Legal Issues

Browse articles from all of our Newsletters related to Legal Issues.

April 14, 2014 - Inside the CFPB

Freedom of Information Act Ruling Goes in Favor of the CFPB

The issue of the recess appointment of Richard Cordray as director of the CFPB may finally have been put to rest now, after the U.S. District Court for the District of Columbia dismissed the last remnants of a case brought by the watchdog group, Judicial Watch, under the Freedom of Information Act. Back in September, the court ruled that the CFPB had properly discharged its FOIA obligations in the case for all the documents at issue except one, an e-mail from a White House staffer to a CFPB employee. At the time, “the court agreed with the CFPB’s position that it was entitled to rely on the deliberative process privilege, the attorney client/attorney work product privilege, or the presidential communications...

April 14, 2014 - Inside the CFPB

CFPB’s First Criminal Referral Results in Guilty Pleas

Debt-settlement company Mission Settlement Agency and its principal, Michael Levitis, pleaded guilty in New York to conspiracy charges of mail and wire fraud, giving the CFPB a significant victory in its first criminal referral. As part of the plea deal struck with federal prosecutors, Levitis and Mission Settlement agreed to forfeit $2.2 million. Levitis faces as much as 10 years in prison, and his company could be fined as much as an additional $4.39 million. The defendants are scheduled to be sentenced by U.S. District Judge Paul Gardephe on Aug. 21, 2014. In addition to Levitis’ plea, four other former Mission employees, Denis Kurlyand, Boris Shulman, Felix Lemberskiy, and Zakhir Shirinov, previously pled guilty for their roles in the scheme...

April 14, 2014 - Inside the CFPB

CFPB Needs to Improve its Supervisory Activities, OIG Finds

The CFPB needs to up its game and improve the efficiency and effectiveness of its supervisory activities, according to a recent report from the Federal Reserve Office of Inspector General, the IG for the bureau. “Specifically, we found that the CFPB needs to improve its reporting timeliness and reduce the number of examination reports that have not been issued, adhere to its unequivocal standards concerning the use of standard compliance rating definitions in its examination reports, and update its policies and procedures to reflect current practices,” the OIG said. The report contains 12 recommendations designed to assist the CFPB in strengthening its supervision program, one of which is to monitor the timeliness of examination reporting against the requirements the agency...

April 14, 2014 - Inside the CFPB

Democrats Call for Full Hearing On Personnel Practices at CFPB

Democrats on the House Financial Services Committee have formally requested Chairman Jeb Hensarling, R-TX, conduct a full committee hearing into potential discriminatory policies and practices that affect employees not only at the CFPB but in other federal financial regulatory agencies as well. Ranking Member Maxine Waters, D-CA, announced the request at a hearing recently conducted by the House Financial Services Subcommittee on Oversight and Investigations, which looked into allegations of employee discrimination and retaliation at the CFPB. Waters echoed sentiments of fellow Democrats, who expressed concern earlier that the hearing was focused on discussing ongoing claims by a single employee instead of the larger issue of employee discrimination and the retaliation and harassment that whistleblowers experience. Dwelling on the employee’s...

April 14, 2014 - Inside the CFPB

CFPB Requires $747 Million from BofA Over Credit Card Practices

Bank of America will have to pay $727 million in restitution to consumers who were harmed by practices related to its credit card add-on products, under the terms of a consent order announced last week by the CFPB. That is the single largest amount of money yet returned to consumers in such an action by the bureau. BofA also agreed to pay a $20 million civil money penalty to the CFPB. The bureau went after BofA on two fronts: allegedly deceptive marketing practices as well as unfair billing practices. The marketing practices at issue had to do with two credit-card payment-protection products, “Credit Protection Plus” and “Credit Protection Deluxe.” “The bureau found that the telemarketing scripts Bank of America used...

April 11, 2014 - Inside FHA Lending

April 30: Last Day to Submit Master Agreement

Ginnie Mae will provide a one-month grace period to April 30, 2014, for issuers to complete the submission of their master agreement to the Master Agreement Management System (MAMS) within the agency’s enterprise portal. The deadline for submission is March 31, 2014. The master agreements must first be accepted by the MAMS before an issuer may request or receive a “Transfer of Issuer Responsibility.” Failure to comply with this requirement could adversely affect the issuer’s ability to obtain commitment authority and to issue new pools or receive pool transfers. Although many issuers have resubmitted their master agreements, some found it difficult to complete the process within the required timeframe, according to Ginnie Mae. Providing a one-month grace period would help issuers to complete their resubmission. Issuers that still experience ...

