of the financing, (iii) the term or estimated term, (iv) the method, frequency, and amount of payments, (v) the description of prepayment policies, and (vi) the annualized rate of the total cost of financing. The California Department of Business Oversight (DBO) is tasked with developing regulations to clarify the ambiguous scope of SB 1235.

The law has garnered broad industry support from signatories to the Small Business Borrowers’ Bill of Rights, which encompasses small business lenders, fintech companies, advocacy groups, and community organizations. Some business groups, including the Commercial Finance Association and Electronic Transactions Association, have chosen not to support the bill.

 

 

In the latest sign of regulatory scrutiny of asset-advance companies offering consumers what regulators believe are in fact regulated “credit” under federal law and “loans” under state law, the Bureau of Consumer Financial Protection (BCFP) filed its first new lawsuit under Acting Director Mulvaney last Thursday. The complaint, filed in the Central District of California, alleges that a so-called pension-advance company, Future Income Payments, LLC, its President and affiliates falsely marketed high-interest loans as mere purchases of consumers’ rights to future cash income streams on pensions and other assets.

This action continues the Bureau’s and state regulators’ focus on such asset-advance enterprises: see action against Pension Funding, LLC and others here; action against RD Legal Funding, a litigation settlement advance company, here; and the Bureau’s 2015 “Consumer advisory: 3 pension advance traps to avoid.” In its new complaint, the BCFP complaint alleges that the defendants failed to treat their products as “credit” and “loans,” and alleges violations of the Truth-in-Lending Act and the Consumer Financial Protection Act for (i) failure to follow federal credit disclosure requirements, (ii) engaging in deceptive marketing practices, and (iii) failure to follow various state laws governing “loans.”

In this case, the BCFP specifically alleged that Defendants, based in Irvine, CA, lured senior citizens, disabled veterans, and other vulnerable consumers into borrowing money at deceptively high interest rates. The company allegedly offered consumers lump-sum payments of up to $60,000 in exchange for their assigning to the company a larger amount of their future pension and other income streams. Marketing the product as a “purchase” and not a loan, the company allegedly claimed that the advance was interest-free and a useful way to pay off credit card debt. In fact, the Bureau alleges, the discount applied to consumers’ future income streams was a disguised form of interest, equivalent to rates of up to 183%.

Interestingly, though, the Complaint does not address exactly why the challenged transactions are, in fact, extensions of “credit” under the federal Truth-in-Lending Act’s definition of that term and “loans” under state law. We will continue to track the Bureau’s analysis of those issues, because they are arising repeatedly as Fintech and other new companies develop products that seek, in a wide variety of forms, to offer consumers advances in exchange for future cash streams.

On Tuesday, the U.S. Department of the Treasury issued its “Nonbank Financials, Fintech, and Innovation” Report, the fourth in a series of reports outlining the Trump administration’s financial regulatory agenda.  In the report, Treasury presents a new approach to regulation designed to promote “critical” innovation in fintech. The report outlines four broad areas of focus: (1) adapting regulatory approaches to data sharing, (2) battling “regulatory fragmentation” and directly addressing new business models, (3) updating activity-specific regulations across a range of products and services, and (4) promoting “responsible experimentation.”

In addition to announcing a regulatory “sandbox” that would allow fintech firms to gain approval for new products, Treasury takes aim at several controversial issues that have dogged fintechs in recent years. The report argues that the CFPB’s payday lending rule should be revoked, for example, and urges Congress to pass legislation overturning Madden v. Midland Funding—the 2015 2d Circuit case that rejected the long-standing “valid-when-made” rule and applied state law usury laws to purchasers of debt from national banks—and takes aim at the Telephone Consumer Protection Act (TCPA) and other consumer protection laws the report deems outdated. The report also recommends that credit reporting agencies and credit repair organizations should be more effectively regulated and supervised with a view to protecting consumer credit information and educating consumers on improving credit scores.

At practically the same time as Treasury’s report was issued, the Office of the Comptroller of the Currency (OCC) announced that it will begin accepting applications for its long-awaited special-purpose national bank charter. Comptroller Joseph M. Otting announced the move, stating that the charter will “provide more choices to consumers and businesses,” while stressing that any fintech companies providing innovative banking services deserves “the opportunity to pursue that business on a national scale, as a federally chartered, regulated bank.”

The special-purpose charter was initially proposed by former Comptroller Thomas Curry in December 2016 and followed by a manual for charter applicants issued in March 2017. While the special-purpose charter comes with significant capital, liquidity, and risk management requirements, it is intended to provide regulatory certainty to marketplace lenders and platforms seeking the benefits of federal preemption over state licensing, usury and disclosure rules. When the charter was first announced, the OCC proposal sparked criticism from state regulators including the New York Department of Financial Services (DFS) and community banking trade groups, and it is likely any charter application will reignite these debates.

