Redlining Violations caused by Advertisements

QUESTION
We are a small bank on the west coast. Recently, our regulator issued an administrative action against us for redlining. This came as a total shock because we pride ourselves on serving a diverse community.

Apparently, our marketing department put out an advertisement that caused this problem. They published advertisements that featured only white customers and white company employees. To make matters worse, our compliance manager, who is white, had signed off on it.

Our CEO confronted her, and she was surprised. She responded by saying, if she were shopping for a loan, would she lean toward our bank or would she be more likely to go to another bank because its ads show Latinos? That was the last day the compliance manager worked here.

The local news has already picked up on this situation, and we’re in damage control. Meanwhile, we are now stuck with this administrative action. We have revamped our marketing policies and hired a consultant to resolve the regulatory issue.

Would you please enlighten us about how much the regulators are involved in finding redlining violations?

ANSWER
An allegation of redlining resulting from an advertisement is an avoidable situation. There really is no reason why this should happen if a financial institution is appropriately following existing rules and regulations. Our firm has clients who literally send us all their advertisements for review. Sometimes, our responses provide just a few corrections; other times, our responses can consist of many revisions.

A marketing department does not necessarily know the ins and outs of advertising compliance, but surely it is reasonable to expect the compliance department to know the applicable regulatory requirements. Most importantly, advertising and marketing compliance is vast. If you do not have the depth of knowledge and expertise in this area, just stay away from advertising until you do!

As a general proposition, regulators are mightily involved in examining for violations of redlining. A foundational statute that they rely on is the Equal Credit Opportunity Act (ECOA), implemented through Regulation B. It prohibits the discouragement of “applicants or prospective applications” and states:

“A creditor shall not make any oral or written statement, in advertising or otherwise, to applicants or prospective applicants that would discourage on a prohibited basis a reasonable person from making or pursuing an application.”[i]

Regulation B Commentary explains that Regulation B “covers acts or practices directed at prospective applicants that could discourage a reasonable person, on a prohibited basis, from applying for credit.”[ii]

Recently, the CFPB formally criticized banks for almost exclusively featuring white models in their advertisements. I kid you not! In 2021, this is much more prevalent than you think. The CFPB was so concerned that the Bureau included it in its Summer 2020 edition of Supervisory Highlights.[iii]

In the course of conducting supervisory activity of bank and non-bank mortgage lenders, the CFPB examiners had observed that one or more lenders violated ECOA and Regulation B, intentionally redlining majority-minority neighborhoods – that is, communities in which the majority of residents were minorities – in two Metropolitan Statistical Areas (MSAs) by engaging in acts or practices directed at prospective applicants that may have discouraged reasonable people from applying for credit.

How was this determined?

Examiners found that the lenders used marketing that would discourage reasonable persons on a prohibited basis from applying to the lenders for a mortgage loan. They came to this conclusion by considering these three factors:

First, the lenders advertised in a publication with a wide circulation in the MSAs, weekly, for two years, and these ads prominently featured a white model;

Second, the lenders’ marketing materials, which were intended to be distributed to consumers by the lenders’ retail loan originators, featured almost exclusively white models; and

Third, the lenders included headshots of the lenders’ mortgage professionals in nearly all its open house marketing materials, and, in almost all these materials,[iv] the headshots showed professionals who appeared to be white.

The statistical analysis of the HMDA data and U.S. Census data provided evidence regarding the lenders’ intent to discourage prospective applicants from majority-minority neighborhoods. General and refined peer analyses showed that the lenders received significantly fewer applications from majority-minority and high-minority neighborhoods relative to other peer lenders in the MSAs. If you haven’t heard the terms “majority-minority” or “high-minority” neighborhoods, majority-minority areas are greater than 50% minority, and high-minority areas are greater than 80% minority.

Also, examiners looked at the lenders’ direct marketing campaign focused on majority-white areas in the MSAs. These reviews provided additional evidence of the lenders’ intent to discourage prospective applicants on a prohibited basis. Consequently, when we conduct HMDA reviews, we take the foregoing metrics into consideration. 

