The U.S. Supreme Court will determine whether disparate impact claims can be applied to the Fair Housing Act and lending discrimination cases by reviewing a Minnesota case involving rental housing. Although many fair lending cases based on disparate impact have been brought and settled over the years, the standard has not been universally interpreted by federal appeals courts. In Magner v. Gallagher, private landlords sued the city of St. Paul, MN, for enforcing its housing code, leading to claims by the landlords that shutting down their properties made it too difficult for minority renters to find...

Life isn’t getting any easier for mortgage lending giant Wells Fargo when it comes to litigation. The top-ranked mortgage lender through the first nine months of the year took a couple of high-profile shots in just the last two weeks or so. Last week, Illinois’s Cook County Judge Carolyn Quinn gave the green light to a suit filed by state Attorney General Lisa Madigan against Wells, which accuses the lender of offering financial incentives to employees to put minority borrowers who qualified for prime mortgages into subprime loans during the 2005-2007 time frame. Illinois has a similar axe to grind against Countrywide Financial Corp., which was acquired by Bank of America Corp. three years ago.

Despite its fairly impressive success rate in fending off hostile litigation, MERSCorp and its Mortgage Electronic Registration Systems remain popular targets. This time around, it’s Delaware Attorney General Beau Biden filing suit in Delaware Chancery Court against them, alleging repeated violations of the state’s Deceptive Trade Practices Act. “Since at least the 1600s, real property rights have been a cornerstone of our society,” said AG Biden. “MERS has raised serious questions about who owns what in America. A man or woman’s home is not just his or her largest investment, it’s their castle. Rules matter. A homeowner has the obligation to pay the mortgage on time, and lenders must follow the rules if they are seeking to take away someone’s house through foreclosure. The honor system won’t work.”

The nation’s five largest mortgage servicing companies now face a tab of $25 billion to bring to a conclusion the long-running negotiations with the state attorneys general over industry foreclosure practices, according to published reports of the latest behind-the-scenes developments. The deal with the big five servicers – Ally Financial Inc., Bank of America Corp., Citigroup Inc., JPMorgan Chase & Co. and Wells Fargo & Co. – is now said to include $5 billion in cash penalties, along with the requirement to produce $3 billion in mortgage refinances. Other aspects of the settlement are said to include principal reductions and other forms of aids to struggling homeowners. The top servicers would be released from certain claims having to do with loan servicing and origination, according to the reports – but to what extent exactly remains unclear. And there would be no release from claims related to mortgage securitization.

Last week, the 14 mortgage servicers covered by the enforcement actions taken by the banking regulators in April 2011 began mailing letters to eligible borrowers that explain how to request a review of their case if they believe they suffered financial injury as a result of errors, misrepresentations or other deficiencies in foreclosure proceedings related to their primary residence between Jan. 1, 2009, and Dec. 31, 2010. Borrowers may also visit www.IndependentForeclosureReview.com for more information about the review and claim process. Assistance with requesting a review and answers to questions about the process are available. Requests for review by the servicers’ independent consultants must be received by April 30, 2012. As part of the enforcement actions taken by the Federal Reserve, the Office of the Comptroller of the Currency and the Office of Thrift Supervision, the servicers had to correct deficiencies in their servicing and foreclosure processes and to enlist independent firms to conduct a multi-faceted independent review of foreclosure actions taken during 2009 and 2010.

The Federal Housing Finance Agency late last month announced a number of changes to the federal government’s Home Affordable Refinance Program for underwater borrowers with mortgages from Fannie Mae and Freddie Mac. But one important little detail that escaped the attention of many has to do with the borrower loss of non-recourse loan protections for borrowers who refinance. Millions of Americans live in states that have such protections that could keep them from being personally liable in the event of a default. But in many of these states, refinancing removes those protections – enabling a lender to pursue tens or hundreds of thousands of dollars more than they would legally have been entitled to without the refinance.

Treasury Special Advisor Raj Date, the acting head of the Consumer Financial Protection Bureau, told lawmakers last week that the bureau will begin a review later this month of the federal regulations it inherited that affect consumers and financial firms to identify those that may be “obsolete, unnecessary, redundant or counterproductive.” The goal is to update and streamline the regulations, Date told the House Financial Services’ Financial Institutions Subcommittee during a hearing on the first 100 days of the CFPB. “One of the bureau’s central responsibilities is to identify and address outdated, unnecessary or unduly burdensome regulations,” the agency chief said. “The bureau has a unique opportunity to streamline and simplify rules to ensure that they are truly making consumer financial markets work better.”

The prototype mortgage disclosure forms that the Consumer Financial Protection Bureau has been testing are getting generally positive responses for their content and overall design. But they aren’t well suited for the ways in which consumer shopping is adapting to modern technology, according to the Consumer Mortgage Coalition. “Recently, software available on mobile web access devices such as smartphones and tablets has streamlined the home and mortgage shopping process,” the CMC pointed out in its comments on round 5 of the CFPB’s integrated consumer mortgage disclosure project. “This technology is evolving rapidly ... [and] the amount of information available to consumers will continue to increase rapidly in the future.” Given this reality, it does not appear that the Loan Estimate disclosure will be used as a shopping tool because the consumer will have finished shopping by the time they apply for a loan.

Last week, the Consumer Financial Protection Bureau again asked for industry and public input – this time as it works to collect information for the development and testing of new and existing model forms, disclosures, tools and similar related materials. “The core objective of the data collection is to help identify, evaluate, and refine specific features of the content or design of the model forms, disclosures, tools, and other similar related materials to maximize communication effectiveness while minimizing compliance burden,” the bureau said in its notice in the Nov. 2, 2011, Federal Register. The CFPB plans to gather qualitative data through a variety of methods to inform its staff’s design, development and implementation of the model forms, using an iterative process to improve the draft forms

California. The state Department of Real Estate has put into play new rules on disciplinary actions against real estate licensees, effective Oct. 26, 2011. The rules establish the authority by which the DRE can issue an order of suspension or debarment per the Business and Professions Code. They also make clear that an individual who receives a notice of intention to issue an order of suspension or debarment cannot engage in any real estate-related business activity that is regulated under the authority of Division 4 of the state BCP. Further, anyone debarred is prohibited from engaging in any real estate-related business activity of a finance lender or residential mortgage lender. The new rules also require real estate brokers to vet their employees and regular business associates who participate in real estate-related business to ensure they are not subject to an order of suspension or debarment.