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        • Mortgage rates today, April 3, 2020 plus reviews
        • Microsoft Vulnerability: Hundreds of Microsoft Servers Contaminated By Crypto-Mining Botnet Since 2018
        • Today Bitcoin Price at $6,800 USD
        • Pandemic Is Changing BTC Usage in ‘Unexpected Ways’
        • Macropay on Alternative & local payment methods that are reshaping global e-commerce
        • Bank of America is preparing for a flood of Applications to Small-Business Loan
        • Microsoft might be the best tech stock in this market
        • US Airlines To Work Collectively, Consolidate Flights
        • Bank of America maintaining business continuity and protecting the bottom line
        • US long-term mortgage rates drop
        • Chase bank will raise up to $10 billion
          • Bitcoin Price Bulls have been rejected at $7,000
          • Stock Market: 4 Top Stock Trades for Wednesday: NVDA, AVGO, BAC, IQ
          • Stock Market April 2 – Edge Higher; Oil Surges, Bonds Fall, Dollar Rose
          • Bitcoin Price Simply Surged to $6,500 After Over 10% Weekend Crash
          • Today Bitcoin Price at $7,000: BTC Leaps to Retest $7,000
          • Bank of America agreed to allow 50,000 mortgage customers to defer payments
        • Prime ICO Advertising and marketing Companies
          • Bank of America U.S. Minimum Hourly Wage Reaches $20
            • Bitcoin Price Prediction April: Three Key Causes Why BTC May Plunge Beneath $5,000
              • Roll up the Sleeves! American Airlines was down -10.34%
              • Mortgage calculator rates today April 2, 2020
              • Mortgage Calculator Small businesses: SB have ‘a million inquiries’ regarding check help loans
              • Bitcoin Price Today April 1 – Bitcoin Takes Tumble
                • With Bank of America card you can request a payment deferral online
                  • Bank of America fields 150,000 installment deferral demands
                • Coronavirus – Travel Insurance no cover cancellations
                  • Bank of America said it won’t cut any positions
              • Bitcoin Price Today April 2 – BTC rise to $6,700
              • Mortgage calculator rates today March 31, 2020
              • Bitcoin Price Momentum Sign Reverses, Bull Run Lastly Inbound?
              • Bitcoin Price Recovering After a Sharp Decline
              • Fintech News Airbnb – How hosts are fighting back against Covid-19 fallout
              • Market Stock Boeing – Challenging Times Ahead for Boeing Stock
            • Bitcoin Price Bulls – is Forming a Bull Cross After Rallying to $6,500
            • P2P Crowdlending – Average Interest Rate 18%
            • $633 Million BTC Transferred For Simply $0.26 Payment
        • Bank of America will provide up to $250 million
        • Bank of America VC: You tend to do the wrong thing at the wrong time
          • Bank of America sees big year for Microsoft ahead
            • American Airlines coronavirus downgrade
              • US Bank Raises $586M Against COVID-19
                • Bank of America’s Solid Liquidity to Help Covid-19 Crisis
      • Bitcoin Price Rejected $6,600
        • Payment Systems
          • Monzo News
            • Stock Market Today 31 March, 2020
          • Venmo
      • Bitcoin Price Trace It Will Fall to $ 5 K
      • BTC Price Today April 4
      • Best Fintech Companies to Work for 2020
    • Guest Posts
      • Bitcoin Price Jump as Coronavirus Curve Begins to Flatten
        • Bitcoin Price Today April 3
        • Bitcoin Price Is Sometimes Bullish in Q2
        • Bitcoin Price Tumble Beneath $ 6,000
        • BTC Price Today 5 | April, 2020
        • Bitcoin Price and S&P 500 – Here’s how much bitcoin beat the Dow and S&P 500 in the first quarter
          • Today Bitcoin Price at $6,600
            • Bitcoin Price Bulls Reaches: “Live or Die”
            • BTC Price Today | 6 April 2020
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      • Mortgage Calculator – Students Benefits
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      • Mortgage Calculator Canada: Rates Are Rising
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            • Bitcoin Price Volume Decline with Lowering Volatility
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        • Mortgage rates today, April 3, 2020 plus reviews
        • Microsoft Vulnerability: Hundreds of Microsoft Servers Contaminated By Crypto-Mining Botnet Since 2018
        • Today Bitcoin Price at $6,800 USD
        • Pandemic Is Changing BTC Usage in ‘Unexpected Ways’
