04-04-2022 DC Update

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In our Hot Topic this week we have Jack Konyk, Executive Director of Government Affairs @ Weiner Brodsky Kider PC to discuss what changes in DC that the new Administration made in leadership of the various federal agencies that impact mortgage lending, and what effects have those changes seem to have had? As well as what, if anything, are we likely to see from this Congress in terms of new legislation affecting the industry, and what might the outcome of the upcoming election be on the likelihood of such things in the next Congress? And finally, what are some of the things that lenders should be concentrating on in order to best position themselves to minimize their regulatory risk?

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DC Update

It’s Monday, April 4th, 2022. We got past April 1st. I hope you survived that successfully on Friday with all the jokes that were going on. Several tried to be pulled on me but didn’t work. I had a great time. It’s good to have you with us. This show is created by mortgage professionals. It is for mortgage professionals and we’re so grateful to have you as our reader. Our commitment is to bring you timely information in a blog format that you can read anytime and anywhere.

We are hearing some great places people are reading from, but we’re so grateful to have our expanding audience. Several people have said we’re the number one show when it comes to the industry we cover. I like to think so. We’re grateful to have you here. We’re going to call it a Jack Attack. We have as our special guest Jack Konyk, the Executive Director of Government Affairs at Weiner Brodsky Kider. We’re going to be discussing changes in DC, the new administration that has made the leadership of the various federal agencies that impact mortgage lending, what effects that will have as we look forward to 2022, and what’s going on.

I sat and listened to Jack Konyk and Brian Montgomery do a presentation in Phoenix, and I enjoyed it. I said I’ve got to get both of these guys on the show. We finally caught up with Brian. We’re working on getting him on, but Jack is here. I can’t wait to share some of the insights that he shared with us. We are in different times than we’ve ever seen ourselves. You got to stay tuned for the Hot Topic because we’re going to cover a lot of that. Joining me is my co-host, Jack Nunnery, hence, the Jack Attack. Mr. Nunnery, it’s always fun to have you on the show. It’s good to have you joining in.

Let’s go on. I’m proud to be a part of Industry Syndicate. They do a great job of promoting a number of shows out there. We’re part of them and we’re grateful that they promote us. Check out all the shows at IndustrySyndicate.com. Also, our sponsor is the Mortgage Bankers Association of America, as well as the Finastra Mortgagebot Solution, which has robust features such as user-defined groups for processors, underwriters, and closers. There is some great stuff.

Go Learn from the interview we did back on March 7th with Chris Zingo. He’s Managing Director, President of the Americas, everything from North America to South America and everything in between. Also, the few co-ops Lenders One and the Mortgage Collaborative, both of these are sponsors. We talked about the Lenders One conference we had in Phoenix. Jack is here as a result of his presentation. Also, the Mortgage Collaborative, which I was at the two weeks following in Miami and that was another one of the conferences. At both of these two conferences, they’re organized. It presents how different these two organizations are, yet they serve as a basic need.

Let’s get lenders and vendors together in a smaller, more intimate setting and talk about your businesses in a way that you cannot anticipate or get from being a part of the national MBA. Now you should belong to the national MBA. That’s number one. Don’t put off being a member of the co-ops without being a member of the MBA. Let’s make that certain. If you’re a member of the MBA, then I recommend joining one or both of these co-ops. You’ll get something out of it.

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As well as Snapdocs to get their tools in this support. They do a great job to implement eMortgage technology effectively. With Snapdocs, the eMortgage Quick Start Program is something you got to check out. Learn from the interview we did on March 28th with Briana Ings. That’s a great interview. I enjoyed that a lot. I love her Energy. She’s a smart lady.

Also, SuccessKit, find a way to communicate with your audience. Use the words of someone else. I love that proverb. Let another mouth praise you knocked out of your own. That’s what SuccessKit does. Great job. Get ahold of Julian Lumpkin. Learn from the interview. Learn more about this product by going into the interview we did with him on January 10th, 2022.

