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  • The New CFPB Mortgage Origination Rules Deskbook, 1st Edition
    October 17, 2014
    Joseph Reilly

    BuckleySandler lawyer Joseph Reilly authored “The New CFPB Mortgage Origination Rules Deskbook,” published in partnership with the American Bankers Association. Mr. Reilly was assisted by co-author Joseph Kolar and commenter Benjamin Olson.

    This first edition CFPB Deskbook is an all-inclusive compilation of all the mortgage origination rules made by effective by the CFPB in January 2014, including ability-to-repay and Qualified Mortgage requirements, points and fees, loan originator compensation, appraisals, high-cost mortgages and Qualified Mortgage provisions for Federal Housing Administration and Veterans Affairs loans, among others. It also offers a summary of the TILA-RESPA disclosure integration taking effect in 2015.

    The CFPB Deskbook is available in PDF and hard copy formats. Requests for copies should be sent to CFPBDeskbook@buckleysandler.com.

  • Consumer Financial Services Answer Book 2015
    October 14, 2014
    Richard E. Gottlieb (editor)

    BuckleySandler lawyers played a prominent role in the publication of this leading desk reference on consumer financial services, published by the Practising Law Institute.  The lead editor was Richard Gottlieb, who has served in that role since publication of the first edition in 2011 (the book is published annually).    

    The 2015 edition of this publication continues to provide practitioners with a core understanding of the laws governing consumer financial services, addressing developments in such areas as:

    • Latest CFPB enforcement activities, regulations and guidelines
    • Fair Lending
    • Mortgage Origination and Servicing
    • Auto Lending
    • Truth in Lending Act
    • Fair Credit Reporting Act
    • Fair Debt Collection Practices Act
    • Real Estate Settlement Procedures Act
    • Privacy and Identity Theft

     The Consumer Financial Services Answer Book 2015 also includes new chapters on:

    • Credit Cards
    • Electronic Records and eSignatures
    • Short-Term Lending
    • Unfair and Deceptive Acts and Practices
    • Servicemembers Civil Relief Act
    • Telemarketing and the Telephone Consumer Protection Act

    BuckleySandler lawyers, including lead editor Mr. Gottlieb, co-authored several of the book’s chapters:

    • Consumer Loan Products and the Federal Regulation of Consumer Credit: Richard E. Gottlieb and Jeffrey P. Naimon
    • Telemarketing and the Telephone Consumer Protection Act: Richard Gottlieb and Kristopher R. Knabe
    • Credit Cards: Manley Williams, Valerie L. Hletko and Andrew W. Grant
    • Short-Term Lending: Valerie L. Hletko and Andrew P. Pennacchia
    • Servicemembers Civil Relief Act: Kirk D. Jensen and Sasha Leonhardt
    • Real Estate Settlement Procedures Act: Joseph M. Kolar, Clinton R. Rockwell and Melissa Klimkiewicz
    • Preemption: Fredrick S. Levin
    • The Consumer Financial Protection Bureau: Moorari Shah (contributor)
    • Privacy and Identity Theft: Elizabeth E. McGinn
    • Fair Lending/Non-Discrimination: Andrea Mitchell and Warren Traiger
    • Mortgage Loan Servicing; Residential Foreclosures and Evictions: Brett J. Natarelli
    • Electronic Signatures and Records: Margo H.K. Tank and R. David Whitaker

    Click here to learn more about this book. 

  • Should FIRREA Whistleblower Bounties Be Higher?
    September 29, 2014
    Andrew W. Schilling

    On Sept. 17, U.S. Attorney General Eric Holder raised the prospect of amending FIRREA — the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 — to increase its whistleblower awards with the goal of further incentivizing cooperation in financial fraud cases.[1] While FIRREA has become the U.S. Justice Department’s “go-to” statute for pursuing financial fraud cases, its whistleblower awards are relatively stingy by today’s standards, and they are capped by statute at $1.6 million. In contrast, the department’s other key civil fraud statute — the False Claims Act — authorizes whistleblower awards up to 30 percent of the government’s recovery, without limit.

