Category Archives: Legislative Developments

New York Law Journal: New York’s Foreclosure Abuse Prevention Act: What You Need to Know

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New York Law Journal, January 11, 2023 

Diana M. Eng and Andrea M. Roberts ●


On Dec. 30, 2022, Gov. Hochul signed the Foreclosure Abuse Prevention Act (Act). The Act, which amends the Real Property Actions and Proceedings Law (RPAPL), General Obligations Law (GOL) and Civil Practice Law and Rules (CPLR), became effective immediately and applies to all actions commenced under CPLR 213(4) and in which a final Judgment of Foreclosure and Sale has not been enforced. As such, the Act applies to pending actions, not just new actions commenced after the effective date.

Highlights of the Act are summarized below, but please refer to the full text of the Act for additional information and potential further updates after the date of this publication (NY State Assembly Bill A7737B (nysenate.gov)):

    • The Act adds a new subdivision 4 to RPAPL §1301, which provides that while an action is pending or after final judgment, no other action shall be commenced, including an action to foreclose, without leave of court. The failure to obtain leave of court shall be a defense in the new action and the commencement of the new action without leave of court discontinues the other action, unless, prior to the entry of final judgment in the other action, a defendant raises the failure to comply with the condition precedent or seeks dismissal of the action under CPLR 3211(a).

In addition, RPAPL §1301(4) makes clear that the subdivision shall not act as a stay or statutory prohibition for purposes of calculating the statute of limitations. Further, if it is determined that an action to foreclose under the mortgage or recover under the note is time-barred, the subdivision expressly states that any other action to foreclose or recover under the same debt is similarly time-barred. The amendment overrules New York case law holding that since a lender has a right to the election of remedies, if the court holds that enforcement of the mortgage based on a borrower’s non-payment is time-barred, res judicata does not absolutely bar the lender from electing a different remedy of pursuing a money judgment under the unpaid note.

Read the full article on our website.

New York Law Journal: Can the Foreclosure Abuse Prevention Act Survive a Constitutional Challenge?

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New York Law Journal, January 6, 2023 

Diana M. Eng and Andrea M. Roberts ●


In February 2021, the New York Court of Appeals issued a long-awaited decision in Freedom Mortgage v. Engel, 37 N.Y.3d 1 (2021), which, among other things, held that the voluntary discontinuance of a foreclosure action constitutes an affirmative revocation of acceleration because such “discontinuance withdraws the complaint and, when the complaint is the only expression of demand for immediate payment of the entire debt, this is the functional equivalent of a statement by the lender that the acceleration is being revoked.” Id. at 31-32. This decision was reasoned upon longstanding case law governing contract interpretation. See Albertina Realty Co. v. Rosbro Realty, 258 N.Y. 472 (1932); Kilpatrick v. Germania Life Ins. Co., 183 N.Y. 163 (1905).

Engel was seen as a win for the financial services industry after years of the appellate courts and New York State Legislature imposing obstacles that delayed foreclosures or prevented lenders from foreclosing upon defaulted residential mortgage loans. Foreclosure defense attorneys and pro bono legal services labelled Engel “egregious” because they viewed it as a license for banks to bring previously time-barred cases “back to life.” See Maria Volkova, ‘Foreclosure Abuse Prevention Act’ awaits New York governor’s signature, HousingWire (May 13, 2022). As a result, the New York State Legislature drafted the “Foreclosure Abuse Prevention Act” (Act), which amends CPLR 3217 by adding a new subdivision (e) to provide that the voluntary discontinuance of an action, whether by motion, order, stipulation or notice, shall not waive, postpone, cancel, toll, extend, revive or reset the statute of limitations, unless prescribed by statute. NY State Assembly Bill A7737B; NY State Senate Bill S5473D. The Act became effective immediately upon Governor Hochul’s execution on Dec. 30, 2022 and applies to all actions commenced under CPLR 213(4) and in which a final judgment of foreclosure and sale has not been enforced. A.B. A7737B, §10. As such, the Act retroactively applies to pending actions, not just actions commenced after the effective date.