Also, Lenders Toolkit, Brett Brumley and Brent Emler. These two guys are so much fun, but the product that they offer and what they’re doing at Lender Toolkit is so innovative. They’re right there with FormFree. What Brent Emler is doing as far as setting up how we communicate, you got to check out these companies. They’re amazing. We’re so excited to have these sponsors with us. Also, DW Consulting with Debbie Wemyss. I love Debbie in what she helps you do and create a good LinkedIn profile so you got your best foot forward at all times. Also, a special thank you goes out to Rob, Les, Alice, Allen, Matt, and Jack.

Welcome everybody to the Hot Topic segment and again, it is the glorious day of April 4th. We have as our special guest, Jack Konyk, one of my favorite people out there. He’s such an articulate speaker that speaks in word pictures and is informative as he is entertaining when he speaks. He is the Executive Director of Government Affairs of Weiner Brodsky Kider, Mitch Kider’s firm. We love Mitch and that is such a solid moving firm.

We’re going to talk a little bit about some of the things that they’re doing and their initiatives. You need to pay attention to those. We’ll talk about that at the end of the interview. We’re going to be talking about the changes in DC that the new administration has made in leadership for the various federal agencies and how it’ll impact mortgage lending, what effects and those changes will seem to have. We’re getting right into it. Jack, good to have you here, friend.

Thank you, David. It’s great to be here.

You are so fun to listen to and then team you up with Brian. You guys ought to do a show together because it would be the Jack and Brian show and it would be one of the most listened to because again, you both feed off of each other well and did such a great job. I’ve got to open up with this because you helped put this concept. In the context of what you and Brian were talking about, it was about how things have changed and how it is difficult to get real guidance.

You said something that stuck with me. You said, “Normally, we see a speed limit sign that says 55.” He says, “I have a slide.” You sent it to me and you said, “If the CFPB were running the Highway Department, speed limits would read speed limit, it depends. Check our website to see tickets we’ve recently issued to others.” It implied determining what we think is the appropriate speed limit. In other words, there is no published guidance and no standards that are stated out there. Check from our enforcement action. Thank God for good law firms like WBK that do a great job of helping us through all that morass. You are here to give us some updates on what’s going on. I welcome you to the show.

Thank you, David. I will tell you the speed limit signs have gotten a lot of use in the Cordray Era at the bureau and we are sadly back to the future in the Chopra Era of the bureau, which a lot of people want to talk about as Bureau 2.0 or 3.0, but it’s really 1.2. If you like Richard Cordray, you’re going to love Chopra and if you didn’t like Cordray, you are going to hate Chopra because they are cut from the same cloth.

What is the deal with Chopra and all his tweets? This guy loves the limelight and social media more than anyone else. What are we supposed to make of this?

There’s a lot that goes into that, but I do agree with your observation that Rohit Chopra has never shied away from loving to see his name in print or hear his voice in the media. If you’ve watched him, it’s not new. He was one of the directors of the Federal Trade Commission and he was as outspoken there. He goes back to his roots as a disciple of Senator Elizabeth Warren. He was one of the original people brought into the bureau when it was formed. Their style is much the style of activism where you say a whole lot, you convey a lot of what you’re going to do, you create a lot of trepidation, and then you let everybody run scared and do what they think it is you said you wanted without being specific.

If I tell you the speed limit, you can check what I’m punishing someone else for. You’re not going to go right up to what you think the speed limit is. You’re going to want to stay short of this and they like that. It’s because when they can’t get a rule out to say what they’d like it to say, they can get trepidation out to hopefully shoehorn you into what they’d like you to do without ever having to stand up and publish what that is and worry about the response from the public or industry that you normally get through a comment to rulemaking under the Administrative Procedures Act.

You're not going to go right up to what you think the speed limit is and stay short of this. Click To Tweet

It’s almost what the Feds are doing because the Feds say, “We are going to do this,” and then they get the effect and go, “We’re kidding. We got the effect we want by threatening to do that. We got everyone to get in line and go where they needed.” For those that do not know you Jack, you are a mortgage veteran yourself but you’re not an attorney. Talk briefly about yourself, your background, and then how you ended up with our good friend Mitch Kider at WBK.

We were joking about this earlier, but apparently, I’m the disease that ends the life of a whole lot of prior employers. I came through the mortgage banking industry. I started in financial services many years ago at what was then one of the biggest banks in the country, Mellon Bank, which doesn’t exist anymore. I was with Mellon on the retail banking side for a few years, but shifted over to mortgage, first, because I liked it and secondly because that’s where they put me.