In response to the examination findings, the lenders implemented outreach and marketing programs to increase their visibility among consumers living in or seeking credit in majority-minority census tracts in the MSAs. You should conduct a similar review and act accordingly. And it is important to review the advertising and marketing material at least annually to ensure that they meet any new regulatory guidelines.

It is also worth noting that one or more lenders agreed to improve their Compliance Management System, including board and management oversight, monitoring, audit programs, and consumer complaints handling.

Jonathan Foxx, Ph.D., MBA
Chairman & Managing Director 

Lenders Compliance Group

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[i] 12 CFR 1002.4(b); 85 FR 55828, 55831
[ii] 12 CFR part 1002, Supplement I, Paragraph 4(b)-1
[iii] Supervisory Highlights, Issue 22 (Summer 2020), Federal Register, 9/10/20, 85 FR 55828, Bureau of Consumer Financial Protection
[iv] Op. cit. i, 55832

Debt Collection Technology

QUESTION
We are a servicer in the northwest with a large portfolio. Our debt collection procedures were recently cited by our state banking department for violations of the FDCPA.

To find out more about what happened, we arranged for call calibration to be done. This review resulted in revisions to our policies and procedures. We now periodically use call calibration as part of our monitoring procedures for communications with borrowers.

In revising our policies, it was clear that we had not taken into consideration a number of scenarios involving collection communications with borrowers. We have hired a consultant to tell us about interactive technology.

So, we are writing you for further guidance. What are the important communication provisions that we should consider regarding technology with respect to debt collection?

ANSWER
Your question touches on two significant factors involving procedures relating to the Fair Dept Collection Practices Act (FDCPA). First, how to monitor communications with debtors? Second, what are significant provisions involving technological requirements with respect to communicating with debtors?

Most communications – for instance oral, written, online, email, and text messages – between a financial institution and the public is a highly regulated activity. With regard to oral communications, a good way to monitor such interactions is through call calibration, which is the tracking and compliance evaluation of calls. We offer quality assurance Call Calibration in various settings, such as between online platforms and consumers, telemarketing initiatives, and call center marketing. We also provide a Call Center Manual and a plan for Call Calibration Methodologies. For information about Call Calibration compliance, click HERE.

With respect to the FDCPA and technology, examiners have been taking an active interest in technological advances as these relate to contact with the public. Since October 30, 2020, regulators have been particularly focused on how to ensure that technology does not get in the way of complying with the FDCPA mandates.[i] This is because on October 30, 2020 the CFPB issued a final rule to restate and clarify prohibitions on harassment and abuse, false or misleading representations, and unfair practices by debt collectors when collecting consumer debt.

The compliance effective date is November 30, 2021.

The rule focuses on debt collection communications and gives consumers more control over how often and through what means debt collectors can communicate with them regarding their debts. 

The rule also clarifies how the protections of the FDCPA apply to newer communication technologies, such as email and text messages.

The final rule has four subparts:

Subpart A contains generally applicable provisions, such as definitions that apply throughout the regulation;

Subpart B contains rules for FDCPA debt collectors;

Subpart C is reserved for any future debt collection rulemakings; and

Subpart D contains certain miscellaneous provisions.

I will provide a high-level overview. However, I urge you to review this regulatory framework in detail. Also, it is a good idea to seek guidance from a competent compliance professional, because the subject regulation is complex and nuanced, and knowing how to appropriately apply its many requirements entails a thorough knowledge of regulatory compliance.

Set forth here are the CFPB’s concerns about debt collection communications, along with a brief clarification of the application of the FDCPA to newer communication technologies that have developed since the FDCPA’s passage way back in 1977.

