FinCEN Issues Five Rulings On Application Of BSA Regulations To Certain Activities

On April 29, FinCEN issued five rulings in response to companies who sought clarification regarding whether their company is a money service business under the BSA. In FIN-2014-R006, FinCEN determined that a company that operates an online real-time deposit, settlement, and payment services platform for banks, businesses, and consumers is considered a money transmitter, not a provider of prepaid access, and should be registered as a money services business under BSA regulations. In two other rulings—FIN-2014-R004 and FIN-2014-R005— FinCEN clarified the exemption from the money transmitter definition for persons that accept and transmit funds “only integral to the sale of goods or the provision of services, other than money transmission services.” FinCEN determined that the escrow services at issue in FIN-2014-R004 and the transaction management services at issue in FIN-2014-R005 fit within that exemption because the acceptance and transmission of funds in these cases is not a separate and discrete service in addition to the underlying service, but instead is a necessary and integral part of the service itself. Therefore, these companies are not considered to be money transmitters subject to registration. FinCEN determined in FIN-2014-R007 that a company that rents computer systems used to mine virtual currencies is not a money transmitter. Finally, in FIN-2014-R008, FinCEN determined that although the company, which uses armored cars to facilitate the exchange of coins and cash, does not qualify for the “armored car” exemption in the money transmitter definition, it is still not considered a money transmitter. FinCEN stated that the transportation of currency and/or coin of certain denominations from the company’s vault to the customer’s location and the return transportation of currency and/or coin in the exact amount of the change provided to the company’s own vault does not constitute the acceptance of value from one person and the transportation of such value to another person or location.

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C.D. Cal. Limits Scope Of RESPA Kickback Safe Harbor For “Services Actually Performed”

On April 29, the U.S. District Court for the Central District of California held that RESPA’s preclusion of liability for otherwise illegal kickbacks based on “services actually performed” relates only to “settlement services” as defined in RESPA, and not to some broader set of services. Henson v. Fidelity Nat’l Fin. Inc., No. 14-cv-01240, 2014 WL 1682005 (C.D. Cal. Apr. 29, 2014). Last month in the same case, the court held that the overnight delivery services provided by certain delivery companies to a parent company of various escrow companies were “settlement services” under RESPA and concluded that the borrowers had pleaded facts sufficient to establish that the defendant parent company may have violated RESPA by accepting marketing fees from certain delivery companies in exchange for “referring”—via its escrow subsidiaries—overnight delivery business to those delivery companies. The defendant then moved for judgment on the pleadings, asserting that its subsidiary performed actual services in exchange for the marketing fees it received from the delivery companies, and therefore was not liable under RESPA. The court held that although the relevant RESPA section uses only the general term “services” and not the specific phrase “settlement services” used elsewhere in the statue, “Congress would have vitiated RESPA’s purposes by permitting kickbacks as long as the recipient performed any service—even if the service bore no relationship to a real-estate settlement.” The court held that Congress clearly intended to provide a safe harbor only with regard to “settlement services.” In this case, the court held that issues of fact persist as to whether the services performed were settlement services and denied the motion for judgment on the pleadings.

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FHA Addresses Application of Unused Escrow Funds in Refinance Transactions

On September 5, HUD issued Mortgagee Letter 2013-29 regarding the application of unused borrower funds from an escrow account on an existing mortgage in FHA-insured refinance transactions. The letter states that mortgagees processing such refinances may apply unused borrower funds from an existing mortgage for any purpose authorized by the borrower, and the return of unused funds to the borrower at closing is not considered cash back to the borrower. Further, the letter provides documentation and submission requirements evidencing borrower authorization for application of unused escrow funds. The letter also reminds mortgagees that calculating the maximum mortgage on a streamline refinance transaction starts with the outstanding principal balance of the existing loan, not the payoff amount.

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CFPB Clarifies 2013 Escrow Rule, Publishes Final List of Rural and Underserved Counties

On May 16, the CFPB issued a final rule clarifying its January 2013 final rule on escrow account requirements for first-lien higher-priced mortgage loans (HPMLs). The January 2013 rule expands existing escrow requirements for such loans and creates a new exemption for small creditors that operate predominantly in rural or underserved areas. The clarifying rule adopts the rule clarifications as proposed. The clarifying rule explains how a county’s rural and underserved status may be determined based on currently applicable Urban Influence Codes established by the Department of Agriculture, or based on HMDA data, and provides illustrations to facilitate compliance. With the clarifying rule, the CFPB posted on its website a final list of rural and underserved counties, for use with mortgages closed from June 1, 2013 through December 31, 2013. The list is identical to the preliminary list posted in March. Finally, the clarifying rule (i) notes that the final escrow rule inadvertently removed existing language that provided certain protections related to a consumer’s ability to repay and prepayment penalties for HPMLs, and (ii) establishes a temporary provision to ensure the removed protections remain in effect until the expanded HPML protections take effect on January 10, 2014.

