On May 28, the CFPB, along with the DOJ, filed a joint complaint against a California-based mortgage lender alleging that the lender violated the Equal Credit Opportunity Act by engaging in a pattern or practice of discrimination from 2006 to 2011 that increased loan prices for African-American and Hispanic borrowers. The DOJ also alleges that the lender violated the Fair Housing Act. According to the complaint, the lender’s mortgage broker compensation policy, which incented discretionary interest rate and fee increases to borrowers, resulted in approximately 14,000 African-American and Hispanic borrowers being charged higher total broker fees on wholesale mortgage loans than non-Hispanic white borrowers. The complaint alleges that the higher fees were not based on the borrowers’ credit risk profile, but rather on the basis of race or national origin. The parties separately filed a proposed consent order which would require the mortgage lender to, among other things, pay $9 million in consumer relief to affected borrowers to resolve the allegations. The proposed consent order is currently pending court approval.
On June 23, the CFPB published its eighth edition of Supervisory Highlights, covering supervisory activities from January 2015 through April 2015. The latest edition identifies issues with dual-tracking at mortgage servicers and the need for improved quality control measures at consumer reporting agencies. The report also provided supervisory observations related to debt collection, student loan servicing, mortgage origination and servicing, and fair lending. Notably, the report reveals that non-public supervisory actions and self-reported violations at banks and nonbanks in the areas of mortgage origination, fair lending, mortgage servicing, deposits, payday lending, and debt collection resulted in $11.6 million in remediation to more than 80,000 consumers during the first four months of 2015.
On May 26, the U.S. Department of Housing and Urban Development announced that it entered into a conciliation agreement with a Wisconsin-based bank to resolve claims that, from 2008 to 2010, the bank discriminated on the basis of race and national origin by denying loans to qualified African-American and Hispanic applicants, and making few loans in majority-minority census tracts in five metropolitan areas in Illinois, Minnesota, and Wisconsin (while making loans in nearby predominantly white tracts). Among other things, the agreement requires the bank, over a three-year period, to: (i) pay nearly $10 million in the form of lower interest rate home mortgages and down payment/closing cost assistance to qualified borrowers in majority-minority census tracts in specified housing markets in Illinois, Minnesota, and Wisconsin, (ii) invest nearly $200 million in increased mortgage lending in majority-minority census tracts in these areas, (iii) provide nearly $3 million to help existing homeowners repair their properties in these predominantly minority communities, (iv) pay $1.4 million to support affirmative marketing of loans in these census tracts, and (v) open offices in certain specified majority-minority census tract areas. According to HUD, this is the largest redlining settlement that it has initiated.
Southern District of New York Denies Class Certification in Fair Lending Suit Against Global Investment Bank
On May 14, the District Court for the Southern District of New York denied class certification status in a fair lending suit brought by the ACLU and NCLC against a global investment bank. Adkins v. Morgan Stanley, No. 12-CV-7667 (VEC) (S.D.N.Y. May 14, 2015). The Plaintiffs had alleged that the bank, as a significant purchaser of subprime residential mortgage loans, had caused a disparate impact on African-American borrowers in Detroit in violation of the Fair Housing Act and the Equal Credit Opportunity Act. In an exhaustive 50-page opinion, the court denied class certification on multiple grounds, including the variation in loan types and the role of broker discretion. BuckleySandler anticipates the ruling will be widely cited in future fair lending class actions.
On April 28, the CFPB published its third annual report to Congress on its fair lending activities. Among other developments, the report highlights the following key supervision and enforcement priorities taken by the Bureau in the past year: (i) A continued focus on discrimination in the mortgage lending industry, including redlining and underwriting disparities; (ii) Emphasis on the auto lending industry, which has resulted in guidance given to lenders on complying with Federal consumer financial laws, and action taken when lenders do not abide by those laws; (iii) Attention to the credit card market, including an enforcement action against a company for its alleged failure to provide certain consumers with debt relief offers because of national origin; and (iv) Assistance to consumers who receive disability income by issuing Bulletin 2014-03 to lenders, which outlines the rights of a consumer whose income is derived, in part or in whole, from a public assistance program. According to the report, the Bureau’s efforts in 2014 to protect consumers from credit discrimination lead to financial institutions providing approximately $224 million in monetary relief to over 300,000 consumers.