April 11, 2014 - Inside FHA Lending

Industry Calls for Transparent Loan-Limit Process

The Mortgage Bankers Association is urging the Department of Housing and Urban Development to provide a transparent process by which interested parties could request a recalculation of the FHA loan limits and present supporting evidence. By statute, maximums for FHA loan limits in high-cost areas were reduced to $625,500 from $729,750 at the beginning of the year for one-unit residential properties, the same maximum loan limit for Fannie Mae and Freddie Mac for similar properties in high-cost areas. The MBA said HUD made further reductions in FHA FY 2014 loan limits in approximately 300 counties and county equivalents across the country, with many experiencing significant reductions. The trade group believes these changes were not required by statute. To the extent that the loan-limit reductions in those areas were discretionary, the MBA strongly urged HUD to moderate its ...

April 10, 2014 - Inside MBS & ABS

Issuers Facing Federal Search and Seizure Warrants For MBS-Related Data May Soon Find Some Relief

Companies that have received government subpoenas for electronically stored information (ESI) in connection with federal investigations of financial fraud and other white-collar crimes might find some relief in two recent court rulings, according to a recent legal analysis. In a Dechert LLP legal update, attorneys Ben Barnett, Rebecca Kahan and Nathaniel Hopkins said heightened anti-fraud activities at the Department of Justice and the Securities and Exchange Commission have resulted in increased criminal prosecutions, criminal probes and enforcement actions. Many of these actions have shown...

April 4, 2014 - Inside The GSEs

Experts: GSE Shareholders Face Uphill Legal Battle vs. Government

Fannie Mae and Freddie Mac junior shareholders face an uphill battle in their lawsuits challenging the Treasury’s August 2012 “net worth sweep” that effectively allows Uncle Sam to confiscate all of the companies’ profits, warns a legal expert. Investors are challenging the amended agreements regarding the seniority of Fannie and Freddie preferred stock owned by the federal government over investors’ GSE preferred stocks. More than a dozen lawsuits filed against the government – led by hedge funds Perry Capital and Fairholme Capital Management – are pending in federal district court in Washington, DC, and in the Court of Federal Claims.

April 4, 2014 - Inside The GSEs

BofA MBS Lawsuit Settlement Shrinks List of FHFA Defendants

It’s only a matter of time before the remaining big bank defendants settle lawsuits filed by the Federal Housing Finance Agency over billions in non-agency mortgage-backed securities sold to Fannie Mae and Freddie Mac in the years leading up to the housing crisis, predicts a legal expert. Last week, Bank of America agreed to a $9.3 billion settlement that covers its own dealings as well as those of Countrywide Financial and Merrill Lynch, which it acquired in 2008. The agreement covers some $57 billion of MBS issued or underwritten by these firms.

April 3, 2014 - Inside MBS & ABS

MBS Due-Diligence Firm Goes Bust, Leaving Behind an Ugly Tale of Double Representation

Allonhill LLC, a Denver-based due-diligence firm that served both Wall Street and primary market lenders, recently filed for bankruptcy protection, just days after losing a civil case where it was found liable for breach of contract and fraud, and ordered to pay its former client, Aurora Bank FSB, more than $25 million in damages. Last year, Allonhill’s owners – including principal Sue Allon – sold most of the firm’s assets to Stewart Title. From a legal standpoint, it was not a “franchise” deal, which means Stewart should not be on the hook for any actions of the corporate entity. However, the case may be...

April 3, 2014 - Inside MBS & ABS

Judge Recommends Dismissal of DOJ’s Fraud Case Against BofA, But It May Not End FIRREA Claims

A North Carolina federal magistrate has recommended that a Justice Department fraud case against Bank of America be dismissed, but he also said a separate Securities and Exchange Commission lawsuit against the bank based on a different federal law should proceed. The DOJ last August filed suit against BofA under the Financial Institutions Reform, Recovery and Enforcement Act, accusing the bank of defrauding investors in the sale of $855 million of non-agency MBS. Last week, U.S. Magistrate David Cayer of the U.S. District Court for the Western District of North Carolina found that the government failed to prove the bank made “material” false statements to the former Federal Housing Finance Board. The DOJ claimed...

