The Consumer Financial Protection Bureau recently announced a consent order with Flagstar Bank, F.S.B., alleging unfair acts and practices under the Consumer Financial Protection Act (CFPA) and violations of the CFPB’s Mortgage Servicing Rules. The penalties include $27.5 million in damages for harmed borrowers, a $10 million civil money penalty, a temporary restriction on the bank’s ability to acquire additional default loan servicing rights, and a required compliance review and plan implementation.
While this constitutes the first CFPB enforcement action for violations of the Bureau’s Mortgage Servicing Rules, the majority of the activity subject to the consent order occurred before January 10, 2014, when the rules took effect. The Bureau concluded that a variety of alleged activities constitute unfair acts and practices under the CFPA, including failure to properly evaluate loss mitigation applications, improper denial of loan modifications, and prolonging trial periods for loan modifications. Regarding activities that occurred after January 10, 2014, the CFPB alleged violations of the Mortgage Servicing Rules, namely the loss mitigation requirements under 12 C.F.R. § 1024.41. These alleged activities are generally continuations of the alleged unfair acts and practices that occurred prior to January 10, 2014. The bank did not admit any of the findings.
It is not surprising that the CFPB’s first enforcement action under the Mortgage Servicing Rules pertains to alleged loss mitigation violations. Among the rules that took effect on January 10, 2014, a failure to meet the loss mitigation requirements has the greatest potential for borrower harm. Surprisingly, the Bureau effectively enforced certain of these requirements, for violations occurring prior to the effective date, using its UDAAP enforcement authority.
It is also interesting to note the CFPB’s imposition of a provision restricting the bank’s ability to acquire additional servicing rights for default loan portfolios. Over the past six months, a variety of regulators have increasingly attempted to restrict or otherwise scrutinize servicing transfers before the transfer occurs. The Federal Housing Finance Agency has published heightened guidelines for approval of servicing transfers by the GSEs, and its Inspector General advocated even greater scrutiny for transfers to nonbank servicers. The CFPB’s recent bulletin also provides a framework for pre-transfer evaluation of a servicing transfer plan. This restriction on the bank’s acquisition of default loan servicing rights seems to be part of a growing regulatory trend for the industry.
The enforcement action should be a wake-up call to the industry that the CFPB is going to strictly enforce the Mortgage Servicing Rules and that servicers should confirm that they are in full compliance.
For more on the consent order, see our legal alert.
On October 2, 2014, the CFPB announced a research pilot to explore ways to encourage saving among consumers at tax time, with particular focus on tax-time saving practices among low-income consumers. The pilot is part of the CFPB’s “Project Catalyst,” which is designed to encourage consumer-friendly developments in markets for consumer financial products and services. See our prior blog posts about Project Catalyst here, here, here and here.
The pilot is the latest of several initiatives launched by the CFPB over the past three years to encourage consumers to save their tax refunds or a portion thereof. These initiatives are pursuant to the CFPB’s mandate to improve the financial literacy of American consumers, and in particular, its charge to provide consumers – especially low to moderate income consumers – with wealth-building strategies and access to financial services during the tax preparation process to claim certain credits and federal benefits. The CFPB has expressed its view that tax time presents an opportunity to many consumers to improve long-term financial health and economic stability by saving their tax refunds.
As part of the pilot, H&R Block, Inc. has agreed to share insights with the CFPB from H&R Block’s own tax time savings project. In its own project, H&R Block is testing the effectiveness of certain strategies to promote tax-time saving behavior, such as providing consumers with informational materials to encourage saving of tax refunds, and having tax preparers introduce to consumers the idea of saving once the consumer learns that he or she will receive a refund.
On October 15 from 3:30 to 5:30 p.m., a meeting of the CFPB’s Community Bank Advisory Council will take place at the CFPB’s offices in Washington, DC. According to the agenda Brian Webster, Program Manager for the Office of Mortgage Markets, will discuss mortgages, and Gary Stein, Deposit Markets Program Manager and Jesse Leary, Section Chief of Consumer and Household Research, will discuss overdrafts. Both topics are very much of concern to community banks. On September 29, 2014, the Bureau announced that it had entered into a consent order with Flagstar Bank regarding alleged violations of the Bureau’s new mortgage servicing regulations. Earlier this year, the Bureau issued a report about overdrafts and it is anticipated that this was a prelude to rulemaking.
This meeting will be open to the public to attend in person or over the internet. The CFPB earlier this year decided to change its prior policy under which meetings of its advisory councils were held behind closed doors.
Could the third time be the charm? Today, the U.S. Supreme Court granted the petition for certiorari filed in May 2014 by the Texas Department of Housing and Community Affairs (Texas DHCA) in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.