On April 13, the DOJ released its 2014 Annual Equal Credit Opportunity Act (ECOA) Report highlighting its activities to address credit discrimination. The twenty-page report highlights discrimination lawsuits and settlements in the automobile lending and credit card industry, as well as a consent order resulting from alleged discrimination on the basis of disability and the receipt of public assistance. It also includes information on the DOJ’s work under other federal fair lending laws including the Fair Housing Act (FHA) and the Servicemember Civil Relief Act (SCRA). According to Vanita Gupta, Acting Assistant AG for the Civil Rights Division, in the five years since the Fair Lending Unit was established, the Civil Rights Division has filed or resolved 37 lending matters under the ECOA, FHA, and SCRA. Total settlements in these matters, including enforcement actions from 2014, have resulted in over $1.2 billion in monetary relief for affected borrowers and communities.
On April 1, HUD held a special Fair Housing event and announced a national media campaign to help ensure that all Americans – regardless of race, color, national origin, religion, gender, family status, and disability – receive equal access to housing, as per the FHA. Through various media channels, the new campaign will (i) increase the public’s awareness of housing discrimination; and (ii) explain how to report violations of the FHA. The new campaign is designed to further the agency’s enforcement efforts when FHA violations occur. At the same event, DOJ Acting Assistant AG Gupta delivered remarks regarding recent actions taken in response to alleged housing discrimination. Specifically, Gupta noted that while racial discrimination remains prevalent, familial status discrimination has recently become a significant concern and that the DOJ and HUD “continue to see the scourge of sexual harassment in housing.” Finally, Gupta emphasized that HUD’s proposed rule on Affirmatively Furthering Fair Housing is “an important way to ensure that the promises of the Fair Housing Act will continue to be fulfilled.”
On February 10, the DOJ, along with the U.S. Attorney’s Office for the Western District of North Carolina and the North Carolina AG, announced the settlement of the federal government’s discrimination suit involving two “buy here, pay here” auto dealerships. According to the DOJ, this is the federal government’s first-ever settlement involving discrimination in auto lending. Filed in January 2014, the settlement resolves a lawsuit alleging that two North Carolina-based auto dealerships violated the federal Equal Credit Opportunity Act by “intentionally targeting African-American customers for unfair and predatory credit practices in the financing of used car purchases.” The North Carolina AG further alleges that the auto dealerships’ lending practices violated the state’s Unfair and Deceptive Trade Practices Act. The terms of the settlement require the two dealerships to revise the terms of their loans and repossession practices to ensure that “reverse redlining” ceases to exist; required amendments include: (i) setting the maximum projected monthly payments to 25% of the borrower’s income; (ii) omitting hidden fees from required down payment; (iii) prohibiting repossession until the borrower has missed at least two consecutive payments; and (iii) providing better-quality disclosure notices at the time of the sale. Also required by the settlement agreement, the two auto dealerships must establish a fund of $225,000 “to compensate victims of their past discriminatory and predatory lending.”
On February 3, the Fair Housing Justice Center (FHJC), a regional fair housing non-profit organization based in New York City, filed a complaint alleging that a large bank discriminated in its mortgage lending practices on the basis of race and national origin. According to the complaint, the organization hired nine “testers” of various racial backgrounds to inquire about obtaining a mortgage for first-time homebuyers. Specifically, the complaint claims that the bank’s loan officers (i) used neighborhood racial demographics to steer minority testers to racially segregated neighborhoods and (ii) offered different loan terms and conditions based on race or national origin. The plaintiff is seeking compensatory and punitive damages and injunctive relief to ensure compliance with fair housing and fair lending laws. FHJC et al v. M&T Bank Corp., No-15-cv-779 (S.D. NY. Feb. 3, 2014).
On November 19, the CFPB issued a press release highlighting the publication of its compliance bulletin, “Social Security Disability Income Verification.” The compliance bulletin reminds lenders that requiring consumers receiving social security disability income to provide burdensome or unnecessary documentation may raise fair lending issues. The Equal Credit Opportunity Act (ECOA) prohibits lenders from discrimination against “an applicant because some or all of the applicant’s income is from a public assistance program, which includes Social Security disability income,” and the Bureau’s bulletin highlights standards and guidelines intended to help lenders comply with the requirements of ECOA and its implementing regulation, Regulation B.
On October 15, the NCUA released a statement noting that Jamie Goodson, Director of Consumer Compliance Policy and Outreach in the National Credit Union Administration’s Office of Consumer Protection, will participate in the scheduled webinar, “Fair Lending Hot Topics.” Regulators from the Federal Reserve, the CFPB, the FDIC, the OCC, the Justice Department, and HUD are also scheduled to participate in the webinar on October 22. Webinar topics include, among others, auto lending enforcement, fair lending risk assessments, and mortgage pricing risks. The webinar is part of an ongoing series of consumer compliance events.