March 31, 2014 - Inside the CFPB

Bureau Issues Favorable Report Of its Performance Under FOIA

The CFPB issued its first Freedom of Information Act report last week, finding that the bureau’s average response time for all simple “processed perfected requests” was 8.36 days with virtually no backlog. The average response time for complex requests was 31 days. The bureau defines a “processed perfected request” as “a request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed,” and for which the bureau has taken final action in every respect.

March 31, 2014 - Inside the CFPB

Consumers Are Being Hounded About Debts They Don’t Owe: CFPB

Of the more than 30,000 consumers complaints the CFPB has received about debt collection, more than one third said the debt is not owed, and most of those said the debt was never theirs to begin with, the bureau said in a recent report. Among other top gripes, nearly a quarter of the complaints received by the bureau were about debt collectors using inappropriate communication tactics. More than half of those complaints cited frequent or repeated calls from a collector and often the collector had called the wrong phone number. “Consumers also complain about debt collectors calling their places of employment or collectors using obscene, profane or abusive language,” the CFPB said.

March 31, 2014 - Inside the CFPB

House Republicans Slam CFPB Over Advisory Council Secrecy

House Republicans have found – or been given – yet another axe to grind against the CFPB: the confidentiality or downright secrecy associated with the bureau’s advisory council meetings. Currently, the CFPB has four such groups: the Community Bank Advisory Council, the Credit Union Advisory Council, the Academic Research Council and the Consumer Advisory Board. The groups are made up of industry representatives, consumer activists and academics.

March 31, 2014 - Inside the CFPB

Allegations of Discrimination at CFPB to Be Reviewed by Congress

The Republican-controlled House Financial Services Subcommittee on Oversight and Investigations plans to hold a hearing on allegations of discrimination and retaliation within the CFPB on the morning of April 2, 2014. “Committee staff has received corroborating information from a CFPB employee who alleges she has experienced gender discrimination and retaliation for filing an Equal Employment Opportunity complaint with the CFPB’s Human Capital Office,” said a committee memorandum accompanying the committee’s announcement.

March 28, 2014 - Inside FHA Lending

Around the Industry

Old Republic Cancels Recapitalization Plan for its Mortgage Guaranty Subsidiaries. Old Republic International Corp. has withdrawn plans to secure capital market funding for its beleaguered consumer credit indemnity and mortgage guaranty subsidiaries for lack of investor interest. Both business segments are housed within the Republic Financial Indemnity Group and have been in a run-off mode since 2008 and 2011, respectively. ORI Chairman/CEO Al Zucaro said holding company funds would be used to shore up the regulatory capital of the mortgage guaranty subsidiaries. The completion of the recapitalization plan hinged on regulatory approvals in North Carolina, Florida and Vermont, as well as from the government-sponsored enterprises and the Federal Housing Finance Agency. ORI said that with all the complications, it could not be certain of getting the necessary approvals. A primary investor concern is that new capital would be used to pay for RMIC’s legacy problems, and investors want their money to ...

March 28, 2014 - Inside FHA Lending

Lenders Wishing to Quit FHA Should Not Just Skip

A mortgagee that no longer wishes to participate in FHA programs must submit a letter requesting voluntary withdrawal of its FHA approval, signed by a senior executive of the company, according to guidance published in the March 2014 issue of FHA’s Lender Insight. Lenders may not simply let their FHA approval expire by failing to complete FHA’s required annual recertification process, the guidance warned. “Failing to recertify will result in a referral to the Mortgagee Review Board for administrative action,” it said. The board’s withdrawal of a lender’s FHA approval could have an adverse impact on the lender should it reapply for FHA approval in the future. A lender requesting voluntary withdrawal of FHA approval is subject to a review before the agency signs off on the request. The request would be denied if the lender has an MRB administrative action pending against it or if it is behind on its mortgage insurance premium payments. A lender whose FHA approval has been withdrawn may ...

