- The Consumer Financial Protection Bureau recently released a compliance bulletin regarding Amendment to the Interstate Land Sales Full Disclosure Act. The bulletin provides information to interested parties, primarily developers, regarding the extension of exemption from registration and disclosure requirements of the sale of a condiminium, which is not exempt under other provisions.
- The Federal Transportation Administration (FTA) has released Final Interim Guidance regarding its Capital Investment Grant Program. This guidance provides a greater level of detail with respect to the methods of evaluation used in funding decisions. According to Enterprise Community Partners, “…the incorporation of affordable housing criteria in the evaluation framework has been effective in promoting such coordination. The revised guidance reaffirms those elements and makes two minor adjustments to the affordable housing portion of the land use rating criteria: project sponsors will now have more flexibility in certifying affordable housing data, and transit projects reaching counties with more affordable housing will receive a scoring bonus.”
Tag Archives: Consumer Financial Protection Bureau
Is the CFPB Unconstitutional?
DepositAccounts.com quoted me in Old Court Case Puts Consumer Financial Protection Bureau on Hot Seat. It reads, in part,
here is such a thing as a second act. Even court cases can be resurrected from the dead. Two years after State National Bank of Texas called the Consumer Financial Protection Bureau on the carpet, challenging its constitutionality in a case that was dismissed by a federal court, the D.C. Circuit court breathed new life into the debate when it reopened the case and concluded that State National Bank has legal legs to stand on and can sue, despite the fact that it is not directly supervised by the agency.
Although the D.C. Circuit court didn’t buy all of the bank’s claims, the court didn’t dismiss the bank’s claims that the CFPB should be run by a commission, instead of a single director, nor did it shoot down the bank’s contention that CFPB’s Director, Richard Cordray was improperly appointed during a Congressional recess.
“The proper ruling is that a recess appointment requires the Senate to be in recess. The Senate should determine whether it is in recess by its own rules. So a unilateral decision by the executive branch that the Senate is in recess should be disregarded,” says lawyer David Rubenstein who owns CreditShout.com and CreditForums.com.
“The solicitor general’s office will argue that this is a political question and should not be decided by the courts. If the recess appointment is struck down, then any rules and regulations passed by the CFPB also need to be struck down. Courts generally try to avoid this kind of mess. So you may see some sort of compromise,” he adds.
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Why the case matters
As for this case, scoffs [U.S. PIRG consumer program director] Mierzwinski, “Its proponents climbed a very low bar (standing to sue) to get the case reopened. Most experts on both sides think the odds of them actually winning are very low – achieving their sketchy Constitutional claims on the merits is an extremely high bar.”
The case is significant, says Brooklyn Law School professor David Reiss, “It is opening up a new can of worms for the CFPB and the consumer finance industry. But the court defers on the meat of the matter as it remands the case ‘to the District Court for it to consider the merits of the claim.’”
Reiss contends that cases such as this increase uncertainty for regulated companies, and for their customers. “Until the case is decided and the new regulatory environment becomes clear, we should expect more caution in the development of new consumer finance products and services,” says Reiss.
What To Do With MERS?
Bloomberg BNA quoted me in More Policy Queries As MERS Racks Up Court Wins (behind a paywall). The article further discusses the case I had blogged about earlier this week. It reads, in part,
Mortgage Electronic Registration Systems, Inc. (MERS), the keeper of a major piece of the U.S. housing market’s infrastructure, has beaten back the latest court challenge to its national tracking system, even as criticism of the company keeps coming (Montgomery County v. MERSCORP, Inc., 2015 BL 247363, 3d Cir., No. 14-cv-04315, 8/3/15). In an Aug. 3 decision, the U.S. Court of Appeals for the Third Circuit reversed a lower court ruling in favor of Nancy J. Becker, the recorder of deeds for Montgomery County, Pa., whose lawsuit claimed MERS illegally sidestepped millions of dollars in recording fees.
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MERS has faced an array of critics, including those who say its tracking system is cloaked in secrecy. MERS disagrees, and provides a web portal for homeowners seeking information.
A host of friend-of-the-court briefs filed in the Third Circuit blasted the company, including one filed in March by law school professors who said the MERS system “has introduced unprecedented opacity and incompleteness to the record of interests in real estate.”
One of those, Brooklyn Law School Professor David Reiss, Aug. 6 raised the question whether MERS, though not a servicer, might be the subject of increased oversight.
