Posts filed under ‘Mortgage Lending’

NCUA to CUs: Don’t Forget About New CFPB Foreclosure Regs

Yours truly is back from a recent visit to God’s country (aka Long Island) and this morning I have credit cards, mortgage regulations and class action lawsuits on my mind.

The NCUA has sent out this letter to credit unions reminding them that new regulations have been issued by the CFPB requiring mortgage servicers to take additional steps to ensure that individuals impacted financially by COVID-19 are vetted for potential loan modifications. These new amendments take effect on August 31st. As I explained in a previous blog, among other things these new regulations apply to homeowners who suffer a financial hardship due, directly or indirectly to the national emergency for the COVID-19 pandemic declared on March 13th 2020.

This announcement got me thinking about one of my favorite topics: The interplay between compliance and litigation, particularly for you bigger guys out there.

NCUA’s announcement is more than just a reminder of what needs to be done on your compliance to-do-list; it is in fact a warning that when you go to foreclose on someone for years to come both borrower attorneys and class action lawyers will be scrutinizing your compliance with these regulations to argue that but for your credit union’s failure to properly comply with these regulations, your member would still own their house.

For example, this morning Law360 reported on how a federal judge in California has increased the number of persons eligible for settlement money from a lawsuit alleging that Wells Fargo failed to properly evaluate borrowers for eligibility in the HAMP program. You may recall that the federal government responded to the mortgage meltdown which started a little over a decade ago by creating the Home Affordable Modification Program (HAMP) under which delinquent borrowers could seek modifications of their mortgage loans. Wells Fargo used a computer program that miscalculated eligibility requirements leading to hundreds of persons either losing their homes or spending more money than they otherwise would have had to. In other words, this is a classic example of how a compliance failure leads to a litigation mess.

Where New Yorkers Stands With Credit Card Debt

Here’s an interesting factoid for you: New Yorkers have among the most sustainable credit card debt in the country with median credit card balances of $1,854 and a median income of $54,588 with which to pay off that debt. These are among the findings of this report issued by WalletHub Today.

See you tomorrow, enjoy your day.

July 27, 2021 at 9:32 am Leave a comment

HUD Proposes Reinstating Disparate Impact Rule

On Friday the Department of Housing and Urban Development (HUD) announced that it was proposing regulations to reinstate an Obama era regulation scuttled by the Trump Administration which was designed to outline what had to be proven by individuals claiming a violation of the Fair Housing Act which prohibits discrimination on the basis of race, color, sex, and other protected classifications. Given the level of political discourse in this country, I suspect there will be a great deal of emotional debate. Here is a primer on the actual issues involved:

The core issue is how expansive HUD’s authority is to interpret the FHA and the regulation being debated is 24 CFR 100.500 which outlines how disparate impact in the provision of housing can be proven. Behind this ostensibly esoteric announcement lurks one of the most emotional and important debates that the nation will be having in the coming years; one that I suspect will only grow more intense: how much proof should be required to prove housing discrimination and should intent matter where policies have the effect of discriminating against someone on the basis of race?

In 2013, HUD issued regulations designed to “implement the Fair Housing Act’s discriminatory effect standards” (78 FED. REG. 11460. 2013). Even the title was loaded. At the time some lawyers argued that disparate impact analysis was not even authorized under the FHA.  In 2015, this issue was addressed by the Supreme Court in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project. The Supreme Court ruled that it was within HUD’s authority to promulgate a disparate impact standard but the issue was still not settled. Ultimately, the Trump administration repealed these regulations and replaced them with a new standard that made it more difficult for plaintiffs to win (see 85 FR60288-01, 2020).

It was back to the courts again. A district court ruled that these regulations clearly made it more difficult for plaintiffs to prove discriminatory impact.  For example, these regulations required plaintiffs to “sufficiently plead facts” to support.  “[T]hat the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law.” Massachusetts Fair Housing Center v. United States Department of Housing and Urban Development. In this decision, the federal district court in Massachusetts issued an injunction against the Trump era regulations.  Today you can still read these regulations, but they exist in a regulatory twilight zone with no one quite sure of what the legal standard is. 

There is undoubtedly more to come as the issues being debated ping pong between regulators and the courts. This is yet another issue that our system needs congress to resolve and its inability or unwillingness to do so creates a vacuum which leaves financial institutions unsure of what they can and cannot do.  

July 7, 2021 at 10:40 am Leave a comment

New Requirements Finalized for Delinquent COVID-19 Homeowners

Hello Folks,

For those of you who do mortgage lending, your summer just got a little busier.  The CFPB has issued highly nuanced amendments to its existing regulations dealing with delinquent borrowers that have to be in place by August 31st.