March 28, 2014 - Inside FHA Lending

MRB Sanctions 33 Lenders for Various Offenses

Thirty-three FHA lenders were sanctioned and 32 others lost their FHA approval between October and December 2013 because of actions taken by the Department of Housing and Urban Development’s Mortgagee Review Board. The board also imposed $516,500 in civil money penalties and entered into one settlement agreement to bring an unidentified lender into compliance. During the three-month period, one lender entered into an indemnification agreement with the MRB over one FHA-insured single-family loan. FHA lenders were subject to MRB disciplinary actions for various reasons, including failing to establish and implement a servicing quality control plan and failing to perform loss mitigation as required by the agency. Actions were also taken against lenders for failing to conduct monthly reviews of delinquent loans to determine the type of loss mitigation needed, as well as for failing to repay HUD losses in connection with indemnification agreements. Noncompliance with HUD’s annual recertification requirements also resulted in ...

March 28, 2014 - Inside FHA Lending

HUD Sued for Failing to Protect Spouses from Eviction

The Association of American Retired Persons hit the Department of Housing and Urban Development again with another class-action lawsuit for allegedly failing to protect four surviving spouses of Home Equity Conversion Mortgage borrowers against foreclosure and eviction. The complaint was filed in the U.S. District Court for the District of Columbia, where last September a federal judge found HUD in violation of federal law in a similar case. The court remanded the case to HUD to determine the appropriate remedy for the problem. The AARP Foundation Litigation and the law firm of Mehri & Skalet, the same entities that successfully litigated last year’s reverse mortgage case, represented the plaintiffs, none of them younger than 65 years of age. The suit challenges HUD’s promulgation of HECM regulations, which allegedly is ...

March 28, 2014 - Inside MBS & ABS

BofA’s $9.3 Billion Settlement Doubles Overnight FHFA’s MBS Litigation Recovery; S&P Moves to Split Fraud Trial

With just one accord this week, the Federal Housing Finance Agency more than doubled the amount it has recovered on behalf of Fannie Mae and Freddie Mac from issuers and underwriters that sold subprime and Alt A MBS to the government-sponsored enterprises. Bank of America agreed to a $9.3 billion settlement that covers its own dealings as well as those of Countrywide Financial and Merrill Lynch, which it acquired in 2008. The agreement covers some $57 billion of MBS issued or underwritten by these firms. BofA did not admit...[Includes one data chart]

March 21, 2014 - Inside MBS & ABS

GSE Reform in Congress, Investor Lawsuits, Impact On Industry Will Influence Housing Debate in 2014

The agreement among Republicans, Democrats and the White House for the need to act and the heightened urgency to pass legislation before a potential shift in power after the mid-term elections could determine the outlook for housing reform legislation in 2014, according to analysts. Fannie Mae and Freddie Mac reform efforts in Congress and investor lawsuits are helping shape the housing debate this year, and the recently issued Johnson-Crapo draft legislation is the bill to watch going forward, said Bloomberg Industries analysts this week. The profitability of the two government-sponsored enterprises in 2013 not only fueled...

March 20, 2014 - Inside Mortgage Finance

Servicers Exceeded Relief Targets

The total amount of principal reduction and refinancing provided by banks for consumer relief under the landmark $25 billion national servicing agreement far exceeded what was required in the agreement, according to final credit reports filed by settlement monitor Joseph Smith. Filed with the U.S. District Court for the District of Columbia this week, the reports confirmed that Wells Fargo, Bank of America, JPMorgan Chase, CitiBank and Ally have met their consumer relief and restructuring obligations under the settlement. In total, the five companies provided...

March 17, 2014 - Inside the CFPB

Groups Oppose Applying FDCPA to First Party Creditors Under UDAAP

Three lender-related trade groups told the CFPB they are opposed to the wholesale extension of the Fair Debt Collection Practices Act to first-party creditors using the bureau’s rulemaking authority to prohibit unfair, deceptive or abusive acts and practices. Commenting on the bureau’s advance notice of proposed rulemaking on debt collection practices, the American Bankers Association, the Consumer Bankers Association, and the Financial Services Roundtable said they support the CFPB’s decision to initiate a rulemaking in the space, given the massive consumer debt market now stands at $11.8 trillion and the importance debt collection has for credit availability.

