On February 12, 2015 the U.S. District Court for the Western District of Kentucky held that claims presented by the CFPB regarding a Kentucky-based law firm’s alleged violations of Section 8 of the Real Estate Settlement Procedures Act (“RESPA”) were legally plausible and denied the Defendants’ motion for judgment on the pleadings. The CFPB’s complaint—filed in October 2013 (as reported in InfoBytes Blog)—purported that principals of the law firm received illegal kickbacks for client referrals paid in the form of “profit distributions” from a network of affiliated title insurance companies. Additionally, it was asserted that the affiliated companies did not provide settlement services, thereby failing to comply with RESPA’s safe harbor for affiliated business agreements. 12 U.S.C. § 2607(c)(4). The Court stated that there was enough “factual detail” presented within the complaint for it to plausibly conclude that the firm had “committed the alleged misconduct,” that the Defendant failed to meet the first safe harbor element, and that the notice of the claim in the case had been “more than sufficient.” The memorandum also stated that the statute of limitations, which Defendants attempted to leverage, offered no guidance as to whether the firm was “entitled to judgment” on the pleadings, leading the Court to render its decision for the CFPB. CFPB v. Borders & Borders, PLLC, et al., No. 3:13-cv-1047-jgh (W.D. KY. February 12, 2015).
On March 2, the U.S. Court of Appeals for the Eleventh Circuit dismissed a homeowner’s claim that a title company violated RESPA fee-splitting bans during a refinanced mortgage closing by holding that if any real estate settlement service is rendered during a closing, fee charges for these services do not violate RESPA—regardless of whether such service is appropriate. A homeowner asserted that under state law, all real estate closing services are to be provided by a licensed attorney. Here, the title company performed all closing services and merely contracted with a law firm to provide an attorney to witness the closing, arguably not satisfying the law. The homeowner also claimed the title company unlawfully marked-up the recording fee and split it with the recording office. While holding that the homeowner satisfied standing requirements by alleging an unpaid refund as injury, the court declined to find that the title company violated RESPA. The court opined that even if it is illegal under state law to charge a settlement fee for services performed by a non-lawyer, services by both the title company and a law firm were performed nonetheless. Determining whether the fees were appropriate is not within the purview of the court or RESPA’s requirements. The marking-up of the recording fee also did not violate RESPA because both the title company and the recording office actually performed a service. The court subsequently dismissed the homeowner’s federal claims and remanded her state claims to the district court.
CFPB Orders Nonbank Mortgage Lender to Pay $2 Million Penalty for Deceptive Advertising and Kickbacks
On February 10, the CFPB announced a consent order with a Maryland-based nonbank mortgage lender, ordering the lender to pay a $2 million civil money penalty, in part for allegedly failing to disclose its financial relationship with a veteran’s organization to consumers. According to the consent order, the CFPB alleged that the lender, whose primary business is originating refinance mortgage loans guaranteed by the VA, paid a veteran’s organization a fee to be named the “exclusive lender” of the organization and that failing to disclose this relationship in marketing materials targeted to the organization’s members constituted a deceptive act or practice under the Dodd-Frank Act. The CFPB further alleged that, because the veteran’s organization urged its members to use the lender’s products in direct mailings from the lender, call center referrals, and through the organization’s website, the monthly “licensing fee” and “lead generation fees” paid to the veteran’s organization and a third party broker company as part of marketing and referral arrangements constituted illegal kickbacks in violation of RESPA. In addition to the civil penalty, the consent order requires the lender to end any deceptive marketing, cease deceptive endorsement relationships, submit a compliance plan to the CFPB, and comply with additional record keeping, reporting, and compliance monitoring requirements.
CFPB Orders Nonbank Mortgage Lender to Pay $2 Million Penalty for Deceptive Advertising and Kickbacks
On February 10, the CFPB announced a consent order with a Maryland-based nonbank mortgage lender, ordering the lender to pay a $2 million civil money penalty for allegedly failing to disclose its financial relationship with a veteran’s organization to consumers. According to the consent order, the CFPB alleged that the lender, whose primary business is originating VA loans, paid a veteran’s organization a fee to be named the “exclusive lender” of the organization and that failing to disclose this relationship in marketing materials targeted to the organization’s members constituted a deceptive act or practice under the Dodd-Frank Act. The CFPB further alleged that, because the veteran’s organization urged its members to use the lender’s products in direct mailings from the lender, call center referrals, and through the organization’s website, the monthly “licensing fee” and “lead generation fees” paid to the veteran’s organization and a third party broker company as part of marketing and referral arrangements constituted illegal kickbacks in violation of RESPA. In addition to the civil money penalty, the consent order requires the lender to submit a compliance plan to the CFPB and comply with additional record keeping, reporting, and compliance monitoring requirements.