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CFPB Proposes Escrow Rule Amendments, Publishes Escrow Rule Compliance Guide

On April 12, the CFPB proposed a rule to amend aspects of its January 10, 2013 final rule on escrow account requirements for first-lien higher-priced mortgage loans (HPMLs). That rule expands existing escrow requirements for such loans and creates a new exemption for small creditors that operate predominantly in rural or underserved areas. The proposal explains that the CFPB did not intend for the escrow rule to state that the CFPB will designate or determine which counties are rural or underserved. Instead, the CFPB intended to require determinations of rural or underserved status to be made by creditors, but also intended for the CFPB to apply both tests to each U.S. county and publish an annual list of counties that satisfy either test for a given calendar year, which creditors may rely upon as a safe harbor. Further, the CFPB proposes clarifications to how rural or underserved status may be determined. The proposal notes that the amended factors also will apply to three other CFPB mortgage rules that provide rural and underserved exemptions. Finally, the proposal (i) notes that the final escrow rule inadvertently removed existing language that provided certain protections related to a consumer’s ability to repay and prepayment penalties for HPMLs, and (ii) seeks to establish a temporary provision to ensure the removed protections remain in effect until the expanded HPML protections take effect on January 10, 2014. The CFPB is accepting comments on the proposed amendments for 15 days following publication in the Federal Register. On April 18, the CFPB published a guide to help small entities comply with the escrow rule. More broadly, the CFPB believes the guide provides an “easy-to-use” summary of the rule for all creditors, as well as servicing market participants, software providers, and other creditor business partners. As with another compliance guide released last week, the CFPB notes that the guide is not a substitute for the rule and the Official Interpretations and does not consider other laws that may apply to the maintenance and administration of escrow accounts.

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CFPB Publishes Preliminary List of Rural and Underserved Counties For Escrow Rule Implementation

On March 12, the CFPB published a preliminary list of rural and underserved counties for use in implementing certain new mortgage rules, including the rule on escrow account requirements for first-lien higher-priced mortgage loans (HPMLs). That rule created a new exemption for small creditors that operate predominantly in rural or underserved areas. Such a creditor is not required to establish an escrow account for taxes and insurance for an HPML if (i) during the preceding calendar year, it extended more than 50 percent of its total covered transactions on properties that are located in designated rural or underserved counties; (ii) the creditor and its affiliates together originated 500 or fewer covered transactions during the preceding calendar year; (iii) as of the end of the preceding calendar year, the creditor had total assets of less than $2 million; and (iv) the creditor and its affiliates do not maintain certain types of escrow accounts. The CFPB expects to finalize the list of counties, together with technical changes to the rule, before the escrow rule takes effect on June 1, 2013, and notes that some counties’ rural status may change for the 2014 list based on the 2010 Census. The list also impacts implementation of several other CFPB mortgage rules that take effect in January 2014, including the ability to repay/qualified mortgage rule, the HOEPA rule, and the appraisals for HPMLs rule. BuckleySandler has prepared detailed analyses of each of those rules.

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CFPB Issues Final Ability to Repay/Qualified Mortgage Rule and High-Cost Mortgage Rules

On January 10, the CFPB issued the final version of a rule that will require creditors to verify a consumer’s ability to repay prior to making a consumer credit transaction secured by a dwelling. The rule defines a “qualified mortgage,” providing a safe harbor from liability for loans with an APR below Regulation Z’s “higher-priced” threshold of 150 basis points above the Average Prime Offer Rate, and a “rebuttable presumption” for loans with an APR above that threshold. The rule will become effective on January 10, 2014. Concurrently, the CFPB released a proposal seeking comment on amendments to the final rule that would, among other things, provide exemptions for certain community-based lenders and small portfolio creditors and potentially change the treatment of indirect lender compensation for purposes of the qualified mortgage “points and fees” test. BuckleySandler has prepared a Special Alert that highlights a few key issues resolved and left open by the nearly 1,000-page releases on the rule and concurrent proposal. We will distribute a summary and additional analysis of key issues in the releases once we complete our review of them.

Also on January 10, the CFPB issued two final rules related to high-cost mortgages. The first rule amends Regulation Z to implement changes to TILA made by the Dodd-Frank Act that lengthen the time for which a mandatory escrow account established for a higher-priced mortgage loan must be maintained. This rule also exempts certain transactions from the statute’s escrow requirement. The second rule, which also amends Regulation Z  to incorporate Dodd-Frank Act statutory changes, expands the types of mortgage loans that are subject to the protections of the Home Ownership and Equity Protections Act of 1994 (HOEPA), revises and expands the tests for coverage under HOEPA, and imposes additional restrictions on mortgages that are covered by HOEPA, including a pre-loan counseling requirement. This rule also amends Regulation Z and Regulation X to require, among other things, that lenders provide borrowers information about homeownership counseling providers. BuckleySandler is reviewing these rules and will soon provide additional information.

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