        • Macropay on Alternative & local payment methods that are reshaping global e-commerce
        • Bank of America is preparing for a flood of Applications to Small-Business Loan
        • Microsoft might be the best tech stock in this market
        • US Airlines To Work Collectively, Consolidate Flights
        • Bank of America maintaining business continuity and protecting the bottom line
        • US long-term mortgage rates drop
        • Chase bank will raise up to $10 billion
          • Bitcoin Price Bulls have been rejected at $7,000
          • Stock Market: 4 Top Stock Trades for Wednesday: NVDA, AVGO, BAC, IQ
          • Stock Market April 2 – Edge Higher; Oil Surges, Bonds Fall, Dollar Rose
          • Bitcoin Price Simply Surged to $6,500 After Over 10% Weekend Crash
          • Today Bitcoin Price at $7,000: BTC Leaps to Retest $7,000
          • Bank of America agreed to allow 50,000 mortgage customers to defer payments
        • Prime ICO Advertising and marketing Companies
          • Bank of America U.S. Minimum Hourly Wage Reaches $20
            • Bitcoin Price Prediction April: Three Key Causes Why BTC May Plunge Beneath $5,000
              • Roll up the Sleeves! American Airlines was down -10.34%
              • Mortgage calculator rates today April 2, 2020
              • Mortgage Calculator Small businesses: SB have ‘a million inquiries’ regarding check help loans
              • Bitcoin Price Today April 1 – Bitcoin Takes Tumble
                • With Bank of America card you can request a payment deferral online
                  • Bank of America fields 150,000 installment deferral demands
                • Coronavirus – Travel Insurance no cover cancellations
                  • Bank of America said it won’t cut any positions
              • Bitcoin Price Today April 2 – BTC rise to $6,700
              • Mortgage calculator rates today March 31, 2020
              • Bitcoin Price Momentum Sign Reverses, Bull Run Lastly Inbound?
              • Bitcoin Price Recovering After a Sharp Decline
              • Fintech News Airbnb – How hosts are fighting back against Covid-19 fallout
              • Market Stock Boeing – Challenging Times Ahead for Boeing Stock
            • Bitcoin Price Bulls – is Forming a Bull Cross After Rallying to $6,500
            • P2P Crowdlending – Average Interest Rate 18%
            • $633 Million BTC Transferred For Simply $0.26 Payment
        • Bank of America will provide up to $250 million
        • Bank of America VC: You tend to do the wrong thing at the wrong time
          • Bank of America sees big year for Microsoft ahead
            • American Airlines coronavirus downgrade
              • US Bank Raises $586M Against COVID-19
                • Bank of America’s Solid Liquidity to Help Covid-19 Crisis
      • Bitcoin Price Rejected $6,600
        • Payment Systems
          • Monzo News
            • Stock Market Today 31 March, 2020
          • Venmo
      • Bitcoin Price Trace It Will Fall to $ 5 K
      • BTC Price Today April 4
      • Best Fintech Companies to Work for 2020
    • Guest Posts
      • Bitcoin Price Jump as Coronavirus Curve Begins to Flatten
        • Bitcoin Price Today April 3
        • Bitcoin Price Is Sometimes Bullish in Q2
        • Bitcoin Price Tumble Beneath $ 6,000
        • BTC Price Today 5 | April, 2020
        • Bitcoin Price and S&P 500 – Here’s how much bitcoin beat the Dow and S&P 500 in the first quarter
          • Today Bitcoin Price at $6,600
            • Bitcoin Price Bulls Reaches: “Live or Die”
            • BTC Price Today | 6 April 2020
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      • 11 Best Prepaid Debit Cards of 2020
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      • Is Discover Visa or Mastercard?
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      • Indigo Credit Card Review
      • Wells Fargo Propel – Review
      • Walmart Money Card – Review
      • Credit One Credit Card Review
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      • Best Mortgage for Low Down Payment 2020
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      • Greatest On-line Mortgage Lenders
      • The Best Mortgage Lenders for First Time Home Buyers
    • Mortgage Calculators
      • Mortgage calculator rates today April 1, 2020
      • Mortgage Calculator – Students Benefits
      • Mortgage Calculator – Homeowners and renters Get Payment Relief
      • Calculator for mortgage to millennials
      • Mortgage Calculator Modification – What Is?
