The Consumer Financial Protection Bureau (CFPB) recently posted its Enforcement Policy and Procedures Manual (Manual) on its FOIA reading room website. This is a welcome step in transparency, which was driven by the agency’s receipt of multiple FOIA requests for the Manual. Other documents available in the FOIA reading room relating to the agency’s enforcement process now include the instructions and template for the memo sent to the Action Review Committee (ARC), which determines whether issues identified in the course of a CFPB examination warrant public enforcement action, and a template of the memo that staff send to the Director seeking authority to settle or sue at the conclusion of an enforcement investigation. Hopefully, the CFPB will not wait for multiple FOIA requests to post other helpful documents on its website, such as a staff directory, which is available via FOIA request but is not currently posted on the CFPB website.
In an email to staff, Consumer Financial Protection Bureau (CFPB) Director Richard Cordray announced on Wednesday, November 15, that he will be stepping down this month. His departure was widely anticipated. Because the CFPB is headed by a single director – as opposed to a 5-member commission – the agency’s director wields enormous power. Below we address some of the most frequently asked questions regarding Director Cordray’s resignation.
On November 7, Texas voters will have the opportunity to make some significant changes to the state’s homestead equity loan restrictions. As summarized below, Texas Proposition 2 will, if approved: (1) revise the strict fee limits for such loans; (2) add to the list of lenders that are authorized to make the loans; (3) eliminate the “once-a-home-equity-loan, always-a-home-equity-loan” rule; (4) allow borrowers to sign an affidavit of compliance regarding certain new refinancings of such loans; and (5) allow advances on lines of credit up to 80% loan-to-value (LTV) ratio.
The Texas Constitution imposes strict limits on the types of loans that validly may be secured by Texas homestead property. For home equity loans (other than purchase-money loans or rate/term refinances), the Texas Constitution imposes a long list of limitations and requirements, the violation of which invalidates the lien and can result in the forfeiture of principal and interest. A lender or holder has an opportunity to cure at least some of those violations. Since the limitations are part of the state constitution, relief can come only through legislative resolutions on which the public must then have the opportunity to vote. Continue Reading Texas Voters Consider Big Changes to Home Equity Loan Restrictions
Is it possible for an investor to participate in the economics of agency residential mortgage servicing rights without being an approved holder of the servicing rights? Acquiring excess servicing fees is one way that investors are exploring to accomplish this objective. Mayer Brown partners Larry Platt and Jon Van Gorp wrote an article for Bloomberg BNA’s Banking Report on the subject of acquisition of excess servicing fees for mortgage servicing rights, which can be found here.
New title insurance regulations in New York restrict the marketing practices of title insurance agencies and affect the operation of affiliated businesses.
The New York Department of Financial Services (“DFS”) issued two final regulations on October 17, 2017 that follow a DFS investigation into the marketing practices and fees charged by title insurance industry members. The DFS stated that the investigation revealed that members of the title industry spend millions each year in “marketing costs” provided to attorneys, real estate professionals, and mortgage lenders in the form of meals, gifts, entertainment, and vacations and then include those expenses in the calculation of future title insurance rates. The DFS had already implemented emergency regulations to address those practices. The recent final regulations represent permanent guidelines on certain behavior the DFS deems prohibited and permissible under the state’s title insurance statutes. Continue Reading New York Takes Aim at Title Insurance Marketing Practices
With Oregon scheduled to begin accepting mortgage loan servicer license applications through the Nationwide Multistate Licensing System (“NMLS”) on November 1, 2017, we wanted to update our August 16, 2017 blog post for those who may be subject to the licensing requirements.
Temporary rules were issued on October 20, 2017 so that the licensing process can commence. Rules applicable to the non-licensing requirements of the new Oregon Mortgage Loan Servicer Practices Act (the “Servicer Act”), will be proposed later this year or early 2018, and will be incorporated with the temporary rules when the final servicer rules are issued.
