Compliance Question of the Week

Redlining may focus on the institution’s decisions about how much access to credit a certain geographic area has, and this does include commercial lending.

The bank’s CRA assessment area can provide insight into the bank’s practices regarding lending regarding products that are of racial or national origin. For example, if the bank’s assessment area excludes an area where the majority of minority businesses are located, does this reflect a higher than usual denial of commercial lending to minority business owners?

Yes. This is the only bona fide fee a bank can collect before providing the early disclosures and intent to proceed.

Section 1026.19(e)(2) allows for this exception but prohibits all other fees until the applicant receives the early disclosures and indicates their intent to proceed.

All initial disclosures are provided via mail or in-person. However, the Closing Disclosure is emailed to ensure timely delivery three days prior to closing. The Closing Disclosure is emailed without E-SIGN Act disclosures. The bank relies on acknowledgment of receipt to show demonstrable consent.

Explanation: The Closing Disclosure delivery in this example does NOT comply with the E-SIGN Act requirements for several reasons:

1. The consumer did not receive the disclosures required under the E-SIGN Act.

2. The consumer did not actually agree to receiving the Closing Disclosure electronically prior to receiving it.

3. Proof that the borrower received the Closing Disclosure does not, by itself, show demonstrable consent as required by the E-SIGN Act.

The regulation does not require a statement of the MAPR to be included in advertisements.

Regulation P provides an exception under section 13 for providing disclosure. The opt out notice requirements of 1016.6 and 1016.10 do not apply when nonpublic personal information is provided to a nonaffiliated third party to perform services on the bank’s behalf, if the bank:

When determining whether the notice requirements apply, be sure to review the examples included in these sections.

The CFPB found the following acts to be unfair and abusive:

Understanding the nature and purpose of a customer relationship—the information gathered about a customer at account opening—is essential to developing a customer risk profile. This information should be used to develop a baseline against which customer activity, such as the customer’s expected use of wires or typical number of deposits in a month, can be assessed for possible suspicious activity reporting. If account activity changes, particularly with regard to what should be anticipated based on the original nature and purpose of the account, risk-based monitoring may identify a need to update customer information, including, as appropriate, beneficial ownership.

Financial institutions are required to report lien status for covered loans they originate and purchase and applications that do not result in originations (preapproval requests that are approved but not accepted, preapproval requests that are denied, applications that are approved but not accepted, denied, withdrawn, or closed for incompleteness).

For covered loans purchased by a financial institution, lien status is determined by reference to the best information readily available to the financial institution at the time of purchase.

For covered loans that a financial institution originates and applications that do not result in originations, lien status is determined by reference to the best information readily available to the financial institution at the time final action is taken and to the financial institution's own procedures. Thus, financial institutions may rely on the title search they routinely perform as part of their underwriting procedures—for example, for home purchase loans. Regulation C does not require financial institutions to perform title searches solely to comply with HMDA reporting requirements. 

Financial institutions may rely on other information that is readily available to them at the time final action is taken and that they reasonably believe is accurate, such as the applicant's statement on the application or the applicant's credit report.

For example, where the applicant indicates on the application that there is a mortgage on the property or where the applicant's credit report shows that the applicant has a mortgage—and that mortgage will not be paid off as part of the transaction—the financial institution may assume that the loan it originates is secured by a subordinate lien. If the same application did not result in an origination—for example, because the application was denied or withdrawn—the financial institution would report the application as an application for a subordinate-lien loan.

Financial institutions may also consider their established procedures when determining lien status for applications that do not result in originations. For example, assume an applicant applies to a financial institution to refinance a $100,000 first mortgage; the applicant also has an open-end line of credit for $20,000.

If the financial institution's practice in such a case is to ensure that it will have first-lien position—through a subordination agreement with the holder of the lien securing the open-end line of credit—then the financial institution should report the application as an application for a first-lien covered loan.

Note: This data field is required for all HMDA reporting institutions.