On September 17, the CFPB released new information about its plans to supervise and enforce auto finance companies’ compliance with consumer financial laws, including fair lending laws. As it indicated it would earlier this year, the CFPB released a proposed rule that would allow it to supervise certain nonbank auto finance companies. Also as previously promised, the CFPB published a white paper on its method to proxy for race and national origin in auto finance transactions. Finally, the CFPB published its most recent Supervisory Highlights report, which is dedicated to its supervisory findings at depository institutions with auto finance operations.
The CFPB released the materials in connection with its September 18th field hearing on auto finance issues. These actions come roughly 18 months after the CFPB first provided guidance to auto finance companies regarding its expectations related to dealer “reserve” (or “participation”) and fair lending. Read more…
On September 9, the U.S. District Court for the Southern District of New York dismissed an industry group’s challenge to a New York City ordinance that requires banks doing business with the city to report certain information about their banking and lending activities. New York Bankers Assoc. v. New York, No. 13-7212, 2014 WL 4435427 (S.D.N.Y. Sept. 9, 2014). In May 2012, the New York City Council approved, over the Mayor’s veto, an ordinance that establishes a Community Investment Advisory Board (CIAB) with authority to collect certain information from the city’s depository banks regarding each bank’s efforts to, among other things, (i) meet small business credit needs; (ii) conduct consumer outreach and other steps to provide mortgage assistance and foreclosure prevention; and (iii) offer financial products for low and moderate-income individuals throughout the city. The ordinance also directs the CIAB to (i) perform an assessment on whether such banks are meeting the credit, financial, and banking services needs throughout the city; and (ii) publish the assessment and the information collected from each such bank. The results of these evaluations may be considered in connection with a bank’s application for designation or redesignation as a depository bank. The court dismissed for lack of standing the industry group’s argument that the ordinance conflicts with and is preempted by federal and state laws that exclusively regulate federal and state chartered depository institutions by granting the CIAB regulatory powers that are not relevant to the quality and pricing of the services that banks provide to the city. The court explained that at the time the suit was filed, the group could not establish imminent harm, or that injuries were subject to substantial risk of occurrence, and as such were too speculative to support Article III standing. The court noted, however, that the group “brings serious substantive claims” and may have standing based events that have occurred since filing, or that may occur in the future.
On August 13, the National Fair Housing Alliance (NFHA) published its annual fair housing report titled “Expanding Opportunity: Systemic Approaches to Fair Housing.” The paper summarizes 2013 fair housing enforcement actions and litigation, as well as federal policy developments, and provides fair housing-related data. NFHA reports that, overall, the number of fair housing complaints filed in 2013 remained flat compared to recent years, but notes that private fair housing organizations received more complaints of discrimination in real estate sales and homeowners insurance, as well as complaints of discriminatory housing advertisements by housing providers. According to the report, the DOJ Housing Section filed 43 cases in 2013, including 24 cases involving pattern and practice claims, compared to 36 cases in 2012, of which 21 involved pattern and practice. Of the 2013 pattern or practice cases, five alleged fair lending claims; 11 alleged rental discrimination on the basis of race, disability, sex, familial status, national origin, or religion; three alleged violations of the accessibility provisions of the Fair Housing Act; three alleged discrimination in land use and zoning practices or policies by local governments; and one alleged disability discrimination by a homeless shelter. Finally, the report provides, for the first time, an analysis of HUD data by region, which includes a breakdown of complaints by protected class within each of HUD’s 10 regions.
On August 5, the U.S. Court of Appeals for the Eighth Circuit held that ECOA clearly provides that a person does not qualify as an applicant under the statute solely by virtue of executing a guaranty to secure the debt of another. Hawkins v. Comm. Bank of Raymmore, No. 13-3065, 2014 WL 3826820 (8th Cir. Aug. 5, 2014). In this case, two individuals executed personal guaranties to secure several loans made to a residential development company owned by their husbands. After the company defaulted on the loans, the bank accelerated the loans and demanded payment from the company and the two individual guarantors. The guarantors, in turn, sued the bank, seeking damages and an order declaring their guaranties void and unenforceable, alleging that the bank required them to execute the guaranties securing the company’s loans solely because they are married to their respective husbands—the owners of the company. The guarantors asserted that such a requirement constituted discrimination against them on the basis of their marital status, in violation of ECOA. The court held that “the plain language of ECOA unmistakably provides that a person is an applicant only if she requests credit,” and that “a person does not, by executing a guaranty, request credit.” In doing so the court rejected the Federal Reserve Board’s implementing regulation that interpreted the term applicant to include guarantors. The court’s holding also creates a split with the Sixth Circuit, which recently “came to the contrary conclusion, finding it to be ambiguous whether a guarantor qualifies as an applicant under the ECOA.”