As the government revives its Paycheck Protection Program (PPP) with hundreds of billions of dollars in additional loans available to small businesses, there are fresh signs that government fraud investigations and whistleblower litigation related to the loan program are ramping up. DOJ’s first-ever settlement of violations of the civil False Claims Act related to the PPP highlight the scrutiny facing the PPP and risks for borrowers just as the PPP enters a new phase following the December 27, 2020, Economic Aid Act. This update provides an overview of the latest developments in fraud enforcement actions related to the PPP and key takeaways from the recent False Claims Act settlement.
The Small Business Administration (SBA) announced that they will begin accepting loan applications from community financial institutions for new “first draw” Paycheck Protection Program (PPP) loans beginning on January 11 and for “second draw” PPP loans beginning on January 13. Other lenders will be allowed to submit loan applications shortly thereafter.
New guidance and loan application forms issued by the SBA and U.S. Department of Treasury provide clarifications and some changes as to who may be eligible for this round of PPP loans and the amount that can be borrowed. Some borrowers that previously qualified for PPP loans will not be eligible to receive “second draw” PPP loans.
This update outlines the key takeaways from this new guidance and the new application forms.
The Consumer Financial Protection Bureau (CFPB) released two final rules amending the General Qualified Mortgage loan definition in Regulation Z and creating a new “Seasoned QM” loan category in Regulation Z. The General QM Final Rule replaces the current requirement for the General QM loans that the consumer’s debt-to-income ratio (DTI) not exceed 43 percent with a limit based on the loan’s pricing. The Seasoned QM Final Rule creates a new category of Seasoned QMs for first-lien, fixed-rate covered transactions that have met certain performance requirements, are held in portfolio by the originating creditor or first purchaser for a 36-month period, comply with general restrictions on product features and points and fees, and meet certain underwriting requirements.
The General QM Final Rule and the Seasoned QM Final Rule will take effect 60 days after publication in the Federal Register. The General QM Final Rule will have a mandatory compliance date of July 1, 2021. The Seasoned QM Final Rule will apply to covered transactions for which creditors receive an application on or after the effective date.
Notably, the GSE “Patch,” which provides QM status to loans qualifying for sale to Fannie Mae or Freddie Mac, will expire on the mandatory compliance date of the General QM Final Rule (July 1, 2021), or the date the GSEs exit conservatorship, whichever comes first.
Read the CFPB’s press release here.
The latest COVID-19 relief legislation provided some additional aid and clarity for a select group of debtors and left many other questions unanswered. While most of the attention was directed to restarting the PPP payments and other benefits to individuals, the law makes changes to the Bankruptcy Code as well.
Small business debtors (plus family farmers and Chapter 13 debtors) can now obtain PPP loans while in bankruptcy while other Chapter 11 debtors cannot. Landlords and suppliers that provided deferred payment agreements will have limited protection from preference actions.
Click here to read more.
Long-awaited action by Congress provides a refresh on the Paycheck Protection Program, allowing for new loans. Changes to the terms of PPP loans could benefit borrowers and additional lending ability includes the option for existing PPP borrowers to obtain a second loan.
The Consumer Financial Protection Bureau (CFPB) announced today that it has entered into a settlement with Nationstar Mortgage, LLC, d/b/a “Mr. Cooper,” one of the nation’s largest mortgage servicers and the largest non-bank mortgage servicer in the United States. The bureau’s complaint claims that Nationstar engaged in unfair and deceptive acts and practices in violation of the Consumer Financial Protection Act of 2010, violated the Real Estate Settlement Procedures Act (RESPA), and violated the Homeowners Protection Act of 1998 (HPA).
