MHI Week In Review — May 25, 2012

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MHI Adds to its Dodd-Frank Advocacy Activities

Earlier this month, in an effort to increase its access to senior decision-makers within the Consumer Financial Protection Bureau (CFPB), MHI added to its existing in-house and external government relations capabilities by hiring SNR Denton. SNR Denton will assist MHI in its dual-track strategy of 1) seeking statutory changes to both the Dodd-Frank and SAFE Acts through the enactment of HR 3849 (The Preserving Access to Manufactured Housing Act) and 2) seeking the promulgation of regulations by the CFPB that do not constrain the availability of financing for the purchase of affordable manufactured housing.

MHI will continue its engagement with Porterfield and Lowenthal, which will remain focused on the passage of legislative measures to provide the industry with relief from the burdensome impact of proposed and existing laws that could further hinder the availability of manufactured housing financing. SNR Denton will focus on lobbying regulatory agencies with jurisdiction over the myriad provisions within the Dodd-Frank and SAFE Act governing various aspects of manufactured housing finance.


Senate Panel Examines Refinancing Legislation

On May 24th, the Senate Banking Committee held a hearing on the Responsible Homeowner Refinancing Act of 2012 (S. 3085). The legislation, sponsored by Sens. Bob Menendez (D-NJ) and Barbara Boxer (D-CA), would expand refinancing options to those with mortgages securitized by Fannie Mae or Freddie Mac, including manufactured home loans secured by real property. To view a webcast of the hearing click here. According to data compiled by the Committee, there are roughly 17.5 million loans guaranteed by the GSEs that are currently paying rates over five percent that could benefit from refinancing.

To ease the refinancing process for those eligible (minimum loan-to-value ratio of 80 percent), the measure would also eliminate all up-front fees and appraisal costs for borrowers, as well as streamline refinancing applications. Committee Democrats are unified in their support for the legislation. While some Republicans voice some support for the measure, it is unclear what bipartisan support there may be for the measure moving forward.

For additional background, click here to access the Senate Banking Committee memo.


CFPB Activities Updates

CFPB Releases Rule for Supervising Non-banks Engaged in Conduct Risky to Consumers

On May 25th, the CFPB issued a proposed rule establishing procedures for supervising non-banks that it believes are engaging in activities that pose risks to consumers. Under the Dodd-Frank Act, the CFPB has authority to supervise any non-bank it has reasonable cause to determine is engaging in conduct that poses risks to consumers with regard to the offering of consumer financial products.

The proposed rule sets forth a series of specific procedures by which the CFPB will notify a non-bank that it is being considered for supervision. The proposed rule also provides the non-bank with an opportunity to submit a sworn written response, as well as the right to submit an additional oral response. In addition, the proposed rule creates a mechanism for nonbanks to file a petition to terminate supervision authority after two years, which will be decided at the discretion of the CFPB, as well as two procedures for a non-bank to voluntarily consent to CFPB supervision.

Comments on the proposed rule are due July 24th. Click here to view the proposed rule.

Supreme Court Rules Against HUD and CFPB in RESPA Dispute

On May 24th, in what is being viewed as a warning to the CFPB against regulatory overreach, the Supreme Court issued a decision in the case of Freeman v. Quicken Loans. The Court ruled unanimously in favor of Quicken Loans, holding that the lender could charge loan discount fees under the Real Estate Settlement Procedures Act (RESPA).

The decision, according to some legal experts, represents defeat for the CFPB in the interpretation of RESPA, but also serves to underscore that administrative agencies are not free to expand federal consumer protection statutes beyond the boundaries established by Congress. At issue in the case was whether section 8(b) of RESPA should be interpreted to require the division of a fee between two entities, or whether the language would permit liability on a single party acting alone to charge an unearned fee.

In addressing the HUD/CFPB interpretation of the statute, the Court characterized it as “manifestly inconsistent with the statute” and a “palpable overreach.” As a result, the Court refused to give any deference to the HUD/CFPB RESPA interpretation, holding that it went beyond the meaning that the words of the statute could bear. The Court also rejected the arguments made in the amicus brief submitted by the CFPB, observing that the brief’s attempt to draw meaning from minor wording choices in other sections of the statute failed because the language “does not have the significance attributed to it” by the CFPB.

Justice Department Releases New Technical Assistance Document on Accessibility Requirements for Existing Pools

On May 24th, the Justice Department released a new technical assistance document, “Questions & Answers: Accessibility Requirements for Existing Pools at Hotels and Other Public Accommodations,” regarding the application of the Americans with Disabilities Act (ADA) to swimming pools. Click here to view the document.

The Department also released an updated version of its “ADA 2010 Revised Requirements: Accessible Pools—Accessible Means of Entry and Exit.” Click here to view the requirements. The documents are also available in PDF format by clicking here.

Both documents were issued as part of the Department’s ongoing technical assistance efforts to assist businesses in understanding their obligations under the ADA. These documents address common questions about accessibility requirements for existing pools. The documents also explain that, for existing pools, the Department will not enforce the fixed elements provisions in the 2010 Standards against those owners of existing pools who purchased otherwise-compliant portable lifts prior to March 15, 2012, as long as those owners keep the lifts in position for use at the pool and operational during all times that the pool is open to guests.

Relatedly, the Department recently extended the compliance date for existing pools to Jan. 31, 2013. Click here for details.

Those interested in finding out more about these documents or the obligations of public accommodations under the ADA may call the Justice Department’s toll-free ADA Information Line at 800-514-0301 or 800-514-0383 (TDD), or access the ADA Website at


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