Alston & Bird Consumer Finance Blog

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Mortgage Servicers: VA Issues Guidance Regarding Noncompliance in Processing VA Assumptions

A&B Abstract:

On December 20, 2023, the Department of Veterans Affairs (VA) issued Circular 26-23-27 (the “Circular”) to remind holders and servicers of VA-guaranteed loans about their obligation to process assumptions and how the VA will address non-compliance with its assumption requirements. The Circular became effective immediately upon issuance.

The Circular

Holders and servicers of VA-guaranteed loans are responsible for ensuring compliance with VA’s requirements, including those regarding the processing of loan assumptions. Indeed, in May 2023, the VA issued guidance clarifying its assumption procedures and emphasizing that assumptions are a fundamental feature of a VA-guaranteed loan and are to be processed in accordance with VA requirements. Notably, failure to comply with the VA’s requirements constitutes a defense against the VA’s obligation to pay a guaranty claim on the affected loan(s).

In the Circular, the VA notes that “certain holders have questioned whether they are required to process an assumption that meets VA’s requirements and can instead deny approval due to holder-imposed criteria (overlays) or other reasons. Examples include, but are not limited to, cases where:

  • a holder refuses to accept an assumption package;
  • a servicer with automatic authority accepts an assumption package but does not make a decision within 45 days;
  • a holder without automatic authority accepts an assumption package but does not forward to VA within 35 days;
  • a holder denies an assumptor’s application due to a holder overlay; and
  • a holder denies an assumptor’s application, VA approves the assumption on appeal, and the holder refuses to complete the assumption due to a holder overlay or other reason.”

The Circular warns holders and servicers that willful refusal to process an assumption package in accordance with VA statutes and associated regulations negatively affects Veterans’ ability to use their earned VA-guaranteed home loan benefits, including selling their home through an assumption, and that such a willful failure to comply constitutes a defense against VA’s liability on the guaranty.

VA Procedures for Noncompliance

The Circular sets forth the following procedures that the VA will follow to address noncompliance with its loan assumption requirements. If VA determines that a holder failed to process an assumption package in accordance with VA requirements, the VA will notify the holder of the failure to comply and direct the holder to timely remediate the failure. If, after 7 calendar days, VA is not satisfied that the holder is taking appropriate steps to process the assumption, or VA determines at any time that the servicer’s inaction may result in irreparable harm to the Veteran, the VA will take the following steps:

  • Insert a notation in the loan file that VA has asserted a defense against liability and will not pay any guaranty claim for the loan.
  • Notify the Government National Mortgage Association (“Ginnie Mae”) that VA has asserted a defense against liability and, as such, the guaranty payable on the loan has been effectively reduced to $0. Note that reducing the guaranty payable on the loan to $0 may render the loan defective and subject to cure, substitution, and/or buyout under Ginnie Mae guidelines.
  • If, after taking the steps described above, VA receives sufficient notice and evidence that the servicer completed the assumption, VA will remove the notation in the loan file and notify Ginnie Mae that VA has readjusted the guaranty payable on the loan back to the original amount.

Repeated Noncompliance

In addition, the Circular notes that repeated failure to process assumptions for VA-guaranteed loans may subject holders to additional measures such as:

  • additional examination and audit;
  • referral to VA’s Office of Inspector General for further investigation;
  • various penalties associated with false claims, program fraud civil liability, and other legal or administrative sanctions;
  • action pursuant to 38 U.S.C. § 3704(d), including VA’s refusal either temporarily or permanently to guarantee any loans made by such holder or barring such holder from servicing or acquiring guaranteed loans; and
  • notification to the public that VA has found the holder responsible for repeated, willful noncompliance with VA’s statutes and regulations.


Given that the VA is telegraphing its focus on ensuring compliance with the VA’s loan assumption requirements, now is a good time for holders and servicers to ensure that their compliance management systems are robust enough to ensure compliance with the VA’s loan assumption requirements.

Complying with the “Consider” Requirement Under the Revised Qualified Mortgage Rules

A&B Abstract:

Purchasers of residential mortgage loans who are conducting audits of residential mortgages that they buy in the secondary market are struggling to determine what documentation satisfies the “consider” requirement of the revised qualified mortgage (QM) standards that became mandatory on October 1, 2022. In fact, originators of residential mortgage loans are not in agreement regarding what particular written policies and procedures they must promulgate and maintain and the documentation that they should include in the loan files. We set forth what we believe are the policies and procedures and the documentation that creditors must maintain and provide to their counterparties to comply with the consider requirement.

