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CONSUMER FINANCE HEADLINES & DEADLINES FOR OUR CLIENTS AND FRIENDS
Topics – Covered This Week (Click to View)
FEDERAL ISSUES
Federal Financial Regulatory Agencies Issue Final Statement on Subprime Mortgage Lending. The federal financial regulatory agencies have issued a final Statement on Subprime Mortgage Lending, which addresses the issue of “payment shock” with regard to certain adjustable-rate mortgage (ARM) products. The statement provides that institutions should follow prudent safety and soundness and consumer protection standards to ensure that borrowers can afford to repay their mortgages. These standards include using a fully-indexed, fully-amortized rate to qualify borrowers, and the standards warn lenders about risk layering, such as using reduced documentation without good reason. The consumer protection standards include providing cogent product disclosures, limiting prepayment penalties, and allowing for a reasonable period of time for customers to refinance without penalty following the expiration of an initial fixed interest rate. The statement reinforces the April 17, 2007 interagency Statement on Working with Borrowers (see the April 20th issue of InfoBytes), which encouraged banking institutions to help troubled borrowers engage in workout arrangements. For more information, see http://www.federalreserve.gov/boarddocs/press/bcreg/2007/20070629/default.htm.
CSBS, AARMR Issue ARM Payment Increase Alerts. On June 26, a joint alert was issued by the Conference of State Bank Supervisors (CSBS) and the American Association of Residential Mortgage Regulators (AARMR) advising homeowners with adjustable rate mortgages to anticipate an increase in their monthly mortgage payments as a result of scheduled interest rate changes. The alert recommends that borrowers take steps to familiarize themselves with the characteristics of their loans and to budget for higher payments. In a separate alert, CSBS and AARMR encouraged residential mortgage servicers and providers to notify borrowers as to when their monthly payments are scheduled to increase (and by how much they are expected to increase), and to otherwise do what they can to help avoid potential foreclosures. To view the alerts, please see http://www.csbs.org/Content/NavigationMenu/RegulatoryAffairs/ MortgagePolicy/RecastStatements/Recast_Statements.htm.
National Affordable Housing Trust Fund Bill Introduced. A bipartisan group of legislators, led by Rep. Barney Frank (D – MA), have introduced a bill that would allocate up to $1 billion annually to states and local communities to provide affordable housing opportunities. The measure, which may assist up to 1.5 million people over the next ten years, would establish a National Affordable Housing Trust Fund. This trust fund would oversee the distribution of money for initiatives to build, preserve, or rehabilitate affordable rental properties. The program also aims to help home buyers with down payments and closing costs. The proponents of the bill claim that it “will be the largest expansion in federal housing programs in decades.” The House Financial Services Committee, chaired by Rep. Frank, will hold a hearing on the bill on July 12. For more information, see http://www.house.gov/apps/list/press/financialsvcs_dem/press062807.shtml.
Frank Sends Bank Agencies Letter on Social Security Act Compliance. On June 21, U.S. Rep. Barney Frank (D – MA), Chairman of the House Financial Services Committee, sent a letter to the five federal bank regulatory agencies complaining that certain federal benefits were being “routinely” garnished by banks in defiance of the Social Security Act. In his letter Frank also expressed concern regarding (i) the “setting off” of bank charges, meaning directly seizing them from consumer accounts without issuing a bill; (ii) the sparse use of special “Electronic Transfer Accounts” for protected benefits despite existing regulations; and (iii) debt collectors’ alleged forum selection tactics that can impose hardship on debtors. The letter asks the agencies what “measures your agency has taken to ensure that the institutions you regulate are aware of the laws that were enacted to protect the funds of federal beneficiaries and that these laws are being rigorously enforced.” For full text of the letter, see http://www.house.gov/apps/list/press/financialsvcs_dem/press2062707.shtml.
House Passes FHA Manufactured Housing Loan Increase. On June 25, the House of Representatives passed the FHA Manufactured Housing Loan Modernization Act of 2007 (H.R. 2139), which would, among other things, increase the loan limits on Federal Housing Administration (FHA) insured manufactured housing loans. The loan limits, which have not been altered since 1992, would also be increased annually to adjust for inflation. The bill, if enacted into law, would also remove restrictions on the number of FHA-insured manufactured housing loans that can be held by a financial institution. For more information on this bill, see http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.02139:.