I got to know it, so I’ve done every job there is in mortgage lending. I’ve been an originator. I’ve processed, underwritten, closed, serviced, collected, and sold. I’ve done all that throughout the years. I was with Mellon for quite some time and then went off with a couple of friends of mine to try and form a little business to help small lenders who didn’t know what they were doing in the marketplace learn what they were doing.

I ended up at National City and so I spent a number of years there, again in the mortgage operation. At National City, I was more of an Operations on Compliance Consultant across all the banks’ consumer lending to make sure we tried our best to stay on track and do things right. When National City was acquired by PNC, they put me into free agency.

I had known Mitch Kider for decades. Mitch and I used to speak together at conferences. We did a session where Mitch would talk about the latest legal issues threatening the industry and I, as a non-lawyer but practitioner, would talk about how you best could make yourself a poor target for those kinds of attacks.

Mitch called and said, “We’d love to have you come down to the firm and do that for our clients.” I’ve been here now for several years, doing not just consulting and compliance advice, but I also do advocacy. I work with all the regulatory and governmental agencies. If it has anything to do with the government, state or local, and you have a problem or a question or you need guidance, I’m probably the guy you’re going to talk to.

You are the guy. You have so much great information. Alice, let’s get over to you.

It’s wonderful to have your expertise on the show, so thank you so much. I agree with you all as I’ve been looking at Rohit Chopra. Even his speech last week to the University of Pennsylvania Law School, he’s always throwing stuff up in the air for everybody to try and catch, and figure out what he’s doing. He’s in this administrative lead position and that has an impact on us. What changes have the new administration made in the leadership of each of the federal agencies that can impact mortgage lending? Can you tell us what effect that might have?

Alice, the effect that you’re going to see from all of the personnel changes the administration is making, and this is not unique to this administration. If a new administration comes in, it has a philosophy and goals that it wants to achieve and it looks at personnel. Generally speaking, it throws out the old, as best they can. They then start to put people into roles who think the right way, understand the marching orders of where they want to go and are singing from the same sheet of music.

We’re seeing that at a number of agencies. If you look at the stated goals of the administration, without question, I’d like to refer to one of the absolute top hot-button issues for this administration as fair lending/access to credit. Everybody likes to talk about fair lending in stock, and not enough access to credit is a huge subtopic there.

When you look at most of the stuff that Chopra has put out of the bureau and other people from the federal agencies newly appointed to their roles have put out, whether it’s attacks on overdraft fees or late charges on credit cards or whatever it is, it’s all about how people with less money access the system. Why are they paying so much? How come things are difficult? Why do groups not see the same level of success as other groups?

The changes we’ve seen, in large measure, have been to get people who think in that manner into the leadership roles at the bank regulatory agencies so they can push the banks in that direction to get Mr. Chopra at. Before him, Dave Uejio was Acting Director who was also from the same mold at the bureau and now you’re starting to see policy in the form of news releases.

As we pointed out, in Dallas, you mentioned the speech that he did at the university. There’s been a press release every week about junk fees, and overdraft fees are my favorite. Overdraft fees are pricing people out of the banking systems. That’s an interesting point of view. We’ve seen him try to adapt antitrust philosophy to open the access to credit, alleging that if you command a marketplace and you then don’t give everybody equal access, you’re guilty of antitrust because you have too big a share.

It’s a fascinating study of how to use innovative methods to drive business the way you want it to go. If you are not recognizing how you reach the markets, how much of the markets you reach, and how fairly you make decisions, and you made the point earlier about, “You have a policy. Stick to the policy. Do what you say you’re going to do.”

I would add to that write it down and document that that’s what you did because that’s going to be your only defense. Even that may not be enough because we’ve also had now Director Chopra talking about how reliance on an artificial intelligence system where you say, “The machine does the same thing every time infallibly.” That’s true. He’s now decided that there’s bias baked into the programming in artificial intelligence. Your reliance on the computer, if the computer is discriminating, is as much of a problem.

