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  • District court sanctions banker for violating consent order issued by CFPB and Maryland Attorney General

    Courts

    On May 21, the U.S. District Court for the District of Maryland granted in part and denied in part a motion for sanctions brought by the CFPB and the Consumer Protection Division of the Maryland Attorney General’s Office (plaintiffs) against a banker (defendant) previously held in civil contempt for violating a final judgment order prohibiting him from participating in the mortgage industry. As previously covered in InfoBytes, in April 2015, a joint enforcement action alleging participation in a mortgage-kickback scheme in violation of RESPA and state law was bought against the defendant, five other individuals, and a Maryland title company. According to the 2018 sanctions order, a stipulated final judgment and order between the parties was approved in November 2015, which, among other things, limited the defendant—who neither admitted nor denied the allegations—from participating in the mortgage industry for two years but did not prohibit him “from acting solely as a personnel or human-resources manager for a mortgage business operated by a FDIC insured banking institution. . . .”

    However, in August 2017, the court held the defendant in civil contempt for failing to comply with the order when it was discovered that the defendant (i) owned and operated mortgage businesses in violation of the order, while claiming to be employed as a human resources professional at one of the businesses; (ii) operated bank branches in Maryland and California; (iii) failed to upload the final judgment and order into the Nationwide Mortgage Licensing System and Registry (NMLSR); and (iv) failed to comply with stipulated reporting requirements. The plaintiffs’ proposed sanctions sought to disgorge all of the defendant’s income from 2015 until the date of compliance and impose a lifetime ban from the industry. In issuing the sanctions, the court ordered that all contemptuous income since the final judgment should be disgorged and extended the original two-year ban another two years—minus the exemption for employment as an HR professional. The defendant is further required to post the sanctions order on the NMLSR within 60 days.

    Courts CFPB State Attorney General Mortgages RESPA Enforcement

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  • 7th Circuit affirms RESPA requires actual damages under QWR rules

    Courts

    On April 10, the U.S. Court of Appeals for the 7th Circuit affirmed the district court’s dismissal of a RESPA action because the plaintiff did not properly establish actual damages arising out of her non-receipt of a response to her Qualified Written Request (QWR) to the bank. The opinion explains that the plaintiff’s property was vandalized in 2014 and the bank received insurance money to escrow for repairs. In 2015, the bank released funds for the repairs and subsequently, the plaintiff’s contractor abandoned the job; the property was then vandalized twice more. On September 5, 2015, the plaintiff sent the bank a letter asking about the status of her loan, specifically regarding how insurance money was being handled. The bank sent a response to the letter on September 25, 2015, but the plaintiff alleges she never received the bank’s response and contends the bank’s failure to respond to her QWR caused her emotional distress and contributed to her divorce. The 7th Circuit agreed with the district court that the plaintiff failed to establish how a response to her QWR would have resolved her financial inability to make the required repairs since RESPA does not require the bank to pay money in response to a written request. Moreover, the Appeals Court held that some of the plaintiffs asserted injuries, such as her divorce, are outside the scope of RESPA.  

     

    Courts RESPA Mortgages Damages

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  • Court holds lenders may not require borrowers to use an affiliated appraisal management company under RESPA; denies class certification

    Courts

    On February 7, a magistrate judge of the U.S. District Court for the Northern District of Georgia recommended denial of a motion for class certification in a case alleging that a mortgage lender, an affiliated appraisal management company (AMC), and the individual owner, through trusts, of both the lender and the AMC committed RESPA violations. The plaintiffs alleged that the individual owner received a thing of value, i.e, profit distributions from the AMC, that were generated from the lender’s referrals to the AMC in violation of Section 8(a) of RESPA, notwithstanding the exemption for affiliated business arrangements, (i) because no disclosure of the affiliation was provided to the borrowers, or (ii) because, even when a disclosure was provided, the borrowers were required to use the AMC.

