Consumer Financial Services

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Andrew L. Sandler, Benjamin B. Klubes, Anand S. Raman

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The crazy quilt of laws and regulations protecting the rights of consumers in financial transactions has become more complex than ever. The subprime crisis has spurred substantial class action and other litigation, as well as significant government enforcement activity. In addition, new financial services and the ongoing technological revolution have created a host of new questions. This comprehensive guide is designed to help you identify and deal with the full range of legal problems in this growing area.

Consumer Financial Services presents detailed analysis of every aspect of this important subject, including the impact of more than fifteen federal statutes—ranging from the Civil Rights Act of 1866 to the Fair and Accurate Credit Transactions Act—on the banking, insurance and real estate industries. The book not only explains the substance of the legislative requirements, but also examines enforcement activities, litigation issues and compliance considerations. It is an invaluable resource for anyone who advises or litigates on behalf of consumer financial services industry clients.

Book #00665; looseleaf, one volume, 978 pages; published in 2001, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-100-2

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 978
  • ISBN: 978-1-58852-100-2
  • Pub#/SKU#: 665
  • Volume(s): 1

Author Image
  • Andrew L. Sandler
Andrew L. Sandler is a co-chair of BuckleySandler LLP. Prior to BuckleySandler, he was a partner in the Consumer Financial Services Enforcement and Litigation Practice, a subgroup within the Government Enforcement and Litigation Group in the Washington, D.C. office of Skadden, Arps, Slate, Meagher & Flom LLP. Mr. Sandler is recognized as one of the countrys leading defense lawyers in the area of consumer financial services, including fair lending unfair and deceptive trade practices, privacy and insurance access issues.

Mr. Sandler is a frequent speaker on enforcement, litigation and compliance issues in these areas and has authored numerous articles on these subjects. He has defended many of the most significant enforcement and class action cases in these areas.

Author Image
  • Benjamin B. Klubes
Benjamin B. Klubes is a co-managing partner of BuckleySandler LLP. Prior to BuckleySandler, he was a partner in the Consumer Financial Services Enforcement and Litigation Practice, a subgroup within the Government Enforcement and Litigation Group in the Washington D.C. office of Skadden, Arps, Slate, Meagher & Flom LLP.

Mr. Klubes has written numerous articles and book chapters on topics such as fair lending, subprime lending, compliance risk management, insurance access, corporate compliance programs, and the federal sentencing guidelines. Mr. Klubes is a frequent speaker on enforcement litigation and compliance issues for the consumer financial services industry.

Author Image
  • Anand S. Raman
Anand S. Raman is a partner in the Consumer Financial Services Enforcement and Litigation Practice, a sub-group within the Government Enforcement and Litigation Group in the Washington, D.C. office of Skadden, Arps, Slate, Meagher & Flom LLP ( Mr. Raman regularly represents financial institutions in class action litigation and enforcement proceedings involving fair lending, predatory lending and unfair and deceptive trade practices, brought by state attorneys general and agencies including the U.S. Department of Justice, Federal Trade Commission and the federal bank regulatory agencies. Mr. Raman is a frequent speaker and author on topics such as automobile finance, mortgage fraud prevention, loan servicing and the design of effective compliance programs for the consumer financial services industry.

