Special Alert: USDA-RHS Proposes Its Own QM Rule

On March 5, 2015, the USDA-RHS released a proposed rule to amend the regulations for the Single Family Housing Guaranteed Loan Program (SFHGLP) to provide that a loan guaranteed by USDA-RHS is a QM if it meets certain requirements set forth by the CFPB. In addition, USDA-RHS proposed to add the definition of “Qualified Mortgage” to its regulations. The proposal follows the adoption of separate QM definitions for FHA and VA loans last year.

The proposed rule also seeks to: (i) expand USDA-RHS’ lender indemnification authority for loss claims in certain instances, such as fraud , misrepresentation, and noncompliance with loan origination requirements, (ii) add a new special loan servicing option, (iii) revise the interest rate reduction requirement for refinances, and (iv) add a streamlined-assist refinance option. Comments to the proposed rule must be received on or before May 4, 2015.

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

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CFPB Takes Action Against Mortgage Companies for Deceptive Advertising

On February 12, the CFPB announced a civil suit against a Maryland-based mortgage company and consent orders with two additional mortgage companies headquartered in Utah and California for allegedly misleading consumers with advertisements implying U.S. government approval of their products in violation of the Mortgage Acts and Practices Advertising Rule (MAP Rule or Regulation N) of the Consumer Financial Protection Act (CFPA). In its complaint against the Maryland-based mortgage company, the CFPB alleges that the company’s reverse mortgage advertisements appeared as if they were U.S. government notices. Further, the CFPB claims that the company misrepresented whether monthly payments or repayments could be required and that there was a scheduled expiration date or deadline for the FHA-insured reverse mortgage program. The CFPB is seeking a civil fine and permanent injunction to prevent future violations with respect to the Maryland company. Similarly, the CFPB alleges that the Utah-based mortgage company disseminated direct-mail mortgage loan advertisements that improperly suggested that the lender was, or was affiliated with the FHA or VA, including that the company was “HUD approved” when it was not. The Utah company was ordered to pay a $225,000 civil penalty. In the separate consent order with the California-based mortgage company, the CFPB alleges that the lender’s mailings contained an FHA-approved lending institution logo and a website address that implied the advertisements were from, or affiliated with, the U.S. government, and were therefore deceptive and in violation of the CFPA. The company was ordered to pay an $85,000 civil penalty. In addition to civil penalties, each consent order requires the mortgage companies to submit a compliance plan to the CFPB and comply with specified record keeping, reporting, and compliance monitoring requirements.

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HUD Secretary Defends FHA in House Testimony

On February 11, HUD Secretary Julián Castro delivered remarks at the U.S. House Financial Services Committee (HFSC) hearing, “The Future of Housing in America: Oversight of the Federal Housing Administration.” In his testimony, Castro stressed that FHA did not cause the housing crisis, but actually saved the market stating, “FHA stepped in and stepped up to fill the void created when private capital retreated – work that independent economists say prevented a further collapse in home prices.” Looking forward, Castro noted that FHA’s challenge will be to make homeownership more affordable, and he emphasized the importance of improving underwriting standards and strengthening the agency’s Mutual Mortgage Insurance Fund.

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Supreme Court Hears Oral Arguments on Fair Housing Act Disparate Impact Case

On January 21, the U.S. Supreme Court heard oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, in which Texas challenged the disparate impact theory of discrimination under the Fair Housing Act (FHA). In their questions to counsel, the Justices focused on (i) whether the phrase “making unavailable” in the FHA provides a textual basis for disparate impact, (ii) whether three provisions of the 1988 amendments to the FHA demonstrate congressional acknowledgement that the FHA permits disparate impact claims, and (iii) whether the Court should defer to HUD’s disparate impact rule. The Court is expected to issue its ruling by the end of June. For more information on the oral argument, please refer to our previously issued Special Alert.

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Special Alert: Supreme Court Hears Oral Arguments on Fair Housing Act Disparate Impact Case

This morning, the Supreme Court heard oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, in which Texas challenged the disparate impact theory of discrimination under the Fair Housing Act (FHA).  Twice before, the Court granted certiorari on this issue, but in both cases the parties reached a settlement prior to oral arguments.

As described further below, in their questions to counsel, the Justices focused on (i) whether the phrase “making unavailable” in the FHA provides a textual basis for disparate impact, (ii) whether three provisions within the 1988 amendments to the FHA demonstrate congressional acknowledgement that the FHA permits disparate impact claims, and (iii) whether they should defer to HUD’s disparate impact rule.

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FHA Reduces Annual Insurance Premiums

On January 8, HUD announced that the Federal Housing Administration (FHA) will reduce the annual insurance premiums new borrowers pay by 50 basis points. This policy initiative is intended to boost FHA lending, and FHA projects that, as a result of the policy change, 250,000 new homebuyers will purchase their first home over the next three years.