“The problems consumers faced during the foreclosure crisis were compounded by MERS,” Reiss told Bloomberg BNA. “Those issues have not been resolved by the MERS litigation, and it would be interesting to see if the Consumer Financial Protection Bureau will seek to regulate MERS as an important player in the servicing industry. It would also be interesting to see whether state regulators will pick the ball in this area by further regulating MERS to increase transparency and procedural fairness for homeowners,” he said.
Friday’s Government Reports
- The Consumer Financial Protection Bureau’s (CFPB) “Leveraging technology to empower mortgage consumers at closing” found that consumers would benefit from electronic closings. Results indicate that those consumers who completed a closing on an electronic platform had a superior experience with regard to understanding, efficiency, and feeling empowered compared to borrowers who used paper forms.
- The Federal Housing Finance Agency (FHFA) released its monthly interest rate survey for June 2015. The average interest rate was up 10 basis points from 3.75 to 3.85% from may to June. Many lenders use this rate to reset the interest rate on some ARMs.
Optimizing Mortgage Availability
The United States Government Accountability Office (GAO) has issued a report, Mortgage Reforms: Actions Needed to Help Assess Effects of New Regulations. The GAO did this study to predict the effects of the Qualified Mortgage (QM) and Qualified Residential Mortgage (QRM) regulations. The GAO found
Federal agency officials, market participants, and observers estimated that the qualified mortgage (QM) and qualified residential mortgage (QRM) regulations would have limited initial effects because most loans originated in recent years largely conformed with QM criteria.
- The QM regulations, which address lenders’ responsibilities to determine a borrower’s ability to repay a loan, set forth standards that include prohibitions on risky loan features (such as interest-only or balloon payments) and limits on points and fees. Lenders that originate QM loans receive certain liability protections.
- Securities collateralized exclusively by residential mortgages that are “qualified residential mortgages” are exempt from risk-retention requirements. The QRM regulations align the QRM definition with QM; thus, securities collateralized solely by QM loans are not subject to risk-retention requirements.
The analyses GAO reviewed estimated limited effects on the availability of mortgages for most borrowers and that any cost increases (for borrowers, lenders, and investors) would mostly stem from litigation and compliance issues. According to agency officials and observers, the QRM regulations were unlikely to have a significant initial effect on the availability or securitization of mortgages in the current market, largely because the majority of loans originated were expected to be QM loans. However, questions remain about the size and viability of the secondary market for non-QRM-backed securities.
This last bit — questions about the non-QRM-backed market — is very important.
Some consumer advocates believe that there should not be any non-QRM mortgages. I disagree. There should be some sort of market for mortgages that do not comply with the strict (and, in the main, beneficial) QRM limitations.
Some homeowners will not be eligible for a plain vanilla QM/QRM mortgage but could still handle a mortgage responsibly. The mortgage markets would not be healthy without some kind of non-QRM-backed securities market for those consumers.
So far, that non-QRM market has been very small, smaller than expected. Regulators should continue to study the effects of the new mortgage regulations to ensure that they incentivize making the socially optimal amount of non-QRM mortgage credit available to homeowners.
Friday’s Government Reports
- The U.S. Census Bureau and U.S. Department of Housing and Urban Development jointly released the New Residential Construction statistics for June 2015 – which shows sizable increases in housing starts (compared to June 2014) for multiple unit construction, particularly in the Northeast (up 159.6% for 5 units or more), South (up 10.4% overall) and the West (up 27.4%).
- The Federal Housing Finance Agency’s (FHFA) House Price Index (HPI) for May 2015 is up .4% from April 2015. The FHFA HPI is calculated using home sales price information from mortgages sold to or guaranteed by Fannie Mae and Freddie Mac. From May 2014 to May 2015, house prices were up 5.7 percent. The U.S. index is 1.8 percent below its March 2007 peak and is roughly the same as the April 2006 index level.
- The Consumer Financial Protection Bureau’s Monthly Complaint Report reveals that the most complained about product is the Mortgage while the biggest increase in complaints has been in the debt collection sector. The report details complaint data by company, region and financial product.
Tuesday’s Regulatory & Legislative Update
- Consumer Financial Protection Bureau (CFPB) TILA-RESPA Integrated Disclosure rule webinar recording and the slides from their recent presentation about the changes to go into effect August 1st, 2015. The new Integrated Disclosures must be provided by a creditor or mortgage broker that receives an application from a consumer for a closed-end credit transaction secured by real property.
