Maryland Legal Alert for Financial Services

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Maryland Legal Alert - April 2021

IN THIS ISSUE:

COVID-19 BANKRUPTCY RELIEF EXTENSION ACT OF 2021 EXTENDS CERTAIN CARES ACT BANKRUPTCY PROVISIONS

CFPB RESCINDS POLICY STATEMENT ON ABUSIVE ACTS AND PRACTICES

RESIDENTIAL FORECLOSURE RESTRICTIONS EXTENDED AGAIN

 

COVID-19 Bankruptcy Relief Extension Act of 2021 Extends Certain CARES Act Bankruptcy Provisions

On March 27, 2021, President Joseph R. Biden, Jr. signed the COVID-19 Bankruptcy Relief Extension Act of 2021 into law, extending certain bankruptcy provisions of the

Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which were originally set to expire on March 27, 2021. The new legislation extends the affected provisions through March 27, 2022.

The provisions, described in more detail below, provide small business and individual debtors with expanded access to bankruptcy relief. The extended provisions include:

  • Increasing the debt limit from $2,725,625.00 to $7,500,000.00 for debtors seeking to file a Chapter 11 bankruptcy petition as a small business debtor under the new Subchapter V provisions in the Small Business Reorganization Act;
  • For chapters 7 and 13, amending the definition of “income” to exclude federal relief payments related to COVID-19;
  • Excluding federal COVID-19 relief payments from the calculation of disposable income for Chapter 13 plan confirmation purposes; and
  • Permitting debtors in Chapter 13 to seek plan modifications when experiencing COVID-19-related financial hardships, including extending the plan term to seven years.
     

Practice Point: Notably, the increased debt limit for small business Chapter 11 filings has proven popular by expanding access to the relatively new, debtor-friendly provisions created under Subchapter V. This extension of the sunset period for the increased debt limit ensures that more businesses that may have tried to ride out the worst of the COVID-19 disruptions may still be able to take advantage of the debtor-friendly provisions under Subchapter V for another year.

Please contact David S. Musgrave or John H. Hykes, III for any questions concerning these topics.

For additional information on the impact of the coronavirus, visit our information hub for a list of up-to-date content. 

Contact David S. Musgrave | 410-576-4194

Contact John H. Hykes, III | 410-576-4134

 

CFPB Rescinds Policy Statement on Abusive Acts and Practices

Last year, we reported on the long-awaited guidance from the Consumer Financial Protection Bureau (CFPB) on how the bureau would address the Dodd-Frank Act’s prohibition on abusive acts and practices. The policy statement set forth the following three principles for enforcement based on the abusiveness standard:

  1. The CFPB would challenge conduct as abusive only if it determined that the harm to consumers from the conduct outweighed its benefits to consumers.
  2. The CFPB would avoid pleading abusiveness violations and unfair or deceptive violations arising from the same set of facts. The CFPB intended to allege the abusiveness violation with sufficient detail to set the bounds of the abusiveness claim apart from other allegations.
  3. The CFPB would only seek monetary relief for violations of the abusiveness standard when the company failed to make a good faith attempt to comply with the law.
     

Effective March 19, 2021, the CFPB has rescinded this policy statement. In its rescission statement, the CFPB asserts that the abusiveness policy did not clarify the abusive standard and, instead, afforded too much discretion for the CFPB. Moving forward, the CFPB intends to “exercise the full scope of its supervisory and enforcement authority to identify and remediate abusive acts and practices.”

Practice Point: Given the change in administration and the resignation of former CFPB Director Kathleen L. Kraninger, this policy reversal did not come as a surprise. The Biden Administration has signaled its intention to shift the CFPB’s focus to more robust enforcement activity and this policy rescission aligns with this shift. Companies can expect the CFPB to utilize the abusiveness standard more freely during the next phase of CFPB leadership.

Please contact Bryan M. Mull with any questions concerning this topic.

Contact Bryan M. Mull | 410-576-4227

 

Residential Foreclosure Restrictions Extended Again

As we previously reported, Governor Lawrence Hogan, Jr. issued an executive order (December Order) on December 17, 2020, in which he directed the Maryland Department of Labor’s Commissioner of Financial Regulation (Commissioner) to reopen the notice of intent to foreclose online registry (NOI Registry) on February 1, 2021. Governor Hogan had previously ordered the closure of the NOI Registry, which effectively halted the initiation of new residential foreclosures in Maryland. In the December Order, Governor Hogan also granted the Commissioner with the authority to delay the reopening of the NOI Registry through further regulatory guidance. In February 2021, the Commissioner extended the reopening of the NOI Registry to April 1, 2021.

On March 29, 2021, the Commissioner issued amended guidance further extending the reopening of the NOI Registry to May 4, 2021. As we previously reported, several federal authorities had announced extensions of their own foreclosure moratoria through June 30, 2021.

Please contact Bryan M. Mull with any questions concerning the foreclosure restrictions and forbearance issues.

For additional information on the impact of the coronavirus, visit our information hub for a list of up-to-date content. 

Contact Bryan M. Mull | 410-576-4227