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Nevada District Court Bars Foreclosure Sale of First Lien HUD-Insured Mortgage

Recently, a federal district court held that a homeowners association (HOA) foreclosure sale is not valid against HUD-insured loans. The District Court noted that the Ninth Circuit has held that federal rather than state law applies in cases involving FHA-insured mortgages to assure the protection of the federal program against loss, state law notwithstanding. The court reasoned, therefore, that in situations where a mortgage is insured by a federal agency under the FHA insurance program, state laws cannot operate to undermine the federal agency’s ability to obtain title after foreclosure and resell the property. Because an HOA foreclosure on property insured under the FHA insurance program would have the effect of limiting the effectiveness of the remedies available to the United States, the District Court held that the Supremacy Clause of the U.S. Constitution bars such foreclosure sales and renders them invalid. Washington & Sandhill Homeowners Association v. Bank of America and HUD, U.S. Dist. Ct., District of Nevada, No. 2:13-cv-01845-GMN-GWF (Sept. 25, 2014).

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Federal Court Vacates HUD Disparate Impact Rule

On November 3, the United States District Court for the District of Columbia vacated HUD’s Disparate Impact Rule under the Fair Housing Act (FHA). The court, in American Insurance Association v. United States Department of Housing and Urban Development, held that “the FHA prohibits disparate treatment only,” and therefore HUD, in promulgating the Disparate Impact Rule, “exceeded [its] authority under the [Administrative Procedures Act].” (Emphasis in original.)

In the Disparate Impact Rule, HUD provided that “[l]iability may be established under the Fair Housing Act based on a practice’s discriminatory effect . . . even if the practice was not motivated by a discriminatory intent.” 24 C.F.R. § 100.500. It then articulated a burden shifting framework for such claims. Id. § 100.500(c)(1)-(3). In vacating HUD’s Disparate Impact Rule, the court reviewed the text of the FHA and concluded that “the FHA unambiguously prohibits only intentional discrimination.” (Emphasis in original.) The court explained that the FHA lacks the “effects-based language” that makes disparate impact claims cognizable under other anti-discrimination statutes. The court reasoned that this lack of effects-based language created “an insurmountable obstacle to [HUD’s] position regarding the plain meaning of the Fair Housing Act.” The court further reasoned that this textual reading is consistent with the FHA’s statutory scheme and, in the case of insurance products, required by the McCarran-Ferguson Act.

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HUD Continues To Fight Housing Discrimination

On October 15, HUD announced the award of more than $38 million to fair housing and non-profit organizations in 43 states and the District of Columbia to address discrimination in the housing industry. Through HUD’s Fair Housing Initiatives Program, grants are funded with the intent that they will “help enforce the Fair Housing Act through investigations and testing of alleged discriminatory practices.” Additionally, the grants are meant to help provide education on rights and responsibilities under the Fair Housing Act to housing providers, local governments, and potential victims of housing discrimination. HUD’s most recent categories of grants included: (i) Private Enforcement Initiative Grants; (ii) Education and Outreach Initiative Grants; and (iii) Fair Housing Organizations Initiative.

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FHA Updates its Single Family Housing Policy Handbook

On September 30, the FHA published updates to several sections of its Single Family Housing Policy Handbook. The updates only apply to loans originated on or after June 15, 2015 and are a result of FHA’s attempt to create a consolidated Handbook that is intended to be a single authoritative source of relevant FHA policy. The updates relate to a variety of policies including origination/processing of loan applications, underwriting, and mortgage closing requirements. They also relate to several specific programs and products including refinances, ARM loans, new construction, weatherization, and solar and wind technologies. Future updates are anticipated regarding (i) doing business with FHA; (ii) servicing and loss mitigation; (iii) claims and disposition; and (iv) quality control, oversight, and compliance issues.

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U.S. Supreme Court Grants Cert. (again) in FHA Disparate Impact Case

On October 2, the U.S. Supreme Court granted certiorari in Texas Department of Housing and Community Affairs, et al. v. The Inclusive Communities Project, Inc., No. 13-1371, a case in which the Fifth Circuit became the first federal Circuit Court of Appeals to apply the Department of Housing and Urban Development’s (HUD) “effects test” rule (see The Inclusive Communities Project, Inc., v. Texas Department of Housing and Community Affairs, et al., Nos. 12-11211, 13-10306 (747 F.3d 275, March 24, 2014)), which authorizes so-called “disparate impact” or “effects test” claims under the Fair Housing Act (FHA). In granting cert., the Supreme Court accepted one of the two questions presented by the petitioners, which was, “Are disparate-impact claims cognizable under the [FHA]?” It did not accept the second question: “If disparate-impact claims are cognizable under the [FHA], what are the standards and burdens of proof that should apply?” The Supreme Court’s partial grant of the petition represents the third recent matter in which the Court has taken up the issue of whether disparate impact claims may be brought under the FHA. The first opportunity ended in February, 2012 when petitioners in Magner, et al. v Gallagher, et al., No. 10-1032, stipulated to dismissal due to concerns that “a victory could substantially undermine important civil rights enforcement throughout the nation.” The Court’s second opportunity, Township of Mount Holly, New Jersey, et al., v. Mt. Holly Gardens Citizens in Action, Inc., et al., No. 11-1507, was dismissed in November 2013, just prior to oral argument after a settlement was reached by the parties.