Read the full article on our website.

New York’s COVID-19 Eviction and Foreclosure Prevention and Small Businesses Acts Extended to August 31, 2021—What You Need to Know

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Wayne Streibich, Diana M. Eng, and Alina Levi

Lenders, mortgage servicers, and other financial institutions should take note that New York State passed legislation extending the protections set forth in the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and the COVID-19 Emergency Protect Our Small Businesses Act of 2021 to August 31, 2021. Thus, the requirements and stays with respect to residential and commercial foreclosures and evictions imposed by the legislation remain effective through August 31, 2021.

On May 4, 2021, Governor Cuomo signed a bill extending both (i) the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “EEFPA”); and (ii) the COVID-19 Emergency Protect Our Small Businesses Act of 2021 (“SBA”), to August 31, 2021 (S.6362-A/A.7175-A) (the “Extended Act”). The purpose of the Extended Act, which is effective immediately, is to maintain protections prohibiting residential and commercial evictions, foreclosure proceedings, credit discrimination, and negative credit reporting related to the COVID-19 pandemic until August 31, 2021, if the borrowers, mortgagors, and/or tenants submit the required Hardship Declaration with the foreclosing party, landlord/their agent, or the Court. In practice, however, some courts have extended the stay even without the required Hardship Declaration.  

Highlights of the Extended Act are summarized below, but please refer to the full text of the Extended Act for additional information.

LIMITS OF THE EXTENDED ACT

  • The Extended Act still does not apply to residential eviction and foreclosure actions involving vacant and abandoned properties, listed on the statewide vacant, and abandoned property electronic registry (as such terms are defined in Sections 1309(2) and 1310 of New York’s Real Property Actions and Proceedings Law) prior to March 7, 2020, and which remain on such registry.
  • The Extended Act also does not apply to, and does not affect, any residential or commercial mortgage loan made, insured, purchased, or securitized by a corporate governmental agency of the state constituted as a political subdivision and public benefit corporation or the rights and obligations of any lender, issuer servicer, or trustee of such obligations.
  • The portion of the Extended Act addressing the SBA still only applies to commercial tenants, who independently own and operate their business, have 50 or fewer employees, and experience financial hardship and are unable to pay the rent or other financial obligations under the lease in full or obtain an alternative suitable commercial property as a result of:

      1. significant loss of revenue during the COVID-19 pandemic; and/or

      2. significant increase in necessary expenses related to providing personal protective equipment to employees or purchasing and installing other protective equipment to prevent the transmission of COVID-19 within the business; and/or

      3. moving expenses and difficulty in securing an alternative commercial property make it a hardship for the business to relocate to another location.

  • The Extended Act still permits residential and commercial evictions of tenants, who persistently and unreasonably engage in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or cause a substantial safety hazard to others.

To read the full client alert, please click here. 

New Requirements and Stays Imposed by New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020

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Diana M. Eng and Alina Levi

On December 28, 2020, in response to the COVID-19 pandemic, the New York legislature met in a Special Session and passed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Act”) (S.9114/A.11181), which became effective immediately. The Act is aimed at providing relief to tenants facing residential eviction (Part A) and mortgagors/borrowers facing pending or future residential foreclosure proceedings (Part B, Subpart A). In addition, the Act (i) prohibits local governments from proceeding with tax lien sales or commencing tax foreclosures until May 1, 2021, on residential properties (Part B, Subpart B); (ii) prohibits credit discrimination and negative credit reporting (Part B, Subpart C); and (iii) requires local governments to carry-over the Senior Citizens’ Homeowners Exemption and the Disabled Homeowner Exemption to 2021 (Part B, Subpart D). Highlights of the Act are summarized below, but please refer to the full text of the Act for additional information.[i]