    The attorney general’s proposal, which would bring FIRREA awards in line with FCA awards, comes at a time of staggeringly high FIRREA penalties. Indeed, in the last year, the government has recovered or been awarded FIRREA penalties exceeding $1 billion on three occasions, including a recent penalty of $5 billion.[2] As the debate over the attorney general’s proposal begins, these staggering penalties raise an important question: In a world of multibillion dollar FIRREA penalties, are whistleblower bounties of hundreds of millions of dollars — or even billions of dollars — really necessary to encourage corporate insiders to blow the whistle on fraud?

    Originally published by Law360; reprinted with permission. 

  • BuckleySandler Files Amici Curiae Brief on Behalf of Industry Groups in Supreme Court TILA Case
    September 17, 2014
    Kirk Jensen, Jeffery Naimon, Sasha Leonhardt & Alexander Lutch

    On September 17, BuckleySandler filed an amici curiae brief on behalf of six industry associations in a Supreme Court case addressing the right to rescind a transaction under the Truth in Lending Act (TILA). In Jesinoski v. Countrywide, No. 13-684, the Court will consider whether borrowers must file a lawsuit within three years of origination to rescind a home mortgage loan under TILA, or whether borrowers can merely submit notice of their intent to rescind the loan. The industry brief, filed on behalf of the American Bankers Association, the American Financial Services Association, the Consumer Bankers Association, the Consumer Mortgage Coalition, the Independent Community Bankers of America, and the Mortgage Bankers Association, argues that requiring borrowers to file a lawsuit within three years provides certainty to the marketplace while preserving borrowers’ rescission rights. 

  • The CFPB’s ‘UDAAPification’ of Consumer Protection Law
    September 16, 2014
    Jonice Gray Tucker & Aaron C. Mahler

    Questions about the scope of the Consumer Financial Protection Bureau's jurisdiction abound for financial institutions and other entities that work with them. What are the boundaries of the CFPB’s authority? How might these parameters expand in the future? Are there other ways the CFPB may take action against a company even if it does not have supervisory authority, and what would that action look like? These are just a few of many jurisdictional questions that financial institutions and their kin have pondered since the CFPB opened its doors in July 2011.

    The CFPB’s jurisdiction is wide and its reach seems to grow longer as time passes. The bureau regulates many entities through direct supervisory authority and holds the power to indirectly “regulate” many others through its ability to enforce a veritable alphabet soup of consumer protection laws. These laws include Sections 1031 and 1036 of the Consumer Financial Protection Act, a far-reaching statute that broadly prohibits unfair, deceptive or abusive acts or practices in connection with any transaction with a consumer for consumer financial products and services or the offering of such products or services.

    Originally published by Law360; reprinted with permission. 

Knowledge + Insights

  • Special Alert: Class Action Suit Filed Based on CFPB Consent Order
    October 17, 2014

    In what may be the first action of its kind, a consumer who received restitution under the CFPB consent order has filed a class action lawsuit based on the same alleged violations.  While this litigation is still in its early stages, it serves as an important reminder that an institution’s exposure does not end when it reaches a public settlement with a regulator and may, in fact, increase.

    SETTLEMENT OF CFPB ACTION

    As previously discussed in a BuckleySandler webinar, on July 24, 2013, the CFPB filed suit against Castle & Cooke Mortgage LLC, its President, and its Senior Vice President of Capital Markets, alleging that the defendants “developed and implemented a scheme by which the Company would pay quarterly bonuses to loan officers in amounts that varied based on the interest rates of the loans they originated” in violation of the Truth in Lending Act’s loan originator compensation rules.

    On November 7, 2013, the defendants entered into a consent order with the CFPB, agreeing to pay $9.2 million for restitution and a $4 million civil penalty to resolve the allegations.  Consistent with current CFPB practice, the consent order stated that “[r]edress provided by the Company shall not limit consumers’ rights in any way” – in other words, affected consumers are not required to sign releases in order to receive remediation.

