The Consumer Financial Protection Bureau (“CFPB”) has settled a lawsuit seeking to compel it to undertake the rulemaking required by Section 1071 of the Dodd-Frank Act (“Section 1071”). Section 1071, 15 U.S.C. § 1691c-2, requires financial institutions to collect and maintain information about loan applications by women-owned, minority-owned and small businesses, and requires the CFPB to collect and publish this data annually. It also requires the CFPB to issue implementing regulations. The settlement sets forth a specific date by which the CFPB must begin the rulemaking process and establishes a framework for determining, along with plaintiffs or subject to court order, a final timeline for promulgation of the required rule. The settlement should result in a final rule in 2022, a dozen years after Congress first required the CFPB to act. Continue Reading Long-Awaited Section 1071 Small Business Rulemaking Is Finally on the Horizon
The Taxpayer First Act (the “Act” or “TFA”) imposes new limits on the disclosure of US taxpayer tax information obtained on or after December 28, 2019. The Act is designed, among other things, to overhaul and modernize operations at the Internal Revenue Service (“IRS”). One provision of the TFA has a direct impact on a recipient of taxpayer return information obtained directly from the IRS. Although questions remain about the reach of the new rule, it is already finding its way into structured finance and secondary market transactions.
Section 6103 of the Internal Revenue Code (the “Code”) governs the confidentiality and disclosure of tax returns and the information contained in tax returns. The TFA, effective as of December 28, 2019, amends Code Section 6103(c) to require taxpayers to consent to: (i) the particular purposes for which the recipient will use the taxpayer’s tax return information (the recipient may not use the information for any other purpose); and (ii) the sharing of any information from the tax return with other persons. Prior to the TFA amendment, Code Section 6103(c) simply authorized the IRS to release a taxpayer’s tax return information to parties designated by the taxpayer to receive it. Continue Reading The Taxpayer First Act and the Impact on Secondary Market Participants
We recently discussed the efforts of the Alternative Reference Rates Committee (ARRC) to prepare for the upcoming discontinuance of LIBOR as an index rate for residential mortgage and consumer loans. Our alert examined ARRC’s recommendations regarding an appropriate substitute rate (the Secured Overnight Financing Rate, or SOFR) and ARRC’s recommended changes to implement SOFR. We also noted that Fannie Mae and Freddie Mac (the GSEs) were expected to issue guidance that SOFR was an appropriate substitute for LIBOR and provide transition steps.
- All Fannie Mae/Freddie Mac uniform notes and riders have been updated to include the ARRC recommended fallback language, applicable in the event LIBOR is no longer available or appropriate as a rate for residential adjustable-rate mortgage loans (ARMs). The updated forms are available for use now, but must be used for ARMs with note dates on or after June 1, 2020.
- To be eligible for delivery to a GSE, LIBOR ARMs must have application dates on or before September 30, 2020.
- LIBOR ARMs must be in mortgage-backed securities (MBS) pools with issue dates on or before December 1, 2020, or purchased as whole loans on or before December 31, 2020. All LIBOR ARM plans will be retired by the end of the year.
- The GSEs anticipate that they will be able to accept whole loan and MBS delivery of SOFR ARMs during the second half of 2020. Additional details regarding SOFR ARM plans will be detailed in the coming months.
- Beginning on a yet-to-be-determined date in 2021, the GSEs will retire all constant maturity Treasury securities (CMT) plans, and will no longer acquire CMT-indexed ARM loans. The GSEs caution against increased use of CMT-indexed ARMs as lenders wind down their use of LIBOR ARMs.
The GSEs’ issuances do not address the replacement of LIBOR on existing ARM loans, although we expect them to provide guidance on that later this year.