Limits of the Act

  • The Act does not apply to residential eviction and foreclosure actions involving vacant and abandoned properties, as defined in RPAPL 1309(2), listed on the statewide vacant and abandoned property electronic registry, as defined in RPAPL § 1310, prior to March 7, 2020, and that remain on such registry.[ii]
  • The Act also does not apply to, and does not affect, any mortgage loan made, insured, purchased, or securitized by a corporate governmental agency of the state constituted as a political subdivision and public benefit corporation or the rights and obligations of any lender, issuer servicer, or trustee of such obligations.[iii]

Eviction Highlights – Part A of the Act

  • Stays pending residential eviction proceedings for 60 days and bars new filings for 60 days through the end of February 2021, or to such later date that the chief administrative judge shall determine is necessary to ensure that the courts are prepared to conduct proceedings in compliance with the Act[iv];
  • Allows residential tenants to submit to their landlord and/or file with the court, a Hardship Declaration,[v] under penalty of perjury regarding their inability to pay their rent or secure alternative housing and suffering a financial hardship or suffering a health-related hardship that will extend the stay on eviction proceedings until May 1, 2021;
  • Certain proceedings can continue if the court receives an authorized new petition stating that the tenant is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others;
  • Requires the landlord and the court to serve on tenants, the Hardship Declaration Form, along with all required notices of petition;
  • Requires the state Office of Court Administration to post such information and forms on its website in multiple languages;[vi]
  • Allows tenants to vacate default judgments upon oral or written request; and
  • Creates a presumption of financial hardship upon filing a Hardship Declaration that would support a defense based on financial hardship under the Tenant Safe Harbor Act.[vii]

Foreclosure Highlights – Part B of the Act

Stay of Residential Foreclosures

  • All pending residential foreclosure actions are stayed for at least 60 days through the end of February 2021, or to such later date that the chief administrative judge shall determine is necessary to ensure that the courts are prepared to conduct proceedings in compliance with the Act.[viii]
  • The 60-day stay applies where the owner or mortgagor of the property is a natural person, regardless of how title is held, and owns 10 or fewer dwelling units whether directly or indirectly.
  • Any owner, borrower, mortgagor, or natural person who owns 10 or fewer residential dwellings (as long as this includes the borrower’s primary residence) and experiences a financial hardship, can file a Hardship Declaration[ix] with the lender, its agent, or the court to stay a pending foreclosure proceeding until May 1, 2021, and prevent the commencement of a foreclosure action until May 1, 2021.
  • Where a judgment of foreclosure sale was issued before December 28, 2020, but has not yet been executed, execution of the judgment shall be stayed until the court holds a status conference with the parties. If borrower/mortgagor submits a Hardship Declaration prior to the execution of the judgment, the action shall be stayed until May 1, 2021.

Statute of Limitations

  • The statute of limitations to foreclose will be tolled during the initial 60-day stay. The Act also provides that “any specific time limit for the commencement of an action to foreclose a mortgage shall be tolled until May 1, 2021.”[x]

Requirements for New Residential Mortgage Foreclosure Actions

  • New York Courts will not accept new foreclosure complaints for filing, unless the foreclosing party files an Affidavit of Service stating that:

(a) the required notices under RPAPL § 1303 (Help for Homeowners in Foreclosure/Notice to Tenants or “1303 Notice”) and RPAPL § 1304 (the “90-Day Notice”) and the Hardship Declaration (in English and mortgagor’s primary language, if other than English[xi]) were served on borrower/mortgagor; and

(b) attesting that at the time of filing, neither the foreclosing party nor its agent has received a Hardship Declaration from the mortgagor.

  • Importantly, the foreclosing party should not rely on 1303 Notices served, or 90-Day Notices that were mailed, before the Act was effective. Rather, the foreclosing party should serve new 1303 Notices and mail new 90-Day Notices with the required Hardship Declaration.[xii]
  • After a foreclosure action is commenced, the court shall seek confirmation on the record or in writing that borrower/mortgagor has received a Hardship Declaration and has not returned the Hardship Declaration to the foreclosing party or its agent.
  • If the court determines that the borrower/mortgagor has not yet received a Hardship Declaration form, the court must stay further proceedings for no less than 10 business days to ensure borrower/mortgagor receives and fully considers whether to submit a Hardship Declaration.