    While reviewing whether the class would have standing, the court disagreed with the defendant’s assertion that the affiliated business arrangement exemption under Section 8(c)(4) of RESPA, which generally bans the required use of an affiliate, but permits a lender to impose its choice of an attorney, credit reporting agency, or real estate appraiser to represent the lender’s interest, should be interpreted to permit the mortgage lender’s required use of an affiliated AMC. The defendants argued that allowing a consumer to shop for an appraisal management company would be inconsistent with TILA and Regulation Z, whose official commentary to Section 1026.37(f)(2) lists “appraisal management company fee” as an example of an item that may be disclosed under “services you cannot shop for” in the Good Faith Estimate.  The court rejected that assertion, stating that there are multiple settlement services the lender may require the consumer to use which do not run afoul of RESPA or TILA and that Section 8 is only implicated where there is a kickback involved. The court further examined the plain meaning of Section 8(c)(4) and determined that, from a statutory interpretation perspective, an appraiser and an appraisal management company are not “one and the same.”

    Additionally, the court disagreed with the defendants argument that the plaintiffs’ payment to the AMC was covered under the exception in Section 8(c)(2) of RESPA because the payment was not a “thing of value” under Section 8(a). In rejecting the defendants’ argument, the court noted the kickback at issue is the profit ultimately paid to the individual owner, not the plaintiffs’ payment to the AMC, and the defendants did not present any authority that the exception applies when the payment is for ownership interest.

    The court ultimately recommended the denial of the class certification because plaintiffs did not demonstrate that ascertaining the class was administratively feasible, including the problem of ascertaining which loans were federally related mortgage loan and which were not. The court also concluded that, given the number of individual inquiries in the case, the requirement that common question of law and fact predominate was not satisfied. 

     

     

    Courts RESPA Affiliated Business Relationship Kickback Class Action

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  • Pennsylvania adopts CFPB mortgage servicing regulations

    State Issues

    On April 28, the Pennsylvania Department of Banking and Securities adopted regulations to effectively incorporate Subpart C of the CFPB’s RESPA mortgage servicing regulations (Regulation X), which were amended effective as of April 19. The adopted regulations address, among other things, (i) disclosure requirements; (ii) mortgage servicing transfers; (iii) escrow payments and account balances; (iv) forced-place insurance; and (v) loss mitigation procedures. The adopted regulations were effective on April 28.

     

    State Issues CFPB Regulation X RESPA Mortgage Servicing

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  • Mortgage servicer must face TCPA allegations after court dismisses other claims

    Courts

    On May 2, the U.S. District Court for the Eastern District of New York granted in part and denied in part a mortgage loan owner and mortgage loan servicer’s motion to dismiss a consumer’s lawsuit alleging various violations of TILA, RESPA, FDCPA, TCPA and certain New York state laws. The court’s decision explains that the mortgage loan owner first initiated foreclosure proceedings against the consumer in 2009, but in August 2013 that action was dismissed and the parties executed a modification agreement. The consumer argues in the amended complaint that the mortgage debt is time-barred based on the six year statute of limitations to enforce the mortgage note, starting the clock with the 2009 foreclosure filing. The consumer alleges that after the statute of limitations expired, the mortgage servicer contacted the consumer by mail and by telephone to collect the mortgage debt, totaling over 600 calls placed by an autodialer and up to four threatening collection letters per month since 2015. The court, however, agreed with the mortgage companies that the execution of the 2013 modification agreement restarted the statute of limitations and therefore, the consumer’s alleged violations of New York state laws and the FDCPA failed because the mortgage debt was not time-barred. The court also held that the consumer failed to plead sufficient facts to support the alleged violations of TILA, RESPA, and New York’s General Business Law. In contrast, the court denied the mortgage servicer’s motion to dismiss the consumer’s claim under the TCPA, holding that the mortgage application signed by the consumer did not clearly consent to contact by an autodialer on his cell phone.