Reaching the markets is important. How you maintain your neutrality and do things appropriately is going to be critically important to everybody that’s getting into regulatory positions in the federal government. As an aside, don’t forget that we have a dual regulatory system. David, a lot of your audience may not be primarily federally regulated even though they follow those rules. The states have been emboldened in this partnership as well and we’re starting to see a lot of enforcement actions from the states that follow down the same road.

First of all, I’ve worked with Jack Konyk in the past and he can add so much value in so many different areas. Write his name down. He’s an excellent resource. Jack, fair lending aside, what other areas does this administration have a focus on in the mortgage industry?

Not fair lending aside because it permeates everything they do, but some of the areas of concentration besides production. They are laser-focused on servicing much more so than prior administrations have been because in their view, how you treat people once they’re your customers is important as whether or not you let them be customers in the first place and how you treat them in that process. There is a degree of truth in this. It’s what you do in servicing, particularly in the collection of debt.

Alice mentioned earlier about forbearance and its importance in nowaday’s evaluation system. Are you granting forbearance? Are you giving it openly? Are you telling people what’s available to them? Are you being over heavy-handed in your collection methodology to use a collection instead of forbearance? All of these topics are getting a lot of attention.

You also heard Alice mention appraisals. There is a huge attack on the appraisal industry. We saw a major report come out from the government. They formed this paved working group and it’s issued its report on the professional appraisal valuations circumstances and their allegations that there’s bias in there. It needs to be corrected. They’ve got all these action plans. How you treat the appraisal process, interact with appraisers, and service your loans is going to be important in addition to production, all toward this goal of everybody getting access and a fair shake.

DC Update: How you treat the appraisal process and interact with appraisers, and how you service your loans, in addition to production, is going to be really important toward this goal of everybody getting access and a fair shake.

That is so interesting. Allen, let’s get over to you. I know you got a question or two.

I love these topics. Imagine on the appraisal side that you couldn’t wave appraisal and it had to go to a board of surgeons to approve the procedure. That would be amazing. Anyways, there’s a lot to talk about, especially fair landing for a different day. I do have one question. What changes have you seen so far and what do you think is going to happen in the future? There’s so much at play here like various federal agencies and different approaches. What do you think is coming down the pipe?

You’re going to see an uptick in enforcement activity and this is unfortunate. Harking back to David and my speed limit signs, you’re going to start to see enforcement activity because that’s the thought process that Director Chopra loves. It will focus on these areas and you see it in interesting ways. The TownStone case has been around for a while, but this is the allegation that someone illegally discouraged people from applying for a loan in the first place because of editorial comments made on an AM radio talk show on Sundays in the Chicago market.

It’s a fascinating new theory that you can somehow, by talking on the radio, tell people subliminally, “Don’t apply for a mortgage in those neighborhoods where there was a crime problem like Chicago.” You’re going to see a lot of press releases, talks, and public attention, little precise regulatory actions in terms of rules issued or modifications to rules because they’re going to like the latitude it gives them to be enforcers and they love publishing enforcement statistics.

“Here’s how many people we spank. Here’s how hard we spank them. Look how good a job we’re doing,” without ever telling us what the rules are. To me, this is the delta talk, high double secret probation for those of you who watched Animal House. You’re on double-secret probation. You didn’t know what it was, you didn’t know what the rules were, but you broke them.

That’s hilarious. That’s iconic Jack right there. Alice?

That was funny. Here we are. We’re in the second session of the 117th Congress. What, if anything, are we likely to see in the remainder of this term, what could the outcome be, and what do you see maybe in the next session?

For the rest of this session, you’re going to continue to see the vitriol that we’ve seen so far in it. Sadly, it is one of the most dysfunctional bodies we’ve had. Not the most, but one of the most. I don’t think you’re going to see a whole lot of bipartisanship compromise come out of this Congress because now, we’re in the election season. They’re going to be distracted between fiscal things that have to happen, budget appropriations and such, and cranking up their campaigns.

You’re not going to see a whole lot of substance in part because the divide is too wide and in part because in the Senate, which everyone likes to say is in democratic control. It isn’t for legislative purposes. To have absolute control, you need 60 votes to beat a filibuster and it’s a 50/50 Senate. That’s not going to be controlled no matter what you say.