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CFPB Issues Proposed Amendment to Home Mortgage Disclosure Act

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By: Jessica McElroy

On April 13, 2017, the Consumer Financial Protection Bureau (“CFPB”) issued a Notice of Proposed Rule Making[1] targeted at amending Regulation C to make technical corrections to and clarify certain requirements adopted by the CFPB’s Home Mortgage Disclosure final rule (“2015 HMDA Final Rule”), which was published on October 28, 2015.[2]

Regulation C implements the Home Mortgage Disclosure Act (“HMDA”).[3] HMDA has historically provided the public and public officials with information about mortgage lending activity by requiring financial institutions to collect, report and disclose certain data pertaining to mortgage activities. The Dodd-Frank Act amended HMDA and transferred rule-making authority to the CFPB.[4] The Dodd-Frank Act additionally expanded the scope of information that institutions must collect and disclose under HMDA.[5]

The 2015 HMDA Final Rule modified the types of institutions and transactions subject to Regulation C, the types of data that institutions are required to collect and the processes for reporting and disclosing the required data.[6] Most of the modifications take effect in January 2018.

The CFPB now proposes establishing transition rules for two data points: loan purpose and the unique identifier for the loan originator. According to the CFPB, the rules would allow financial institutions to report “not applicable” for these data points when reporting certain purchased loans that were originated before the regulatory requirements took effect. Additionally, the proposal would facilitate reporting the census tract of the property securing the covered loan required by Regulation C via a geocoding tool that the CFPB intends to make available on its web site. This tool would allow financial institutions to identify the census tract in which a property is located. The proposal also includes a safe harbor provision for institutions that obtain the incorrect census tract number from the CFPB’s geocoding tool, provided that an accurate property address is entered and the tool returned a census tract for the address entered.

Comments on the proposal are due 30 days after the Notice of Proposed Rulemaking is published in the Federal Register.

Click below for the proposal: https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201704_cfpb_NPRM_HMDA.pdf.

 

[1] See https://www.consumerfinance.gov/policy-compliance/rulemaking/rules-under-development/technical-corrections-and-clarifying-amendments-home-mortgage-disclosure-october-2015-final-rule/ (last accessed April 17, 2017).

[2] See https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201704_cfpb_NPRM_HMDA.pdf.

[3] 12 U.S.C. § 2801 et seq.

[4] Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376, section 2097- 101 (2010).

[5] Id.

[6] October 2015 HMDA Final Rule, 80 FR 66128, 29.

Beyond the Constitutionality of the CFPB: D.C. Circuit Decision Limits Scope of Fines and Enforcement Actions

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By Joe Patry

Most media reports and commentary discussing the recent D.C. Circuit opinion on the CFPB focused on the Constitutional issues involving how the Director of the CFPB is appointed and may be removed, but overlooked the decision’s potentially significant benefit to the financial services industry. The key impact on the financial services industry is the D.C. Circuit’s restriction on the extent of the CFPB’s ability to levy penalties and bring enforcement actions.

D.C. Circuit Decision

On October 11, 2016, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit overturned an administrative decision by the CFPB, which previously imposed a $109 million fine against PHH Mortgage Corporation (“PHH”). The D.C. Circuit rejected the CFPB’s attempt to apply its changed interpretation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601(b)(2), retroactively, and ruled that the CFPB erroneously ignored the expiration of the applicable statute of limitations to inappropriately inflate the amount of the imposed fine.

HUD’s Prior Interpretation of RESPA

Before the CFPB was created, the Department of Housing and Urban Development (“HUD”) was responsible for regulations interpreting Section 8(a) of RESPA. See PHH v. CFPB et al., No. 15-1177 at 14.[1] This section of RESPA prohibits mortgage companies from giving kickbacks or other incentives to vendors. Id.