The Revised QM Rules

As a threshold matter, on December 10, 2020, Kathy Kraninger, who was the director of the Consumer Financial Protection Bureau (CFPB), issued the revised QM rules that replaced Appendix Q and the strict 43% debt-to-income ratio (DTI) underwriting threshold with a priced-based QM loan definition. The revised QM rules also terminated the QM Patch, under which certain loans eligible for purchase by Fannie Mae and Freddie Mac do not have to be underwritten to Appendix Q or satisfy the capped 43% DTI requirement. Compliance with the new rules became mandatory on October 1, 2022.

Under the revised rules, for first-lien transactions, a loan receives a conclusive presumption that the consumer had the ability to repay (and hence receives the safe harbor presumption of QM compliance) if the annual percentage rate does not exceed the average prime offer rate (APOR) for a comparable transaction by 1.5 percentage points or more as of the date the interest rate is set. A first-lien loan receives a “rebuttable presumption” that the consumer had the ability to repay if the APR exceeds the APOR for a comparable transaction by 1.5 percentage points or more but by less than 2.25 percentage points. The revised QM rules provide for higher thresholds for loans with smaller loan amounts, for subordinate-lien transactions, and for certain manufactured housing loans.

To qualify for QM status, the loan must continue to meet the statutory requirements regarding the 3% points and fees limits, and it must not contain negative amortization, a balloon payment (except in the existing limited circumstances), or a term exceeding 30 years.

Consider and Verify Consumer Income and Assets

In lieu of underwriting to Appendix Q, the revised rule requires that the creditor consider the consumer’s current or reasonably expected income or assets other than the value of the dwelling (including any real property attached to the dwelling) that secures the loan, debt obligations, alimony, child support, and DTI ratio or residual income. The final rule also requires the creditor to verify the consumer’s current or reasonably expected income or assets other than the value of the dwelling (including any real property attached to the dwelling) that secures the loan and the consumer’s current debt obligations, alimony, and child support.

In particular, to comply with the consider requirement under the rule, the CFPB provides creditors the option to consider either the consumer’s monthly residual income or DTI. The CFPB imposes no bright-line DTI limits or residual income thresholds. As part of the consider requirement, a creditor must maintain policies and procedures for how it takes into account the underwriting factors enumerated above and retain documentation showing how it took these factors into account in its ability-to-repay determination.

The CFPB indicates that this documentation may include, for example, “an underwriter worksheet or a final automated underwriting system certification, in combination with the creditor’s applicable underwriting standards and any applicable exceptions described in its policies and procedures, that shows how these required factors were taken into account in the creditor’s ability-to-repay determination.”

CFPB Staff Commentary

Paragraph 43(e)(2)(v)(A) of the CFPB Staff Commentary to Regulation Z requires creditors to comply with the consider requirement of the new QM rule by doing the following:

a creditor must take into account current or reasonably expected income or assets other than the value of the dwelling (including any real property attached to the dwelling) that secures the loan, debt obligations, alimony, child support, and monthly debt-to-income ratio or residual income in its ability-to-repay determination. A creditor must maintain written policies and procedures for how it takes into account, pursuant to its underwriting standards, income or assets, debt obligations, alimony, child support, and monthly debt-to-income ratio or residual income in its ability-to-repay determination. A creditor must also retain documentation showing how it took into account income or assets, debt obligations, alimony, child support, and monthly debt-to-income ratio or residual income in its ability-to-repay determination, including how it applied its policies and procedures, in order to meet this requirement to consider and thereby meet the requirements for a qualified mortgage under § 1026.43(e)(2). This documentation may include, for example, an underwriter worksheet or a final automated underwriting system certification, in combination with the creditor’s applicable underwriting standards and any applicable exceptions described in its policies and procedures, that show how these required factors were taken into account in the creditor’s ability-to-repay determination [emphasis added].

The Secondary Market’s Review of Creditors’ Policies and Procedures and File Documentation

The revised rules suggest that, at a minimum, to ensure that the creditor has satisfied the “consider” requirement, a creditor must promulgate and maintain policies and procedures for how it takes into account the underwriting factors enumerated above as well as retain documentation showing how it took these factors into account in its ability-to-repay determination. Ideally, the creditor should make these written policies and procedures available to the creditor’s secondary market counterparties.