March 17, 2014 - Inside the CFPB

Compliance Exec Shares Secrets to Manage QM Fair Lending Risks

Coping with the potential for fair lending violations in the new qualified-mortgage world is a source of high anxiety for many compliance professionals in mortgage finance. But Gregory Imm, chief compliance officer and director of community affairs and fair lending and responsible banking at Fifth Third Bank, recently shared some lesser-known considerations that should increase industry representatives’ confidence in their compliance and readiness. Speaking to participants in a recent webinar sponsored by Inside Mortgage Finance, an affiliated publication, Imm said the first area is measurement. “Institutions need to establish key performance risk indicators of what should be measured, and not what is convenient to measure,” he said. “I say ‘convenient’ because those are the activities that are easy to measure because you have the data at your fingertips.”

March 17, 2014 - Inside the CFPB

Bureau Delivers CID to World Acceptance Corp.

World Acceptance Corp., one of the largest small-loan lenders in the U.S., received a civil investigative demand from the CFPB last week, the company disclosed in a filing with the Securities and Exchange Commission. The CID states, in part, that “[t]he purpose of this investigation is to determine whether finance companies or other unnamed persons have been or are engaging in unlawful acts or practices in connection with the marketing, offering or extension of credit ….” The probe is also being undertaken “to determine whether bureau action to obtain legal or equitable relief would be in the public interest,” the filing said.

March 17, 2014 - Inside the CFPB

CFPB’s Antonakes Takes Another Swipe at Mortgage Servicers

CFPB Deputy Director Steve Antonakes isn’t toning down his antagonistic stance towards mortgage servicers. Speaking at the National Community Reinvestment Coalition Annual Conference in Washington, DC, last week, Antonakes rattled the bureau’s sabre at the market sector again, saying, “We expect servicers to pay exceptionally close attention to servicing transfers and they should understand that we will as well. “Servicing transfers where the new servicers are not honoring existing permanent or trial loan modifications will not be tolerated,” he added. “Struggling borrowers being told to pay incorrect higher amounts because of the failure to honor an in-process loan modification – and then being punished with foreclosure for their inability to pay the incorrect amounts – will not be tolerated.”

March 17, 2014 - Inside the CFPB

‘Disparate Impact’ Comes Back to Haunt CFPB Staff Evaluations

Lender representatives privately enjoyed a bit of disparate impact schadenfreude last week when accounts surfaced in the news media that the CFPB’s own internal employee evaluations demonstrated sharp racial disparities. Citing confidential agency data it obtained, American Banker reported that the bureau’s own managers have shown distinctly different patterns in how they rate employees of different races, with white employees ranking distinctly better than minorities in performance reviews used to grant raises and bonuses. Overall, whites were twice as likely to receive the agency’s top grade last year than were African-American or Hispanic employees, the newspaper said.

March 17, 2014 - Inside the CFPB

Hensarling Threatens CFPB With Subpoena Over Auto Finance

Rep. Jeb Hensarling, R-TX, chairman of the House Financial Services Committee, recently threatened to subpoena the CFPB to supply information on the bureau’s indirect auto lending guidance and the methodology it uses in determining whether fair lending violations exist in that space. “By refusing to disclose this information, the bureau has deliberately deprived indirect auto lenders of any meaningful way to tailor their company’s lending practices and compliance systems so as to mitigate or eliminate the fair lending risk the bureau asserts to be present,” Hensarling said in a recent letter to CFPB Director Richard Cordray.