HUD issued guidance regarding mortgage reinsurance, which is used by mortgage insurance companies to reduce risk. Id. at 83. Under certain circumstances, mortgage companies were allowed to refer consumers to mortgage reinsurance companies that the mortgage lenders themselves owned. Id.

CFPB Switches Course

Contrary to HUD’s long-standing interpretation, the CFPB decided that RESPA prohibits these reinsurance practices. Id. Based on this changed interpretation of RESPA, the CFPB brought an administrative enforcement proceeding against PHH. Id. During the proceeding, the CFPB imposed a $109 million fine on PHH for reinsurance charges that were eventually passed on to borrowers. Id. PHH challenged the CFPB’s authority to enforce the fine in the court system. Id.

CFPB’s Arguments before the D.C. Circuit

Before the D.C. Circuit, the CFPB argued that the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) authorizes the CFPB to bring enforcement actions but that Dodd-Frank contains no explicit statute of limitations to govern actions brought under this power. Id. As a result, the CFPB asserted that it is not bound by RESPA’s three-year statute of limitations. Id. at 12. This is significant because PHH argued that the vast majority of the allegedly prohibited charges were barred by the expiration of the statute of limitations. Id. Additionally, the CFPB argued that it was authorized to apply its changed interpretation of RESPA retroactively. Id. at 83.

D.C. Circuit Rejects the CFPB’s Position

The D.C. Circuit soundly rejected both of the CFPB’s arguments. First, the D.C. Circuit found that Dodd-Frank and RESPA together restricted the CFPB to bring cases only within the statute of limitations. Id. at 93. Nothing in Dodd-Frank explicitly states that the CFPB is not bound by any applicable statutes of limitation; if Congress had intended this to be the law, it would have said so. Id. at 98 (stating that Congress does not “hide elephants in mouseholes”) (internal citations omitted). The D.C. Circuit further noted that the CFPB’s limitless interpretation of its authority was “absurd.” Id. at 99.

Second, the D.C. Circuit found that the CFPB’s attempt to retroactively apply its changed interpretation of RESPA is unconstitutional. The D.C. Circuit ruled: “When a government agency officially and expressly tells you that you are legally allowed to do something, but later tells you ‘just kidding’ and enforces the law retroactively against you and sanctions you for actions you took in reliance on the government’s assurances, that amounts to a serious due process violation. The rule of law constrains the governors as well as the governed.” Id. at 87. (emphasis in original).

The D.C. Circuit remanded the administrative enforcement proceeding back to the CFPB. Id. at 100. Because of this decision, the agency will not be able to rely on its retroactive interpretation of RESPA and must consider the applicable statute of limitations when assessing potential fines. Id.

Although this decision from a three-judge panel of the D.C. Circuit could be reversed by the entire D.C. Circuit or the United States Supreme Court, this decision is potentially a significant win for financial institutions. First, mortgage companies that referred consumers to mortgage reinsurance companies that the mortgage lenders themselves owned, or relied on other HUD interpretations of RESPA, can take comfort in knowing that the CFPB cannot retroactively apply its changed interpretation of RESPA. Second, the CFPB’s ability to bring enforcement actions is governed by the applicable statutes of limitation, so the ability to enforce is not timeless or limitless.

[1] All references to pagination is to how the pages are numbered in the opinion released on the United States Court of Appeals for the District of Columbia’s website on October 11, 2016.