Licensing Obligations Under the Servicer Act
The new Oregon Servicer Act provides for a dedicated mortgage loan servicer license, separate from the license as a mortgage banker or mortgage broker obtained under Oregon’s Mortgage Lender Law. Although the Oregon Servicer Act was effective upon Governor Katherine Brown’s signature on August 2nd, the legislation expressly provides that the Servicer Act will become operative on January 1, 2018, and that it will apply “to service transactions for residential mortgage loans that occur on or after [the] operative date.” Continue Reading Oregon Begins to License Residential Mortgage Loan Servicers
The Federal Housing Finance Agency (FHFA) rejected the pleas of many in the mortgage industry by adding a question about the applicant’s language preference to the future Fannie Mae/Freddie Mac Uniform Residential Loan Application (URLA) (Form 1003/65). While the FHFA is seeking to promote access to credit for consumers with limited English skills, lenders remained concerned that the revisions will raise the risk of confusing or misleading those consumers. Read more about the FHFA’s upcoming changes in Mayer Brown’s latest Legal Update.
The anti-arbitration rule issued by the Consumer Financial Protection Bureau in July is now just one short step away from elimination.
The Senate tonight voted 51-50 (with Vice President Pence casting the deciding vote) to invalidate the CFPB’s rule under the Congressional Review Act (CRA). That vote follows the House of Representatives’ disapproval of the rule in July.
The last remaining step is the President’s signature on the legislation, which seems highly likely given the Administration’s statement today urging the Senate to invalidate the rule.
The President’s approval will trigger two provisions of the CRA.
First, the rule “shall not take effect (or continue)” (5 U.S.C. § 801(b)(1)). In other words, the rule no longer has the force of law and businesses are no longer required to comply with its terms.
Second, the CFPB may neither re-issue the rule “in substantially the same form” nor issue a new rule that is “substantially the same” as the invalidated rule—unless Congress enacts new legislation “specifically authoriz[ing]” such a rule (5 U.S.C. § 801(b)(2)). The scope of this “substantially the same” standard has not been addressed by the courts, but it seems clear that at the very minimum the Bureau cannot issue (a) a new rule banning class action waivers; (b) an express ban of pre-dispute arbitration clauses; (c) a rule that has the practical effect of eliminating pre-dispute arbitration clauses; or (d) any other rule that imposes similar burdens on the use of arbitration.
Invalidation of the rule under the CRA also will moot the pending broad-based industry lawsuit against the CFPB challenging the legality of the regulation. (Mayer Brown represents the plaintiffs in the litigation).
Who is responsible for the safety of drinking water?
The U.S. Department of Housing and Urban Development (HUD) Office of Inspector General (OIG) has suggested – for the second time – that lenders making Federal Housing Administration (FHA) insured loans should be held to a higher level of accountability in ensuring that FHA borrowers have a safe and potable water supply. In a report dated September 29, 2017, the OIG’s stated concerns are two-fold: first, HUD may be endorsing loans for properties with water contaminants that affect their occupants’ health; and second, property values may decrease due to water quality issues, thereby posing an increased risk of loss to both HUD and homeowners. The OIG’s solution is for HUD to improve its guidance on safe water requirements as well as to sanction lenders that fail to identify water safety issues for properties known to be affected by water contaminants. Continue Reading Nationwide Safe Water Requirements for FHA-Insured Loans
On October 4, the Consumer Financial Protection Bureau (“CFPB”) issued an interim final rule and a proposed rule related to the 2016 Mortgage Servicing Final Rule to clarify the timing of and facilitate the provision of certain required communications with borrowers.
The CFPB amended its mortgage servicing rules in August 2016, to go into effect in large part on October 19, 2017 (the “2016 Final Rule”). One provision of the 2016 Final Rule requires mortgage servicers to send certain delinquent borrowers early intervention notices, modified for use with a borrower who has requested a cease in communication under the Fair Debt Collection Practices Act (“FDCPA”). The FDCPA allows borrowers to request that servicers and other companies refrain from contacting them except in certain circumstances, such as when a borrower becomes delinquent. The 2016 Final Rule exempts servicers from sending the early intervention notices only in situations where the borrower does not have a loss mitigation option available or where the borrower is a debtor in bankruptcy.
Under the 2016 Final Rule, mortgage servicers, when communicating with consumers who have invoked the FDCPA’s cease communication right, were required to provide the consumers modified early intervention notices, but only once every 180 days. Continue Reading It’s All in the Timing: CFPB Addresses Timing Challenges in 2016 Mortgage Servicing Rules