      • Mortgage Calculator Canada: Rates Are Rising
      • Mortgage Calculator Home – Is it time to repair your own home mortgage?
      • Mortgage Calculator
      • Mortgage Calculator Rates Today April 3
      • Mortgage Calculator Online
      • Mortgage Calculator Coronavirus: UK mortgage market goes into lockdown
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      • Stimulus Check
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      • Roundpoint Mortgage
      • Midland Mortgage
      • Simple Mortgage Calculator
      • Freedom Mortgage
      • SunTrust Mortgage
  • Commodities
    • Energy
      • WTI Oil Prices
      • Brent Crude
      • Crude Oil
    • Agricultural Products
      • Corns
    • Livestock & Meat
      • Lean Hogs
    • Precious Metals
      • Platinum
      • Gold
        • Best Place to Buy Gold
        • Price of Gold
        • 5 Ways In order to Buy Gold
        • Gold Price Chart
        • Gold Futures
      • Silver
    • Industrial Metals
      • Copper
  • Insurtech
    • Insurtech “Best of…”
      • Best Life Insurance of 2020
      • The Best Renters Insurance Companies 2020
      • Best Pet Insurance Providers of 2020
      • Best Home Insurance Companies for 2020
      • Best Car Insurance Quotes Online
      • Best Homeowners Insurance Companies of 2020
    • Insurtech Guides
      • Insurance will not cover coronavirus losses
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      • Fafsa deadline
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PPP Litigation Trends Signal Court Battles Ahead for Investors

Jung Min-seo by Jung Min-seo
July 30, 2020
in Banking
0

Home » PPP Litigation Trends Signal Court Battles Ahead for Investors

A study of scores of lawsuits filed against banks in the months after this rollout of the Paycheck Protection Program shows that PPP lawsuit is very likely to fad in four preliminary classes: broker fees, false certificates, loan eligibility, and loan prioritization. These lawsuit tendencies, monitored on a PPP bank lawsuit tracker which our task force has produced, disclose key indicators and hazard mitigation plans for the courtroom battles ahead concerning the $659 billion program.Agent-Fee LitigationAgent-fee suits have become a fastest-growing class of PPP lawsuit in federal courts across the U.S., and are poised for consolidation in multidistrict litigation. Under the PPP, a broker, including an accountant or a consultant, may help a creditor with preparing and originating a loan program. Agents have filed lawsuits asserting that banks waive lien charges owed to them for helping in the program process.Many agents lacked a definite arrangement with banks involving reimbursement, and lots of banks have taken the position which no reimbursement is expected from the absence of a written agreement. Even absent a written agreement, representatives have argued national law claims for breach of the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Small Business Administration’s 7(a) loan program, referencing the SBA interim final rule, which determines the highest penalty an agent may gather from a creditor; and also the PPP data sheet for creditors (PPP ISL), which provides, in part, that “[a]gent fees will be paid from lender fees.” Some lawsuits have also asserted state law claims for unfair business practices, violation of consumer protection laws, and unjust enrichment, among othersOne indicator for the direction of agent-fee litigation emerged during the June 30 hearings before the House, when Treasury Secretary Steven Mnuchin clarified that the agent-fee guidance “was intended to be based on a contractual relationship between the agent and the bank.” Mnuchin also indicated that clarifying guidance on this issue was forthcoming. This signals a Treasury position that may align with that of some banks—that the guidance on agent fees was merely a reference to the permissibility of banks to engage and compensate agents under the SBA 7(a) regulations. As these suits progress, the Treasury’s position may not foreclose agent-fee disputes, particularly where lawsuits have asserted state law claims, but an interpretation of the PPP regulations that requires a contractual relationship for the payment of agent fees may curb the viability of many agent-fee claims.False Claims Act LitigationThe next wave of PPP litigation may center on certifications made by PPP borrowers. Under the False Claims Act, the Department of Justice may bring an enforcement action against a person for knowingly or recklessly submitting a false claim for payment to the federal government. The FCA permits private persons to file a civil suit for violations of the FCA on behalf of the government and authorizes various relief, including the potential for treble damages, civil penalties, and criminal liability. FCA actions could be brought against borrowers based on allegations of ineligibility, false certifications or calculations, and noncompliance with PPP