I don’t think you’re going to see a whole lot happen. Depending on what happens in the next election and whether or not either the House or the Senate, either chamber gets too reliable control, you might see legislative packages move. Again, I don’t think Congress is going to be the answer to anything. it’s going to come to the administration, it’s going to come from the executive agencies because they can write rules without having to worry about votes that don’t go their way. That’s what we’re going to see.

We’re going to see a lot of administrative action. Elections matter. People say, “Everybody says we ought to have term limits.” I tell people when I speak, “We do. They’re called elections. Go vote.” The fact is if your uniform’s not dirty, you don’t get to complain about the score. Get in the game and one of the ways you get in the game is to vote. You hired these people. Go hire somebody else if you don’t like what they’re doing or at least try.

Elections matter. So, go vote. Click To Tweet

It was mentioned earlier that the MBA’s National Advocacy Conference is coming up. That’s where we get as many people as we can to come to Washington. We take them up on the hill and have meetings in the offices of those elected people to tell them what we think. This is vital because as they decide what to do on issues, they need to hear all aspects of an argument, including our side.

We’re trying to provide the financing to the American dream. They say they want to put all these people in homes. Those people don’t have money. They need us. They need to figure out what is going to be poison pills to us. If we don’t tell them, nobody else is going to. We need to get active to make sure our side of the story gets told.

We got to get in that. That’s a great encouragement for those of us to go and involve in the MBA Advocacy Movement. That’s so important. Jack, let’s go over to you. We got one more question or so here to go. Go ahead.

You’ve talked about the increasing focus on fair lending, servicing, appraisals, and forbearance. What are some of the things that lenders should be concentrating on in order to best position themselves to minimize their regulatory risk?

To quote one of my favorite American philosophers, Dr. Johnny Fever from WKRP in Cincinnati, “If they are out to get you, paranoia is good thinking.” Think about life from the other side of the table. What the regulators are worried about, you should be looking at yourself critically the way they will. At the firm, we have a service we call the mock exam where we’ll come in and pretend to be the bureau or whoever your regulator is.

Your bank will pretend to be the OCC. We will run you through a tough exam using their exam manuals and materials to show you where your weak points are. You should be doing something along those lines. Alice mentioned that the HMDA data’s out. The way a lot of fair lending complaints are brought is by doing peer analysis. They look and say, “How do you compare to other people who we decide are your peers?” First, you ought to decide who your true peers are because, for most of you, Bank of America is probably not an actual peer to you. You should look at the HMDA data for yourself and the other agencies and entities that are in your market.

See how your numbers stack up against their numbers for penetration and for what demographics and geographic areas you serve. Realize as you do that, the world’s changed because of technology. We used to be worried. HMDA was about redlining. The allegation that would put a map on the wall, we drew a big red line around certain areas and said, “Don’t go there.” The HMDA data then, if you put a black dot every place you made a loan and a red dot every place you didn’t, and all of a sudden, all the dots in those red lines areas were red, you had a problem, you could see it.

The problem is now, you don’t have to be geographical to the red line. We’ve seen enforcement allegations that say you are redlining a population because across all your numbers, unmarried Latina women get loans at a lesser rate, or they get them, but at a higher cost than White married couples. We can now assess your lending patterns across the demographic split of all of those things you ask for in that government monitoring section.

That’s race, gender, where you’re from, what little subdivision of population you belong to ethnically, and all of that. We can now analyze the data to see if you’re serving a group differently than other groups, you should be doing that. The data’s there on you and your competitors and the HMDA file. You should be looking at yourself because you want to know before the regulator what they’re going to come in and ask you about. You’re going to want to have an answer for it.

DC Update: You should be looking at yourself because you want to know before the regulator what they’re going to come in and ask you about. And, you’re going to want to have an answer.

We’re getting some questions in from some of our audience. It sounds like they’ve gone through your mock review and they said, “Outstanding. It shined the light on some things we had no clue of. We thought we were well-prepared, but this is a must-do for every lender tuning in to this show. Good. Thank you.” That was a statement of endorsement from one of our audience who obviously has gone through the program with you. Kudos to you.

One of the questions that came in from one of our audience said, “Is doing the mock audit a reasonable defense?” It does help you defend. The fact that you have taken the initiative to look at this rather than having to cap in a new pen look, as we say here in Texas. In other words, you’re surprised. What’s this about? What are you doing? is this a reasonable defense?