 

Earlier this week, Acting Director Mulvaney announced the creation of a new “Office of Financial Innovation,” and appointed Paul Watkins, an official who led the Arizona Attorney General’s fintech initiatives, to lead the Office.  The new Office, which will now do the work formerly done under the Bureau’s Project Catalyst, “will focus on creating policies to facilitate innovation, engaging with entrepreneurs and regulators, and reviewing outdated or unnecessary regulations.”  The Bureau’s announcement also described the encouragement of “consumer-friendly innovation” as a “key priority” for the agency.

The announcement may be notable for its mention that Watkins had “managed the FinTech Regulatory Sandbox” for Arizona, the first state fintech sandbox in the country. This might possibly presage Bureau efforts to offer its own form of a “sandbox,” which in theory would allow a company limited access to the marketplace in exchange for relaxing some regulations.  Another point to watch for will be whether the Bureau follows this announcement with any proposal to revise its “No Action Letter” policy.  That policy, though aimed specifically at providing financial innovators with more regulatory certainty, is viewed by many as restrictive and has resulted, to date, in only one No Action Letter in the two years of the Policy’s existence.

Thursday’s Senate confirmation hearing for Kathy Kraninger, President Trump’s nominee to lead the Consumer Financial Protection Bureau (“CFPB”), produced a number of testy exchanges with Democrats but no obvious obstacles to the Senate confirming her ultimately. Kraninger, now an Associate Director of the Office of Management and Budget (“OMB”), would if confirmed replace the Bureau’s Acting Director, Mick Mulvaney.  In addition, as the law now stands, Kraninger would then be removable only “for cause” during a term for as long as five years, which would extend well into the next Presidential administration.

In her brief opening statement and throughout her testimony, Kraninger indicated that she would continue the pro-business shift at the agency started by Mulvaney more than six months ago.  She shared no views about specific policy issues facing the Bureau, such as whether the CFPB should repeal its final but not-yet-effective payday lending regulations.  She did in more vague terms, however, indicate that she would make data privacy a high priority, and that she approved of Mulvaney’s actions as director.

Senator Mike Crapo (R-Id.), Chairman of the Senate Banking Committee that held Thursday’s hearing, stated that Kraninger would have to respond to any follow-up written questions from Senators by July 31, 2018, and that a Committee vote would follow by the end of that week, August 3.

As has been widely reported, Kraninger would bring relatively little consumer financial experience to the Director position. Democratic Senators seized on that point and repeatedly charged that she was unqualified to lead the agency.  Indeed, no Democrats voiced support for Kraninger, with even some from “Red” states indicating they had concerns.  Other Democratic Senators posed questions about Kraninger’s role at OMB overseeing the agencies responsible for the controversial “zero-tolerance” border policy and disaster recovery in Puerto Rico, but Kraninger’s responses offered very little in terms of specifics, leaving exasperated some of the questioners, especially Sen. Elizabeth Warren (D-MS).

In line with expectations, the panel’s Republicans generally described the CFPB as an unaccountable agency that Kraninger has the management expertise to lead. Because Republicans maintain a narrow Senate majority and showed no obvious indication of concern, it would appear at the moment that they could push a confirmation through if determined to do so.

Importantly, even if Democrats are able to delay Kraninger’s confirmation, the delay would leave Acting Director Mulvaney in charge during the pendency of the nomination.

In a statement on Thursday, April 26, a key House Republican on CFPB issues effectively admitted that despite his own efforts and those of the Trump Administration including Acting CFPB Director, Mick Mulvaney, Congress will almost certainly make no changes to the structure of the CFPB this year.  As a result, there will probably be no change from a single-Director to a Commission, nor will changes be made to the way in which the CFPB is funded, or to the Director’s independent status.

In remarks to the U.S. Chamber of Commerce, Jeb Hensarling, Chairman of the House Financial Services Committee, conceded that he is now willing to accept the bi-partisan banking deregulatory bill that passed the Senate recently as S. 2155, which makes no changes to the CFPB’s structure.  As we reported previously, several Senate Democrats who supported S. 2155 have made clear they would not accept amendments to it by the House that would weaken the CFPB.

Chairman Hensarling indicated that he would still like to pursue his CFPB reforms as separate bills, but most observers agree that if those reforms cannot be attached to the Senate bill, they will not become law this year.  White House statements indicate that President Trump would like to sign S. 2155 into law by Memorial Day.