The bureau alleges that from January 2012 through December 2015, Mr. Cooper violated multiple federal consumer financial laws, causing substantial harm to the borrowers whose mortgage loans it serviced, including distressed borrowers. Specifically, the bureau claims that Nationstar (1) failed to identify thousands of loans on its systems that had pending-loss mitigation applications or trial-modification plans, and as a result failed to honor borrowers’ loan modification agreements; (2) foreclosed on borrowers to whom it had promised it would not foreclose while their loss mitigation applications were pending; (3) improperly increased borrowers’ permanent, modified monthly loan payments; (4) failed to timely disburse borrowers’ tax payments from their escrow accounts; (5) failed to properly conduct escrow analyses for borrowers during their Chapter 13 bankruptcy proceedings; and (6) failed to timely remove private mortgage insurance from borrowers’ accounts. Continue Reading Consumer Financial Protection Bureau And Multiple States Enter Into Settlement With Nationstar Mortgage, LLC For Alleged Unlawful Servicing Practices
The Consumer Financial Protection Bureau (CFPB) recently issued a proposed rule to create a new category of Seasoned Qualified Mortgages (QMs). The proposal seeks to “encourage safe and responsible innovation in the mortgage origination market” by allowing an alternative pathway to the qualified mortgage safe harbor.
By way of background, the Dodd-Frank Act amended the Truth in Lending Act (TILA) to establish ability-to-repay (ATR) requirements for most residential mortgage loans. TILA specifies the factors a creditor must consider in making a reasonable and good-faith assessment of a consumer’s ATR. TILA also defines qualified mortgages as a category of loans that are presumed to comply with the ATR requirements. Regulation Z, TILA’s implementing regulation, requires creditors to make a reasonable good-faith determination of a consumer’s ability to repay any residential mortgage loan, and loans that meet Regulation Z’s requirements for QMs must obtain certain protections from liability. Continue Reading The CFPB Proposes to Create a New Category of Seasoned Qualified Mortgages
The Consumer Financial Protection Bureau (CFPB) recently proposed certain amendments to the General Qualified Mortgage (QM) definition in Regulation Z and issued a filing rule extending the expiration of the Government-Sponsored Enterprise (GSE) Patch as a “temporary qualified mortgage” until the mandatory compliance date of the final amendments to the General QM loan definition.
By way of background, the Dodd-Frank Act amended the Truth in Lending Act (TILA) to establish ability-to-repay (ATR) requirements for most residential mortgage loans. TILA specifies the factors a creditor must consider in making a reasonable and good-faith assessment of a consumer’s ATR. TILA also defines qualified mortgages as a category of loans that are presumed to comply with the ATR requirements. Regulation Z, TILA’s implementing regulation, requires creditors to make a reasonable good-faith determination of a consumer’s ability to repay any residential mortgage loan, and loans that meet Regulation Z’s requirements for QMs must obtain certain protections from liability. Continue Reading The CFPB Proposes Amendments to the Qualified Mortgage Definition in Regulation Z and Extends the GSE Patch
The Conference of State Bank Supervisors (CSBS) recently requested public comment on proposed regulatory prudential standards for nonbank mortgage servicers. The proposal seeks to address concerns about rapid market share growth, nonbank institution size, and nonbank mortgage servicers’ financial stability and governance. The goals of the proposal are to:
- Provide better protection for borrowers, investors, and other stakeholders in the occurrence of a stress event, in which adverse circumstances affecting one or a series of companies—or alternatively, a wider market dislocation—could result in harm;
- Enhance effective regulatory oversight and market discipline over these entities; and
- Improve transparency, accountability, risk management, and corporate governance standards.
In this episode of White Collar Briefly, Perkins Coie’s David Biderman, firmwide chair of the Consumer Products & Services Litigation group, sits down with Craig Lackey, general counsel of Rushmore Loan Management Services, a major servicer of residential mortgages nationwide. Their discussion covers topics such as the COVID-19-related downturn on the economy and mortgage servicer responses to COVID-19 and the CARES act. Craig and David also discuss what to expect from enforcement arising from COVID-19 and how to best respond, as well as the likely changes to the enforcement environment in the event of a change in administration. Listen here