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FIRREA: A Powerful Tool for the Government

 Christopher H. Casey

The U.S. Department of Justice (“DOJ”) financial fraud enforcement program’s actions in the wake of the 2007–2008 financial crisis have led to some of the largest settlements in the history of the DOJ. To date, 10 financial institutions have reached settlements with the DOJ resolving allegations of fraudulent packaging and sale of residential mortgage-backed securities (“RMBS”) in the run-up to the crisis. The government has recovered a total of nearly $62 billion in fines and penalties from these cases. While a few institutions have yet to resolve their RMBS cases with the DOJ, the RMBS cases have largely run their course. A decade out from the crisis, it is worth taking a look back at the conduct that led to these cases, the reasons the government was able to extract such large penalties and how financial institutions can prepare for such enforcement actions in the future.

The full text of this article by Duane Morris partner Christopher H. Casey is available on the firm website.

House Passes Changes to Title III of the ADA

By J. Colin Knisely
On February 15, 2018, the U.S. House of Representatives passed the Americans with Disabilities (ADA) Education and Reform Act . The bill passed by a vote of 225 to 192, with 12 Democrats voting in favor of the bill. Most of the Democrats who joined with Republicans to support the bill were from California, where state law allows plaintiffs to recover actual damages and a statutory minimum of $4,000 for each time the plaintiff visited a business and encountered an access barrier, in addition to the attorney’s fees available under the ADA.

Proponents of the bill argue that the amendment to Title III of the ADA will curb the number of frivolous, “drive-by” lawsuits against businesses, which have increased dramatically in the past few years. H.R. 620 would create a “notice and cure” requirement before any legal action could be taken against a business for an alleged failure to comply with the standards set by Title III. Under H.R. 620, a claimant must first send a business owner or operator a written notice “specific enough to allow such owner or operator to identify the specific barrier.” The written notice must further specify “in detail the circumstances under which an individual was actually denied access to a public accommodation” and “whether a request for assistance in removing an architectural barrier was made.”

A claimant can only file a lawsuit if the business does not respond to the written notice within 60 days with “a written description outlining improvements that will be made to remove the barrier.” If the business responds, but “fails to make substantial progress” in implementing the improvements, a lawsuit can be filed.

Critics of the H.R. 620 have argued that it would effectively exempt businesses from compliance with Title III until the business receives notice of an alleged compliance issue, and that it would shift the burden of protecting access onto the person with the disability, whom critics have argued would have to become experts on the legal code in order to properly comply with the notice requirements of H.R. 620.

H.R. 620 has now moved to the Senate, where the fate of the bill is uncertain. However, there is currently no companion bill in the Senate, and Republicans in the Senate would still need to gain the support of several Democrats to meet the Senate’s 60 vote threshold.

Considerations for Banks Given New Guidance on Cannabis

In a January 4, 2018, memorandum regarding marijuana enforcement, U.S. Attorney General Jefferson B. Sessions rescinded, effective immediately, the previous guidance issued by the Department of Justice on marijuana, including the memorandum often referred to as the Cole Memo. To the extent a bank’s compliance program relating to marijuana-related businesses (MRBs) relied on the guidance in the Cole Memo, the bank should immediately re-evaluate what changes in that program, if any, may be appropriate.

To read the full text of this Alert, please visit the Duane Morris website.

FTC, FCC Flex Muscles

Duane Morris partner Joseph Burton was featured in a video on Bank Info Security  on the impact of regulators involved in cybersecurity.

The Federal Trade Commission and the Federal Communications Commission are among U.S. regulators now starting to flex their muscles when it comes to enforcing cybersecurity standards, says Burton. What enforcement trends might we expect to see in 2017?

To view the video, please visit the Bank Info Security website.

Webinar: The FDIC Loss-Share Program: How to Extract Every Last Dollar

Duane Morris LLP and FTI Consulting invite you to our webinar, The FDIC Loss-Share Program: How to Extract Every Last Dollar, to be held on Thursday, March 2, 2017  from 11:00 a.m. to 12:00 p.m. Central time.

Duane Morris lawyers and FTI Consulting professionals will discuss strategies that can help banks maximize recoveries under the FDIC Loss-Share Program. Generally, the FDIC will reimburse 80 percent of losses for a covered asset, while the acquiring bank absorbs 20 percent of the loss, provided certain conditions and reporting requirements are met. Our program will outline the common challenges that banks face with the FDIC Loss-Share Program and provide practical solutions that increase loss-sharing recoveries.

Please visit the event page on the Duane Morris website for more information or to register online.

Changing Seasons of FDIC Shared-Loss Programs

As we head into autumn, many of us change our seasonal wardrobes, replace the filters in our home heating/cooling systems, swap our summer screens for winter’s storm windows and ready our vehicles for winter. Bankers participating in a Federal Deposit Insurance Corporation (FDIC) shared-loss program should consider adding one more seasonal item to their list—a check-up on the status of your shared-loss participation, particularly your commercial shared-loss program. Many banks acquired assets and deposit accounts of failed institutions in the years following the Great Recession via purchase and assumption agreements entered into with the FDIC. Those agreements included an eight-year commercial shared-loss component, whereby the acquiring bank shares losses with the FDIC during the first five years and then shares recoveries for the remaining three years of the term.