FDIC to Allow State Regulators Access to FDICconnect Filings. The Federal Deposit Insurance Corporation (FDIC) has announced that, starting July 9, it will provide participating state banking regulators access to its FDICconnect Examination File Exchange system. By using this system, insured financial institutions will be able to quickly and securely transmit electronic pre-examination and examination files and information to the FDIC as well as to their state regulators. For more information, see http://www.fdic.gov/news/news/financial/2007/fil07053.html.
STATE ISSUES
New York Bill Prohibiting Universal Default Provisions Awaits Governor’s Signature. On June 20 the New York General Assembly passed S.2969, a bill outlawing credit and debit card agreements containing universal default clauses. If signed by Governor Spitzer, the bill would prevent credit card companies from increasing a customer’s interest rate or imposing fees in response to delinquencies reported by other creditors. Additionally, the bill would limit the use of a customer’s credit score by credit card companies. Under the bill’s provisions, credit card companies may consider a customer’s credit score only when the credit card is first issued or when the credit card company offers to increase a customer’s credit limit. Any credit agreement not conforming to the bill’s provisions would be void and unenforceable as contrary to public policy. For the official text of the bill, please see http://assembly.state.ny.us/leg/?bn=S02969&sh=t.
Texas Law Requires Disclosure to Loan Applicants of Penalties for False Statements. On June 16, the Governor of Texas signed H.B. 716, which requires every licensed mortgage broker, banker, lender, or loan officer to provide a notice to loan applicants of the penalties for false statements. The notice must state that any materially false or misleading statement to obtain credit is punishable by anywhere from two to 99 years in prison or a fine of up to $10,000. The bill provides sample language of the notice. The disclosure must be provided on a separate piece of paper at closing and must be in at least 14-point font. This law will take effect on September 1, 2007. A full text of the bill may be found at http://www.capitol.state.tx.us/tlodocs/80R/billtext/doc/HB00716F.doc.
Rhode Island Legislature Amends Home Loan Protection Act. On June 20th, the Rhode Island legislature passed amendments to the assignee liability provisions in the Rhode Island Home Loan Protection Act. The bills, S 0371 and H 5485, respectively, add federal credit unions and non-federal credit unions to the list of entities exempted from the high-cost home loan assignee liability law. Additionally, the amendment clarifies the law’s provisions that only an individual borrower acting in an individual capacity may recover from a subsequent holder or assignee. Text of the bills can be found at http://www.rilin.state.ri.us/PublicLaws/law07/law07054.htm and http://www.rilin.state.ri.us/PublicLaws/law07/law07067.htm.
COURTS
Lender to Settle Lawsuit Alleging Failure to Disclose Yield Spread Premiums. A federal district court in Washington state has issued a preliminary approval of a settlement in a class action lawsuit alleging that NovaStar Mortgage, Inc. violated Washington’s Consumer Protection Act by not adequately disclosing yield spread premiums paid by the lender to mortgage brokers. See Pierce v. NovaStar Mortgage, Inc., No. C05-5835 RJB (W.D. Wash. June 27, 2007). The settlement establishes a $3.3 million fund to compensate class members. NovaStar will also pay $1.8 million in attorney fees. The hearing on the final approval of the settlement is scheduled for September 28. For a copy of the preliminary approval order, please contact .
Spoliation Sanctions Ordered for Erasure of Files from Hard Drive by Anti-Virus Program. In an adversary proceeding alleging that a Chapter 7 debtor owed back taxes, the government sought and was granted sanctions for the debtor’s use of an “anti-virus” program that erased potentially responsive electronic files from the computers that were the subject of discovery. United States v. Krause, Adv. No. 05-5775 (Bankr. D. Kan, June 4, 2007). In a detailed opinion, the bankruptcy court granted the sanctions, finding that the debtor’s conduct – among other things, failing to disable the program’s hard drive “wipe” feature – justified sanctions. The sanctions included the entry of partial default judgment against the debtor. The debtor had produced the computers in response to the government’s request for certain electronic records, but when the government searched the computers’ hard drives, neither contained any trace of deleted files. Both computers used an anti-virus program capable of permanently destroying files that had been deleted. In ordering sanctions, the court took particular note of the fact that the debtor purchased and installed the anti-virus program after the adversary proceeding had been filed. In the court’s view, this action constituted “willful or intentional spoliation of evidence.” For a copy of this decision, please contact .