    CLASS ACTION LAWSUIT

    On July 21, 2014, Luis Cabrales filed a class action lawsuit against Castle & Cooke Mortgage LLC in the U.S. District Court for the Eastern District of California.  The complaint asserts violations of the Truth in Lending Act, the Real Estate Settlement Procedures Act, and state law based on the allegation that the “loan officer who sold plaintiff his mortgage loan was paid a bonus that was based, at least in part, on the fact that plaintiff received a more expensive and/or less favorable loan than he otherwise would have received.”  The complaint seeks various remedies, including actual and statutory damages under the Truth in Lending Act.

    The complaint specifically references the CFPB consent order and states that, “plaintiff received a check from the CFPB in the amount of $795.02, representing his share of the CFPB’s restitution fund.”  However, the complaint further asserts that “[p]laintiff is owed additional amounts as a result of C&C Mortgage’s illegal practices” and that the statute of limitations was tolled until the date the CFPB distributed restitution checks to plaintiff and other members of the putative class.

    KEY TAKE-AWAY

    While the ultimate resolution of this particular private action is unclear, it highlights the substantial ongoing risks for institutions that enter into public settlements with regulators when releases are not obtained as part of the consent order’s remediation plan.

    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert: Proposed Amendments to the TRID Rule and Introducing BuckleySandler's TRID Resource Center
    October 15, 2014

    BuckleySandler is pleased to announce our new TILA-RESPA Integrated Disclosure (“TRID”) Resource Center.  The TRID Resource Center is a one-stop shop for TRID issues, providing access to BuckleySandler’s analysis of the TRID rule and the CFPB’s amendments, transcripts of CFPB webinars providing guidance on the rule, and other CFPB publications that will facilitate implementation of the rule.  In particular, the TRID Resource Center will address the following recent developments:

    • Proposed amendments. On October 10, 2014, the CFPB proposed amendments to the TRID rule that, if adopted, would: (1) allow creditors to provide a revised Loan Estimate on the business day after the date the interest rate is locked, instead of the current requirement to provide the revised Loan Estimate on the date the rate is locked; and (2) correct an oversight by creating room on the Loan Estimate form for the disclosure that must be provided on the initial Loan Estimate as a condition of issuing a revised estimate for construction loans where the creditor reasonably expects settlement to occur more than 60 days after the initial estimate is provided.  The proposal would also make a number of additional amendments, clarifications, and corrections, including:
      • Add the Loan Estimate and Closing Disclosure to the list of loan documents that must disclose the name and NMLSR ID number of the loan originator organization and individual loan originator under 12 C.F.R. § 1026.36(g);
      • Provide additional guidance related to the disclosure of escrow accounts, such as when an escrow account is established but escrow payments are not required with a particular periodic payment or range of payments; and
      • Clarify that, consistent with the requirement for the Loan Estimate, the addresses for all properties securing the loan must be provided on the Closing Disclosure, although an addendum may be used for this purpose.

      Comments on the proposal are due by November 10, 2014. For your convenience,we have updated our summary of the TRID rule to identify the most significant proposed changes.

    • Unofficial Transcript of the CFPB’s October 1 Webinar on the Loan Estimate Form.  As it has with past webinars where CFPB staff provide informal guidance,BuckleySandler has prepared a transcript of the CFPB’s October 1, 2014 webinar (hosted by the Federal Reserve) addressing frequently asked questions regarding the Loan Estimate form.  The transcript is provided for informational purposes only and does not constitute legal opinions, interpretations, or advice by BuckleySandler. The transcript was prepared from the audio recording arranged by the Federal Reserve and may have minor inaccuracies due to sound quality. In addition, the transcript has not been reviewed by the CFPB or the Federal Reserve for accuracy or completeness.