As previously reported in our Special Alert on January 20, the CFPB finalized certain amendments to its TRID rule, which combines the mortgage disclosures consumers receive under the Truth in Lending Act and the Real Estate Settlement Procedures Act. Significant amendments include: (i) allowing three business days for providing a revised Loan Estimate after an interest rate is locked (instead of the current same day requirement and the original proposal’s one business day requirement); and (ii) permitting the inclusion of certain information about construction loans on the Loan Estimate. The final rule, as amended, takes effect August 1. For more information, please visit our TRID Resource Center.
On January 22, the CFPB and Maryland Attorney General announced an enforcement action against two banks, as well as a former loan officer and his wife, for alleged violations of RESPA and state law. The complaint filed in the District of Maryland alleges that loan officers at the banks accepted leads and marketing assistance from a title company in exchange for the referral of settlement service business to the title company. The parties filed Stipulated Final Judgments and Orders, under which one bank will pay approximately $10.8 million to consumers and $24 million in penalties, and the other bank will pay $300,000 to consumers and $600,000 in penalties. The individual loan officer and his wife will pay a combined $30,000 penalty.
On January 20, 2015, the CFPB finalized amendments to the TILA-RESPA Integrated Disclosure (“TRID”) rule that make a number of amendments, clarifications, and corrections, including:
- Relaxing the redisclosure requirements after a rate lock. The final rule permits creditors to provide a revised Loan Estimate within three business days after an interest rate is locked, instead of the current requirement to provide the revised Loan Estimate on the date the rate is locked (and instead of the proposed rule that would have allowed only one business day)
- Creating room on the Loan Estimate 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
- Adding 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)
- Providing 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
- Clarifying 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
On November 20, the CFPB announced the issuance of a proposed rule to amend RESPA (Reg. X) and TILA (Reg.Z). The proposed rule changes primarily focus on clarifying, revising or amending (i) Regulation X’s servicing provisions regarding force-placed insurance, early intervention, and loss mitigation requirements; and (ii) periodic statement requirements under Regulation Z’s servicing provisions. In addition, the proposed amendments also revise certain servicing requirements that apply when a consumer is a potential or confirmed successor in interest, is in bankruptcy, or sends a cease communication request under the Fair Debt Collection Practices Act. Further, the proposed rule makes technical corrections to several provisions of Regulations X and Z. The public comment period will be open for 90 days upon publication in the Federal Register.
Recently, the U.S. Court of Appeals for the Third Circuit upheld a lower court’s decision to dismiss a class action lawsuit against a large financial institution for allegedly violating Section 8 of RESPA. Riddle v. Bank of America Corp., No. 13-4543 (3rd Cir. Oct. 15, 2014).The complaint, originally filed in 2012, alleged that, between 2005 and 2007, the defendant profited hundreds of millions of dollars from illegal referrals from private insurance companies. The plaintiffs failed to prove that the defendant engaged in fraudulent concealment that the plaintiffs relied upon. As a result, the Third Circuit dismissed the plaintiffs’ claim, citing the expiration of the one-year statute of limitations. The court noted, “the clock has run on the plaintiffs’ RESPA claims, and despite ample opportunity, they are unable to create a triable fact that they are entitled to equitable tolling.”
BuckleySandler LLP is pleased to announce the availability of the 2015 edition of the “Consumer Financial Services Answer Book,” published by the Practising Law Institute. Twenty-one BuckleySandler attorneys contributed to 12 chapters in this leading desk reference, which uses an easy question and answer format to address matters involving consumer financial services law. BuckleySandler Partner Richard Gottlieb also served as lead editor, a role he has held since publication of the first annual edition in 2011.
The 2015 edition of this publication continues to provide practitioners with a core understanding of the laws governing consumer financial services, addressing the latest developments in Consumer Financial Services Bureau (CFPB) enforcement activities, regulations and guidelines, fair lending, auto lending, the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA), among others.
New chapters in the 2015 edition address:
- Credit Cards
- Electronic Records and eSignatures
- Short-Term Lending
- Unfair and Deceptive Acts and Practices (UDAAP)
- Servicemembers Civil Relief Act (SCRA)
- Telemarketing and the Telephone Consumer Protection Act (TCPA)
From compliance counseling to enforcement, BuckleySandler has been handling precedent-setting CFPB matters since the Bureau was established in 2011 — experiences which enabled its attorneys to contribute the added insight and advice on current and emerging CFPB developments, trends, and expectations for the Answer Book.