For months the CFPB has expressed concern that as federal and state laws protecting individuals from foreclosure end, there will be a huge increase in foreclosures that will disproportionately impact minority communities. As originally proposed, the regulations put forward by the CFPB would have had the practical effect of preventing most foreclosures through the end of this year. These final regulations don’t go that far but they impose nuanced amendments for dealing with homeowners impacted by Covid-19 which your policies and procedures will have to reflect. Remember every box you don’t check off represents one more potential delay in a foreclosure.

I will be getting into the weeds in future blogs, but for now, among the most important things to keep in mind is that the regulations implement a streamline loan modification process under which mortgages that meet certain conditions can be evaluated for potential modifications by a servicer who has not received a completed application. Additionally, the regulations prescribe specific information which must be provided to delinquent borrowers. For instance, a servicer must inform a borrower that there are programs for individuals having difficulty making payments because of the Covid-19 emergency; list and describe the applicable programs and tell the borrower of at least one way they can find contact information for homeownership counseling services.

There is much more but for now, I want to make sure you start delving into this regulation if you haven’t done so already.

It’s Back!

New York Congresswoman Carolyn Maloney kicked off the holiday weekend by introducing the “Overdraft Protection Act of 2021.” If enacted, the bill would restrict overdraft fees by, among other things, requiring that such fees be “reasonable and proportional” to the cost of processing these transactions and limiting the number of overdraft fees that can be imposed on any one consumer. Expect an even bigger push to get the legislation done this year.

July 6, 2021 at 9:45 am 1 comment

What The End of New York’s State of Emergency Means For Your Credit Union

When you specialize in compliance, even good news can keep you up at night. So it goes with Governor Cuomo’s announcement that he was ending the state of emergency he imposed on March 7th 2020 in response to this thing called COVID-19.

On the one hand, this is of course great news; on the other hand almost immediately, the Association started receiving phone calls about what effect this would have on existing policy and procedures put in place during the pandemic. With the caveat that this is not intended as a definitive list, here is what we know so far:

The executive orders authorized notaries to notarize documents over the internet. This authority has ended. The Department of State issued this memo informing us that effective June 24th, this authority came to an end. Clearly this prohibition is intended to apply prospectively but for those of you who do mortgages don’t be surprised if title insurers raise questions about the validity of your notarizations. They are a nervous a lot. The good news is that the legislature passed a bill to permanently authorize remote notarization.  Perhaps this will spur quicker action on that bill.

An executive order had extended the expiration date of licenses. I know credit unions have relied on this authority when opening up new accounts for members. This authority also came to an end on June 24th 2021. You may want to put a note in your files so that future employees and examiners reviewing account documentation understand that appropriate procedures were used.

Lending was of course another area where the executive orders had a big impact. But many of those early executive orders issued by the Department of Financial Services have been superseded by laws passed by the Legislature. Most importantly § 9-X of the Banking Law which mandates loan forbearance periods for individuals impacted by COVID-19 applies between March 7th 2020 and the latter of December 31st 2021, or the end of the emergency orders. In addition, pursuant to law, New York’s foreclosure moratorium remains in effect until August 31st 2021.

Then there are of course the HR issues. You still have an obligation under both New York law and general OSHA standards to protect your employees against the spread of COVID. This means that you still have to address issues such as mask mandates and vaccination requirements.

All this means that, as my man Winston Churchill would say, “Now, this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

On that note, enjoy your day.

June 28, 2021 at 10:14 am Leave a comment

Juneteenth Creates Compliance Glitch For Mortgage Lenders

The passage of legislation making Juneteenth a national holiday resulted in a compliance glitch which the CFPB could, and hopefully will, fix as early as today.

This issue sent me back to the preamble to the 2013 final TRID regulations. As the CFPB explained, neither RESPA nor TILA defines the term “business day.” As a result, for reasons that have never been clear to me, Regulation X which implements RESPA and Regulation Z which implements TILA contain separate definitions of a business day.

Most importantly, Regulation Z applies a definition of business days which includes calendar days except Sunday and legal public holidays specified in § 5 USC 6103. This is the section of law amended by Congress last week. As a result, from a strict compliance standpoint, June 19th was a national holiday and not a business day for disclosure purposes. This means that your credit union runs the risk of making loans that are out of compliance with federal regulations.

Yours truly is hopeful that common sense will prevail. Hopefully the CFPB will issue guidance clarifying that for purposes of complying with federal regulations. Lenders will not be deemed to be out of compliance for counting Juneteenth as a business day in 2021.

NY to Release Diversity and Inclusion Document to State Regulated Institutions

The Department of Financial Services will shortly release a memorandum to state chartered institutions explaining the department’s expectations as it relates to diversity and inclusion in the workplace. This publication is similar to one issued last October related to climate change initiatives. Its purpose is not to impose specific mandates at this time but to begin a discussion about the requirements that should be imposed on banks, credit unions, and mortgage lenders. When it comes to the efforts they are making to bring more diversity to middle and upper management. Stay tuned.