Generally, the final rule:

• Clarifies restrictions on the times and places at which a debt collector may communicate with a consumer, including by clarifying that a consumer need not use specific words to assert that a time or place is inconvenient for debt collection communications.
• Clarifies that a consumer may restrict the media through which a debt collector communicates by designating a particular medium, such as email, as one that cannot be used for debt collection communications.
• Clarifies that a debt collector is presumed to violate the FDCPA’s prohibition on repeated or continuous telephone calls if the debt collector places a telephone call to a person more than seven times within a seven-day period or within seven days after engaging in a telephone conversation with the person. It also clarifies that a debt collector is presumed to comply with that prohibition if the debt collector places a telephone call not in excess of either of those telephone call frequencies. The final rule also provides non-exhaustive lists of factors that may be used to rebut the presumption of compliance or a violation.
• Clarifies that newer communication technologies, such as emails and text messages, may be used in debt collection, with certain limitations to protect consumer privacy and to protect consumers from harassment or abuse, false or misleading representations, or unfair practices. For example, the final rule requires that each of a debt collector’s emails and text messages must include instructions for a reasonable and simple method by which a consumer can opt out of receiving further emails or text messages. The final rule also provides that a debt collector may obtain a safe harbor from civil liability for an unintentional third-party disclosure if the debt collector follows the procedures identified in the rule when communicating with a consumer by email or text message.
• Defines a new term related to debt collection communications: limited-content message. This definition identifies the information that a debt collector must and may include in a voicemail message for consumers (with the inclusion of no other information permitted) for the message to be deemed not to be a communication under the FDCPA. This definition permits a debt collector to leave a voicemail message for a consumer that is not a communication under the FDCPA or the final rule and therefore is not subject to certain requirements or restrictions.

A word about consumer disclosures. The FDCPA requires that a debt collector provide certain disclosures to the consumer. The final rule clarifies the standards that a debt collector must meet when sending the required disclosures in writing or electronically.

On December 18, 2020, the CFPB issued further guidelines to the final rule that, among other things, clarifies the information that a debt collector must provide to a consumer at the outset of debt collection communications.[ii] As stated, the final rule’s compliance effective date is November 30, 2021. 

Among other things, as amended, it provides a model notice containing such information, prohibits debt collectors from bringing or threatening to bring a legal action against a consumer to collect a time-barred debt, and requires debt collectors to take certain actions before furnishing information about a consumer’s debt to a consumer reporting agency.

Jonathan Foxx, Ph.D., MBA
Chairman & Managing Director 

Lenders Compliance Group

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[i] Debt Collection Practices (Regulation F), Final rule; official interpretation, Bureau of Consumer Financial Protection, PDF

[ii] Amendment to Regulation F, issued December 18, 2020. This rule amends Regulation F, 12 CFR part 1006, which implements the Fair Debt Collection Practices Act (FDCPA). CFPB page: HERE

Ability to Repay and Qualified Mortgage Rule: “Seasoned QM”

QUESTION
As a Compliance Manager, I am charged with keeping our policies and procedures current. We are a small lender in the Midwest. 

Recently, I have read that the ATR/QM rule has changed. We have a policy for this rule, and our Quality Control firm provides a report of any issues. We also rely on our LOS to ensure compliance. 

However, I have read that there were some changes recently. I have not been able to find a good summary of the changes. I wonder if you would offer a summary. 

By the way, we are an avid reader of your FAQs. Thank you for providing this service to everyone.

My question: would you please provide a summary of the new ATR/QM rule? 

ANSWER
I am grateful that you read our FAQs. We have been publishing them for many years. They are one of several expressions of our commitment to the mortgage community. We appreciate your continuing interest in our articles.

I will summarize the update to the Ability to Repay and Qualified Mortgage Rule (“Rule”). Keep in mind that often “the devil is in the details.” So, navigating the Rule requires careful consideration of the applicable statute's many components. If you need assistance in drafting this policy document, we can help. We’ll get it done painlessly and at minimum cost! Contact Us Here.

A quick but relatively cursory summary is provided in the Final Rule published in the Federal Register on December 29, 2020.[i] The effective date is March 1, 2021. The mandatory compliance date is July 1, 2021. The CFPB is applying the mandatory compliance date to the date on which a creditor receives a consumer’s QM loan application. Starting on the effective date (viz., March 1, 2021) and until July 1, 2021, compliance with the General QM Final Rule is optional.

