Fair Lending

ECOA Violations identifying mortgage lenders and fixing or penalizing mortgage companies, banks and lenders who are "unfair"

 
Corrective action is required “…when the self-test shows that it is more likely than not that a violation occurred, even though no violation has been formally adjudicated” (12 C.F.R. §1002.15(c)(1)).  In order to secure the privilege that comes with self-testing and corrective action, the corrective action must be “appropriate.” 

Regulation B provides guidelines for determining whether a creditor’s response to potential ECOA violations is appropriate.  First, the corrective action must be “…reasonably likely to remedy the cause and effect of a likely violation…” (12 C.F.R. §1002.15(c)(2)). 

regulations state that corrective action is reasonably likely to remedy the cause and effect of a violation if it:

• Identifies “…the policies and practices that are the likely cause of the violation…” and
• Assesses the “…extent and scope of any violation…”

(12 C.F.R. §1002.15(c)(2))

If self-testing reveals evidence of an actual or potential compliance failure, the creditor must determine whether it is necessary to provide remedial relief.  If the self-test involved the use of testers, and one of the testers received discriminatory treatment, the creditor is not required to provide remedial relief to the tester (12 C.F.R. §1002.15(c)(3)(i)). 

However, if the self-test shows that a credit applicant’s rights “…were more likely than not violated,” then the creditor is required to provide remedial relief to that applicant, unless the statute of limitations on an action available to the applicant has expired (12 C.F.R. §1002.15(c)(3)(ii-iii)).

In 2009, the DOJ, the Department of Housing and Urban Development (HUD), and the federal banking regulatory agencies wrote a Statement of Policy to address concerns regarding evidence of discriminatory treatment experienced by prospective homebuyers and borrowers.  This Statement includes answers to questions asked by financial institutions, including answers to inquiries regarding what a lender should do if self-testing shows evidence that lending discrimination exists.

·         Determining whether the discriminatory act or practice was the result of faulty lending policies, poor implementation of lending policies, or an isolated incident

·         Correcting policies or practices that may have led to a discriminatory act or practice

·         Disciplining and training employees involved

[1] Department of Housing and Urban Development and Department of Justice, et al. “Policy Statement on   Discrimination in Lending.”  3 Dec. 2009. Question 6. http://www.fdic.gov/regulations/laws/rules/5000-3860.html

Noting that while it does not “expunge or extinguish legal liability for violations of the law,” proactive measures that include self-testing and corrective action “…will be considered as a substantial mitigating factor by the primary regulatory agencies when contemplating possible enforcement actions.” [1]  The Statement also notes that self-testing and self-correction are regarded as a “substantial mitigating factor” when the DOJ and HUD determine whether to seek penalties in an action for ECOA violations.

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