requirements, among other things. Borrowers are required to certify, for example, that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant, [and] the funds will be used to retain workers and maintain payroll or make mortgage interest payments, lease payments, and utility payments….” SBA Form 2484. On July 6, the SBA and Treasury released detailed loan-level data regarding PPP loans, including the identity of PPP recipients and a dollar range of the loan amount. This information—publicly available without the need for a subpoena or formal request—may heighten scrutiny and lower the barriers to FCA actions.As to lenders, the SBA has indicated it will “hold harmless” lenders that rely on borrower attestations and documentation, though scope and application of the hold-harmless provision is largely untested, particularly in instances where a lender may have had knowledge that contradicts a borrower’s certification. As FCA actions ramp up, the DOJ and court scrutiny of borrower certifications—and lender conduct vis-à-vis those certifications—will inform the scale of this category of PPP litigation going forward.loan-Eligibility LitigationProspective PPP loan applicants have filed lawsuits claiming they were unable to apply because of lender-specific policies that unlawfully restricted PPP eligibility, such as a requirement that applicants have a preexisting borrowing relationship or deposit account with the bank, or that applicants not have a credit or borrowing relationship with another bank. Based on that alleged conduct, these lawsuits have asserted federal law claims for breach of the CARES Act and the SBA’s 7(a) loan program, along with various state law claims. An early key indicator for the direction of loan-eligibility litigation was the Profiles court opinion that the CARES Act did not establish a private right of action against banks. Profiles Inc. v. Bank of America Corp., No. 1:20-cv-00894, ECF No. 17 (D. Md., filed April 13, 2020).In other words, under the Profiles opinion, PPP loan applicants cannot bring civil suits against PPP lenders to enforce rights under the CARES Act. Profiles may signal more reliance on state law claims grounded in consumer protection and unfair business practices, perhaps with a corresponding focus of civil actions in jurisdictions that impose a more consumer-friendly statutory framework. The Profiles opinion is the subject of ongoing litigation, the outcome of which is likely to have a ripple effect throughout PPP litigation nationally regarding the viability of federal law claims against banks. loan-Prioritization LitigationPPP loan applicants have filed lawsuits claiming that their loans were denied because of lender-specific policies that prioritized certain PPP loan applications. Applicants allege that banks did not process their PPP applications on a first-come, first-served basis, and that their applications were denied because banks prioritized applications with higher loan amounts and origination fees, or favored a particular client relationship. These loan-prioritization lawsuits tend to rely on the SBA interim final rule, which contains a “first-come, first-served” reference, and the PPP ISL, which delineates the processing fees paid by the SBA to lenders.The Profiles opinion may also serve as a key indicator in loan-prioritization litigation because it stands for the proposition that the CARES Act does not prohibit a bank from considering various criteria when deciding from whom to accept applications, or in what order to process applications it accepts.As a result, loan-prioritization litigation has trended toward claims under state law, rather than federal law, including unfair business practices, violation of consumer protection legislation, negligence, breach of fiduciary duty, fraudulent concealment, false advertising, breach of contract, and unjust enrichment.Litigation Risk MitigationTo protect against litigation risk, banks should consider measures to:disclose the terms of the bank’s PPP program, including any protocols for processing applications; maintain consistent internal communication and documentation regarding the bank’s PPP program and lending practices;document all agreements with agents and third parties, including terms of payment; prevent fraudulent or inaccurate calculations;carefully consider and document the rationale for any PPP program practices are subject to unclear Treasury advice; ensure fair lending, Bank Security Act, customer identification program, and other compliance; avoid conduct which could be interpreted as benefiting the bank to the detriment of applicants; andaddress other issues that may be appropriate given the specifics of the bank’s PPP loan program, procedures, size, and customer base.This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.Author InformationGraham H. Ryan is co-chair of the PPP Bank Litigation Task Force and a business lawsuit associate at Jones Walker LLP.

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