To read the full text of the Alert, please visit the Duane Morris website.

What’s Shaking? A Conversation About Real Estate Finance, Mortgage Banking and Earthquakes!

Duane Morris LLP, CleanFund and California MBA will present “What’s Shaking? A Conversation About Real Estate Finance, Mortgage Banking and Earthquakes!” on Thursday, September 22, 2016, from 5:00 p.m. to 8:00 p.m. in the Duane Morris San Francisco office. This California MBA MCLE networking reception offers a ground-moving educational event featuring a discussion on financing solutions for mandatory seismic compliance.  The panel will also discuss the latest developments in real estate financing in the Bay Area and recent case law and regulatory issues impacting the mortgage banking industry in California. Attendees will have the opportunity to network with banking executives, real estate developers, property owners, lenders and in-house counsel from all over Northern California. One hour of General MCLE credit is pending.

The panelists for this program are Chris Robbins, Managing Director, CleanFund; Bob Bednarz, Loan Advisor, Guarantee Mortgage; and Terrance J. Evans, Partner, Duane Morris. Jolie-Anne S. Ansley, also a Partner at Duane Morris, will serve as program moderator.

If you are interested in attending this program, please visit the event registration page.

Florida Second District Court of Appeal Weighs In on Consumer Collection Practices Laws

Many states have enacted consumer collection practices laws that impose addition hurdles for lenders in their efforts to collect debts and foreclose mortgages. A Florida appellate court has just addressed what it considers may be a case of first impression in Florida: whether a collection practices statute can impose a condition precedent to provide written notice of the assignment of a mortgage loan to the borrower, and bar commencing foreclosure notwithstanding the lender’s compliance with its contractual obligations to assign the mortgage and provide notice of acceleration. Although Florida’s Second District Court of Appeal held in Brindise v. U.S. Bank National Association that the notice of assignment required by the Florida Consumer Collection Practices Act (“FCCPA”) is not a condition precedent to foreclosure, “because innumerable foreclosure cases are pending in the trial and district courts where defendants have raised section 559.715 as a bar to foreclosure,” it certified the question to the Florida Supreme Court as one of great public importance. Brindise v. U.S. Bank National Association, __ So. 3d __, 41 Fla. L. Weekly D223a (Fla. 2d DCA January 20, 2016).

To read the Alert, written by Duane Morris partner Steven Ginsburg, in its entirety, please visit the Duane Morris website.

The Class Action Wave May Be Approaching

By Steven D. Ginsburg and Kenneth B. Franklin

The Consumer Finance Protection Bureau (“CFPB”) recently announced that it was considering a rule that would ban consumer financial companies from using arbitration clauses in their customer agreements to block class action lawsuits. According to a study by the CFPB, financial institutions often rely on arbitration clauses to block group lawsuits. The CFPB took issue with this practice because it claims that very few consumers were aware of the arbitration clauses or understood what they meant. As a result, either because of ignorance or an unwillingness to pursue individual grievances, the CFPB found that even though millions of consumers would be entitled to relief through group settlements, very few individual customers actually seek relief through arbitration.

With these findings in mind, the CFPB initiated the process to implement a regulation that would prohibit finance companies from including arbitration clauses that would preclude class action lawsuits in their consumer agreements. The new rule would encompass most of the consumer financial products the CFPB regulates, including credit cards, checking and deposit accounts, prepaid cards, money transfer services, some auto loans, auto title loans, payday loans, private student loans and installment loans. Arbitration clauses are already prohibited in consumer mortgages under the Dodd-Frank Act.

The CFPB does not propose banning arbitration clauses from consumer finance agreements all together. Rather, arbitration clauses would be permissible as long as they explicitly allow cases to be filed as class actions unless and until the class certification is denied by the court, or the class claims are dismissed in court. Financial companies would also have to submit any initial arbitration claim filings and awards issued to the CFPB to “ensure” the fairness of the arbitration process.

Although the CFPB is still in the early stages of considering this rule change, our clients should carefully monitor the progress of this new rule and, if appropriate, voice any concerns they may have with the new rule when the CFPB solicits public comments.

More information about the CFPB’s proposed new rule can be found at:
http://www.consumerfinance.gov/newsroom/cfpb-considers-proposal-to-ban-arbitration-clauses-that-allow-companies-to-avoid-accountability-to-their-customers/

The Check’s in the Mail

By Steven D. Ginsburg and Kenneth B. Franklin

In the consumer loan context, one issue that frequently arises between creditors and debtors is whether the debtor has made a timely payment on his or her account. Both the Truth in Lending Act (“TILA”) and Regulation Z, which implements TILA, speak to this issue, but appear to contradict each other when it comes to credit card accounts.

Continue reading The Check’s in the Mail