A new Memorandum of Understanding (MOU) between the Consumer Financial Protection Bureau (CFPB) and the US Department of Education (ED) appears to signal an end to the turf war between these two agencies regarding the handling of complaints related to federal student loans. It also ends a period during which the CFPB and ED failed to maintain an MOU, as required by the Dodd-Frank Act. Continue Reading Back to School: CFPB and ED Agree to New MOU
On February 6, 2019, Mayer Brown’s Kris Kully will participate on a panel to discuss lingering questions about mortgage loan originator compensation, at HousingWire’s engage.talent event in Dallas. The event features experts sharing tools for attracting and retaining top-tier mortgage executives, branch managers, loan officers, and underwriters.
Please join Lauren Pryor on Wednesday February 5, 2020 at the IMB 2020 conference to discuss trends in mortgage M&A deals, including structural options, pricing considerations and risk analysis. https://www.mba.org/conferences-and-education/event-mini-sites/independent-mortgage-bankers-conference/schedule?id=12754_690697&expand=true
On Friday, January 24, the Consumer Financial Protection Bureau (“Bureau” or “CFPB”) published a Policy Statement clarifying how it intends to exercise its authority to prevent abusive acts or practices under the Dodd-Frank Act. According to CFPB Director Kathy Kraninger, the purpose of the Policy Statement is to promote clarity, which in turn should encourage both compliance with the law and the development of beneficial financial products for consumers. The Policy Statement describes how the Bureau will use and develop the abusiveness standard in its supervision and enforcement work, pursuant to a three-part, forward-looking framework. Under the framework, the Bureau will: (1) generally rely on the abusiveness standard to address conduct only where the harm to consumers outweighs the benefit, (2) avoid making abusiveness claims where the claims rely on the same facts that the Bureau alleges are unfair or deceptive, and (3) not seek certain types of monetary relief against a covered person who made a good-faith effort to comply with a reasonable interpretation of the abusiveness standard. The Policy Statement suggests that the Bureau will use its abusiveness authority even less frequently than it has in the past. While that may be welcome news to regulated parties, it is also likely to mean slower development of meaningful guideposts as to what constitutes abusive conduct. Continue Reading CFPB Announces Policy Regarding Prohibition on Abusive Acts or Practices
The Federal Housing Finance Agency is continuing to consider how Fannie Mae, Freddie Mac, and the Federal Home Loan Banks should address Property Assessed Clean Energy (“PACE”) programs. PACE programs are established by state and local governments to allow homeowners to finance energy-efficient projects through special property tax assessments. The obligation to repay results, in many jurisdictions, in a tax lien that takes priority over existing and future liens on the property.
In 2010, the FHFA directed Fannie Mae and Freddie Mac not to purchase or refinance mortgages with PACE liens and urged caution by the Federal Home Loan Banks in accepting collateral for advances that may have PACE liens attached. In its recent Request for Input (“RFI”), the FHFA seeks feedback on honing those PACE policies, including whether it should impose ceilings on loan-to-value ratios or higher Loan Level Price Adjustments in connection with all loans Fannie Mae or Freddie Mac purchase in jurisdictions with PACE programs.
Comments on the RFI are due by March 16, 2020.
Read more in Mayer Brown’s Legal Update.
A United States Magistrate Judge for the United States District Court, Western District of New York, today issued his report and recommendation on the defendants’ motion to dismiss in Petersen et al. v. Chase Card Funding, LLC et al., No. 1:19-cv-00741 (W.D.N.Y. June 6, 2019). The Magistrate Judge recommended dismissal of both the plaintiff’s usury and unjust enrichment claims on preemption grounds, stating that “the preemption analysis boils down to this: does the application of New York’s usury statutes to these defendants ‘prevent’ or ‘significantly interfere’ with Chase USA’s power to sell or assign the receivables generated by its credit card accounts?” The Magistrate Judge answered this question in the affirmative, reasoning that “since applying New York’s usury statutes to defendants would prevent Chase USA’s ability to sell or assign the receivables from its credit card accounts, they are preempted.”