Fair Lending

§ 1.01 Introduction
§ 1.02 Statutory Overview
[1] Controlling Legislation
[2] Lending Discrimination Actions Under the Statutory Framework
§ 1.03 The Disparate Treatment and Disparate Impact Legal Theories and Lending Discrimination
[1] The Disparate Treatment Legal Theory
[2] Applicability of the Disparate Impact Legal Theory
§ 1.03A Data Reporting Requirements Under HMDA
[1] Introduction
[2] The 1989 Amendments to HMDA
[3] The 2002 Revision of Regulation C
[3A] 2008 Revised Calculation and Reporting Requirements for “Higher-Priced” Mortgage Loans
[4] Implications of the Revised Regulation C
§ 1.03B Data Collection Under the Equal Credit Opportunity Act
§ 1.04 The Use of Statistics in Proving Discrimination Under the FHA and the ECOA
[1] Proper Pool of Applicants
[2] Substantiality
[3] Particularity
§ 1.05 DOJ Enforcement Program
[1] Introduction
[2] Alleged Discrimination in Pricing and Terms
[3] Discrimination in Underwriting and Processing
[4] Marketing Discrimination Cases: DOJ’s Application of Novel Theories of Liability
[4A] U.S. Attorney’s Office Fair Lending Enforcement
[5] Analysis of the Government’s Marketing Liability Theories
[6] Amicus Assistance to Private Litigants
§ 1.06 FTC Enforcement Program
[1] Introduction
[2] Originations
[3] Servicing
§ 1.07 Department of Housing and Urban Development
[1] Introduction
[2] Agency Initiatives
[3] Enforcement Actions
§ 1.08 Bank Regulatory Agency Enforcement
[1] Introduction
[2] Office of the Comptroller of the Currency
[3] Board of Governors of the Federal Reserve System
[4] Office of Thrift Supervision
[5] Federal Deposit Insurance Corporation
[6] Federal Financial Regulatory Agencies Regulatory Guidance
[7] Bureau of Consumer Financial Protection
§ 1.09 State and Municipality Actions
[1] Fair Lending
[2] Unfair and Deceptive Mortgage Practices
[3] Credit Cards and Membership Programs
[4] Gift Cards
[5] Consumer Financial Protection Act of 2010
§ 1.09A Private Fair Lending Litigation
[1] Automobile Financing Litigation and the Non-Delegable Duty Doctrine
[2] Predatory Lending Litigation—“Reverse Redlining” and Secondary Market Liability
[3] Property “Flipping” Litigation
[4] Credit Scoring Litigation
[5] HMDA Pricing Litigation
§ 1.09B The Application of Statistical Methodologies to Fair Lending Analysis
[1] Quantitative Measure of Underwriting Disparities Among Classes
[2] Inferential Statistics in Fair Lending—The Significance of “Statistical Significance”
[3] Statistical “Matched Pair” Analysis
[4] Multivariate Approaches to Fair Lending Analysis
§ 1.10 Chart: Government Fair Lending Cases
§ 1.11 Chart: Automobile Finance Cases


§ 2.01 Introduction
§ 2.02 Property Insurance
[1] Applicability of the Federal Fair Housing Act [1A] Mortgage Reform and Anti-Predatory Lending Act of 2010
[2] Enforcement Activity and Settlements
[3] Fair Housing Advocacy Group Litigation
[4] Compliance Considerations
§ 2.03  Automobile Insurance
[1] Discrimination
[2] Unfair, Deceptive, and Unauthorized Trade Practices
§ 2.04 Life Insurance
[1] State Enforcement Issues
[2] Federal Enforcement Issues

Financial Institutions and Privacy

§ 3.01 Overview
§ 3.02 The Beginnings of Financial Privacy Rights—Federal and State Constitutional Protections
[1] United States Constitution
[2] State Constitutions
§ 3.03 Federal and State Statutes and Regulations
[1] Gramm-Leach-Bliley Act
[2] Fair Credit Reporting Act
[2A] Fair and Accurate Credit Transactions Act of 2003
[3] Fair Debt Collection Practices Act
[4] Telemarketing Statutes
[5] Federal Trade Commission Act
[6] Children’s Online Privacy
[7] State Statutes
§ 3.04 Enforcement Actions
[1] State Attorneys General
[2] Private Civil Actions
[3] FTC Actions
§ 3.05 European Union Directive

Real Estate Settlement Procedures Act

§ 4.01 Introduction
§ 4.01A The Long March to RESPA Reform
[1] Overview
[2] Exploratory Campaigns
[3] The Yield Spread Premium Quagmire
[4] The 2002 Reform Proposal
[5] The 2008 Final Rule
§ 4.02 Initial Disclosures
[1] Special Information Booklet
[2] Good Faith Estimate
§ 4.03 Closing and Post-Closing Disclosures
[1] Uniform Settlement Statement
[2] Initial Escrow Account Statement
[3] Annual Escrow Account Statements
§ 4.04 Prohibition Against Kickbacks and Unearned Fees
[1] Background
[2] Statutory Prohibitions
[3] Settlement Service
[4] Agreement or Understanding
[5] Referral
[6] Thing of Value
[7] Exceptions to Section 8
§ 4.05 Computer Loan Origination Systems
§ 4.06 Employer-Employee Compensation
§ 4.07 Mortgage Broker Fees
[1] Overview
[2] Background of Yield Spread Premium Litigation
[3] The 1999 Policy Statement
[4] Class Action Certification Decisions After the 1999 Policy Statement
[5] Culpepper III
[6] The 2001 Clarification Statement
[7] Class Action Certification Decisions After the 2001 Clarification Statement
[8] Motions to Dismiss Yield Spread Premium Cases After the 2001 Clarification Statement
§ 4.08 Mortgage Servicing Loan Transfers and Title Companies
§ 4.09 Escrow Accounts
[1] Background
[2] Limits on Required Payments to Escrow Accounts
[3] HUD’s Escrow Regulations
[4] Transfer of Servicing
§ 4.10 Investigation and Enforcement
[1] Background
[2] Penalty Provisions