On Wednesday, the U.S. Senate voted almost entirely along party lines to invalidate, under the Congressional Review Act, the Consumer Financial Protection Bureau’s (CFPB) (in)famous 2013 Bulletin on lending discrimination in the indirect auto market via discretionary mark-ups and dealer compensation policies.  The 2013 Bulletin, construing the Equal Credit Opportunity Act and its implementing rule, Regulation B, had served as the basis for a number of substantial CFPB enforcement actions against indirect auto lenders, with large fines and loud protests from industry.

The U.S. House of Representatives has been poised to vote down the 2013 Bulletin for some time, and is very likely to follow the Senate’s lead and make the invalidation effective.  If as expected the House does act, this would mark the second time in the past year that Congress has voted to strike down a rule issued by the CFPB.  (Last December, the Government Accountability Office’s General Counsel issued a formal legal opinion concluding that the 2013 Bulletin was, in fact, a “rule” subject to the Congressional Review Act, paving the way for yesterday’s Senate vote.)  The first instance, of course, was Congress’ decision to invalidate the CFPB’s rule regarding arbitration.

Despite the Senate’s action Wednesday, efforts to weaken the CFPB by statute along the lines proposed by its Acting Director Mick Mulvaney and Republican congressmen continue to face challenges in Congress.  While such proposals have passed and would likely easily pass again in the House of Representatives, no such measure was included in the recent package of reforms that passed the Senate with bipartisan support.  Several of the Senate Democrats who voted for that package have indicated that they are not inclined to support measures that would weaken the CFPB structurally.

Case Developments

In this week’s edition of the Mortgage Litigation Update, we summarize (i) a decision from the Northern District of California finding that a loan servicer’s solicitation and review of a borrower’s loan modification does not give rise to a duty of care, and (ii) a decision from the Middle District of Pennsylvania finding that a loan servicer’s status as holder of a mortgage note does not itself, absent other factors, exclude it from the definition of “debt collector” under the FDCPA when it acquired the debt after default.

Forster v. Wells Fargo Bank, N.A., No. 17-cv-05120-BLF, 2018 WL 509967 (N.D. Cal. Jan. 23, 2018)

  • Plaintiff borrowers sued their loan servicer for negligence and under several California consumer statutes after they fell behind on mortgage payments and the lender denied their application for a loan modification.  Plaintiffs alleged the servicer’s wrongful denial of their loan modification resulted in increased indebtedness, lost equity in their property, damage to their credit, and other unspecified consequential damages.
  • The servicer moved to dismiss.  With respect to the negligence claim, the servicer argued no duty of care exists between a financial institution and a borrower absent special circumstances.  Plaintiff argued that the servicer owes a duty of care in the processing and review of a loan modification application, as it solicited the modification, which goes beyond a typical conventional arms-length lending relationship.
  • Noting a circuit split on the issue and the sometimes fact intensive nature of the inquiry, the District Court agreed with the lender that a duty of care does not arise in the typical loan modification because “[w]here modification is necessary because the borrower cannot repay the loan, the borrower’s harm is not closely connected with the lender’s conduct, and the lender is not morally culpable.”

Beard v. Ocwen Loan Servicing, LLC, Civil No. 1:14-cv-1162, 2018 WL 638455 (M.D. Pa. Jan. 31, 2018)

  • Plaintiff borrower filed a complaint alleging that its loan servicer assessed unearned fees and costs in a reinstatement quote in violation of the Fair Debt Collection Practices Act (“FDCPA”).
  • The Defendant had previously moved for summary judgment, asserting that it was not a “debt collector” under the FDCPA.  The District Court rejected this argument and denied the motion for summary judgment, finding that a mortgage servicer is a debt collector if it acquired the obligation by assignment after the debt was already in default.
  • The loan servicer moved for reconsideration, citing the United States Supreme Court’s recent decision in Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017), holding that an entity collecting a debt on its own behalf is not a “debt collector” merely because it acquired the loan after default.  According to the loan servicer, its role as the holder of the note placed it within the purview of Henson.
  • The District Court disagreed, reasoning that a holder is legally distinct from an owner.  Although a note’s holder is in possession of the note and qualified to enforce it through foreclosure on the underlying deed of trust, it is not necessarily entitled to the economic benefits from payments received.  Because the servicer did not establish it was the owner of the note, it failed to show that it was collecting the debt on its own behalf within the meaning of Henson.

Case Developments

In this edition of our Mortgage Litigation Update, we summarize (i) an Eleventh Circuit decision interpreting Regulation X under RESPA where there are duplicative applications; and (ii) a case from the District Court for the District of Massachusetts evaluating borrowers’ claim of entitlement to a free house.