    Other items in the TRID Resource Center include:

    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

     

  • Special Alert: FinCEN Publishes Long-Awaited Proposed Customer Due Diligence Requirements
    September 8, 2014

    On August 4, 2014, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) published a Notice of Proposed Rulemaking ("NPRM") that would amend existing Bank Secrecy Act (“BSA”) regulations intended to clarify and strengthen customer due diligence (“CDD”) obligations for banks, securities broker-dealers, mutual funds, and futures commission merchants and introducing brokers in commodities (collectively, “covered financial institutions”).

    In drafting the modifications, FinCEN clearly took into consideration comments responding to its February 2012 Advance Notice of Proposed Rulemaking (“ANPRM”), as the current proposal appears narrower and somewhat less burdensome on financial institutions. Comments on the proposed rulemaking are due October 3, 2014.

    Overview: Under the NPRM, covered financial institutions would be obligated to collect information on the natural persons behind legal entity customers (beneficial owners) and the proposed rule would make CDD an explicit requirement. If adopted the NPRM would amend FinCEN’s AML program rule (the four pillars) by making CDD a fifth pillar.

    Click here to view the special alert.

  • Special Alert: CFPB Bulletin Re-Emphasizes Focus on Mortgage Servicing Transfers
    August 21, 2014

    On August 19, 2014, the CFPB issued Bulletin 2014-01 to address “potential risks to consumers that may arise in connection with transfers of residential mortgage servicing rights.”  The bulletin, which is the latest in a series of CFPB regulations, statements, and guidance on this subject, replaces the Bureau’s February 2013 bulletin on mortgage servicing transfers and states that “the Bureau’s concern in this area remains heightened due to the continuing high volume of servicing transfers.”  It further states that “the CFPB will be carefully reviewing servicers’ compliance with Federal consumer financial laws applicable to servicing transfers” and “may engage in further rulemaking in this area.”

    The bulletin contains the following information, which is summarized in great detail below:

    • Examples of policies and procedures that CFPB examiners may consider in evaluating whether the servicers on both ends of a transfer have complied with the CFPB’s new regulations requiring, among other things, policies and procedures reasonably designed to facilitate the transfer of information during servicing transfers and to properly evaluate loss mitigation applications.
    • Guidance regarding the application of other aspects of the new servicing requirements to transfers.
    • Descriptions of other Federal consumer financial laws that apply to servicing transfers, such as the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the prohibition on unfair, deceptive, and abusive acts or practices (“UDAAPs”).
    • A statement that “[s]ervicers engaged in significant servicing transfers should expect that the CFPB will, in appropriate cases, require them to prepare and submit informational plans describing how they will be managing the related risks to consumers.”  This largely reiterates the Bureau’s statements in its February 2013 bulletin.

    In a press release accompanying the bulletin, CFPB Director Richard Cordray stated that: “At every step of the process to transfer the servicing of mortgage loans, the two companies involved must put in appropriate efforts to ensure no harm to consumers. This means ahead of the transfer, during the transfer, and after the transfer.  We will not tolerate consumers getting the runaround when mortgage servicers transfer loans.

    Click here to view the special alert.

  • Special Alert: Recent Regulatory Actions Impacting Virtual Currency Ecosystem
    August 12, 2014

    New York Virtual Currency Proposal Could Capture Certain Bank Products | CFPB Issues Consumer Advisory | CFPB Announces Acceptance of Consumer Complaints

     

    New York Virtual Currency Proposal Could Capture Bank Products, Card Rewards Programs

    On July 17, the New York Department of Financial Services (NYDFS) proposed a rule intended to govern the virtual currency marketplace. The proposed rule is extremely broad and as currently drafted would appear to capture products provided by traditional brick and mortar banks and other regulated financial institutions. For example, as proposed, the rule could regulate:

    • Reward programs, “thank you” offers, or digital coupons that offer cash back or statement credits;
    • Generated numbers that access cash;
    • Prepaid access and other cards that will allow customers to receive cash, including those customarily exempt such as government funded transfers;
    • P2P transfers; and
    • Wallet providers where the customer can access cash.

    If left unaddressed, these apparent unintended consequences could create a confusing regulatory environment for certain bank and card products. It is also noteworthy that the rule does not provide any customary exclusions for chartered entities, raising substantial preemption questions.

