On March 17, Senator Patty Murray (D-WA) sponsored the SCRA Enhancement and Improvement Act of 2016 (the Act). The Act focuses especially on student loan servicers, but encompasses all financial institutions covered by the SCRA. Although the text of the Act is not yet available, the recently issued press release on the Act describes its proposed changes to the SCRA. Among other changes, the Act would revise the SCRA by: (i) requiring automatic application of the SCRA’s interest rate cap; (ii) ensuring that student loan servicers have a dedicated SCRA representative; (iii) reducing the SCRA’s interest rate cap from 6% to 3%; (iv) protecting servicemembers when their loans are transferred or sold by requiring “sufficient notice”; (v) forgiving all federal and private student loan debt if a servicemember dies in the line of duty; (vi) expanding the interest rate cap to all debts, no matter when incurred; (vii) clarifying that servicemembers may bring a private right of action under the SCRA; (viii) doubling the fines for violations of the SCRA; and (ix) expanding certain protections on mortgages, leases, and cable and internet contracts.
On March 21, the U.S. House of Representatives passed S.B. 2393, which extends through 2017 the provision of the Servicemembers Civil Relief Act’s (SCRA) that protects servicemembers against foreclosure without a court order or waiver for one year following completion of their service. On January 1, 2016, the foreclosure protection provision reverted back to the period of active duty military service plus 90 days, rather than the period of active duty military service plus one year. Upon the President’s signature, the SCRA’s protection against foreclosure without a court order or waiver will return to the period of active duty military service plus one year through December 31, 2017.
On February 29, the Department of Education Office of Inspector General (OIG) published a response to a congressional request that the OIG conduct a review of student loan servicers’ compliance with the SCRA. The OIG analyzed SCRA reviews performed by the Department of Education (Department), obtained relevant documentation, and met with officials involved in planning and conducting SCRA program reviews. The OIG found that the Department’s sampling design for SCRA reviews did not accurately identify borrowers eligible for SCRA benefits. Specifically, the OIG found that the Department’s May 26, 2015 press release claiming 99% compliance with the SCRA was unreliable; of the 597 loans that the OIG reviewed, only 55 requested SCRA benefits and only 37 were eligible. The OIG also noted that the Department “did not make any effort to require the TIVAS [Title IV Approved Student Loan Servicers] to identify and correct all potential instances of incorrect denials of the SCRA interest rate cap.”
Effective December 1, the Servicemembers Civil Relief Act (SCRA) was recodified at 50 U.S.C. §§ 3901 – 4043 from its former location at 50 U.S.C. app. §§ 501 – 597b. Recent structural changes to the U.S. Code eliminated the Appendix to Title 50, with several provisions transferring into the body of Title 50. Historically, the 1940 edition of the U.S. Code established the Appendix to Title 50 for emergency-related or temporary executive branch documents and law. However, because of the enduring nature of several laws contained in the Appendix, the Office of the Law Revision Counsel concluded that it would “improve the organizational structure” of the U.S. Code to move these sections into Title 50. Importantly, the law was not amended, so there are no substantive changes to the SCRA from this recodification. To assist clients in tracking these changes, BuckleySandler attorneys have prepared this chart mapping the old sections of the SCRA with their new locations in Title 50.
With recent changes in the regulations implementing the Military Lending Act (“MLA”), creditors are now reevaluating their compliance plans to ensure they are prepared for the new regulations. Although there is no formal guidance on what federal regulators will look for in reviewing MLA compliance, the commentary that accompanied both the proposed and final rule gives some insight as to where regulators will focus examination and enforcement resources. Below, we discuss some of these likely areas of focus, and offer suggestions for how institutions can prepare for regulatory scrutiny.
Determining military service and MLA safe harbor provisions
The MLA only applies to a “covered borrower,” which is either a servicemember (as defined under the MLA) or a servicemember’s dependent. The MLA provides two safe harbors to determine if a consumer is a covered borrower: (1) a set of results from the DoD’s MLA database, or (2) a military status indicator in a consumer report.
Although both of these approaches are optional—and a creditor may use a different method to determine if an individual is eligible for MLA protection—they provide several benefits. They are both determinative, so even if the borrower is in fact a servicemember a safe harbor check that shows otherwise will govern. Both checks can also be done without
inconveniencing the consumer or requiring them to attest to their military status.
However, these safe harbor approaches are only effective if the results are actually retained by the creditor. Since military status checks must be performed at origination, we recommend that the results of these checks be retained with the origination documents. Not only does the outcome of the military status check determine the substantive terms of the actual credit obligation, but by keeping all of these documents together, a creditor can ensure that they have all of the governing origination documents are in a single, secure location. Read more…