Single eBay Sale into Massachusetts Does Not Provide Court with Personal Jurisdiction. The U.S. District Court for the District of Massachusetts recently held that it did not have personal jurisdiction over a New York-based defendant when the defendant’s only contact with the forum state was a single sale over eBay to a Massachusetts resident. Ginsburg v. Dinicola, No. 06-11509-TWZ (D. Mass. June 7, 2007).In this case, the plaintiff purchased a classic car from the defendant over the online auction site eBay. After completion of the sale in New York, the plaintiff determined that the car was not as represented and sued the defendant for, among other things, fraud. The defendant argued that the court did not have personal jurisdiction over him because the transaction was an isolated transaction that incidentally touched Massachusetts and did not satisfy the requirements of Massachusetts’ long-arm statute. After reviewing the record and other precedent regarding eBay sales, the court concurred, noting that a single transaction could not satisfy Massachusetts’ jurisdictional requirements. Please contact to obtain a copy of the court’s Memorandum of Decision.
MISCELLANY
OCC Report Highlights Best Practices of Loan Servicers to Reduce Foreclosures. The Office of the Comptroller of the Currency (OCC) has released a report “Foreclosure Prevention: Improving Contact with Borrowers,” which aims to alert mortgage loan services as to the best practices to contact delinquent borrowers in order to ward off foreclosures. The report, which is available through the OCC’s website, hopes to help prevent foreclosures by encouraging early contact and communication between lenders, trusted advisors, and delinquent borrowers. The OCC states that keeping borrowers in their homes is the best way to minimize credit losses, preserve customer relationships, and reduce the effect of foreclosed properties on communities. For more information, see http://www.occ.gov/ftp/release/2007-62.htm.
Comptroller Unveils PSA Encouraging Delinquent Borrowers to Contact Lenders. Comptroller of the Currency John C. Dugan has released two new public service announcements (PSAs) that seek to encourage delinquent mortgage borrowers to contact their lenders or a bona fide housing counselor in order to avoid foreclosure. These ads will be targeted at areas where foreclosure is rising. Comptroller Dugan notes that, according to creditors, borrowers make no contact with the lender in half of all foreclosure cases. However, when borrowers do contact their lenders for assistance, borrowers are successful in finding an alternative to foreclosure more than one-third of the time. For more information, see http://www.occ.gov/ftp/release/2007-61.htm.
New FTC Consumer Pamphlet Addresses Mortgage Payment Shock. On June 27, the Federal Trade Commission (FTC) published “Mortgage Payments Sending You Reeling? Here’s What to Do,” an brief document designed to help mortgage borrowers anticipate and manage rate adjustment payment shock. The pamphlet explains different mortgage structures, ways to manage payments and avoid foreclosure, and ways to spot foreclosure scams. The pamphlet can be found at http://www.ftc.gov/bcp/edu/pubs/consumer/homes/rea04.shtm.
FIRM NEWS
Jerry Buckley and Joe Kolar participated of a webcast held by West Legal Works entitled Subprime Lending: Latest Regulatory and Legislative Responses on Wednesday, June 27. The webcast was the third in a series relating to the subprime mortgage market. The webcasts are available for on-demand replay on www.westlegaledcenter.com.
Jerry Buckley spoke at the NAVA Compliance and Regulatory Affairs Conference in Washington, DC on June 26th. The title of his presentation was Electronic Transfers and eSignatures.