Further, and more importantly, the revised rules indicate that the individual loan files should contain a worksheet, Automated Underwriting Systems (AUS) certification, or some other written evidence documenting how the enumerated factors were taken into account in meeting the enhanced ability-to-repay standards. The underwriters should document their use of applicable exceptions to the creditor’s general policies and procedures in underwriting the loan.

Notwithstanding the foregoing, it is our understanding that compliance with these requirements has been uneven in the industry and that certain creditors have not promulgated the requisite written policies and procedures related to the consideration of income, assets, and debt. In addition, documentation (i.e., worksheets and AUS certifications) of these factors in individual loan files has been haphazard and inconsistent.

In March 2023, the Structured Finance Association convened an ATR/QM Scope of Review Task Force, comprising rating agencies, diligence firms, issuers, and law firms, to develop uniform best practice testing standards for performing due diligence on QM loans. Discussion topics included the documentation of the consider requirement of the revised QM rules.

In its early meetings, the participants in the task force confirmed that creditors have not uniformly developed written policies and procedures documenting the consider requirement. Participants have focused more on the creditor’s actual documentation of income, assets, and debt in individual loan files they believe would demonstrate substantive compliance with the underwriting requirements of the revised rules.

At this early juncture (compliance with the revised rule became mandatory in October 2022), it may be premature for secondary market purchasers of residential mortgage loans to cite their sellers or servicers for substantive noncompliance with the revised QM rules if these entities have not developed robust written policies and procedures that show how they consider income, assets, and debt.

It may be more fruitful for the secondary market to focus on the actual file documentation itself and determine whether the creditors have satisfied the consider requirement by properly underwriting the loans in accordance with the requisite elements and documenting the file with the appropriate worksheets and other written evidence.

The creditor’s failure to maintain the general policies and procedures does not necessarily render the subject loans non-QM if the loan files are adequately underwritten and amply documented. Compliance with the new QM rules and the documentation of the consider requirement is still at a rudimentary stage, and the secondary market will have to periodically revisit the way it audits mortgage loans.

Correspondent Lending on the Rise: Increasing Gains Point to Increasing Risk

A&B Abstract:

According to a recent edition of Inside Mortgage Finance, correspondent lending is the only lending channel that posted gains in Q3 2023. While it is always nice to see gains, it should also serve as a reminder to take a fresh look at your risk management program to ensure it is calibrated to address the unique risks of correspondent lending.

To level set, we define a correspondent lender as one who performs the activities necessary to originate a mortgage loan, i.e., takes and processes applications, provides required disclosures, and often, but not always, underwrites loans and makes the final credit decision. The correspondent lender closes loans in its name, funds the loans (often through a warehouse line of credit), and sells them to an investor by prior agreement.

The risk that correspondent misconduct poses to an investor falls broadly into three categories:  legal risk, reputational risk, and credit risk. Legal risk refers to the risk that the investor will be subject to legal claims based on the misconduct of the correspondent, or that the correspondent misconduct somehow will impair the investor’s rights under the loan agreements. Reputational risk refers to the risk of damage to the company’s reputation among investors, regulators, the public at large, counterparties, etc. Credit risk refers to the risk that correspondents will fail to conform to the investor’s underwriting guidelines or credit standards. We include fraud within this category.

In this post, we provide, in our assessment, an overview of the types of claims that pose the greatest legal risks, as well as best practices to mitigate such risks.

Theories of Liability on Assignees

The following laws and/or legal theories, in our assessment, pose the greatest risk of either vicarious liability or economic risk to assignees for the misconduct of correspondents:

  • Holder in Due Course:  Under the Uniform Commercial Code, if an assignee or “holder” of a mortgage loan rises to the level of a Holder in Due Course, it can enforce the borrower’s obligations notwithstanding certain defenses to repayment or claims in recoupment that the borrower may have against the original payee. If Holder in Due Course status is never attained or is lost, the purchaser of a mortgage loan will be subject to certain defenses to payment and claims in recoupment that the mortgagor may have against the original payee.
  • Truth-in-Lending Act (TILA): An assignee may be exposed to civil liability for a TILA violation that is apparent on the face of the disclosure statement.  In addition, for certain violations of TILA, a consumer may have an extended right to rescind a loan for up to three years from consummation. The consumer may exercise this right against an assignee. Moreover, amendments to TILA pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) expand the liability of assignees in connection with certain TILA violations, including violations relating to the TILA-RESPA Integrated Disclosure or TILA’s ability to repay, loan originator compensation, and anti-steering provisions.
  • Home Ownership and Equity Protection Act (“HOEPA”) / Section 32 “High Cost” Loans: Subject to certain exceptions, an assignee of a HOEPA loan is subject to all claims and defenses with respect to the mortgage that the consumer could assert against the original creditor.
  • Equal Credit Opportunity Act (“ECOA”): ECOA’s broad definition of “creditor” may place liability on assignees for the statute’s anti-discrimination and disclosure requirements where the assignee “regularly participates” in the credit decision.
  • State and Local Anti-Predatory Lending Laws: A number of states have passed anti-predatory lending laws that contain assignee liability provisions similar to those found in HOEPA with triggers that may differ from HOEPA. An assignee of a loan covered by such a state law will be subject to certain claims and defenses with respect to the mortgage that the consumer could assert against the original creditor.
  • Aiding and Abetting: Under the common law theory of aiding and abetting, loan purchasers and other parties can be held responsible for the acts of the lender that originated the loan, particularly if they (i) knew that the originating lender was engaged in “predatory” practices, and (ii) gave substantial assistance or encouragement to the originating lender. The Dodd-Frank Act also imposes aiding and abetting liability.
  • State and Federal Defenses to Foreclosure: Certain state laws expressly provide that a violation of the law may be asserted by a borrower as a defense against foreclosure, either as a bar to foreclosure or as a claim for recoupment or setoff. In addition, courts may invoke UDAP or UDAAP statutes or equitable remedies to prevent an originator or assignee from foreclosing on a loan that the court views as abusive or unfair.  Finally, as noted above, violations of TILA’s ability to repay, loan originator compensation, and anti-steering provisions may also be raised defensively to delay or prevent foreclosure.
  • State Licensing and Usury Laws: Certain state laws provide for the impairment of the mortgage loan if the originating lender was not properly licensed or the loan exceeded state usury limits.
  • Challenges to Ownership: Plaintiffs are increasingly raising concerns about investors’ or servicers’ authority to foreclose when the investor cannot produce original loan documents or otherwise verify ownership of the loan, although this risk is lessened when an investor acquires the loan directly from the original creditor.

The list above reflects the laws and legal theories that are most commonly used to impose liability on assignees and/or that we believe will be of increasing prominence going forward. There are other federal and state laws that might also expose assignees to liability, either expressly or by implication. There are also claims against an assignee based on the assignee’s own misconduct in connection with the origination of the loan. An example of a direct claim against an assignee related to loan origination would be a claim under fair lending laws that the underwriting criteria that the assignee established and provided to its correspondents violated fair lending laws. Of course, there are plenty of other risks that the assignee may need to manage, such as the risk of loss from fraud perpetrated against the assignee by borrowers or correspondents; the risk of correspondents’ non-compliance with the investor’s underwriting criteria; or the risk of liability from servicing violations.

Best Practices to Mitigate Correspondent Lending Risk

A financial institution should consider adopting the following best practices to mitigate against the legal, reputational, and credit risks presented by correspondent lending relationships, to the extent the institution has not done so already:

  • Ensure that its compliance management system reflects the legal and regulatory requirements relevant to correspondent lending activity and the risks presented by correspondent lending relationships, that the company has in place monitoring, testing, and audit processes commensurate with such risks, and that the company’s compliance training includes material relevant to the management of correspondent lending relationships and their associated risks.
  • Prepare written policies and procedures that explain comprehensively the steps the company takes to minimize the risk that it will be subjected to liability for violations by correspondents.
  • Conduct due diligence reviews to ensure that correspondents are properly licensed, particularly in those states in which the failure to be licensed could impair the enforceability of the loan.
  • Conduct company-level due diligence reviews of correspondents to assess whether the correspondent is willing and able to comply with applicable laws and avoid engaging in practices that might be considered predatory. This might involve reviewing the company’s policies and procedures, examination reports prepared by regulators (to the extent that such reports are not confidential), repurchase demands made against the correspondent, internal quality control reports, complaints received from consumers and regulators, and information about litigation in which the company is involved.
  • Interview correspondents regarding their policies and procedures designed to prevent predatory sales tactics and other predatory lending practices.
  • Question correspondents regarding the measures they use to oversee and monitor the brokers with whom they do business.
  • Perform loan-level reviews to ensure that loans (1) do not exceed HOEPA and state/local high cost loan law thresholds, (2) exceed state usury limits (particularly in states in which the failure to comply can impair the enforceability of the loan), (3) either are not covered by state or local anti-predatory lending laws or comply with the applicable restrictions under those laws, (4) comply with state usury restrictions, and (5) do not contain other illegal terms or predatory features.