The Magistrate Judge relied on Supreme Court and Second Circuit precedent as to what constitutes a “sale” and an “assignment” citing case law holding that “[i]t is essential that . . . the seller’s right of property must pass to the purchaser” MacDonald v. Commissioner of Internal Revenue, 76 F.2d 513, 514 (2d Cir. 1935) (emphasis added by Magistrate Judge). The Magistrate Judge concluded that “[i]f Chase USA can receive interest exceeding state usury limits but defendants cannot, then Chase USA’s right of property in the receivables has not passed to them, and there has been no sale.” The Magistrate Judge similarly analyzed Chase USA’s right to assign the receivables.
The lawsuit had been filed against Chase Card Funding LLC and Chase Issuance Trust, special purpose entities in the JPMorgan Chase Bank sponsored credit card securitization program, and Wilmington Trust Company, as trustee of Chase Issuance Trust. The putative class action was brought by several New York residents with credit card accounts originated by JPMorgan Chase Bank (which is not named as a defendant), who allege that JPMorgan Chase Bank securitized their credit card receivables in Chase Issuance Trust. The complaint contends that the defendants are required to comply with New York state’s usury law under the United States Court of Appeals for the Second Circuit decision in Madden v. Midland Funding, LLC, 786 F.3d 246 (2d Cir. 2015), cert. denied, 136 S. Ct. 2505 (June 27, 2016) because they are non-bank entities that are not entitled to the benefits of federal preemption.¹
The plaintiffs will have until February 5, 2020 to file any objections to the Magistrate Judge’s report and recommendation (unless otherwise ordered by the district judge).
¹ As reported in the Chase Issuance Trust, Form 10-D, filed July 16, 2019.
According to the Mortgage Bankers Association, the Consumer Financial Protection Bureau intends to revise its Qualified Mortgage definition by moving away from a debt-to-income ratio threshold, and instead adopting a different test, such as one based on the loan’s pricing. The CFPB also apparently indicated it may extend, for a short time, the temporary QM status for loans eligible for purchase by Fannie Mae or Freddie Mac (the “Patch”).
The MBA reports that CFPB Director Kathy Kraninger informed Congress of the agency’s plans for its highly-anticipated QM rulemaking, expected this spring (by late May, but perhaps earlier). In July of last year, the CFPB issued an advance notice of proposed rulemaking to begin addressing the Patch expiration (scheduled for January 2021). For the past five years, the Patch has resulted in a significant presence by the government-controlled enterprises in connection with higher-DTI loans (i.e., those over 43%). The CFPB has insisted it would allow for a “smooth and orderly transition” to the Patch expiration, to give the industry time to respond. According to the recent report, the CFPB will in fact seek to extend the Patch for “a short period.”
The CFPB indicated that a brief Patch extension also is warranted because of other changes the agency intends to make to the general QM definition. Most agree that the general QM, and its reliance on a DTI threshold and the tight income standards in Appendix Q, has unduly restricted affordable credit to worthy borrowers. The CFPB apparently told Congress it intends to move away from its DTI threshold, which could also mean the demise of Appendix Q.
The CFPB may instead adopt a pricing threshold to distinguish QMs from non-QMs going forward. The CFPB otherwise distinguishes loans with an annual percentage rate that exceeds the average prime offer rate by 150 basis points. The CFPB could decide to use that threshold to define QMs in the future.
CFPB also may be considering a common-sense, results-oriented approach – by providing that loans that do, in fact, experience timely payments would be deemed to comply with the ability-to-repay requirement.
While we cannot be certain about the CFPB’s next move until the agency finalizes a rule, the changes described above would afford QM protection to higher-DTI/lower-cost loans that lack certain product features, likely opening those loans to the private capital markets. By changing the QM marketplace, the changes also would, of course, affect the size and nature of the non-QM market. As we previously noted, those changes also could affect the types of loans exempt from credit risk retention in securitizations (QRMs).