Federal Financial Regulatory Agencies Issue Final Statement on Subprime Mortgage Lending. The federal financial regulatory agencies have issued a final Statement on Subprime Mortgage Lending, which addresses the issue of “payment shock” with regard to certain adjustable-rate mortgage (ARM) products. The statement provides that institutions should follow prudent safety and soundness and consumer protection standards to ensure that borrowers can afford to repay their mortgages. These standards include using a fully-indexed, fully-amortized rate to qualify borrowers, and the standards warn lenders about risk layering, such as using reduced documentation without good reason. The consumer protection standards include providing cogent product disclosures, limiting prepayment penalties, and allowing for a reasonable period of time for customers to refinance without penalty following the expiration of an initial fixed interest rate. The statement reinforces the April 17, 2007 interagency Statement on Working with Borrowers (see the April 20th issue of InfoBytes), which encouraged banking institutions to help troubled borrowers engage in workout arrangements. For more information, see http://www.federalreserve.gov/boarddocs/press/bcreg/2007/20070629/default.htm.
CSBS, AARMR Issue ARM Payment Increase Alerts. On June 26, a joint alert was issued by the Conference of State Bank Supervisors (CSBS) and the American Association of Residential Mortgage Regulators (AARMR) advising homeowners with adjustable rate mortgages to anticipate an increase in their monthly mortgage payments as a result of scheduled interest rate changes. The alert recommends that borrowers take steps to familiarize themselves with the characteristics of their loans and to budget for higher payments. In a separate alert, CSBS and AARMR encouraged residential mortgage servicers and providers to notify borrowers as to when their monthly payments are scheduled to increase (and by how much they are expected to increase), and to otherwise do what they can to help avoid potential foreclosures. To view the alerts, please see http://www.csbs.org/Content/NavigationMenu/RegulatoryAffairs/ MortgagePolicy/RecastStatements/Recast_Statements.htm.
National Affordable Housing Trust Fund Bill Introduced. A bipartisan group of legislators, led by Rep. Barney Frank (D – MA), have introduced a bill that would allocate up to $1 billion annually to states and local communities to provide affordable housing opportunities. The measure, which may assist up to 1.5 million people over the next ten years, would establish a National Affordable Housing Trust Fund. This trust fund would oversee the distribution of money for initiatives to build, preserve, or rehabilitate affordable rental properties. The program also aims to help home buyers with down payments and closing costs. The proponents of the bill claim that it “will be the largest expansion in federal housing programs in decades.” The House Financial Services Committee, chaired by Rep. Frank, will hold a hearing on the bill on July 12. For more information, see http://www.house.gov/apps/list/press/financialsvcs_dem/press062807.shtml.
Lender to Settle Lawsuit Alleging Failure to Disclose Yield Spread Premiums. A federal district court in Washington state has issued a preliminary approval of a settlement in a class action lawsuit alleging that NovaStar Mortgage, Inc. violated Washington’s Consumer Protection Act by not adequately disclosing yield spread premiums paid by the lender to mortgage brokers. See Pierce v. NovaStar Mortgage, Inc., No. C05-5835 RJB (W.D. Wash. June 27, 2007). The settlement establishes a $3.3 million fund to compensate class members. NovaStar will also pay $1.8 million in attorney fees. The hearing on the final approval of the settlement is scheduled for September 28. For a copy of the preliminary approval order, please contact .
House Passes FHA Manufactured Housing Loan Increase. On June 25, the House of Representatives passed the FHA Manufactured Housing Loan Modernization Act of 2007 (H.R. 2139), which would, among other things, increase the loan limits on Federal Housing Administration (FHA) insured manufactured housing loans. The loan limits, which have not been altered since 1992, would also be increased annually to adjust for inflation. The bill, if enacted into law, would also remove restrictions on the number of FHA-insured manufactured housing loans that can be held by a financial institution. For more information on this bill, see http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.02139:.
Texas Law Requires Disclosure to Loan Applicants of Penalties for False Statements. On June 16, the Governor of Texas signed H.B. 716, which requires every licensed mortgage broker, banker, lender, or loan officer to provide a notice to loan applicants of the penalties for false statements. The notice must state that any materially false or misleading statement to obtain credit is punishable by anywhere from two to 99 years in prison or a fine of up to $10,000. The bill provides sample language of the notice. The disclosure must be provided on a separate piece of paper at closing and must be in at least 14-point font. This law will take effect on September 1, 2007. A full text of the bill may be found at http://www.capitol.state.tx.us/tlodocs/80R/billtext/doc/HB00716F.doc.