First, I will provide the Final Rule and Official Interpretation published in the Federal Register. Get ready for a whole lot of terms, phrases, lawyerly language, and even a new term (viz., “Seasoned QM”). Here it is:

“With certain exceptions, Regulation Z requires creditors to make a reasonable, good faith determination of a consumer's ability to repay any residential mortgage loan, and loans that meet Regulation Z's requirements for “qualified mortgages” (QMs) obtain certain protections from liability. Regulation Z contains several categories of QMs, including the General QM category and a temporary category (Temporary GSE QMs) of loans that are eligible for purchase or guarantee by government-sponsored enterprises (GSEs) while they are operating under the conservatorship or receivership of the Federal Housing Finance Agency (FHFA). The Bureau of Consumer Financial Protection (Bureau) is issuing this final rule to create a new category of QMs (Seasoned QMs) for first-lien, fixed-rate covered transactions that have met certain performance requirements, are held in portfolio by the originating creditor or first purchaser for a 36-month period, comply with general restrictions on product features and points and fees, and meet certain underwriting requirements. The Bureau's primary objective with this final rule is to ensure access to responsible, affordable mortgage credit by adding a Seasoned QM definition to the existing QM definitions.”

To those of you who are not used to reading such texts, it can be an arduously annoying experience. Fortunately, I have spent a good part of my adult life immersed in these issuances. I guess I’m used to them. So, let me untangle the foregoing legalistic summary, provide a brief overview of the Rule, and hopefully thereby provide my own summary that is a bit less overtly fustian.

High Level Synopsis

The CFPB issued two final rules to amend the Ability-to-Repay/Qualified Mortgage (ATR/QM) Rule:

• The General QM Final Rule replaces the existing 43 percent debt-to-income (DTI) ratio limit in the General QM definition with price-based thresholds and makes other changes to the ATR/QM Rule.
•  The Seasoned QM Final Rule creates a new category of qualified mortgage, the Seasoned QM.

General QM Final Rule

The General QM Final Rule amends the General QM definition. Therefore, among other things, it replaces the existing 43 percent DTI limit with a price-based limit and removes Appendix Q as well as any requirements to use Appendix Q for General QM loans. However, the General QM Final Rule retains the Rule’s “consider and verify” requirements and clarifies how they apply under the revised General QM definition. The General QM Final Rule also retains the existing product-feature and underwriting requirements and limits on points and fees.

Price-Based Limit

A loan meets the revised General QM definition only if the Annual Percentage Rate (APR) exceeds the Average Prime Offer Rate (APOR) for a comparable transaction by less than the applicable threshold set forth in the General QM Final Rule as of the date the interest rate is set. Generally, this threshold is 2.25 percentage points.

But the General QM Final Rule provides higher thresholds for loans with smaller loan amounts, for certain manufactured housing loans, and for subordinate-lien transactions. The thresholds set forth in the General QM Final Rule are:

• For a first-lien covered transaction with a loan amount greater than or equal to $110,2603, 2.25 percentage points
• For a first-lien covered transaction with a loan amount greater than or equal to $66,156 but less than $110,260, 3.5 percentage points
• For a first-lien covered transaction with a loan amount less than $66,156, 6.5 percentage points
•  For a covered transaction secured by a manufactured home with a loan amount less than $110,260, 6.5 percentage points
• For a covered transaction secured by a manufactured home with a loan amount equal to or greater than $110,260, 2.25 percentage points
• For a subordinate-lien covered transaction with a loan amount greater than or equal to $66,156, 3.5 percentage points
• For a subordinate-lien covered transaction with a loan amount less than $66,156, 6.5 percentage points

If a loan’s interest rate may or will change in the first five years after the date on which the first regular periodic payment will be due, the creditor must treat the highest interest rate that may apply during that five years as the loan’s interest rate for the entire loan term when determining the APR for purposes of these thresholds. Additional information on determining the APR, the APOR, and the applicable threshold is available in the General QM Final Rule.

“Consider and Verify” Requirements

The revised General QM definition retains the “consider and verify” requirements.

First, it requires that creditors consider the consumer’s current or reasonably expected income or assets (other than the dwelling's value that secures the loan and any real property attached to that dwelling), debt obligations, alimony, child support, and DTI ratio or residual income.

Second, it requires that creditors verify the consumer’s current or reasonably expected income or assets (other than the value of the dwelling that secures the loan and any real property attached to that dwelling), as well as the consumer’s debt obligations, alimony, and child support. A creditor must verify such amounts using reasonably reliable third-party records and reasonable methods and criteria. A creditor may only consider amounts that it has verified in accordance with the verification requirements.

