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Do Exam Procedures Tilt Against Nonbanks?

The newly empowered Consumer Financial Protection Bureau is wasting no time jumping into its oversight of mortgage origination practices and procedures at banks and nonbanks alike, issuing a set of M.O. examination procedures that will be used to put mortgage lenders and brokers under a compliance magnifying lens. But one industry attorney warns that in doing so, the CFPB has tilted the playing field against nonbank mortgage originators. CFPB Director Richard Cordray said the CFPB’s supervision of nonbank mortgage originators will “illuminate the entire marketplace by making nonbanks play by ...

Industry Presents its Quicken Case to SCOTUS

The Supreme Court of the United States plans to hear oral arguments late next month in Freeman v. Quicken Loans, a case that could have wide-ranging implications for lenders subject to the Real Estate Settlement Procedures Act. The issue before the high court is whether RESPA Section 8(b) 12 USC 2607(b) prohibits a real estate settlement services provider from charging an unearned fee only if the fee is split between two or more parties. The language of that provision of the statute states that no person “shall give and no person shall accept any portion, split or ...

Regulatory Burden Cited as Biggest Issue for Originators

Regulatory burden will be the biggest issue for mortgage originators in 2012, according to recruiting firm Hammerhouse’s second annual survey of originator opinions. of the 400 active mortgage loan originators surveyed, 51 percent cited further oversight and regulation as a top concern for originators in 2012. Twenty-nine percent said that finding a committed and stable mortgage lender to work with is still one of the areas of utmost concern. Product flexibility and raising interest rates were identified as top concerns by 12 percent and 8 percent, respectively ...

State Foreclosure Laws Continue to Complicate Mortgage Servicing

It’s not just federal regulators and lawmakers that are complicating the business of mortgage servicing while the industry continues digging itself out of a housing market collapse of near-biblical proportions. States have become increasingly active and aggressive, and there’s little sign that’s about to end any time soon. “Three years ago, servicers were just beginning to understand the extent to which state legislative efforts could complicate, extend and expand the cost of the foreclosure process,” said Nanci Weissgold and Morey Barnes Yost, attorneys in the consumer financial services practice ...

State AGs Meeting in Partisan Groups to Discuss Settlement

The Democratic and Republican state attorneys general are scheduled to meet separately Monday, Jan. 23, to discuss the foreclosure practices settlement terms sent out last week, amidst varying criticism that the agreement will be either a shakedown for banks or an inadequate answer to homeowner woes. Monday’s meetings come after Housing and Urban Development Secretary Shaun Donovan announced last week that the pending settlement was “very close” and would benefit about 1 million families through principal reduction for homeowners and, in some cases, direct compensation for people wrongfully ...

White House Releases Legal Ground for Cordray Appointment

The U.S. Department of Justice’s Office of Legal Counsel recently issued a 23-page opinion on the legality of the recess appointment President Barack Obama made of Richard Cordray as director of the Consumer Financial Protection Bureau, as well as three officials to the National Labor Relations Board, as an end run around the pro-forma sessions Republican opponents had used to block the appointments. The memo takes on added significance in light of increasing calls from the president’s allies that he make a similar appointment to dislodge Edward DeMarco as the acting head of the ...

Sixth Circuit Splits the Difference On Preemption under HOLA

The U.S. Court of Appeals for the Sixth Circuit recently took on Molosky v. Washington Mutual Inc., which addressed the preemption of certain state law claims under the federal Home Owners Loan Act. The plaintiffs in this case alleged that certain fees charged by their loan servicer in connection with the prepayment of their mortgage violated both the Michigan Usury Act and their mortgage contract. The lower court had previously rejected the suit on the basis of HOLA preemption, prompting the borrowers to appeal. The Sixth Circuit basically split the difference. On the one hand, the ...

Court Affirms Borrower Testimony Trumps Rebuttable Presumption

In Marr v. Bank of America, N.A., the U.S. Court of Appeals for the Seventh Circuit has affirmed that borrower testimony alone can overcome the Truth in Lending Act’s “rebuttable presumption” that a borrower has received two notices of his right to rescind a refinance transaction, despite a written acknowledgement by the borrower to the contrary. In this case, the borrower argued that he wasn’t given two right-to-rescind notices as required under TILA, even though he had signed a document indicating he had. He said he had filed away and left undisturbed the documents he received when ...

State Roundup

California. In Balderas v. Countrywide Bank, N.A., the U.S. Court of Appeals for the Ninth Circuit recently ruled that the Truth In Lending Act’s delivery obligation requires borrowers be permitted to keep written copies of the right-to-rescind notice. The court noted that to “deliver” the notice as per TILA requires a “permanent physical transfer from one party to another,” as opposed to momentary delivery. Illinois. Earlier this month, the Department of Financial and Professional Regulations published amendments to the state’s mortgage originator licensing requirements. One change ...

Federal Roundup

Consumer Financial Protection Bureau. Comments Wanted on Mortgage-Related Rules. The Consumer Financial Protection Bureau is asking for public comment on currently approved information collections associated with certain recently published interim final rules having to do with mortgage lending. One such rule has to do with the Secure and Fair Enforcement for Mortgage Licensing Act (Regulation G) 12 CFR Part 1007. “The information collection will improve the flow of information to and between regulators; provide accountability and ...

Worth Noting

The House Oversight and Government Reform Subcommittee on TARP and Financial Services plans to hold a hearing on the afternoon of Tuesday, Jan. 24, on the subject of how the Consumer Financial Protection Bureau will function under its new director, Richard Cordray. A witness list had not been provided as of press time. The event is scheduled to be streamed live on the committee’s website, http://oversight.house.gov/. The new Consumer Financial Protection Bureau is investigating PHH Corp. to see if the lender may have violated the Real Estate Settlement Procedures Act (and possibly ...