    Businesses engaging in activities covered by the proposed rule would be required to apply for a license from the NYDFS within 45 days of the effective date of the regulation. The proposed rule also sets out comprehensive compliance obligations involving consumer protection, cybersecurity, anti-money laundering, and anti-fraud, and the rule would subject licensed institutions to examination by the NYDFS. Failure to obtain a license could result in disciplinary action by the NYDFS.

    The comment period on the proposed rule ends on September 6, 2014.

     

    CFPB Announces Two Actions Related To Virtual Currencies

    On August 11, the Consumer Financial Protection Bureau (the CFPB or Bureau) issued a “consumer advisory” concerning virtual currency and also announced that it would begin accepting consumer complaints about virtual currency or virtual currency companies. These actions are the consumer agency’s first foray into virtual currencies, and they follow a recent GAO report that recommended the CFPB play a larger role in the development of federal virtual currency policy.

    Consumer Advisory
    The advisory describes virtual currencies, briefly notes their potential for innovation, and cautions consumers about the numerous and significant risks the CFPB believes virtual currencies present for consumers. Specifically, the CFPB cautions virtual currency consumers that there are risks related to hackers, fewer consumer protections, costs, and scams. The advisory elaborates on the risks for each stage of a virtual currency transaction: purchasing, storing, or transacting in virtual currencies. For example:

    • Purchasing: Warns consumers purchasing virtual currencies to beware of cost fluctuations and potential scams.
    • Storage: Expresses concerns about data security risks and the lack of federal insurance for virtual currencies.
    • Transactions: Advises consumers transacting in virtual currencies to read their agreement with their wallet provider and be mindful of the risks of linking their digital wallet account to their bank account or payment card.

    Consumer Complaints
    The Bureau announced that it is working on a new form for virtual currency complaints, but in the meantime will accept such complaints using its money transfer complaints form.

    Virtual currency complaints will be subject to the CFPB’s standard complaint process. As described in the CFPB’s most recent consumer complaint report, once a complaint is submitted, the CFPB sends the complaint to the appropriate company and works with the company to get a response within 15 calendar days. Each complaint is published in a public database after the company responds to the complaint or after the company has had the complaint for 15 days, whichever comes first. If a company can demonstrate within the 15-day period that it has been wrongly identified, no data for that complaint will be posted unless and until the correct company is identified. The CFPB states that if it receives a complaint about an issue outside its jurisdiction, the Bureau will forward the complaint to the appropriate federal or state regulator.

    Jurisdictional issues notwithstanding, the Bureau promises to use all virtual currency complaints it receives to better understand the virtual currency market and its effect on consumers. The CFPB also asserts that it will use complaints to help enforce federal consumer financial laws and, if appropriate, take consumer protection policy steps. The Bureau has demonstrated through its examination and enforcement activity in other areas that consumer complaints play a significant role in the Bureau’s risk-based approach to supervision and enforcement. Moreover, the CFPB recently proposed to publish consumer complaint narratives with other complaint data already made public, noting in its proposal that by increasing consumer complaint volume, publication of narratives would benefit “the many Bureau functions that rely, in part, on complaint data to perform their respective missions including the Offices of Supervision, Enforcement, and Fair Lending, Consumer Education and Engagement, and Research, Markets, and Rulemaking.”

    *           *           *

    Our Digital Commerce & Payments Practice group is experienced in regulatory matters arising at the intersection of digital payments, financial institutions, and technology providers, and is uniquely positioned to assist virtual currency and related companies whose business brings them into contact with the CFPB.

    Our Consumer Financial Protection Bureau group has advised clients in dozens of CFPB examinations, investigations, and enforcement actions and frequently represents clients in connection with CFPB supervision preparedness and matters pertaining to compliance with CFPB rulemakings and regulatory expectations, including consumer complaint issues.

    Please contact one of the attorneys listed below if you would like to discuss the CFPB advisory or complaints announcement.