As you may recall from our prior updates, the U.S. Court of Appeals for the Second Circuit recently reversed a district court’s ruling that federal National Bank Act preemption applicable to the loan originator allowed a non-bank consumer debt buyer to charge interest in excess of state usury limits. In so ruling, the Second Circuit noted that, “[a]lthough it is possible that usury laws might decrease the amount a national bank could charge for its consumer debt in certain states (i.e., those with firm usury limits, like New York), such an effect would not ‘significantly interfere’ with the exercise of…
Posts published by “Ralph T. Wutscher”
Ralph Wutscher's practice focuses primarily on representing consumer and commercial financial services companies, including depository and non-depository mortgage lenders and servicers, as well as mortgage loan investors, financial asset buyers and sellers, loss mitigation companies, third-party debt collectors, and other financial services providers. He represents the lending and financial services industry as a litigator, and as regulatory compliance counsel. For more information, see https://mauricewutscher.com/attorneys/ralph-t-wutscher/
On June 23, New York Gov. Andrew Cuomo signed S8159 into law, which among other things contains provisions relating to: Mandatory settlement conferences in residential foreclosures. The new law modifies New York’s mandatory settlement conference provisions for residential mortgage foreclosures to among other things allow courts to sanction mortgagees up to $25,000 and award attorney fees in favor of the borrower for non-compliance, clarifies that the failure to offer or accept an offer is not sufficient to establish lack of good faith participation, and allows borrowers who participate in settlement conferences to have defaults vacated. A pre-foreclosure duty for mortgagees to…
The federal Consumer Financial Protection Bureau (CFPB) recently issued its “Supervisory Highlights – Mortgage Servicing – Special Edition” (Issue 11), addressing examination issues reportedly found as to loss mitigation acknowledgement notices, loss mitigation offers and related communications, loan modification denial notices, servicer policies and procedures, and servicing transfers. Of note, the Supervisory Highlights also addresses the CFPB’s approach to mortgage servicing examinations, including as to recent changes to the mortgage servicing chapter of the CFPB Supervision and Examination Manual. A copy of report is available at: Link to Report. The CFPB summarized its findings as follows: Outdated and deficient servicing…
The Federal Communications Commission (FCC) recently issued a Notice of Proposed Rulemaking (NPRM) regarding recent amendments to the federal Telephone Consumer Protection Act (TCPA), seeking comment on among other things: (1) which calls are covered by the phrase “solely to collect” under the amendments; (2) the meaning of the phrase “a debt owed to or guaranteed by the United States” in the amendments; (3) how the FCC should restrict the number and duration of covered calls; (4) whether consumers should have a right to stop covered calls at any point the consumer wishes; and (5) whether callers should be required…
The Annual Consumer Financial Services Conference organized by The Conference on Consumer Finance Law will be held Sept. 15-16 at Loyola University Chicago School of Law. The conference will include presentations on the latest developments in consumer financial services law, including mortgage lending and servicing, bankruptcy and debt collection. Twelve CLE credits will be provided, including one hour of Ethics. The fee is $495 for those who register before July 31. For more information, click here.
The Consumer Financial Protection Bureau (CFPB) recently reopened the comment period for its proposed amendments to the mortgage servicing related rules under RESPA and TILA that generally would require servicers to provide modified periodic statements to consumers who have filed for bankruptcy. The full announcement is available at: Link to Announcement. As you may recall, in December 2014, the CFPB published for notice and comment a proposed rule that among other things would require mortgage servicers to provide certain modified periodic statements to consumers in bankruptcy (subject to specific exceptions), with different disclosures and notices required for different types of…
The federal Consumer Financial Protection Bureau (CFPB) recently issued its final policy regarding “no action letters.” A copy of the final policy is available at: Link to Policy. The final policy establishes a process to apply for non-binding statements from the CFPB as to whether it has any “present intention to recommend initiation of an enforcement or supervisory action against the requester with respect to a specified matter” involving “innovative financial products or services that promise substantial consumer benefit where there is substantial uncertainty whether or how specific provisions of statutes implemented or regulations issued by the [CFPB] would be…
Section 75001 of the recently enacted Fixing America’s Surface Transportation (FAST) Act provides a new exception to the annual privacy notice requirement under the Gramm-Leach-Bliley Act (GLBA). The language of the provision is as follows: SEC. 75001. EXCEPTION TO ANNUAL PRIVACY NOTICE REQUIREMENT UNDER THE GRAMM-LEACH-BLILEY ACT. Section 503 of the Gramm-Leach-Bliley Act (15 U.S.C. 6803) is amended by adding at the end the following: (f) EXCEPTION TO ANNUAL NOTICE REQUIREMENT.—A financial institution that— (1) provides nonpublic personal information only in accordance with the provisions of subsection (b)(2) or (e) of section 502 or regulations prescribed under section 504(b), and…
The federal Consumer Financial Protection Bureau (CFPB) recently released its Supervisory Highlights (Issue 9, Fall 2015), a copy of which is available here. The CFPB reported that, among other things, its “supervisory activities have either led to or supported six recent public enforcement actions, resulting in $764.9 million being returned to consumers and $50.7 million in civil money penalties,” plus supervisory resolutions resulting in “restitution of approximately $107 million to more than 238,000 consumers.” In addition, the CFPB provided a summary discussion of its fair lending and ECOA compliance examination methodologies, as well as a number of steps lenders may…
The federal banking regulators (including the CFPB) confirmed in an Oct. 1 letter that “[e]xaminers will expect supervised entities to make good faith efforts to comply with the [‘Know Before You Owe’ TILA-RESPA Integrated Disclosure] Rule’s requirements in a timely manner.” More specifically, “examiners will consider the institution’s implementation plan, including actions taken to update policies, procedures, and processes; its training of appropriate staff; and its handling of early technical problems or other implementation challenges.” A copy of the letter issued by the Office of the Comptroller of the Currency (OCC) is available here. The CFPB’s related press release is available…
As you may recall, an Illinois appellate court held in 2012 unreported opinion that mortgage servicers may be subject to Illinois Collection Agency Act, 225 ILCS 425/1, et seq. (ICAA), including the licensing and other requirements of the ICAA. The Court held that, “[d]epending on what a mortgage servicer does other than elicit and receive routine or timely mortgage payments and attempt to collect delinquent payments, it may or may not be a debt collector” under the ICAA. A copy of the opinion is available at: Link to Opinion. The State of Illinois recently amended ICAA to among other things: Clarify…
As you may recall, the Supreme Court of California is currently reviewing two significant appellate court rulings involving the “one form of action” rule: 1. Coker v. JP Morgan Chase Bank, N.A., 218 Cal. App. 4th 1 (4th Dist. 2013); and, 2. First California Bank v. McDonald, 231 Cal. App. 4th 550 (5th Dist. 2014). In Coker, to resolve a nonjudicial foreclosure, the mortgagee of a purchase-money loan conditioned a short sale on the borrower’s agreement to remain responsible for any deficiency. A copy of the Appellate Court’s ruling in Coker is available here: Link to Opinion. McDonald involves a…