Mississippi Joins the Anti-Preemption Parade

Mississippi Joins the Anti-Preemption Parade The Mississippi Supreme Court recently rejected federal preemption arguments relating to federally owned student loans. This follows other preemption rulings, as we’ve discussed here and here.

Mississippi’s attorney general filed the action on behalf of the state against Navient Corporation, bringing claims under the Mississippi Consumer Protections Act and for unjust enrichment for Navient’s alleged practices of steering borrowers into costly forbearance rather than income-driven repayment, failing to properly recertify income-driven repayment criteria, making misrepresentations regarding cosigner releases, and making errors in process payments. Navient filed a motion to … Continue Reading

Florida Homestead Exemption Applies Only to U.S. Citizens and Permanent Residents

By Elizabeth R. Brusa and Lauren G. Raines on April 19, 2021 Posted in Bankruptcy, Debt Collection, Florida, Foreclosure, Mortgage Servicing, Secured Creditors, Secured Debts, State Law Developments

Florida Homestead Exemption Applies Only to U.S. Citizens and Permanent Residents A bankruptcy judge in the Middle District of Florida recently sustained a Chapter 7 trustee’s objection to a non-Florida resident debtor’s attempted claim of the Florida homestead exemption. Although the debtor had lived in her Florida home for more than 20 years, she was not a United States citizen or a permanent resident with a so-called “green card.” Additionally, none of the debtor’s family members also living in the home were citizens or permanent residents.

When she filed for bankruptcy, the debtor claimed an exemption in her home pursuant to … Continue Reading

Landlords Again Successfully Challenge the CDC’s Authority to Ban Residential Evictions

By Melissa Gutierrez and Christy W. Hancock on April 19, 2021 Posted in CARES Act, COVID-19 (Coronavirus), Eviction, Federal Agencies, Foreclosure

Landlords Again Successfully Challenge the CDC’s Authority to Ban Residential Evictions Earlier this year, the Eastern District of Texas invalidated — commerce clause grounds — the Centers for Disease Control and Prevention’s (CDC’s) ability to halt residential evictions during the COVID-19 pandemic. Subsequently, in Tiger Lily, LLC v. U.S. Dept. of Housing & Urban Development, the Sixth Circuit Court of Appeals granted another win to landlords in Tennessee, who argued the agency’s order exceeded its authority.

On March 29th, the court denied the government’s emergency motion to stay a lower court’s order barring enforcement of the CDC’s Halt Order, … Continue Reading

HUD Acts to Revive Two Fair Housing Policies

By James W. Wright Jr., Christopher K. Friedman and Austin Holland on April 15, 2021 Posted in Banking, Disparate Impact, ECOA, Fair Housing, Fair Lending, Federal Agencies, HUD

HUD Acts to Revive Two Fair Housing Policies Roughly three months ago, President Biden signed an executive order that, among other things, directed HUD to reevaluate earlier agency decisions perceived to weaken the Fair Housing Act. In response to this directive, HUD has submitted draft rules to the Office of Management and Budget that would roll back two significant changes made by the Trump-era HUD. First, HUD has submitted a proposed rule aimed at reinstating its previous standard for disparate impact discrimination claims. Second, HUD has submitted an interim final rule related to the Affirmatively Furthering Fair Housing … Continue Reading

Bradley’s Bankruptcy Basics: COVID-19 Bankruptcy Relief Extension Act Extends Various CARES Act Amendments to the Bankruptcy Code

By Elizabeth R. Brusa, Christy W. Hancock and Alexandra Dugan on April 14, 2021 Posted in Bankruptcy, Bradley's Bankruptcy Basics, CARES Act, COVID-19 (Coronavirus), Debt Collection, Mortgage Servicing, Secured Creditors, Secured Debts, Small Business Lending, Unsecured Lending

Bradley’s Bankruptcy Basics: COVID-19 Bankruptcy Relief Extension Act Extends Various CARES Act Amendments to the Bankruptcy Code Last March, in response to the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) made several changes to the Bankruptcy Code, including those changes discussed in more detail here. As it became clear that we would be dealing with COVID-19 for much longer than previously anticipated, Congress passed the Consolidated Appropriations Act (CAA), which made additional changes to the Bankruptcy Code, including those explored in more detail in this article.

