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Volume 27 - Number 24

November 28, 2016

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CFPB Files Appeal in High-Stakes, High-Profile Dispute With PHH

With CFPB Director Richard Cordray’s tenure possibly on the line while a pro-business President-elect Donald Trump works on staffing up his incoming administration, the bureau earlier this month filed its highly anticipated appeal to the full U.S. Court of Appeals for the District of Columbia Circuit in its long-running dispute with PHH Corp. Back in mid-October, in PHH Corp. v. CFPB, a three-judge panel of the court nixed the agency’s $109 million penalty against the lender under the Real Estate Settlement Procedures Act, and determined that the CFPB’s leadership structure was unconstitutional because it is run by a sole director who can only be removed for cause. While an appeal by the bureau was widely expected, the issue took on ...

CFPB Appears Resigned to Accepting Statutes of Limitation

In its petition to the U.S. Court of Appeals for the DC Circuit that is surprisingly brief, given what’s at stake in its dispute with PHH Corp., the CFPB seems to have abandoned its position that statutes of limitations do not apply to its administrative enforcement proceedings, legal observers suggest. This could provide a significant amount of legal certainty to lenders, if in fact it proves to be the end of the matter. In a client note reviewing the agency’s petition, attorneys with the BuckleySandler law firm in Washington, DC, pointed out, “Perhaps most significantly, the bureau’s petition does not request rehearing of the panel’s conclusion that RESPA’s three-year statute of limitations applied to administrative as well as judicial actions ...

Election Results May Foster More Aggressive State Enforcement

With the CFPB widely expected to be less aggressive on the enforcement front in the wake of the elections earlier this month, the industry is being warned to be wary of a potentially more activist posture on the part of various state government agencies. Since the elections, “there has been much discussion of how expected changes under a Trump administration are likely to reduce the CFPB’s impact, particularly in the enforcement arena,” Ballard Spahr partner Alan Kaplinsky wrote in a recent online blog post. Little attention, however, has been paid to the implications of the election’s results for the role of state attorneys general and state financial services regulators in enforcing federal and state consumer financial protection laws, he added....

TRID 2.0: The Comments - Industry Weighs in on Disclosing Lender and Seller Credits

As part of its TRID 2.0 clarifying rulemaking, the CFPB sought comment on whether lenders should have the option of disclosing lender or seller credits as either credits specific to particular charges or general credits applicable to settlement costs. The Mortgage Bankers Association suggested the CFPB give lenders options and not settle on one approach. “Some lenders would prefer a single approach; others indicate that optionality is likely necessary,” the trade group said in a recent comment letter. It noted that seller credits are governed by sales contracts between the buyer and seller, and that local custom frequently comes into play as to who pays a specific fee, such as owner’s title insurance. “Similarly, the particular application of lender credits ...

TRID 2.0: The Comments - More Changes Needed to TRID’s Cash-to-Close Table, Industry Says

The CFPB has made progress in its regulatory treatment of the cash-to-close table as reflected in its proposed rule to clarify aspects of its integrated disclosure rule, but more needs to be done, some leading industry groups said. “The cash-to-close sections of the Loan Estimate and Closing Disclosure represent some of the most challenging aspects of the TRID rule,” said the Real Estate Services Providers Council in a comment letter to the bureau. “The industry had noted that a failure of the prior disclosures was that they did not provide for disclosing to the consumer the lender’s estimate of the cash that he or she would need to close the loan,” it added. Further, the industry did not indicate that ...

TRID 2.0: The Comments - More Clarity Needed for TRID Effective Dates, Industry Says

Another area in which the CFPB sought industry input in its TRID clarifying rulemaking process is whether the proposed 120-day implementation period, starting from final publication in the Federal Register, will be adequate. Some industry commenters essentially said no. Others basically said, it depends. Wells Fargo was one of the commenters that fell into the former camp. “[S]ome of the clarifications in this proposal have already been implemented by the majority of the industry based on previous informal guidance from the bureau,” said the lender. “However, this proposal also contains a number of changes that are new or that are being proposed with more detailed direction than previously offered.” Some examples the lender cited were the proposed expansion to the ...

TRID 2.0: The Comments - Industry Supports ‘Rebaselining’ Proposal, But Voices Caution

Some top industry players support the CFPB’s proposed amendment to its existing TRID rule that clarifies a lender’s ability to use a revised closing disclosure (CD) to reset tolerance baselines for fees and charges, as long as there are valid changes of circumstances. However, they think a few simple tweaks could maximize the usefulness of the change without creating an incentive for lenders to act in such a way as to defeat the bureau’s intention. The proposal clarifies that the authority to “rebaseline” exists for all CDs – not just the initial CD – and that for any CD issued after the first one, there is no timing requirement, and no timing limitation on the issuance of the initial CD. That means ...

New Bureau Report Details Problems With VA Refi Lending

Roughly 14 percent of the 12,500 mortgage complaints the CFPB has received to date from U.S. military personnel, veterans and their dependents involve problems with refinancing, and the issues they face have been changing over time, according to a new report from the bureau. “As the housing market has rebounded, we hear less about veterans struggling to refinance their loans when facing a financial hardship or imminent default and more about the problems associated with refinancing when they are using it as a tool to get potentially more favorable loan terms,” the CFPB document stated. The agency then delved into some of the specific gripes being lodged against mortgage companies. “We receive many complaints from veterans who believe they are ...

Dems Worried GOP Will Gut Dodd-Frank Via Funding Bill

The leading Democrats on the Senate Banking, Housing and Urban Affairs Committee and the House Financial Services Committee urged Congressional leaders earlier this month to reject any Republican attempts to use so-called must-pass government appropriations legislation to scale back the Dodd-Frank Act and the CFPB. In a letter sent to Senate and House leaders of both parties earlier this month, Sen. Sherrod Brown, D-OH, and Rep. Maxine Waters, D-CA, said they will oppose ideological policy riders to year-end funding legislation aimed at rolling back the consumer protections of Dodd-Frank. “Specially, Congress must not include in end-of-year funding legislation any riders designed to repeal, undermine or delay any provisions of Wall Street reform, including those targeted at the CFPB and the ...

Other News in Brief

Securitization Group Meets with CFPB Officials. Earlier this month, staff and members of the Structured Finance Industry Group met with CFPB Director Richard Cordray and other senior officials to talk about the state of the non-agency mortgage securities market and some of the factors hampering its return.... Mortgage Lenders Meet With Bureau, Other Regulators, to Discuss Diversity, Inclusion. A small group of mortgage lenders recently met with staff of the CFPB, the Federal Reserve, the Federal Deposit Insurance Corp., the Federal Housing Finance Agency and the Office of the Comptroller of the Currency to discuss best practices on how to develop and maintain diversity and inclusion programs within the mortgage industry, according to an account by the Mortgage Bankers Association....

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