There’s no absolute way to answer that, Dave, but a couple of thoughts relative to that. The first is, one of the huge concentration areas for the bureau as they open an exam is to come in and look at your compliance management system. How do you manage compliance at your company? It’s essentially risk management. It’s not unique to lending. It’s business agnostic.

You can do this at a manufacturing plant, a bakery, or whatever it is you run. You ought to have a good compliance management system, and the CFPB’s exam manual has a chapter devoted to it that’s good and can help your business. Essentially, figure out what you want everybody doing, train them how to do it, make sure you retrain them periodically on how you want it done, and monitor them to make sure they’re doing it that way. If they’re not, fix it. Keep monitoring to make sure it’s fixed.

That, in a nutshell, is a compliance management system that’s also good risk management for any business. If they see you doing that, they’re going to have more confidence that you are doing your best. Even if there are problems that arise, you’re fixing them and all that’s good. The problem with any self-assessment is that depending on what it says and what you do about it, it can either be great evidence that you’re trying your best or an absolute smoking gun. You need to be careful.

The problem with any self-assessment is, depending on what it says and what you do about it, it can either be great evidence that you're trying your best or an absolute smoking gun. Click To Tweet

One of the reasons we developed the mock exam was so that at least if you are doing the review and you’ve hired a law firm to do it, you’re doing it under control of an attorney-client privilege. You can shield some of what might come out of it. You should know what’s going on. You should want to do that to make your business better for the compliance side of it. If you want to be good and do as much business as possible, that’s a way to figure it out.

Look at what you’re doing. Make sure you’re doing it the way you expect. Unless you are a mom-and-pop shop operating out of one room in your basement, if you’ve got eight branches, the regulators are smart about this. They’ll come in and get a copy of your procedures and policies and they’ll go to the branch farthest away from your headquarters, walk in there, and ask people how they’re doing things. If they don’t match the procedures, you got a problem. You may have a problem you don’t know about. You never want to have that happen.

You speak to a great point. Having it done by a law firm, you do have the advantage that they can’t subpoena it from the law firm. It sits behind that wall of attorney-client privilege.

As a non-lawyer, everybody likes to believe that that’s an absolute vault. It’s not, but it’s pretty darn good. If you’re going to do a self-assessment, you probably want to have whatever counsel you use, at least involved in the process so that they can help you figure out how to get the best ability to protect yourself while you’re going through the process. If you see something that needs fixing, you don’t necessarily want to say, “We got a huge problem and we hope we fix it.” You want to be able to get through the process before you have to talk about the process. That helps in that regard.

Jack, you’ve knocked the ball out of the park again. I enjoy listening to you talk. Time flies so fast. Allen Pollack, who’s still on the line, has said, “My new favorite best quote of the day is, ‘If your uniform isn’t dirty, you don’t complain about the score.’” Allen is always looking for a good quote and that’s a good one. That’s excellent.

Jack, thank you so much. Say hi to Mitch and the team. I hear you guys are growing. I heard Mitch was busy training a whole bunch of new associates. That’s so awesome. You guys provide such a valuable service to the industry. I encourage people to check you out. Brian Montgomery will be here next time. We’re going to catch up with him on a pre-recorded basis.

Brian and I will catch up. I’ll try to get Jack Nunnery to join me on that interview. We’ll try to make it as dynamic as possible, but it’ll be fun. Be sure to come back. Brian Montgomery with us next episode. I want to say special thank you to our sponsors, Finastra, Lenders One, Mobility MMI, Modex, the MBA, Knowledge Coop, Mortgage Collaborative, Snapdocs, SuccessKit, Lenders Toolkit, Total Expert, and FormFree. We’re so grateful, most of all, for you, our readers, tuning in and sharing this show with others.

I was at a Black Knight function at the conference. I was talking to Mike Brown and he said, “Dave, I think here at Black Knight, a lot of people are required to tune in to your show because of the amount of information.” Mike, thanks for that shout-out and we give you a shout-out back. Folks, have a great rest of your week. I look forward to having you back next episode with our regular show and with our special guest, Brian Montgomery. Have a great week, everybody.

04-04-2022 DC Update

DC Update

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