Originally, several of the Bankruptcy Code amendments included in the prior legislation were scheduled … Continue Reading

Recent Updates Concerning the Home Mortgage Disclosure Act

By J. Tanner Lusk and Christopher K. Friedman on April 14, 2021 Posted in Banking, CFPB, Commercial Lending, Compliance, COVID-19 (Coronavirus), Mortgage Loan Originators

The Consumer Financial Protection Bureau (CFPB) has been busy over the last few months laying out what appears to be a broad regulatory agenda. As discussed in this blog, the Bureau has issued an industry notice emphasizing industry preparedness related to COVID-19 forbearance plans, issued proposed COVID-19-related amendments to the Mortgage Servicing Rules, suggested that it will soon issue an NPRM related to Dodd-Frank 1071, and has proposed a delay to the implementation of its Debt Collection Rules, among other things. As light begins to emerge at the … Continue Reading

Bradley’s Bankruptcy Basics: Secured vs. Unsecured Claims

By Elizabeth R. Brusa, Alexandra Dugan and Erin Malone-Smolla on April 13, 2021 Posted in Bankruptcy, Bradley's Bankruptcy Basics, Compliance, Debt Collection, Proof of Claim, Secured Creditors, Secured Debts, Small Business Lending, Unsecured Lending

Bradley’s Bankruptcy Basics: Secured vs. Unsecured Claims Bankruptcy is primarily about “claims.” The debtor seeks to discharge personal liability on claims, while creditors seek payment on their claims. In basic terms, a bankruptcy “claim” is a right to payment. The claim does not need to be fixed, settled, undisputed, or due at the time the debtor files his bankruptcy petition. The official proof of claim form is discussed in more detail here.

A claim can be secured or unsecured, and this designation results in vastly different rights and treatment during the bankruptcy process. Creditors — anyone … Continue Reading

CFPB Proposes Delay to Implementation of Its Debt Collection Rules

By Lee Gilley, J. Riley Key, Jonathan R. Kolodziej, Christopher K. Friedman and Brian R. Epling on April 9, 2021 Posted in Banking, CFPB, Compliance, COVID-19 (Coronavirus), Debt Collection

CFPB Proposes Delay to Implementation of Its Debt Collection Rules Yesterday, the CFPB issued a proposed rule that would extend implementation of both parts of its debt collection rule by 60 days — from November 30, 2021, to January 29, 2022. The debt collection rule, which we have discussed here in detail, addresses numerous topics related to debt collection, including debt collection call volume, restrictions on certain communication mediums under certain circumstances, a prohibition on bringing or threatening to bring legal action to collect time-barred debt, restrictions on certain forms of consumer credit reporting, and rules for electronic communications. … Continue Reading

FEMA Releases Flood Insurance Rating Methodology Under Risk Rating 2.0

By Heather Howell Wright, Shelby D. Lomax and Judea S. Davis on April 8, 2021 Posted in Compliance, Fair Housing, FHA, Flood Insurance Regulation, Insurance, Mortgage Loan Originators

FEMA Releases Flood Insurance Rating Methodology Under Risk Rating 2.0 On April 1, 2021, FEMA released its highly anticipated flood insurance rating methodology, Risk Rating 2.0-Equity in Action.

FEMA first announced “Risk Rating 2.0-Equity in Action” in March 2019 as an effort to improve flood maps and offer rates that are fair, easy to understand, and more aligned with a property’s unique flood risks. The new rating system was initially set to be implemented on October 1, 2020. FEMA extended the date by a year to broaden its analysis of the proposed rating system.

The NFIP currently uses a rating … Continue Reading

New Amendments to the WVCCPA to Provide Additional Certainty for Businesses

By Jared C. Searls and Andrew J. Narod on April 8, 2021 Posted in Automobile Finance, Class Actions, Credit Card, Debt Collection, State Law Developments

New Amendments to the WVCCPA to Provide Additional Certainty for Businesses In a development that provides some measure of relief to businesses operating in West Virginia, particularly within the financial services industry, Gov. Jim Justice signed into law on March 29, 2021, amendments to the West Virginia Consumer Credit and Protection Act (WVCCPA). These amendments appear to provide clarity on certain attorneys’ fees provisions in the WVCCPA, to define the process for a pre-suit notice to cure and offer in response, and to provide new limitations on recovery of attorneys’ fees in the instance of an offer of judgment or a … Continue Reading