June 21, 2021 at 9:33 am Leave a comment

Bank Preemption Takes Center Stage

There is currently a case before New York’s Court of Appeals for the Second Circuit that could have a direct impact on your credit union’s bottom line even if you don’t have the great fortune of living in New York. The issue is whether or not federally chartered banks are subject to a New York law mandating that lenders provide interest payments to borrowers with mortgage escrow accounts. If the court upholds two lower court rulings, federally chartered credit unions should be prepared to also provide interest payments. NCUA preemption standards are less stringent than those typically exercised by the OCC.  The cases being appealed are Hymes et al. v. Bank of America NA, case number 21-403, and Cantero v. Bank of America NA, case number 21-400, in the U.S. Court of Appeals for the Second Circuit.

I have blogged about these cases before, and I just wanted you to know that I am not the only one paying attention.  Law360 reported that the OCC has weighed in with an amicus brief.   The issue is the applicability of New York General Obligation law 5-601 which requires banks and credit unions to pay interest on mortgage escrow account balances. The statute has been around for decades, dating to the early 80’s when high inflation rates chipped away at member’s savings. But since the law’s inception, courts have ruled that its provisions don’t apply to federally chartered institutions.  The OCC argued that in refusing to preempt New York’s law, the lower courts adopted a legal standard which violates long standing precedent.

If you think you got it bad…

If you’ve been obsessing about your credit union’s influx of cash, you are not alone.

Yesterday, the FDIC released this report detailing the impact that the unprecedented influx of cash has had on banks. The report was required as part of a restoration plan that had to be imposed on banks after they fell below their statutory deposit baseline.

What struck me about the report is just how much financial institutions have riding on the assumption that this glut of money is a short-term phenomenon.  Obviously, if people start spending money again now that the COVID restrictions have been lifted, the savings glut will be a short-term glitch that we can reminisce about over drinks when we look back at the pandemic. But what happens if inflation continues to rise and consumers are weary to spend too much money as the economic outlook remains uncertain? Hopefully we will not have to find out.

June 16, 2021 at 10:09 am Leave a comment

The Good, The Bad, and The Ugly as Albany’s Session Comes To A Close

Early this morning, the NYS Legislature came to its unofficial end as the Assembly passed the last measures of an extremely active session. Here is a first look at some of the key legislation that will impact CUs if it is approved by the Governor.

In a major legislative accomplishment, credit unions successfully lobbied for legislation which will allow them to participate in the Excelsior Linked Deposit program. The program gives lenders access to state deposits in return for making qualifying small business loans of up to two million dollars. Just how long have credit unions been seeking to participate in the program? Well, one of our volunteer board members lobbied for passage of the bill by showing legislators a letter he wrote in support of credit union participation to the Governor… Governor Pataki.

Credit Unions came up short on legislation which would allow municipalities to place their funds in credit unions but for the first time in at least 15 years, legislation has been voted out of the Senate and Assembly Banks committees. This means that the finance committees will be hearing from plenty of credit unions over the next year.

Finally, credit unions successfully lobbied for passage of legislation which will help bring banking into the 21st century by authorizing the use of remote online notarization. This bill is a win for consumers in general and the elderly and disabled, in particular, who will now be able to more easily get their documents notarized without having to go to a branch. The legislation would also make it easier to sell mortgages on the secondary market.

Now for the bad news. The legislature passed a measure to cap the interest that can be charged on judgements related to consumer debts at 2%. As drafted, the new interest rate would apply to judgements which have been filed but not yet executed prior to the bill becoming effective. If you think that is a recipe for a confusing mess, you’re correct.

Earlier this year, New York’s Court of Appeals wrote a series of decisions restoring a level of common sense to New York’s foreclosure process. The legislature passed a series of measures which chip away at these rulings. For example, Assembly 2502A imposes additional pleading requirements on lenders seeking to foreclose that could otherwise be waived by a homeowner.

Another bill passed by the legislature would extend CRA requirements to licensed mortgage bankers. Crucially, this bill would not apply to credit unions. It would apply to mortgage CUSOs.

Looking ahead, the table has been set for a debate over legislation to impose a California-style data protection framework on NYS. Legislation has been introduced and the Association is seeking to exempt GLB compliant institutions. Get your talking points ready for the trip to Albany next winter.

June 11, 2021 at 9:50 am Leave a comment

NY Extends and Increases Foreclosure Moratorium

The New York State Legislature just passed what it is proclaiming to be the strongest moratorium law in the country.  