Truth in Lending

§ 5.01 Introduction
§ 5.02 Coverage and Finance Charges
[1] Transactions Covered by TILA
[2] Finance Charges
§ 5.02A Minimum Standards for Residential Mortgage Loans
[1] Mortgage Reform and Anti-Predatory Lending Act of 2010
[2] Residential Mortgage Loan Origination Standards
[3] Determination of Ability to Repay
[4] Reset of Hybrid Adjustable Rate Mortgages
[5] Prompt Crediting of Home Loan Payments
[6] Requests for Home Loan Payoff Amount Information
§ 5.03 Form and Content of Disclosures
[1] Open End Credit
[2] Closed-End Credit
[3] Electronic Disclosures
§ 5.04 Special Disclosure Rules for Certain Types of Credit and Insurance Transactions
[1] Rescission Rights in Real Estate Transactions
[2] High Cost Mortgages
[3] Reverse Mortgages
[4] Higher-Priced Mortgage Loans
[5] Periodic Statements for Residential Mortgage Loans
[6] Escrow or Impound Accounts
§ 5.04A Appraisals
§ 5.05 Advertising and Solicitations
§ 5.06 Liability
[1] Civil Liability
[2] Criminal Liability
[3] Administrative Actions
[4] Defenses to Liability
§ 5.07 Credit Billing and Credit Reports
[1] Billing Errors
[2] Crediting Payments
[3] Servicing Rules Applicable to Loans Secured by a Consumer’s Primary Dwelling
[4] State Law and TILA
§ 5.08 Regulatory Amendments
§ 5.09 Significant Litigation

Bank Secrecy Act and Anti-Money Laundering Enforcement: Statutory, Regulatory, Litigation, and Compliance Issues

§ 6.01 Introduction
§ 6.02 Oversight
[1] Regulatory Agencies
[2] Safety and Soundness Examinations
[3] Compliance Examinations
[4] Criminal Investigations and Prosecutions
§ 6.03 The Bank Secrecy Act
[1] Introduction
[2] Recordkeeping Requirements
[3] Currency Transaction Reporting Requirements
[4] Reporting Requirements for the Export or Import of Currency
[5] Control Over Foreign Bank Accounts and Financial Transactions Reports
[6] Suspicious Activity Reports
[6A] “Special Measures” Authority
[7] Criminal Violations
[8] Civil Violations
[9] Enforcement Trends
§ 6.04 The Money Laundering Control Act
[1] Origin and Effect of the Statute
[2] Overview of the Statute
[3] Section 1956
[4] Section 1957
[5] Section 1960
[6] Venue
[7] Forfeiture
[8] Enforcement Trends
§ 6.05 The Money Laundering Sentencing Guidelines
[1] Introduction to the Guidelines System
[2] Calculating Organizational Fines
[3] Sentencing Under Sections 1956 and 1957
[4] Sentencing Under Section 1960 and the Bank Secrecy Act
[5] Sentences Outside of the Guidelines Range
[6] Corporate Probation
§ 6.06 Corporate Compliance Programs
[1] Compliance Programs According to the Federal Sentencing Guidelines
[2] “Effective” Compliance Programs for Financial Institutions
[3] Office of Foreign Assets Control Compliance
[4] Subpoena Compliance

Securities Laws

§ 7.01 Introduction
§ 7.02 Sarbanes-Oxley Act of 2002
[1] Requirements for Public Companies
[2] Accounting Reforms
[3] Auditor Independence
[4] Increased Authority of the SEC
[5] Crimes and Enhanced Penalties
[6] The Role of Federal Banking Agencies in Enforcing Sarbanes-Oxley
§ 7.03 The Dodd-Frank Wall Street Reform and Consumer Protection Act
[1] Derivatives Regulation
[2] Securitization Reform
[3] Investor Protection
[4] Executive Compensation and Corporate Governance
§ 7.04 Brokerage Activities of Banks
§ 7.05 Gramm-Leach-Bliley Act of 1999
§ 7.06 Disclosure and Suitability
[1] Disclosure
[2] Suitability
§ 7.07 Examination, Investigation, and Enforcement
[1] The SEC
[2] Self-Regulatory Organizations
[3] Bank Regulators
[4] State Securities Administrators
[5] Coordination Among Regulators
§ 7.08 Private Litigation
§ 7.09 Effective Compliance by Financial Institutions
[1] Maintaining Effective Compliance
[2] Self-Policing, Self-Reporting, Remediation, and Cooperation
[3] SEC Statement Concerning Financial Penalties