With correspondent lending volume on the rise, now is a good time to review and possibly refresh your risk management approach to ensure it is commensurate with the risks presented by correspondent lending relationships.

Majority of States Now Permit Remote Work for MLOs and Mortgage Company Employees

A&B Abstract:

On June 9, Illinois became the latest state in a growing trend to authorize remote work for mortgage loan originators and mortgage company employees. This makes five states joining the list of jurisdictions legislatively permitting MLOs to work remotely since Montana enacted similar legislation in March, with more states expected during the 2024 legislative sessions.

The Illinois amendments to The Residential Mortgage License Act of 1987, signed by Governor Pritzker on June 30, 2023, take effect on January 1, 2024 and specifies requirements that licensed MLOs must follow to allow employees to work from remote locations. These changes include:

  • Requiring the licensee to have written policies and procedures for supervising mortgage loan originators working from a remote location;
  • Restricting access to company platforms and customer information in accordance with the licensee’s comprehensive written information security plan;
  • Prohibiting in-person customer interactions at a mortgage originator’s residence unless the residence is a licensed location;
  • Prohibiting maintaining physical records at a remote location;
  • Requiring customer interactions and conversations about consumers to be in compliance with state and federal information security requirements.
  • Mandating mortgage loan originators working from a remote location to use a secure connection, either through a virtual private network (VPN) or other comparable system, to access the company’s system;
  • Ensuring the licensee maintains appropriate security updates, patches, or other alterations to devices used for remote work;
  • Requiring the licensee to be able to remotely lock, erase, or otherwise remotely limit access to company-related contents on any device; and
  • Designating the loan originator’s local licensed office as their principal place of business on the NMLS.

Nevada, Virginia, and Florida passed legislation resembling the Illinois law, mandating similar security, compliance, and surveillance requirements.

Temporary Guidance Ending

Remote work flexibility is now the majority stance for the industry. The four states mentioned above are the most recent since Montana passed similar legislation in March. Of the 53 U.S. jurisdictions tracked by the Mortgage Bankers Association (including Washington, D.C., Guam, and Puerto Rico), 30 have implemented permanent statutes or regulations allowing remote work, with 9 more jurisdictions still operating under temporary guidance permitting remote work.

Of the states still operating under temporary guidance, Oklahoma’s guidance expires December 31, 2023. The state government will need to take further action, whether legislative or regulatory, to continue to allow MLOs to work remotely. Louisiana issued temporary guidance in July 2020, which would stay active, “as long as there is a public health emergency relating to COVID-19, as declared by Governor Edwards of the State of Louisiana, or until rescinded or replaced.” Governor Edwards ended the emergency in March 2022 when he did not renew the expiring order. Remote work in Louisiana is now operating in a grey zone with regards to whether the temporary order is still in effect due to the, “until rescinded” language.

Different Methods, Similar Results

Although remote work is the new norm, states are taking different routes to allow MLOs to work remotely. Many statehouses passed legislative statutes, which allow for stable policies but can be difficult to revise through the legislative process. These statutes tend to follow similar structures and have similar requirements. Illinois, Virginia, Florida, and Nevada require MLOs to work from home so long as certain records are not maintained in remote locations, professionals do not meet with customers outside of licensed facilities, employees are properly supervised as required by the license, and the company maintains adequate cybersecurity measures to protect customer data.

Nebraska’s state legislature did not pass specific guidance regarding remote work for MLOs, but rather, passed authorization to allow the Nebraska Department of Banking and Finance to promulgate regulations allowing remote work for MLOs. The Department has not yet issued permanent guidance for local MLOs regarding remote work requirements. Although using the regulatory system to implement rules may take longer to implement, it is also more flexible to changing circumstances and generally permits regulators to revise guidance faster than it takes a state legislature to convene, draft, and pass appropriate amendments to existing legislation.