     

    Courts Mortgages TILA RESPA TCPA

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  • CFPB finalizes KBYO amendment to address “black hole”

    Agency Rule-Making & Guidance

    On April 26, the CFPB issued a final amendment to its “Know Before You Owe” mortgage disclosure rule to address when mortgage lenders with a valid changed circumstance or other justification are permitted to reset tolerances and pass on increased closing costs to consumers using the Closing Disclosure. Last summer, as previously covered in a Buckley Sandler Special Alert, the Bureau published a proposal seeking public comment on whether to close the “black hole” that prohibited creditors from passing on cost increases (particularly rate lock extension fees) when closing was significantly delayed after the Closing Disclosure. After considering comments, the Bureau finalized the proposed amendment. The final amendment will take effect 30 days after publication in the Federal Register.

    Agency Rule-Making & Guidance CFPB TRID Mortgages Disclosures TILA RESPA

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  • Federal Reserve releases updates to interagency examination procedures for Regulations X and Z

    Agency Rule-Making & Guidance

    On April 19, the Federal Reserve Board (Fed) issued a consumer affairs letter (CA 18-3) announcing revised interagency examination procedures for Regulation X (RESPA) and Regulation Z (TILA) that supersede procedures previously issued in September 2015. The updated procedures account for amendments to mortgage servicing rules under Regulations X and Z that took effect October 19, 2017 (see previous InfoBytes coverage here), as well as amendments to Regulation Z published by the CFPB through April 2016, including rules concerning small creditors’ mortgage lending to rural and underserved areas. However, the Fed stated in its letter that, at this time, the updated procedures do not incorporate Regulation Z amendments concerning the CFPB’s TILA-RESPA integrated disclosure rule or those regarding prepaid accounts. These amendments will be addressed in a future update.

    Agency Rule-Making & Guidance Federal Reserve CFPB Regulation X Regulation Z RESPA TILA Mortgages Mortgage Servicing

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  • 8th Circuit reverses district court’s decision, rules plaintiff failed to demonstrate actual damages under RESPA

    Courts

    On April 3, the U.S. Court of Appeals for the 8th Circuit reversed a district court’s decision, which granted summary judgement in favor of a consumer (plaintiff) who claimed a mortgage loan servicer violated the Real Estate Settlement Procedure Act (RESPA) and the Minnesota Mortgage Originator and Servicer Licensing Act when it failed to adequately respond to his qualified written requests concerning erroneous delinquency allegations. The district court ruled that the plaintiff suffered actual damages of $80 under his RESPA claims when the loan servicer “made minimal effort to investigate the error” and failed to provide the plaintiff with requested information about his loan history since origination. The “pattern or practice” of non-compliance also, in the district court’s view, justified $2000 in statutory damages. The plaintiff also received a separate damage award, attorney’s fees and costs under the Minnesota statute. However, under RESPA, a plaintiff must demonstrate proof of actual damages resulting from a loan servicer’s failure, and the three-judge panel argued that the plaintiff “failed to prove actual damages” because the loan servicer’s “failure to comply with RESPA did not cause [the plaintiff’s] alleged harm.” The panel opined that while the loan servicer failed to (i) conduct an adequate investigation following the plaintiff’s request as to why there was a delinquency for his account, and (ii) failed to provide a complete loan payment history when requested, its failure to comply with RESPA involved pre-2011 payment history for which the plaintiff eventually requested and received the relevant loan payment records at no cost. In fact, the panel stated, the only evidence of actual damages was the $80 the plaintiff spent for bank account records, but that expense concerned a separate dispute about whether the plaintiff missed two payments in 2012 and 2013, which the plaintiff eventually acknowledged that he did, in fact, fail to make. Since the loan servicer did not commit an error with respect to the missed payments, the court concluded that the $80 spent by plaintiff were not the result of the loan servicer’s failure to investigate and provide information related to the pre-2011 payment history. To the contrary, with respect to responding to the plaintiff’s inquiries regarding the missing payments, the loan servicer had “complied with its duties under RESPA.”