The Consumer Financial Services Answer Book is for sale in hard copy format by the Practising Law Institute at www.pli.edu.
On October 10, the CFPB issued a proposal to modify and make technical amendments to the TILA-RESPA Integrated Disclosure Rule, issued in November of 2013. Specifically, the CFPB proposes to (i) relax the timing requirements associated with the redisclosure of interest rate dependent charges and loan terms after consumers lock in a floating interest rate, such that creditors would have until the next business day after a consumer locks in a floating interest rate to provide a revised disclosure; and (ii) add language to the Loan Estimate form that creditors could use to inform a consumer that the consumer may receive a revised Loan Estimate for a construction loan that is expected to take more than 60 days to settle. In addition, the Bureau proposes non-substantive changes such as technical corrections and corrected or updated citations and cross-references in the regulatory text and commentary, minor word changes throughout the regulatory text and commentary, and an amendment to the 2013 Loan Originator Rule, to provide for placement of the NMSR ID on the integrated disclosures. The CFPB is accepting comments on the proposed changes through November 10, 2014. The CFPB noted its intention to finalize the proposed amendments quickly in order to provide the industry adequate time to implement any resulting changes by August 1, 2015, the effective date of the TILA-RESPA Integrated Disclosure Rule.
Recently, the CFPB published an updated mortgage rules Readiness Guide for financial institutions to assist them in complying with new mortgage lending requirements. The Guide contains: (i) a summary of the mortgage rules finalized by the CFPB as of August 1, 2014; (ii) a readiness questionnaire to help perform self-assessments; (iii) a section on frequently asked questions; and (iv) a section on further tools to assist with compliance with the new rules. The guide discusses, among other rules, the TILA-RESPA Integrated Disclosure rule that integrates the mortgage loan disclosures currently required under TILA and RESPA. That rule requires a new Loan Estimate form that combines two existing forms, the Good Faith Estimate and the initial Truth-in Lending disclosure. The Loan Estimate must be provided to consumers no later than the third business day after they submit an application. The rule also requires a Closing Disclosure form, which combines the current Settlement Statement (“HUD-1”) and final Truth-in Lending disclosures forms. The Closing Disclosure must be provided to consumers at least three business days before consummation of the loan. The new requirements are effective for loans where the lender receives an application on or after August 1, 2015.
Special Alert: Proposed Amendments to the TILA-RESPA Integrated Disclosure (“TRID”) Rule, Transcript of CFPB Webinar on the Loan Estimate Form, and Introducing BuckleySandler’s TRID Resource Center
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.
On September 30, the CFPB announced a consent order with a Michigan-based title insurance company to address allegations that the company’s marketing services agreements (MSAs) with several real estate brokers violated the Real Estate Settlement Procedures Act’s (RESPA) prohibition against kickbacks in connection with real estate settlement services. According to the CFPB, the MSAs provided that the company would pay the real estate brokers for performing marketing services promoting the company. Specifically, although the MSAs provided for payment to the brokers based on the marketing services provided to the company, according to the CFPB the brokers were actually paid, in part, based on the number of referrals to the company they generated. Also, the CFPB asserted that the company entered the MSAs “as a quid pro quo for the referral of business.” In addition, the CFPB alleged that brokers that had entered into a MSA with the company referred a “statistically significant” higher amount of business than brokers who had not entered into a MSA. According to the terms of the consent order, the company must pay a $200,000 civil monetary penalty, immediately terminate any existing MSAs, and not enter into any MSAsthe future, providing a very broad and novel definition of MSAs that includes agreements with any person in a position to refer business providing for endorsements, joint advertising, access to counterparty and its employees, or marketing of the company’s services to others. However, the company may still purchase consumer-oriented advertising from companies that do not offer settlement services such as newspapers or television or radio stations, provided that the publisher does not endorse the company as part of the advertisement.
On October 1, the CFPB and the Federal Reserve will co-host a webinar on the TILA-RESPA Integrated Disclosures rule. By consolidating the existing mortgage disclosures required under TILA and RESPA, the integrated rule is intended to “make it easier for consumers to understand and locate key information,” while also integrating “the substantive and procedural requirements for providing these disclosures to consumers.” The webinar will address (i) questions regarding rule interpretation and implementation challenges that creditors, mortgage brokers, and others have raised to the Bureau; (ii) issues regarding how to complete the Loan Estimate; and (iii) portions of the Closing Disclosure. BuckleySandler provided a transcript of the second TILA-RESPA Disclosure webinar, which the CFPB hosted on August 26.