Rhode Island Legislature Amends Home Loan Protection Act. On June 20th, the Rhode Island legislature passed amendments to the assignee liability provisions in the Rhode Island Home Loan Protection Act. The bills, S 0371 and H 5485, respectively, add federal credit unions and non-federal credit unions to the list of entities exempted from the high-cost home loan assignee liability law. Additionally, the amendment clarifies the law’s provisions that only an individual borrower acting in an individual capacity may recover from a subsequent holder or assignee. Text of the bills can be found at http://www.rilin.state.ri.us/PublicLaws/law07/law07054.htm and http://www.rilin.state.ri.us/PublicLaws/law07/law07067.htm.
OCC Report Highlights Best Practices of Loan Servicers to Reduce Foreclosures. The Office of the Comptroller of the Currency (OCC) has released a report “Foreclosure Prevention: Improving Contact with Borrowers,” which aims to alert mortgage loan services as to the best practices to contact delinquent borrowers in order to ward off foreclosures. The report, which is available through the OCC’s website, hopes to help prevent foreclosures by encouraging early contact and communication between lenders, trusted advisors, and delinquent borrowers. The OCC states that keeping borrowers in their homes is the best way to minimize credit losses, preserve customer relationships, and reduce the effect of foreclosed properties on communities. For more information, see http://www.occ.gov/ftp/release/2007-62.htm.
Comptroller Unveils PSA Encouraging Delinquent Borrowers to Contact Lenders. Comptroller of the Currency John C. Dugan has released two new public service announcements (PSAs) that seek to encourage delinquent mortgage borrowers to contact their lenders or a bona fide housing counselor in order to avoid foreclosure. These ads will be targeted at areas where foreclosure is rising. Comptroller Dugan notes that, according to creditors, borrowers make no contact with the lender in half of all foreclosure cases. However, when borrowers do contact their lenders for assistance, borrowers are successful in finding an alternative to foreclosure more than one-third of the time. For more information, see http://www.occ.gov/ftp/release/2007-61.htm.
New FTC Consumer Pamphlet Addresses Mortgage Payment Shock. On June 27, the Federal Trade Commission (FTC) published “Mortgage Payments Sending You Reeling? Here’s What to Do,” an brief document designed to help mortgage borrowers anticipate and manage rate adjustment payment shock. The pamphlet explains different mortgage structures, ways to manage payments and avoid foreclosure, and ways to spot foreclosure scams. The pamphlet can be found at http://www.ftc.gov/bcp/edu/pubs/consumer/homes/rea04.shtm.
Frank Sends Bank Agencies Letter on Social Security Act Compliance. On June 21, U.S. Rep. Barney Frank (D – MA), Chairman of the House Financial Services Committee, sent a letter to the five federal bank regulatory agencies complaining that certain federal benefits were being “routinely” garnished by banks in defiance of the Social Security Act. In his letter Frank also expressed concern regarding (i) the “setting off” of bank charges, meaning directly seizing them from consumer accounts without issuing a bill; (ii) the sparse use of special “Electronic Transfer Accounts” for protected benefits despite existing regulations; and (iii) debt collectors’ alleged forum selection tactics that can impose hardship on debtors. The letter asks the agencies what “measures your agency has taken to ensure that the institutions you regulate are aware of the laws that were enacted to protect the funds of federal beneficiaries and that these laws are being rigorously enforced.” For full text of the letter, see http://www.house.gov/apps/list/press/financialsvcs_dem/press2062707.shtml.
FDIC to Allow State Regulators Access to FDICconnect Filings. The Federal Deposit Insurance Corporation (FDIC) has announced that, starting July 9, it will provide participating state banking regulators access to its FDICconnect Examination File Exchange system. By using this system, insured financial institutions will be able to quickly and securely transmit electronic pre-examination and examination files and information to the FDIC as well as to their state regulators. For more information, see http://www.fdic.gov/news/news/financial/2007/fil07053.html.
Lender to Settle Lawsuit Alleging Failure to Disclose Yield Spread Premiums. A federal district court in Washington state has issued a preliminary approval of a settlement in a class action lawsuit alleging that NovaStar Mortgage, Inc. violated Washington’s Consumer Protection Act by not adequately disclosing yield spread premiums paid by the lender to mortgage brokers. See Pierce v. NovaStar Mortgage, Inc., No. C05-5835 RJB (W.D. Wash. June 27, 2007). The settlement establishes a $3.3 million fund to compensate class members. NovaStar will also pay $1.8 million in attorney fees. The hearing on the final approval of the settlement is scheduled for September 28. For a copy of the preliminary approval order, please contact .