    Furthermore, the panel stated that the plaintiff failed to provide evidence that the loan servicer engaged in a “pattern or practice of noncompliance.” The 8th Circuit remanded the case back to the district court with directions to enter judgment in favor of the loan servicer on the RESPA claims and for further proceedings on claims under the Minnesota statute.

    Courts Appellate Eighth Circuit RESPA Mortgage Servicing Mortgages State Issues

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  • Court denies CFPB motion to reconsider, applies new RESPA safe harbor

    Courts

    On March 22, the U.S. District Court for the Western District of Kentucky denied the CFPB’s motion to reconsider an opinion issued in July 2017, which held that a safe harbor provision for affiliated business arrangements under Section 8(c)(4) of RESPA protects a Louisville law firm's relationship with a string of now-closed title insurance agencies (previously covered by InfoBytes here). In denying the request, the court clarified its previous reasoning and found that the transactions did not violate Section 8(a) because the law firm did not give the title insurance agencies a “thing of value,” and even assuming a violation, the safe harbor under Section 8(c)(2)—even though the court previously relied on Section 8(c)(4)—applied. The court relied on the D.C. Circuit’s 2016 interpretation of Section 8(c)(2) in PHH Corporation v. CFPB, which found that payments made in exchange for a service “actually received” is not the same as payments made for referrals and a payment is bona fide if it amounts to “reasonable market value” for the service. In applying the PHH holding to the present facts, the court concluded that the payments consumers made to the title agencies, which were subsequently distributed as profits to corresponding partners, were made in exchange for title insurance that was actually received by the consumer. Moreover, the court noted that there was no evidence that the payments were above market value, and therefore determined they were bona fide. Lastly, the opinion emphasized that the purpose of RESPA is to prevent unnecessary increases in costs of certain settlement services for consumers, and the payments resulting from the relationship between the law firm and the title agencies not only were for services actually received but were not found to increase the cost of those services at settlement.

    Courts CFPB RESPA Mortgages PHH v. CFPB Affiliated Business Relationship

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  • Florida judge rules borrower failed to establish RESPA private right of action

    Courts

    On February 20, a federal judge for the U.S. District Court for the Southern District of Florida issued an opinion and order against a borrower after a two-day bench trial, finding that the borrower failed to establish a private right of action for any of her alleged RESPA violations. According to the opinion, one of the defendants, a mortgage company, initiated foreclosure proceedings against the borrower for failing to pay required insurance and tax associated with her reverse mortgage. During this period, the mortgage company purchased force-placed insurance through an insurance intermediary company to protect its collateral for the reverse mortgage. When the borrower later brought the account current, the mortgage company dismissed the foreclosure complaint. However, the borrower filed a suit against the mortgage company for failing to “advance insurance premiums on her behalf through an escrow account” and against the second defendant, an insurance company, for procuring a policy that “tortiously interfered” with her business relationship with the mortgage company. Specifically, the borrower alleged the procedure used to obtain the force-placed rates violated Florida Insurance Code Section 626.916, and were, therefore, “not bona fide and reasonable under RESPA.”

    However, the judge ruled that none of the borrower’s claims created a private right of action under RESPA, and furthermore, the borrower could not “bootstrap Section 626.916 through another cause of action.” Additionally, the judge noted that counsel for the borrower was unable to provide case law authority to support the “proposition that [the borrower’s] RESPA claim could be premised on a Florida statue which lacked a private right of action.” Concerning the borrower’s allegations of tortious interference against the insurance company, the judge concluded that the claim failed to show that the insurance company “intentionally or unjustifiably” interfered with her relationship with the mortgage company.

    Courts State Issues RESPA Mortgages Reverse Mortgages Foreclosure Force-placed Insurance

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