Navia v. Nationstar Mortgage LLC, Case No. 17-11320,  —Fed. App’x—-, 2018 WL 327233 (11th Cir. January 9, 2018)

  • The Court affirmed the dismissal of the Appellant’s complaint for failure to state a claim under the Real Estate Settlement Procedures Act (“RESPA”).
  • The Court determined that RESPA’s Regulation X places certain obligations on mortgage servicers when a borrower submits an initial loss mitigation application; however, those obligations do not apply to duplicative applications.
  • The Court stated, “a servicer need not comply with § 1024.41 requirements [regarding evaluation of all loss mitigation alternatives] on subsequent applications if that servicer previously complied with §1024.41’s requirements with regard to a borrower’s loss mitigation application.”

Paulding v. New Penn Financial, LLC, Case No. 17-11340-FDS, 2018 WL 379019 (D. Mass. January 11, 2018)

  • The District Court for the District of Massachusetts granted in part and denied in part the defendants’ motion to dismiss the plaintiff’s complaint seeking to prevent a mortgage foreclosure.
  • In particular, the Court evaluated the plaintiffs’ contention that the mortgage was void on the grounds that the original lender was (1) never incorporated; (2) never registered with the Commonwealth; and (3) never authorized to conduct business in the Commonwealth.
  • The Court rejected the plaintiffs’ argument that they were essentially entitled to a free house noting that, “[t]he money borrowed by plaintiffs was surely not fictitious; they used it to buy the property.  And it is entirely unclear how any failure on [the original lender] to obtain a license, if true, caused plaintiffs any injury at all, much less damages in the amount of the entire value of their mortgage.”

Case Developments

In this edition of our Mortgage Litigation Update, we summarize (i) a decision from the Northern District of California striking class allegations as fail-safe in a case implicating discrimination in mortgage lending, (ii) an Eastern District of Virginia order rejecting a borrower’s attempt to tie an interpretive rule regarding modification review to a clause in his Deed of Trust requiring compliance with “applicable law,” and (iii) a Second Circuit decision illuminating certain difficulties in establishing standing to foreclose when the original lender has declared bankruptcy.

Perez, et al. v. Wells Fargo Bank, N.A., Case No. 17-cv-00454-MMC, (N.D. Cal. Jan. 30, 2017)

  • Plaintiffs brought a discrimination in lending class action alleging that they were denied credit from Defendant  across multiple lines of business, including student lending, small business loans, credit cards, mortgages, and auto financing, based on their immigration status as non-U.S. citizens, including as participants in the Deferred Action for Childhood Arrivals, or DACA, Program.
  • Defendant moved to strike the class allegations, as Plaintiffs’ proposed class definition was fail-safe in that it was defined in a way that required an individual determination of liability in order to decide who would be a member of the class.
  • The court struck the class allegations, finding that the proposed class definition was impermissibly fail-safe.  The court permitted Plaintiffs an opportunity to amend.
  • Defendant is represented by McGuireWoods.

Menacho v. U.S. Bank N.A. et al., Case No. 3:17-CV-00428-JAG, 2017 WL 6462356 (E.D. Va. Dec. 19, 2017)

  • Plaintiff alleged that the foreclosing trustee violated the Deed of Trust provision stating that the right to foreclosure was “subject to any requirements and limitations of Applicable Law” because the trustee had failed to respond to his loan modification application.
  • Plaintiff argued this violated the Secretary of the Treasury’s Supplemental Directive No. 09-01, which prohibits loan servicers from proceeding with foreclosure for loans eligible for HAMP modifications until the applicant has been deemed ineligible, and thus the foreclosure did not comply with “Applicable Law.”
  • The Court held that Supplemental Directive No. 09-01 did not trigger the “Applicable Law” provision of the deed of trust.  The Court reasoned that because Supplemental Directive No. 09-01 was not subject to the notice and comment procedures of the Administrative Procedures Act, it was only an “interpretive rule” that did not have the effect of law.

Gustavia Home, LLC, v. Rutty,  Case No. 17-345(L), 2017 WL 6539178 (2nd Cir. Dec. 21, 2017)

  • The Second Circuit upheld a borrower’s appeal of the lower court’s foreclosure judgment that found the foreclosing plaintiff had not sufficiently demonstrated its standing to foreclose following the original lender’s bankruptcy, which would have made the original lender’s interest in the note property of the bankruptcy estate.
  • Although the foreclosing plaintiff had submitted a series of undated allonges that satisfied the lower court that it had standing to foreclose, the Second Circuit agreed with the borrower that the plaintiff had failed to present evidence of when it came in possession of the note or whether the original lender transferred the note either before the bankruptcy or with the permission of the bankruptcy court to do so.
  • The court vacated the judgment and remanded for further proceedings regarding the foreclosing entity’s standing.