The case gives the Supreme Court its third opportunity since 2012 to rule on the issue of whether disparate impact claims are cognizable under the Fair Housing Act. The prior two cases, Twp. Of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. and Magner v. Gallagher, were both settled after the completion of briefing but before the Court could hear oral argument and answer the question presented. This time around the Court granted the certiorari petition without first soliciting the views of the Solicitor General.
The Texas DHCA’s certiorari petition presented two issues: (1) whether disparate impact claims are cognizable under the FHA; and (2) if disparate impact claims are cognizable under the FHA, what standards and burdens of proof should apply. The Supreme Court’s grant of certiorari is limited to the first question. An industry favorable ruling on this question by the Supreme Court would have implications with respect to the analogous issue of whether disparate impact claims are cognizable under the Equal Credit Opportunity Act. Thus, this significant development also is of interest to non-mortgage creditors.
On October 16, 2014, Ballard Spahr attorneys will discuss this development and recent CFPB fair credit developments in a webinar, “Auto Finance II: Fair Credit,” from 12:00 p.m. to 1:00 p.m. ET. The registration form is available here.
In July 2013, the CFPB announced its plans to launch a financial coaching project in 2014 for transitioning veterans and economically vulnerable consumers. Last week, the CFPB announced that it has contracted with the Armed Forces Services Corporation (AFSC), a Service-Disabled Veteran-Owned Business, to run the project and that ASFC is looking for 20 organizations in geographically diverse locations across the country to host financial coaches. The organizations are ones that are already providing other services, including job training, education, social, and housing services, to economically vulnerable consumers. Last month, the CFPB published a notice regarding its plans for evaluating the coaching project.
The CFPB has announced that it has updated its reverse mortgage guide to reflect recent product changes. The changes concern the amount of money a borrower can draw in the first year and the ability of a non-borrowing spouse to continue to live in the home after the spouse who signed the loan passes away.
The CFPB has announced that it has entered into a consent order with a Michigan title insurance agency to settle charges that the agency violated the Real Estate Settlement Procedures Act (RESPA) by paying fees to various companies under marketing services agreements (MSA) that were based on the referrals the agency received or expected to receive from such companies. The consent order provides that the agency does not admit or deny any of the CFPB’s findings of fact or conclusions of law except to admit the facts necessary to establish the CFPB’s jurisdiction.
The consent order finds that the agency entered into the MSAs with the understanding that the counterparties (who include real estate brokers according to the CFPB’s press release) would refer mortgage closings and title insurance business to the agency. The order also finds that the agency: (1) did not determine or document how it determined a fair market value for the services it allegedly received under the MSA, (2) set the fees to be paid under the MSAs in part by considering how many referrals it had received from the counterparties and the revenue generated by the referrals and “in some cases” by considering what competing title companies would pay the same counterparties for such services, (3) did not diligently monitor its counterparties to ensure it received the services for which it contracted, and (4) received significantly more referrals from counterparties when they had MSAs with the agency than when they did not. According to the consent order, the differences are “statistically significant and are not explained by seasonal or year-to-year fluctuations.”
The consent order requires the agency to pay a civil money penalty of $200,000. It also requires the agency to terminate any existing MSAs with companies in a position to refer real estate settlement service business to the agency and prohibits the agency from entering into new MSAs with any such companies. (An agreement under which the agency is to pay a person who does not provide settlement services to place advertisements to the public is not deemed an MSA unless such person endorses the agency as part of the advertisement.)
In addition, the consent order requires the agency to document “all exchanges of things of value worth more than $5.00″ with companies in a position to refer settlement service business to it, including a description of all things of value exchanged and the reasons for the exchange. Such documentation must be maintained for five years after the exchange. The requirement to document such things of value is a new element for a CFPB RESPA consent order, and may signal an approach that the CFPB will seek to take in future RESPA Section 8 enforcement matters.
This consent order is the latest in a series of CFPB consent orders dealing with RESPA’s referral fee prohibition.
The CFPB has issued a white paper on the manufactured housing market, including how manufactured housing is financed and the types of consumers who purchase or rent such housing. In the paper’s introduction, the CFPB explains that although manufactured housing only accounts for six percent of all occupied housing and a much smaller fraction of U.S. home loan originations, such housing is of interest to the CFPB because it is a source of affordable housing particularly for rural and low income consumers and may raise consumer protection concerns due to the nature of the retail and financing markets for such housing. The report relies on publicly available data, including HMDA data, proprietary data voluntarily provided to the CFPB and information obtained through outreach to industry groups, consumer groups, government agencies and “a variety of market participants and observers.”
The paper’s key findings include:
- Compared with residents of site-built homes, a greater proportion of households living in manufactured housing live in rural areas and are headed by a retiree. In addition, such households have median incomes and net worths that are, respectively, half and one-quarter of the income and net worth of other households.
- About three-fifths of manufactured housing residents who own their own home also own the land it is sited on, with the result that such consumers generally have the option to title their home as real property and obtain financing through a mortgage loan or to title the property as personal property and obtain chattel financing.
