Justice Department, CFPB Investigating PNC's Mortgage Practices

WASHINGTON — Regulators have launched a probe into PNC Financial Services for potential discrimination on the pricing of certain mortgages, the bank revealed Thursday.

The Consumer Financial Protection Bureau and the Department of Justice have been investigating the Pittsburgh-based bank for mortgages originated primarily by a firm PNC acquired in 2009, according to the bank's quarterly earnings filed with the Securities and Exchange Commission. The CFPB notified PNC in June that it authorized settlement discussions while the Justice Department said it would file a civil lawsuit.

"Our practice is to cooperate fully with regulatory and governmental investigations, audits and other inquiries, including those described in this note," PNC said in the filing.

PNC said the mortgages under question came from National City Corp., which PNC acquired four years ago. Regulators are investigating whether those loans, as well as those originated by PNC, were priced in a way that created a so-called "disparate impact" against a protected class of borrowers. The use of disparate impact has sparked heated debates within the banking industry since regulators can use it to cite banks for discrimination even if it was unintentional.

"I think this is pretty consistent with what we've seen from the Department and their approach to fair lending enforcement — with heavy emphasis on the use of the disparate impact legal theory," said Paul Hancock, a bank industry lawyer at K&L Gates.

Hancock noted that the validity of the disparate impact theory in fair lending cases is now pending before the Supreme Court.

Lawyers have been warning for months that banks should be better prepared to face potential investigations.

"There are institutions out there that could be engaging in lending practices with no worldly attempt to discriminate or to treat people unfairly," said Michael Mierzewski, a partner at Arnold and Porter LLP, in a recent interview with American Banker. "But unless they're monitoring to make sure their policies and procedures are not having disparate treatment or impact, they could be in for a rude awakening."

PNC's disclosure of a joint investigation by the Justice Department's civil rights division and the CFPB follows a December announcement of an agreement between the two agencies aimed at strengthening coordination on fair lending enforcement.

Under the Obama administration, the Justice Department has stepped up its enforcement of fair lending laws, particularly in the mortgage sphere. Bank of America paid $335 million to settle a case involving the mortgage lending practices of Countrywide Financial, which it acquired in 2008. Wells Fargo paid $175 million to settle a similar case.

In PNC's filing, the bank said regulators have been especially focused on mortgages and foreclosure practices.

"Over the last few years, we have experienced an increase in regulatory and governmental investigations, audits and other inquiries," PNC said in its filing. "Areas of current regulatory or governmental inquiry with respect to PNC include consumer financial protection, fair lending, mortgage origination and servicing, mortgage-related insurance and reinsurance, sales by third party providers of voluntary identity protection services to PNC customers, municipal finance activities, and participation in government insurance or guarantee programs."

Separately, PNC said it also received a subpoena from the U.S. attorney's office for the Southern District of New York asking for information on claims for foreclosure expenses of loans insured by the Federal Housing Administration, Fannie Mae or Freddie Mac.

"This inquiry is in its early stage, and PNC is cooperating with the investigation," the bank said in its filing.