The post-COVID workforce is clinging onto the last bit of convenience that the pandemic forced upon us. Surveys show that remote work flexibility is now the primary perk that would drive people to different employers. Since the technology needed to safely conduct business remotely is now proven, states are realizing that the easiest way to retain qualified mortgage professionals is to allow remote work flexibility. The American Association of Residential Mortgage Regulators (AARMR) expressed concern over a lack of remote work options in 2022 before states started passing permanent legislation. State legislatures embraced AARMR’s concern that a lack of remote work options could cause professionals to leave the industry, further widening the access gap for already underserved communities. The remote work trend has touched other industries that were previously in-person only and is likely to grow in those other industries (e.g., remote notarization) as far as practically feasible.

* We would like to thank Associate, CJ Blaney, for their contributions to this blog post.

Affirmative Action in Lending: The Implications of the Harvard Decision on Financial Institutions

Early this summer, the U.S. Supreme Court’s ruling in Students for Fair Admissions v. President and Fellow of Harvard College effectively ended race-conscious admission programs at colleges and universities across the country. Specifically, the Supreme Court held that decisions made “on the basis of race” do nothing more than further “stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution.”

In particular, the Supreme Court reasoned that “when a university admits students ‘on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.’” Such stereotyping purportedly only causes “continued hurt and injury,” contrary as it is to the “core purpose” of the Equal Protection Clause. Ultimately, the Supreme Court reminded us that “ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action.”

In the context of lending, federal regulatory agencies expect and encourage financial institutions to explicitly consider race in their lending activities. While the Community Reinvestment Act has required banks to affirmatively consider the needs of low-to-moderate-income neighborhoods, regulatory enforcement actions over the last few years have required both bank and nonbank mortgage lenders to explicitly consider an applicant’s protected characteristics such as race and ethnicity—conduct plainly prohibited by fair lending laws.

Could the impact of the Supreme Court holding extend beyond education to lending and housing? Will the Harvard decision serve to undercut federal regulators’ legal theories for demonstrating redlining and present a challenge for special purpose credit programs that explicitly consider race or other protected characteristics?

Fair Lending Laws Prohibit Consideration of Race

The Equal Credit Opportunity Act (ECOA) prohibits a creditor from discriminating against any applicant, in any aspect of a credit transaction, on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract). Similarly, the Fair Housing Act prohibits discrimination against any person in making available a residential real-estate-related transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.

In March 2022, the Consumer Financial Protection Bureau (CFPB) went as far as to update its Examination Manual to provide that unfair, deceptive, or abusive acts and practices (UDAAPs) “include discrimination” and signaled that the CFPB will examine whether companies are adequately “testing for” discrimination in their advertising, pricing, and other activities. When challenged by various trade organizations, the U.S. District Court for the Eastern District of Texas ruled that the CFPB’s update exceeded the agency’s authority under the Dodd–Frank Act. This decision is limited, however, and enjoins the CFPB from pursuing its theory against those financial institutions that are members of the trade association plaintiffs. It is also unclear if the verdict will be appealed by the CFPB.

Despite federal prohibitions, regulators such as the CFPB and the U.S. Department of Justice (DOJ) expect, and at times even require, lenders to affirmatively target their marketing and lending efforts to certain borrowers and communities based on race and/or ethnicity.

Race-Based Decisions Are Encouraged and Even Required by Regulators

CFPB examiners often ask lenders to describe their affirmative, specialized efforts to target their lending to minority communities. If there have been no such explicit efforts by the institution, the CFPB penalizes these lenders for not explicitly considering race in their marketing and lending decisions. For example, in the CFPB’s redlining complaint against Townstone Financial, the CFPB alleged that “Townstone made no effort to market directly to African-Americans during the relevant period,” and that “Townstone has not specifically targeted any marketing toward African-Americans.”

What’s more, if enforcement culminates in a consent order, the CFPB and DOJ effectively impose race- based action by requiring lenders to fund loan subsidies or discounts that will be offered exclusively to consumers based on the predominant race or ethnicity of their neighborhood. In the CFPB/DOJ settlement with nonbank Trident Mortgage, the lender was required to set aside over $18 million toward offering residents of majority-minority neighborhoods “home mortgage loans on a more affordable basis than otherwise available.”