March 14, 2014 - Inside FHA Lending

FHA Lenders Report Lower Volume, Jumbos Down

The Chinese Year of the Horse welcomed the FHA with a hard kick in the head as total originations fell 20 percent in January from December 2013. Even as rising interest rates slowed refinancing activity last year, the expected increase in purchase-mortgage lending barely materialized and, in fact, appears to be dropping off. Lenders reported $8.7 billion in new originations in January, down from $10.9 billion in December and $23.7 billion from a year ago. Most were fixed-rate mortgages and 77.1 percent were purchase transactions. Three of the top five FHA lenders – Quicken Loans, JPMorgan Chase and LoanDepot – reported purchase origination totals below 40 percent. Top-ranked Wells Fargo and Bank of America each reported 64.0 percent of total FHA originations as purchase transactions. Wells Fargo closed the month with $519.0 million despite a ... [2 charts]

March 14, 2014 - Inside FHA Lending

Eminent Domain Bill Could Bankrupt Jurisdictions

Penalties in legislation that would restrict the use of eminent domain to resolve foreclosure problems could cripple state and local governments financially and provide no relief to property owners, warned the bill’s critics. H.R. 1944, the Private Rights Protection Act, would prohibit city and county governments that get federal funding for economic development from using their eminent domain powers to seize underwater mortgage notes from investors and unilaterally restructure the loans before selling them to other investors. Violators would be ineligible for federal economic development funds for two fiscal years following a court’s finding of guilt. The bill also provides the attorney general with broader enforcement authority. The necessity for legislation arose in the wake of efforts last year by certain municipalities in California to ...

March 14, 2014 - Inside MBS & ABS

SCOTUS Agrees to Review MBS-Related Tolling, Decision Could Give Investors More Flexibility

The U.S. Supreme Court has added two more lawsuits to its growing list of securities cases by agreeing to take up an IndyMac MBS suit. In Public Employees’ Retirement System of Mississippi v. IndyMac MBS Inc. et al, SCOTUS has agreed to consider whether the filing of a class-action lawsuit tolls the three-year statute of repose under the Securities Act of 1933 or whether the statute is an absolute bar that cannot be suspended. Like a statute of limitations, a statute of repose cuts off...

March 13, 2014 - Inside Mortgage Finance

Labor Department Seeks Supreme Court Review of Loan Officer Overtime Ruling

The Department of Labor has asked the Supreme Court of the United States to review an appeals court ruling that put the kibosh on the agency’s policy that mortgage loan officers do not qualify under the administrative exemption to overtime pay. The legal question presented in Thomas E. Perez, Secretary of Labor, et al., petitioners, v. Mortgage Bankers Association, et al., is whether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretation of an agency regulation. Last October, the U.S. Court of Appeals for the District of Columbia refused...

March 7, 2014 - Inside The GSEs

Societe Generale Latest Defendant To Settle FHFA MBS Litigation

Yet another defendant in the Federal Housing Finance Agency’s massive litigation effort against some of the nation’s largest lenders for bad mortgage-backed securities sales to Fannie Mae and Freddie Mac has settled. The FHFA announced last week that Societe Generale has agreed to pay $122 million to settle a suit by the Finance Agency regarding non-agency MBS purchased by the two GSEs during 2006.

March 7, 2014 - Inside The GSEs

Judge Grants Fairholme Discovery Motion in GSE Shareholder Lawsuit

A federal judge last week granted discovery to attorneys for a hedge fund representing one group of Fannie Mae and Freddie Mac shareholders as it seeks to challenge the government’s August 2012 “net worth sweep” that effectively confiscates both GSEs’ profits. Fairholme Capital Management, founded by Wall Street veteran Bruce Berkowitz, controls roughly $2.4 billion (face value) of Fannie and Freddie "junior" preferred. Thanks to the September 2008 government takeover of the two firms, the U.S. Treasury controls the senior preferred and is effectively the owner of the two GSEs.

March 6, 2014 - Inside Mortgage Finance

PNC Bank, BofA Under Federal Investigation for Possible FHA-Related Fraud, SunTrust’s Settlement Bid Delayed

The Department of Justice is investigating PNC Financial Services Group and Bank of America in connection with their FHA-related mortgage lending practices, the two financial institutions disclosed in filings with the Securities and Exchange Commission. PNC said it has received subpoenas from the U.S. Attorney’s Office for the Southern District of New York seeking information relating to National City Bank’s lending practices in connection with FHA-insured loans as well as the origination of non-FHA loans and their sale and securitization. Another subpoena was issued...


What do you think is the biggest hurdle to meeting the new QM standards in the CFPB’s ability-to-repay rule?

A debt-to-income (DTI) cap of 43%.


A 3% cap on points and fees.


An interest rate cap of the average prime offered rate (APOR) plus 1.5%.


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