Specifically, it has passed a measure (S6362-A) extending until August 31, 2021 an eviction and mortgage moratorium. The law, which was originally passed in December and signed by the Governor applies to both tenants facing eviction and individuals with ten or fewer residential mortgages, one of which is their primary residence.  This prohibition does not apply to mortgages owned by Fannie Mae or Freddie Mac, which are subject to a separate moratorium.

A second closely related measure (S5742) extends the foreclosure moratorium to commercial tenants in New York State that employ up to one hundred or fewer employees or was closed to in-person operations by executive order between May 15, 2020 and May 1, 2021 and employs up to five hundred employees.

May 5, 2021 at 9:50 am Leave a comment

CFBP Extends QM Compliance Deadline

The increasingly drawn out fate of regulations creating a new definition of what qualifies as a Qualified Mortgage took another turn this week when the CFPB announced that it was extending the deadline for compliance from July 1,, 2021 until October 1, 2022.  This is good news especially for those of you intending to sell mortgages to the secondary market.  As I explained in a recent blog, the GSE recently put its partners on notice that without a change to the deadline it would not accept for purchase mortgages which qualify under the existing QM patch with its higher debt-to-income parameters. 

The preamble to this announcement includes this graph demonstrating just how dependent the housing market remains on access to the GSEs even as private label securitization continues to recover.

Second Circuit Examines Standing In Data Breach Cases

I will be delving into this more extensively next week but I did not want this week to end without informing my faithful readers that the U.S. Court of Appeals for the Second Circuit has decided an important case in which it explains the circumstances under which individuals whose data has been exposed to theft by unauthorized third parties can bring lawsuits in New York federal courts.  The case is McMorris v. Carlos Lopez & Assocs., LLC .

On that note, enjoy your weekend.  Yours truly will be paying for his first haircut and shave in about 16 months.

April 30, 2021 at 9:58 am Leave a comment

Untangling the Mortgage Mess

In the immortal words of William Shakespeare “Oh, what a tangled web we weave when we try to mess up the regulatory agenda of the incoming administration”. 

Over the last few months yours truly has been hesitant to talk too much about changes to the Qualified Mortgage regulations since the rules are as likely to take effect as Joe Biden is to be endorsed by a coal miner union.  But, those of you who originate mortgages for sale to the GSEs are experiencing one of the most confusing periods of regulatory uncertainty in more than a decade.  It is beginning to have some real consequences.  Here is some background. 

Dodd-Frank mandated that the CFPB promulgate regulations defining a Qualified Mortgage. As readers of this blog also know, Dodd-Frank also stipulated that mortgages purchased by Fannie Mae and Freddie Mac would also qualify for Qualified Mortgage protections.  This exemption was only expected to last as long as Congress figured out what to do with the GSEs, or January 10, 2021.  The CFPB finalized regulations late last year eliminating the QM patch and amending the general QM regulations.  Under these new regulations qualified mortgage designation would be determined based on a mortgage’s APOR.  The Bureau issued a final rule to amend the General QM definition in December of 2020. This rule took effect on March 1, 2021 and has a mandatory compliance date of July 1, 2021. 

To the surprise of absolutely no one, the new leadership at the CFPB announced that it was considering making changes to the revised QM definition.  It has proposed extending the compliance deadline until 2022.  In the ensuing months it will undoubtedly be coming up with a new QM definition. 

But here is where the deal gets even more complicated.   Remember back in 2008 when the federal government had to bail out Fannie and Freddie for fear of triggering a Great Depression?  As part of that bailout, a conservatorship was created for the GSEs and since that time the Treasury has imposed contractual obligations on the GSEs in return for the hundreds of billions of dollars they received from the American tax payer.  (We don’t like using this term in America, but Fannie and Freddie have been nationalized.)  This agreement was recently amended.  Under this agreement, as things currently stand, the GSEs are obligated to begin implementing the new APOR standard on July 1st.  This means that even though the CFPB has already signaled its intention to reconsider the new QM definition, lenders that work with the GSEs have to start preparing new policies and procedures for the July 1st deadline.

Against this sordid backdrop, CUNA yesterday issued this letter urging the Treasury to promptly remedy this situation.  As CUNA noted, forcing the GSEs to implement these changes “would be unnecessary, wasteful, and ultimately harmful for consumers as the implementation cost may also increase the cost of credit.”

It is hard to underestimate the man hours involved in preparing for these types of major changes.   

Let’s hope this glitch gets resolved quickly before all of this confusion begins to have practical consequences. 

NCUA Meeting Recap

Here is NCUA’s recap of yesterday’s Board meeting.  Remember that the Board already approved the interim regulations giving credit unions greater PCA flexibility.

On that note, enjoy your weekend.  Let’s hope it gets warmer. 

April 23, 2021 at 10:28 am Leave a comment

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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