NBA Litigation Monitoring
by David O'Mara
On September 18, 2014, the Nevada Supreme Court found in SFR Investment Pool 1 v. U.S. Bank that the Homeowner’s Association (“HOA”) lien statute, NRS 116.3116, provides an HOA with “a true superpriority lien,” and the proper foreclosure of such a lien will extinguish a first deed of trust. The Supreme Court’s decision has definitely negatively affected lenders in Nevada. However, the Supreme Court left many issues unresolved when it remanded the matter back to the district court and lenders continue to argue that the HOA lien statute is unconstitutional.
The Nevada Bankers Association continues to monitor litigation that would impact our member and we are aware of three actions that have resulted
Data Security: Visa Re- evaluates the Cost of Breach Response
Visa announced changes to the reimbursement rates it offers card issuers whose customers are affected by data breaches. The changes increase reimbursements by 140 percent for most banks. Read the full statement from Visa.
Data protection and cyber security are a top priority among bankers. Banks have the highest level of security among critical US industries, and all participants in the payments system must abide by a strong national standard for safeguarding customer data. ABA, ICBA and others advocated for changes and issued a joint statement for record to the Financial Services Committee of the United States House of Representatives.
Sweeping Financial Reform Bill
The Senate Banking Committee’s section-by-section summary and bill text of Chairman Richard Shelby’s “Financial Regulatory Improvement Act of 2015” proposal are availabel for review. The proposal, which has not been officially introduced, is a comprehensive regulatory relief package containing eight titles.
The Senate Banking Committee is tentatively scheduled to consider the bill on May 21, a date that could shift as discussions continue on Capitol Hill. Committee Ranking Member Sherrod Brown (D-Ohio) called the proposal an “industry wish list,” insisting instead on a smaller, more targeted package.
FHFA Provides Statement During Hearing
Alfred Pollard, Federal Housing Finance Agency General Counsel, testified during Nevada legislative hearing.
SB 306 seeks to outline a process that will provide timely notification to all interested parties when there are unpaid assessments and possible foreclosures.
Mr. Pollard’s testimony during the SB 306 Judiciary Committee hearing indicates that the proposed legislation provides some improvement to the current statute and will help relieve some of their concerns, but went on to express his reservations. Read the full testimony here.
FHFA Statement on HOA Super-Priority Lien Foreclosures
Title 12 United States Code Section 4617(j)(3) states that, while the Federal Housing Finance Agency acts as Conservator, “[no] property of the Agency shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Agency.” This law precludes involuntary extinguishment of Fannie Mae or Freddie Mac liens while they are operating in conservatorships and preempts any state law that purports to allow holders of homeownership association (HOA) liens to extinguish a Fannie Mae or Freddie Mac lien, security interest, or other property interest.
As noted in our December 22, 2014 statement on certain super-priority liens, FHFA has an obligation to protect Fannie Mae's and Freddie Mac’s rights, and will aggressively do so by bringing or supporting actions to contest HOA foreclosures that purport to extinguish Enterprise property interests in a manner that contravenes federal law. Consequently, FHFA confirms that it has not consented, and will not consent in the future, to the foreclosure or other extinguishment of any Fannie Mae or Freddie Mac lien or other property interest in connection with HOA foreclosures of super-priority liens.
12/22/2014: Statement of the Federal Housing Finance Agency on Certain Super-Priority Liens
The Federal Housing Finance Agency regulates Fannie Mae, Freddie Mac and the 12 Federal Home Loan Banks. These government-sponsored enterprises provide more than $5.6 trillion in funding for the U.S. mortgage markets and financial institutions. Additional information is available at www.FHFA.gov, on Twitter @FHFA, YouTube and LinkedIn.
Majority Leader McConnell and Senators Heller and Manchin sent the below letter to CFPB Director Cordray outlining their concerns about the CFPB’s definition of ‘rural’ Qualified Mortgages.
Dear Director Cordray:
We are writing in regards to the Consumer Financial Protection Bureau’s (CFPB’s) definition of rural as it pertains to Qualified Mortgages under the Ability-to-Repay and other mortgage rules. As Members of Congress who represent rural areas, we have heard from our constituents about their concerns regarding the definition of rural and the process the CFPB has used to determine it.