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Federal Housing Administration Posts Draft Servicing Section of its Single Family Housing Policy Handbook

On September 11, as part of its initiative to develop a single authoritative source for Federal Housing Administration (“FHA”) Single Family Policy, the FHA posted a draft of the servicing section of its Single Family Housing Policy Handbook. The draft servicing section covers post endorsement to the end of the mortgage insurance contract and provides specific guidance on the following: (i) general servicing requirements for FHA-insured mortgages; (ii) servicing of performing mortgages; (iii) default servicing, including HUD’s Loss Mitigation Program and conveyance standards; (iv) loss mitigation performance; and (v) special mortgage program servicing for active and inactive programs. On September 18, 2014, the FHA will host an industry briefing call to go over the organization and structure of the draft servicing section. The FHA is accepting comments on the draft servicing section through October 17, 2014.

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HUD Announces $35,000 Maternity Leave Fair Housing Agreement

On September 12, HUD announced a conciliation agreement with a Tennessee mortgage lender, pursuant to which the lender will pay $35,000 to resolve allegations that it violated the Fair Housing Act when it denied a mortgage loan to a couple because the lender did not consider the couple’s ability to make loan payments during the wife’s maternity leave despite the husband’s salary and the wife’s short-term disability insurance payments. Under the Fair Housing Act, it is unlawful to discriminate in the terms, conditions, or privileges associated with the sale of a dwelling on the basis of sex or familial status, including denying a mortgage loan or mortgage insurance because an applicant is pregnant or on maternity leave. In addition to requiring a payment be made to the couple, the company must adopt a national parental leave policy and receive annual fair housing and fair lending training. HUD has brought similar cases against other mortgage lenders in recent years.

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Federal District Court Defers To HUD On Disparate Impact Rule Burden-Shifting Framework

On September 3, the U.S. District Court for the Northern District of Illinois declined to invalidate to the burden-shifting framework established by HUD in its 2013 disparate impact rule, but remanded to HUD for further consideration certain comments on the rule submitted by insurers. Property Casualty Insurers Assoc. of Am. V. Donovan, No. 13-8564, WL 4377570 (N.D. Ill. Sept. 3, 2014). An association of insurers challenged HUD’s rule, which authorized so-called “disparate impact” or “effects test” claims under the Fair Housing Act. The insurers filed suit to enjoin HUD from applying the rule to the homeowners’ insurance industry, arguing that HUD’s refusal to build safe harbors for homeowners’ insurance violates the McCarron-Ferguson Act and is arbitrary and capricious. The court agreed that HUD acted in an arbitrary and capricious manner because HUD did not give adequate consideration to comments from the insurance industry relating to the McCarran-Ferguson Act, the filed-rate doctrine, and the potential effect that the disparate impact rule could have on the nature of insurance. Therefore, the court remanded those issues back to HUD for further explanation. The court also addressed the burden-shifting approach established by HUD to determine liability under a disparate impact claim. Under the rule, once a practice has been shown by a plaintiff to have a disparate impact on a protected class, the defendant has the burden of showing that the challenged practice “is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent . . . or defendant . . . . A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative.” The court held that the final burden-shifting framework “reflects HUD’s reasonable accommodation of the competing interests at stake—i.e., the public’s interest in eliminating discriminatory housing practices and defendants’ (including insurer-defendants’) interest in avoiding costly or frivolous litigation based on unintentional discriminatory effects of their facially neutral practices[,]” and deferred to HUD’s interpretation of the Fair Housing Act pursuant to Chevron v. U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

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HUD Issues Final Rule To Eliminate Post-Payment Interest On FHA Loans

On August 26, HUD issued its final rule prohibiting mortgagees from charging post-payment interest under FHA’s single family mortgage insurance program. The final rule is responsive to the CFPB’s ATR/QM rule, under which post-payment interest charges will be considered a prepayment penalty in connection with FHA loans closed on or after January 21, 2015. Because prepayment penalties are prohibited on higher-priced FHA loans, the new definition of “prepayment penalty” under the ATR/QM rule would have effectively prohibited the making of higher-priced FHA mortgage loans. Also effective January 21, 2015, HUD’s final rule ensures consistency among FHA single-family mortgage products and provides the same protections for all borrowers. Under the final rule, monthly interest on the debt must be calculated on the actual unpaid principal balance as of the date prepayment is received.

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