Texas Statute Provides Clarity for Unilateral Rescission of Acceleration

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By: Joshua A. Huber

In Texas, lenders must foreclose a deed of trust lien within four (4) years of acceleration,[i] and there is little dispute regarding what actions are required to “accelerate” a loan for purposes of the statute of limitations.[ii] Whether, and how, a lender can unilaterally “decelerate” a loan – that is, rescind a prior acceleration – was far less clear and generated extensive litigation in Texas by borrowers who, as a result of a delay in the foreclosure process, claimed that their lenders were time-barred from enforcing their lien rights.[iii]

Recent legislation now provides clarity on this issue. Texas House Bill 2067, effective September 1, 2015 and codified as Section 16.038 in the Texas Civil Practice and Remedies Code, makes clear that servicers may unilaterally rescind a prior valid acceleration, thereby avoiding the four (4) year statute of limitations. As recently noted by the Fifth Circuit, “[t]he new statute provides a specific mechanism by which a lender can waive its earlier acceleration.”[iv] Section 16.038 allows a lender or loan servicer to unilaterally rescind acceleration of the debt by serving each debtor at their last known address, by first class or certified mail, with notice that the accelerated maturity date is rescinded or waived. The service requirements for such notice tracks that of Tex. Prop. Code § 51.002(e) and is complete when mailed, not received.[v]

Despite the enactment of this Texas statute, borrowers have continued to rely on statute of limitations arguments to attempt to avoid foreclosure. However, the new law provides clear guideposts which, if followed, will afford servicers and lenders a strong defense and assurances that delays resulting from loss mitigation, litigation or other factors will not adversely affect their ability to enforce deeds of trust in Texas.

[i] See Tex. Civ. Prac. & Rem. Code § 16.035(a).

[ii] Boren v. U.S. Nat. Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015) (acceleration requires both a notice of intent to accelerate and a notice of acceleration).

[iii] See, e.g., Callan v. Deutsche Bank Truste Co. Ams., 93 F.Supp.2d 725, 734 (S.D. Tex. Mar. 21, 2015) (observing that “there is no Texas case law on the validity of unilateral notices of rescission of acceleration.”).

[iv] Boren, 807 F.3d at 106.

[v] See Tex. Civ. Prac. & Rem. Code § 16.038(c).

HOUSE PASSES BILLS TO REPEAL CFPB AUTO LENDING GUIDANCE AND EXPAND SAFE HARBOR FOR MORTGAGE LENDERS

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By: Louise Bowes Marencik

On November 18, 2015, the House of Representatives passed H.R. 1737, known as the Reforming CFPB Indirect Auto Financing Guide Act (the “Auto Financing Act”), which rejected the position taken by the CFPB in its March 2013 bulletin on indirect auto lending. Although intended to provide guidance to auto lenders regarding compliance with the Equal Credit Opportunity Act, the proponents of the Auto Financing Act have concluded that the effect of the CFPB’s bulletin has been to regulate auto lenders, which the CFPB is not permitted to do pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd Frank”). The bulletin has resulted in uncertainty in the auto lending market, as it impacts the interest rates lenders may offer to consumers. Although the bulletin is nonbinding, it has functioned as a rule because lawmakers have had no opportunity to comment on it.   Accordingly, the Auto Financing Act provides that any replacement to the CFPB’s bulletin must go through the rulemaking process to allow for comments.

The House of Representatives also passed another bill on the same day, the Portfolio Lending and Mortgage Access Act, H.R. 1210 (the “Mortgage Access Act”). The Mortgage Access Act provides that depository institutions can receive safe harbor protection for “qualified mortgages,” or “QMs,” even if the loans do not comply with Dodd Frank’s “ability to repay” requirement. This requirement, implemented as part of the CFPB’s amendments to Regulation Z, provides that a lender must make a reasonable, good-faith determination that a potential borrower has the ability to repay a loan prior to consummation. 12 C.F.R. 1026.43(c). To receive protection under the Mortgage Access Act without satisfying the ability to repay requirement, the lender must keep the loan in question on its own books. Lenders have been hesitant to issue new loans that do not qualify as QMs because such loans do not receive safe harbor protection, which would insulate the lender from claims made under the Truth in Lending Act and Regulation Z related to the qualified mortgage requirements. Proponents of the Mortgage Access Act believe that the unavailability of safe harbor protection for non-QM loans has resulted in potential borrowers being refused non-QM loans they could afford to repay.   Although removal of the ability to repay requirement may afford less protection to consumers, supporters of the Mortgage Access Act believe that requiring lenders to keep these loans on their own books will deter them from issuing loans to borrowers who cannot afford them.

