Summary of Federal Mortgage and Consumer Protection Statues

Truth-In-Lending Act (TILA) of 1968 is a United States federal law designed to protect consumers in credit transactions by requiring clear disclosure of key terms of the lending arrangement and all costs. The statute is contained in title I of the Consumer Credit Protection Act, as amended (15 U.S.C § 1601 et seq.) The regulations implementing the statute, which are known as “Regulation Z”, are codified at 12 CFR Part 226. Most of the specific requirements imposed by TILA are found in Regulation Z as well as the statute itself. Violations of this act may impose civil and or criminal liability. Anyone who willingly or knowingly fails to comply with any requirement of the TILA will be fined not more that $5,000 or imprisoned not more than one year, or both. Civil liability arises when a creditor fails to comply with any requirement of the TILA, other than with the advertising provisions. The creditor may also be held liable for other damages, including the right of rescission, arising out of individual or class action if certain requirements of the TILA are violated.

Home Ownership and Equity Protection Act (HOEPA) of 1994 This law addresses certain deceptive and unfair practices in home equity lending. It amends the Truth in Lending Act (TILA) and establishes requirements for certain loans with high rates and/or high fees. The rules for these loans are contained in Section 32 of Regulation Z, which implements the TILA, so the loans also are called “Section 32 Mortgages.” It establishes disclosure requirements and prohibits equity stripping and other abusive practices in connection with high-cost mortgages. It is enforced by the Commission for non-depository lenders and by the states through their attorneys general. Violations of these new requirements allow consumers to sue a lender for their non-compliance. In a successful suit, consumers may be able to recover statutory and actual damages, court costs and attorney’s fees. In addition, a violation of the high-rate, high-fee requirements of the TILA may enable consumers to rescind (or cancel) the loan for up to three years.

Real Estate Settlement Procedures Act (RESPA) and Act passed by the United States congress in 1974. It is codified at Title 12, Chapter 27 of the United States Code, 12 U.S.C § 2601-2617. It was created because various companies associated with the buying and selling of real estate, such as lenders, realtors, construction companies and title insurance companies were often engaging in providing undisclosed kickbacks to each other, inflating the costs of real estate transactions and obscuring price competition by facilitating bait-and-switch tactics. Violations of three sections of RESPA allow for private civil law suits to enforce compliance. Section 6 (Loan Servicing Provisions), Section 8 (Anti-Kickback Provisions) & Section 9 (Title Company Rules) of RESPA may also be grounds for administrative action by the Secretary under part 24 of this title concerning debarment, suspension, ineligibility of contractors and grantees.

Equal Credit Opportunity Act (ECOA) a United States law (codified at 15 U.S.C § 1691 et seq.), enacted in 1974, that makes it unlawful for any creditor to discriminate against any applicant with respect to any aspect of a credit transaction on the basis of race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract); to the fact that all or part of the applicant’s income derives from a public assistance program; or to the fact that the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The law applies to any person who, in the ordinary course of business, regularly participates in a credit decision, including banks, retailers, bankcard companies, finance companies, and credit unions. Failure to comply with the Equal Credit Opportunity Act’s Regulation B can subject a financial institution to civil liability for actual and punitive damages in individual or class actions. Liability for punitive damages can be as much as $10,000 in individual actions and the lesser of $500,000 or one percent of the credit’s net worth in class actions.

Unfair of Deceptive Acts or Practices (UDAP) The FTC Act prohibits unfair or deceptive acts or practices. Congress drafted this provision broadly in order to provide sufficient flexibility in the law to address changes in the market and unfair or deceptive practices that may emerge. And act or practice may be found to be unfair where it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to completion.” A representation, omission, or practice is deceptive if it is likely to mislead a consumer acting reasonably under the circumstances and is likely to affect a consumer’s conduct or decision regarding a product or service.

Gramm-Leach-Bliley Act (GLBA) An Act of the United States Congress which repeated part of the Glass-Steagall Act of 1933, opening up competition among banks, securities companies and insurance companies (now known collectively as ‘financial services’ companies). The Glass-Steagall Act prohibited a bank from offering investment, commercial baking, and insurance services. GLBA compliance is mandatory; whether a financial institution discloses non-public information or not, there must be a policy in place to protect the information from foreseeable threats in security and data integrity. Major Components put into place to govern the collection, disclosure, and protection of consumers’ non-public personal information; or personally identifiable information: Financial Privacy Rule, Pretexting Protection.

Home Mortgage Disclosure Act (HMDA) It requires financial institutions to maintain and annually disclose data about home purchases, home purchase pre-approvals, home improvement, and refinance applications involving 1 to 4 unit and multifamily dwellings. It also requires branches and loan centers to display a HMDA poster. [1] HMDA was designed by the Federal Reserve Board in order to: Help public officials to distribute public-sector investments, Discover if financial institutions are serving housing needs of and Identify where there are discriminatory lending practices.

Fair Credit Reporting Act (FCRA) An American federal law (codified at 15 U.S.C § 1681 et seq.) that regulates the collection, dissemination, and use of consumer credit information. Along with the Fair Debt Collection Practices Act (FDCPA), it forms the base of consumer credit rights in the United States. It was originally passed in 1970, [1] and is enforced by the US Federal Trade Commission. Users of the information for credit, insurance, or employment purposes (including background checks) have the following responsibilities under the FCRA: 1. They must notify the consumer when an adverse action is taken on the basis of such reports. 2. Users must identify the company that provided the report, so that the accuracy and completeness of the report may be verified or contested by the consumer.

The Fair Debt Collection Practices Act (FDCPA) 15 U.S.C § 1692 et seq., is a United States statute added in 1978 as a Title VIII of the Consumer Credit Protection Act. Its purposes are to eliminate abusive practices in the collection of consumer debts, to promote fair debt collection and to provide consumers with an avenue for disputing and obtaining validation of debt information in order to ensure the information’s accuracy. The Act creates guidelines under which debt collectors may conduct business, defines rights of consumers involved with debt collectors, and prescribes penalties and remedies for violations of the Act. The Federal Trade Commission has the authority to administratively enforce the FDCPA using its powers under the Federal Trade Commission Act. [24] Aggrieved consumers may also file a private lawsuit in a state or federal court to collect damages (actual, statutory, attorney’s fee and court costs) from third-party debt collectors. The FDCPA is a strict liability law, which means that a consumer need not prove actual damages in order to claim statutory damages of up to $1,000 plus reasonable attorney fees if a debt collector is proven to have violated the FDCPA. [25].

Uniform Standards of Professional Appraisal Practice (USPAP) is the quality control standards applicable for appraisal analysis and reports in the United States and its territories. USPAP, as it’s commonly known, was first developed in the 1980s by a joint committee representing the major U.S. and Canadian appraisal organizations. As a result of the Savings and Loan Crisis, the Appraisal Foundation (TAF) was formed by these same groups, along with support and input from major industry and education groups, and TAF took over administration of USPAP [1]. The Financial Institution Reform, Recovery and Enforcement Act of 1989 authorized the Appraisal Subcommittee (ASC), which is made up of representatives of the leading U.S> government agencies and non-governmental organizations empowered to oversee the U.S. mortgage and banking system. The ASC provides oversight to TAF.

  • Newland & Newland LLP, Attorneys, Arlington Heights, IL