Today, the Consumer Financial Protection Bureau (CFPB) issued a reportconsumer advisory, and filed an amicus brief addressing the risks associated with home equity contracts (HECs)—financial products often marketed as home equity “investments.” The Bureau highlighted the high costs, complexity, and risks these products pose to homeowners, including the potential for financial distress and forced home sales if repayment obligations become unmanageable. The Bureau’s amicus brief, filed in a lawsuit currently ongoing in the United States District Court for the District of New Jersey, is discussed in detail below.

CFPB Amicus Brief

In its amicus brief the Bureau argued that HECs are traditional mortgage loans subject to the Truth in Lending Act (“TILA”). Under TILA, a “residential mortgage loan” is “any consumer credit transaction that is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling or on a residential property that includes a dwelling.” 15 U.S.C. § 1602(dd)(5). The Bureau disagreed with the defendant home equity loan provider’s argument that its product is an investment contract, not a credit product (and thus not subject to TILA), on the grounds that:

Issue Spotlight: Home Equity Contracts

Consumer Advisory

Many of these criticisms were later highlighted on the Bureau’s consumer advisory. The Bureau noted that HECs companies may not give standard loan disclosures, conduct ability to re-pay underwriting, may contain arbitration clauses, and may be more expensive than traditional loan products. 

Putting It Into Practice: Assuming the Bureau’s provision prevails in the litigation prevails, this will have a dramatic impact on the small but growing HEC market. HECs will need to be restructured to comply with TILAs requirements, including having standard disclosures, and no arbitration provisions which are currently in many agreements. In addition, HEC providers will need to conduct ability-to-repay underwriting, and provide loss mitigation options for consumers. Finally, assuming the Bureau reverses its position in a new administration, litigants will likely not be deterred. Advocacy groups such as the National Consumer Law Center, and state regulators such as the Washington Department of Financial Institutions have been active in this space. See DFI Issues Report on Home Equity Sharing Agreement Inquiry

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