And in the more recent DOJ settlement with Washington Trust, the consent order required the lender to subsidize only those mortgage loans made to “qualified applicants,” defined in the settlement as consumers who either reside, or apply for a mortgage for a residential property located, in a majority-Black and Hispanic census tract. Such subsidies are a common feature of recent redlining settlements, which have been occurring with increased frequency since the DOJ announced its Combating Redlining Initiative in October 2021.

Not only do the CFPB and DOJ encourage, and in certain cases, even require, race-based lending in potential contravention of fair lending laws, but federal regulators also expect some degree of race-based hiring by lenders. This expectation is based on the stereotypical assumption that lenders need racial and ethnic minorities in their consumer-facing workforce to attract racial and ethnic minority loan applicants. In the Townstone complaint, for example, the CFPB chastised the lender for failing to “employ an African-American loan officer during the relevant period, even though it was aware that hiring a loan officer from a particular racial or ethnic group could increase the number of applications from members of that racial or ethnic group.”

Ultimately, all the recent redlining consent orders announced by the CFPB and DOJ impose at least some race-based requirement, which would seem to run afoul of fair lending laws and Supreme Court precedent.

Racial Quota-Based Metrics Used by Regulators

Further, when assessing whether a lender may have engaged in redlining against a particular racial or ethnic group, the CFPB and DOJ, as a matter of course, employ quota-based metrics to evaluate the “rates” or “percentages” of a lender’s activity in majority-minority geographic areas, specifically majority-minority census tracts (MMCTs). Then the regulators compare such rates or percentages of the lender’s loan applications or originations in MMCTs to those of other lenders. For example, in its complaint against Lakeland Bank, the DOJ focused on the alleged “disparity between the rate of applications generated by Lakeland and the rate generated by its peer lenders from majority-Black and Hispanic areas.” The agency criticized the bank’s “shortfalls in applications from individuals identifying as Black or Hispanic compared to the local demographics and aggregate HMDA averages.”

Undoubtedly, this approach utilizes nothing more than a quota-based metric, which the Supreme Court in Harvard squarely rejected. Indeed, the Supreme Court reasoned that race-based programs amount to little more than determining how “the breakdown of the [incoming] class compares to the prior year in terms of racial identities,” or comparing the racial makeup of the incoming class to the general population, to see whether some proportional goal or benchmark has been reached.

While the goal of meaningful representation and diversity is commendable, the Supreme Court emphasized that “outright racial balancing and quota systems remain patently unconstitutional.” And such a focus on racial quotas means that lenders could attempt to minimize or even eliminate their fair lending risk simply by decreasing their lending in majority-non-Hispanic-White neighborhoods—without ever increasing their loan applications or originations in majority-minority neighborhoods. Of course, this frustrates the essential purpose of ECOA and other fair lending laws.

Potential Constitutional Scrutiny of Race-Based Lending Efforts

If race-based state action, including the use of racial quotas, violates the Equal Protection Clause, it is possible that the race-based lending measures recently encouraged and even required by federal regulators may be constitutionally problematic. In addition to racially targeted loan subsidies and racially motivated loan officer hiring, regulators continue to encourage lenders to implement special purpose credit programs (SPCPs) to meet the credit needs of specific racial or ethnic groups. As the CFPB noted in its advisory opinion, “[b]y permitting the consideration of a prohibited basis such as race, national origin, or sex in connection with a special purpose credit program, Congress protected a broad array of programs ‘specifically designed to prefer members of economically disadvantaged classes’ and ‘to increase access to the credit market by persons previously foreclosed from it.’”

While SPCPs are explicitly permitted by the language of ECOA and its implementing regulation, Regulation B, as an exception to the statute’s mandate against considering a credit applicant’s protected characteristics, it is uncertain whether these provisions, if challenged, would survive constitutional scrutiny by the current Supreme Court.

Takeaways for Lenders

For the time being, lenders that offer SPCPs based on a protected characteristic should ensure that their written plans continue to meet the requirements of Section 1002.8(a)(3). As always, the justifications for lending decisions that could disproportionately affect consumers based on their race, ethnicity, or other protected characteristic should be well documented and justified by legitimate business needs. And if faced with a fair lending investigation or potential enforcement action, lenders should consider presenting to regulators any alternate data findings or conclusions that demonstrate the institution’s record of lending in MMCTs rather than focusing on the rates or percentages of other lenders in the geographic area.