- An estimated 65 percent of borrowers who own their own land and obtained a loan to buy a manufactured home between 2001 and 2010 financed the purchase with a chattel loan, which often have lower origination costs and close more quickly than mortgage loans but may be priced between 50 to 500 basis points higher. In addition, mortgage loans generally have more consumer protections under RESPA and various state foreclosure and repossession laws. The CFPB notes that it is an “open question” whether consumers are aware of these tradeoffs.
- Manufactured home owners typically pay higher interest rates for their loans than site-built borrowers.
The report also discusses the potential impact of certain provisions of the CFPB’s new mortgage rules on manufactured housing. More specifically, the CFPB discusses how manufactured housing might be impacted by the changes in the HOEPA thresholds and the rules on qualified mortgages/ability to repay, loan originator compensation, appraisals for certain higher-priced mortgage loans, and escrow requirements for first lien higher-priced mortgage loans.
The CFPB notes that data on manufactured housing is scarce relative to the data available on site-built housing. To help close that gap, the CFPB is considering adding a field to the HMDA data that would indicate whether a manufactured housing loan is secured by real or personal property. And, perhaps signaling the nature of its future initiatives relating to manufactured housing, the CFPB states that its findings “underscore the importance of the manufactured housing sector as a source of affordable housing for some consumers, including those outside of metropolitan areas, older households, and lower-income households. At the same time, these same groups include consumers that may be considered financially vulnerable and, thus, may particularly stand to benefit from stronger consumer protections.”
As anticipated, the Department of Defense’s proposed regulations to implement provisions of the Military Loan Act added by the 2013 Defense Authorization Bill would significantly expand MLA coverage. The proposed revisions would limit interest charged to servicemembers and their dependents on all payday loans, vehicle title loans, refund anticipation loans, deposit advance loans, installment loans, unsecured open-end lines of credit, and credit cards and require creditors to screen all applicants against a DoD database before offering such products with rates greater than 36 percent. If adopted, the rule would increase significantly the regulatory and litigation risks that lenders face because the 2013 MLA amendments also included a new civil liability provision that allows private actions for MLA violations to be filed in federal court.
In its current form, the MLA rule covers only three types of consumer credit: closed-end payday loans with a term of 91 days or fewer in which the amount financed does not exceed $2,000; closed-end vehicle title loans with a term of 181 days or fewer, and closed-end tax refund anticipation loans. The MLA rule provides protections to a consumer who is a servicemember or the dependent of a servicemember at the time he or she becomes obligated on certain types of consumer credit transactions, such as limiting interest to 36 percent, prohibiting arbitration and prepayment penalties, and requiring delivery of special disclosures before consummation of the transaction (including oral disclosures, which in certain instances may be satisfied by providing a toll-free telephone number the consumer may call to receive the disclosures).
In developing the proposal, the DoD consulted with the CFPB as well as the FTC and federal banking regulators. Following the DoD’s release of the proposal, Director Cordray issued a statement praising the proposal in which he stated that it “would shut down the predatory lending to the military that has flourished through exploiting legal technicalities. By broadening the types of credit covered under the law, this proposal would carry out the will of Congress by enabling the CFPB to stop lenders from harming servicemembers in ways the law was intended to stop.” Assuming Director Cordray had in mind the CFPB’s ability under the proposal to stop lenders from using pre-dispute arbitration agreements on more MLA-covered loans, might he be signaling the direction of the CFPB’s arbitration study that is expected to be concluded in December?
For more on the DoD’s proposal, see our legal alert.
The CFPB has announced a new project as part of its Project Catalyst initiative, which the CFPB describes as ” designed to encourage consumer-friendly developments in markets for consumer financial products and services.” The new project is a research pilot to examine the effectiveness of early intervention credit counseling for consumers who are at risk of default on their credit card debt. Project Catalyst was launched in November 2012, at which time the CFPB discussed its plans to use the initiative to establish lines of communication with innovators who may be affected by the CFPB’s regulations, understand new and emerging products to be prepared to make necessary regulatory changes, and engage with innovators to better understand which existing laws work and do not work for innovators.
According to the CFPB, as part of the new project, two institutions, one described as a “global credit card issuer” and the other as a “consumer credit counseling service provider based in Philadelphia,” have agreed to share insights with the CFPB from a credit card credit counseling trial project that will offer early-intervention credit counseling to consumers at risk of defaulting on their credit card debt. The CFPB indicates that this research may also help inform whether similar strategies could be effective for consumers facing default on other products such as home, auto or other loans. The CFPB states that it plans to de-identify the information shared by the two institutions and take “appropriate precautions…to ensure that individual consumers cannot be identified through the data.” The CFPB’s research questions and goals are set forth in a summary that accompanied the CFPB’s announcment.