Predatory Lending Laws

HOEPA and Regulation Z

If you’re refinancing your mortgage or applying for a home equity installment loan, you should know about the Home Ownership and Equity Protection Act Of 1994 (HOEPA). The 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 of these loans are contained in Section 32 of Regulation Z, which implements the TILA, so the loans also are called “Section 32  Mortgages.” Here’s what loans are covered, the law’s disclosure requirements, prohibited features, and actions you can take against a lender who is violating the law.
Things You Should Know:

  • TILA and Regulation Z
  • Rescission - Cancel your loan, reduce principal balance
  • Stop foreclosure

Possible Recission Remedies:

  • No right to collect any interest, cost, or fees (total of payments applied to reduce principal)
  • Lender’s security interest is void (no security interests=no right to foreclosure)
  • Lender must respond within 20 days
  • Lender pays borrower’s attorney fees

TILA does not apply to:

  • purchase loans
  • business or investment loans

TILA loans are:

  • Non-purchase money loans
  • Secured by a borrower’s principal residence
  • Loan funds used for personal, family, or household purposes

Spotting Potential Predatory Claims:

  • Deceptive solicitations
  • Steering to high rate lenders
  • Home Improvement Scams
  • Lending to People Who Cannot Afford the Loans
  • Approaching Incapacitated Homeowners
  • Falsified Loan Applications
  • Unverified Income Adding Co-signers
  • Forgeries
  • Misrepresentation or failure to clearly disclose

– Actual, true final loan terms

– Closing costs

– “Cash-out” payments

Potential Predatory Practices:

  • Paying Off Low Interest Mortgages
  • Shifting Unsecured Debt into Mortgages
  • Loans in Excess of 100% Loan to Value
  • Making a Loan Borrower Cannot Afford
  • Mandatory Arbitration Clauses
  • Other Property Flipping
  • Foreclosure Rescue Scams
  • Reverse Mortgage Abuses

The Alphabet of Federal Claims:

TILA

TILA -  The Truth in Lending Act of 1968, often referred to as TILA, is a federal law  contained in title I of the Consumer Credit Protection Act, as amended (15 USC § 1601 et seq.) The law is designed to protect consumers in credit  transactions by
requiring clear disclosure of key terms of the lending  arrangement and all costs. The regulations implementing the statute, which  contain most of the specific requirements are known as "Regulation  Z", and are found at 12 CFR § 226 et seq..
TILA is all about disclosure.  There is little  or no prohibition in the law or regulations that can not be overcome by proper  disclosure.  Only the provisions contained in HOEPA, an amendment to TILA  in 1994 governing certain high-cost home mortgage loans, actually prohibit some provisions in loan transactions. TILA requires that consumers be given information in a very specific way. Uniform disclosure allows a consumer to  make an informed decision and properly compare alternative offers. TILA also gives consumers the right to cancel certain  credit transactions that involve a lien on a consumer's home, regulates certain credit card practices, and provides a means for fair and timely resolution of  credit billing disputes.  The regulations prohibit certain acts or  practices in connection with credit secured against a consumer's home.

HOEPA

HOEPA -  The Home Ownership and Equity Protection Act, often referred to by the  initials HOEPA, is a federal law enacted by congress in 1994 and made a  part of the Truth in Lending Act as 15 USC 1639 et seq.. The law  specifically regulates loans against a consumer's home at high rates of  interest or that contain high costs and fees.  A HOEPA loan is subject to  specific disclosure requirements and certain types of terms are prohibited  under specified circumstances. As with other parts of the Truth In Lending Act, the  specific details of the law are contained in Regulation Z.  In December  2001, the Federal Reserve Board amended the HOEPA regulations to include more  types of loans under its disclosure requirements and reorganized Regulation Z  to include a section listing certain prohibited acts or practices in covered consumer home loans.

FDCPA

FDCPA - The Fair Debt Collection Practices Act (or FDCPA), 15 U.S.C. §1692 et seq., is  a federal law added in 1978 as 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. It is sometimes used in conjunction with the Fair  Credit Reporting Act or FCRA.
ECOA

The Equal Credit Opportunity Act [ECOA], 15 U.S.C.  § 1691 et seq. prohibits creditors from discriminating against credit applicants on  the basis of race, color, religion, national origin, sex, marital  status, age, because an applicant receives income from a public assistance program, or because an applicant has in good faith exercised any right under the Consumer Credit Protection Act.

RESPA

RESPA - The Real Estate Settlement Procedures Act, often referred to as RESPA, is a  federal law about closing costs and settlement procedures in consumer home loan  transactions.  It is found at 12 U.S.C. § 2601–2617 et seq.  The  Act prohibits kickbacks between lenders and third-party settlement service  agents in the real estate settlement process (Section 8 of RESPA), requires  lenders to provide a good faith estimate for all the approximate costs of a particular loan and finally a HUD-1 (for purchase real estate loans) or a HUD-1A (for refinances of real estate loans) at the closing of the real estate  loan. The final HUD-1 or HUD-1A allows the borrower to know specifically the  costs of the loan and to whom the fees are being allotted.The statute also has provisions restricting how title insurance is sold, limiting use of an escrow account by the lender, requiring  notice to the borrower when the loan is transferred to another servicer, and  providing a means for borrowers to address loan servicing  complaints.

FCRA

FCRA - The federal Fair Credit Reporting Act (FCRA) is a federal law designed to promote  accuracy, fairness, and privacy of information in the files of every  "consumer reporting agency" (CRA).  You can find the complete  text of the FCRA, 15 U.S.C. § 1681-1681et seq., at the Federal Trade Commission's web  site (http://www.ftc.gov).

California Statutory Claims:

  • Unfair and Deceptive Practices Act Cal. Bus. & Prof. Code § 17200 et seq.
  • Predatory Lending Laws
  • Civil Code § 1920 & 1921 et seq.
  • False Advertising Act Cal.  Bus. & Prof. Code § 17500 et seq.

Common Law Claims:

  • Fraud
  • Undue Influence
  • Lack of Capacity
  • Unconscionability
  • Breach of Fiduciary Duty
  • Unjust Enrichment

Damages:

  • Statutory damages
  • Actual damages
  • Costs
  • Attorney’s fees
  • Rescission (for non-purchase money loans)