Higher-Priced Escrow Accounts Exempt; Clarification on ECOA

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On Feb. 17, 2021, the Consumer Financial Protection Bureau (CFPB) published in the Federal Register a final rule implementing a requirement of the Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA). The final rule exempts certain insured depository institutions, including some insured credit unions, from the requirement to establish escrow accounts for certain higher-priced mortgage loans (HPMLs).

The final rule, which amends parts of §1026.35 of Regulation Z, became effective February 17, 2021. Qualifying institutions that have established HPML escrow accounts on or after April 1, 2010, will have 120 days after the effective date of the final rule to cease providing escrows for HPMLs to take advantage of the new exemption.

Read the Regulatory Alert here.

ECOA Clarification: Sexual Orientation and Gender Identity
The CFPB has also issued an interpretive rule clarifying that the prohibition against sex discrimination under the Equal Credit Opportunity Act (ECOA) and Regulation B includes sexual orientation discrimination and gender identity discrimination. This prohibition also covers discrimination based on actual or perceived nonconformity with traditional sex- or gender-based stereotypes, and discrimination based on an applicant’s social or other associations.

“In issuing this interpretive rule, we’re making it clear that lenders cannot discriminate based on sexual orientation or gender identity,” said CFPB Acting Director David Uejio. “The CFPB will ensure that consumers are protected against such discrimination and provided equal opportunities in credit.”

In 2016, in response to an inquiry from Services & Advocacy for GLBT Elders, the CFPB indicated that the law supports arguments that the prohibition against sex discrimination also affords broad protection from discrimination based on an applicant’s sexual orientation and gender identity under ECOA. On June 15, 2020, the U.S. Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020), holding that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 encompasses sexual orientation discrimination and gender identity discrimination. On July 28, 2020, the CFPB issued a Request for Information (RFI) to solicit public comments and information to identify opportunities to prevent credit discrimination and encourage responsible innovation under ECOA and Regulation B. Among the questions posed, the CFPB asked whether the Bostock decision should affect how the CFPB interprets ECOA.

The CFPB is issuing today’s interpretive rule consistent with the Supreme Court’s Bostock decision and supported by many of the public comments received in response to the ECOA RFI. The CFPB will review its publications and examination guidance documents and, if needed, update these and other materials to reflect this interpretive rule. And, where appropriate, the CFPB will take enforcement action under ECOA to hold financial institutions accountable for their actions that violate ECOA. The CFPB also looks forward to working with Congress on the Equality Act, which, if enacted, would codify protections for consumers against sexual orientation and gender identity discrimination in all financial products and services.

To read the interpretive rule click here.

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