If enacted, the Auto Financing Act and Mortgage Access Act may allow both auto lenders and mortgage lenders more flexibility in their lending practices; however, the White House has indicated that it opposes both Acts, and has specifically stated that President Barack Obama will veto the Auto Financing Act if given the opportunity.

U.S. Regulators Approve Risk Retention Rules For Mortgage Backed Securities

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By: Daniel A. Cozzi

On October 22, 2014 The Office of the Comptroller of the Currency, Treasury; Board of Governors of the Federal Reserve System; Federal Deposit Insurance Corporation; U.S. Securities and Exchange Commission; Federal Housing Finance Agency (FHFA); and Department of Housing and Urban Development adopted rules to implement the credit risk retention requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Dodd-Frank Act, enacted in 2010, requires the implementation of stricter rules governing mortgage-backed securities. The adopted rules seek to balance the importance of the securities market in providing credit to homeowners with appropriate underwriting standards, in light of the 2008 financial crisis. (“During the financial crisis, securitization transactions displayed significant vulnerabilities arising from inadequate information and incentive misalignment among various parties involved in the process.”) See Joint Final Rule to implement the requirements of section 941 of the Dodd–Frank Act.

Under Dodd-Frank, firms which issue mortgage-backed securities must retain a portion of the risk or demonstrate that the mortgages are held by borrowers with an ability to repay the debt. These risk retention requirements are meant to ensure that lenders retain some “skin in the game.” The rules require that lenders retain 5% of the risk associated with mortgages packaged as securities or comply with Consumer Financial Protection Bureau rules governing borrower debt-to-income ratios. The latter exception would require that lenders verify that a borrower can repay the debt and comply with other requirements, such as verification that the borrower’s debt payments do not exceed 43% of his or her income.

The new rules go into effect in the Fall of 2015 and will only impact the market for private securities. Securities sold to Fannie Mae and Freddie Mac are exempt from the new rules.

Third Circuit Affirms Dismissal of RESPA Class Action against Bank of America

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By: Louise Bowes Marencik

In Riddle v. Bank of America Corporation, et al., the United States Court of Appeals for the Third Circuit recently affirmed a lower court’s dismissal of a putative class action suit against Bank of America because the borrowers’ claims under Section 8 of the Real Estate Settlement Procedures Act (“RESPA”) were time-barred. 2014 U.S. App. LEXIS 19730 (3d. Cir. Oct. 15, 2014).

The putative class plaintiffs purchased homes in 2005 with mortgages obtained from Bank of America, and were required to obtain private mortgage insurance in connection with their loans. In 2012, the borrowers received advertisements from their legal counsel regarding possible causes of action they may have related to their private mortgage insurance. Although the borrowers had not previously investigated the reinsurance arrangement in connection with their mortgage insurance, they brought suit against Bank of America, alleging that the reinsurance arrangement between the bank and the insurer was in violation of RESPA.

The United States District Court for the Eastern District of Pennsylvania held that the plaintiffs’ claims were time-barred by RESPA’s one-year statute of limitations. The District Court also held that their claims did not meet the requirements for equitable tolling because the borrowers did not exercise reasonable diligence in investigating their claims, and the defendants did not mislead the plaintiffs.

On appeal, the Third Circuit affirmed the District Court’s decision, on the basis that the plaintiffs did “absolutely nothing” to investigate the reinsurance of their mortgage insurance during the seven-year period between when their claims arose and when they brought suit. The Court also noted that although the plaintiffs’ lack of reasonable diligence was a sufficient basis on which to deny equitable tolling, there was also inadequate evidence that the defendants misled the plaintiffs.