Spoliation Sanctions Ordered for Erasure of Files from Hard Drive by Anti-Virus Program. In an adversary proceeding alleging that a Chapter 7 debtor owed back taxes, the government sought and was granted sanctions for the debtor’s use of an “anti-virus” program that erased potentially responsive electronic files from the computers that were the subject of discovery. United States v. Krause, Adv. No. 05-5775 (Bankr. D. Kan, June 4, 2007). In a detailed opinion, the bankruptcy court granted the sanctions, finding that the debtor’s conduct – among other things, failing to disable the program’s hard drive “wipe” feature – justified sanctions. The sanctions included the entry of partial default judgment against the debtor. The debtor had produced the computers in response to the government’s request for certain electronic records, but when the government searched the computers’ hard drives, neither contained any trace of deleted files. Both computers used an anti-virus program capable of permanently destroying files that had been deleted. In ordering sanctions, the court took particular note of the fact that the debtor purchased and installed the anti-virus program after the adversary proceeding had been filed. In the court’s view, this action constituted “willful or intentional spoliation of evidence.” For a copy of this decision, please contact .
Single eBay Sale into Massachusetts Does Not Provide Court with Personal Jurisdiction. The U.S. District Court for the District of Massachusetts recently held that it did not have personal jurisdiction over a New York-based defendant when the defendant’s only contact with the forum state was a single sale over eBay to a Massachusetts resident. Ginsburg v. Dinicola, No. 06-11509-TWZ (D. Mass. June 7, 2007).In this case, the plaintiff purchased a classic car from the defendant over the online auction site eBay. After completion of the sale in New York, the plaintiff determined that the car was not as represented and sued the defendant for, among other things, fraud. The defendant argued that the court did not have personal jurisdiction over him because the transaction was an isolated transaction that incidentally touched Massachusetts and did not satisfy the requirements of Massachusetts’ long-arm statute. After reviewing the record and other precedent regarding eBay sales, the court concurred, noting that a single transaction could not satisfy Massachusetts’ jurisdictional requirements. Please contact to obtain a copy of the court’s Memorandum of Decision.
Single eBay Sale into Massachusetts Does Not Provide Court with Personal Jurisdiction. The U.S. District Court for the District of Massachusetts recently held that it did not have personal jurisdiction over a New York-based defendant when the defendant’s only contact with the forum state was a single sale over eBay to a Massachusetts resident. Ginsburg v. Dinicola, No. 06-11509-TWZ (D. Mass. June 7, 2007).In this case, the plaintiff purchased a classic car from the defendant over the online auction site eBay. After completion of the sale in New York, the plaintiff determined that the car was not as represented and sued the defendant for, among other things, fraud. The defendant argued that the court did not have personal jurisdiction over him because the transaction was an isolated transaction that incidentally touched Massachusetts and did not satisfy the requirements of Massachusetts’ long-arm statute. After reviewing the record and other precedent regarding eBay sales, the court concurred, noting that a single transaction could not satisfy Massachusetts’ jurisdictional requirements. Please contact to obtain a copy of the court’s Memorandum of Decision.
New York Bill Prohibiting Universal Default Provisions Awaits Governor’s Signature. On June 20 the New York General Assembly passed S.2969, a bill outlawing credit and debit card agreements containing universal default clauses. If signed by Governor Spitzer, the bill would prevent credit card companies from increasing a customer’s interest rate or imposing fees in response to delinquencies reported by other creditors. Additionally, the bill would limit the use of a customer’s credit score by credit card companies. Under the bill’s provisions, credit card companies may consider a customer’s credit score only when the credit card is first issued or when the credit card company offers to increase a customer’s credit limit. Any credit agreement not conforming to the bill’s provisions would be void and unenforceable as contrary to public policy. For the official text of the bill, please see http://assembly.state.ny.us/leg/?bn=S02969&sh=t.
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