However, the General QM Final Rule does not prescribe specifically how a creditor must consider the monthly DTI ratio or residual income, a particular monthly DTI ratio or residual income threshold, or specific methods of underwriting that a creditor must use (other than to require that verification methods and criteria must be reasonable). Furthermore, the General QM Final Rule provides some flexibility for a creditor to consider additional factors relevant to determining a consumer’s ability to repay a loan.

To prevent uncertainty that may result from Appendix Q’s removal, the General QM Final Rule clarifies the “consider and verify” requirements in the revised General QM definition. The General QM Final Rule includes a list of specific verification standards that the creditors may use to meet the revised General QM definition’s verify requirement. If a creditor satisfies the verification standards in one or more specified manuals, the creditor has a safe harbor for compliance with the verification requirement in the revised General QM definition.

Seasoned QM Final Rule

The Seasoned QM Final Rule creates a new category of QMs, the Seasoned QM. A residential mortgage loan is a Seasoned QM and receives a safe harbor from liability under the ATR/QM Rule if

(1) the loan satisfies certain product restrictions,

(2) does not exceed a points-and-fees limit,

(3) satisfies underwriting requirements, is

(4) held in portfolio until the end of the seasoning period (subject to certain enumerated exceptions), and

(5) meets certain performance standards at the end of the seasoning period.

A loan made by any creditor, regardless of size, is eligible to become a Seasoned QM if, at the end of the seasoning period, it meets the requirements in the Seasoned QM Final Rule. Loans that satisfy another QM definition at consummation also can be Seasoned QM loans, as long as the requirements for Seasoned QMs are met.

Open-End Credit in Loss Mitigation

QUESTION

I am the Associate General Counsel of a mid-size lender. Subpart C of Regulation X applies to any “mortgage loan,” to mean any federally related mortgage loan, subject to certain exemptions, except that it does not apply to “open-end lines of credit (home equity plans).”

Although the Regulation X provision does not define “open-end,” the contexts of its use in Regulation X suggest that the term should be defined as it is in Regulation Z. For example, Regulation X cross-references the Regulation Z definition.

I am particularly interested in how Regulation X applies loss mitigation procedures to open-end credit. How does Regulation X apply loss mitigation procedures to what a creditor claims is open-end credit?

ANSWER

Let’s first get some citations in place, so we know what we’re referencing.

First, let’s go to the Truth-in-Lending Act (TILA) and Regulation Z, its implementing regulation, which defines the term “open-end credit” to mean consumer credit extended by a creditor under a plan in which:

(1) the creditor reasonably contemplates repeated transactions;

(2) the creditor may impose a finance charge from time to time on an outstanding unpaid balance; and

(3) the amount of credit that may be extended to the consumer during the term of the plan (up to any limit set by the creditor) is generally made available to the extent that any outstanding balance is repaid.

Any consumer credit that does not fit within this definition is considered “closed-end” credit.

Second, with respect to Subpart C of Regulation X – which is the implementing regulation of the Real Estate Settlement Procedures Act (RESPA) – this section applies to any “mortgage loan,” defined by 12 CFR § 1024.31 to mean any federally related mortgage loan, subject to the exemptions of 12 CFR § 1024.5(b), except – as you quote – it does not apply to “open-end lines of credit (home equity plans).”

And third, although this Regulation X provision does not define “open-end,” the usage context in Regulation X suggests that the term may be defined as it is in Regulation Z. For instance, Regulation X § 1024.6(a)(2) cross-references the Regulation Z definition.

As readers of my Mortgage FAQ articles know, I often like to illustrate responses by utilizing real-world examples. So, my response will briefly discuss a relatively recent federal district court decision in Arizona that considered the application of Regulation X § 1024.41’s loss mitigation procedures to what a creditor claimed was open-end credit.

Specifically, those loss mitigation procedures lie within Subpart C of Regulation X and, therefore, do not apply to “open-end” lines of credit. The case I have in mind is Bowler v Wells Fargo Bank.[i]

For almost 20 years, the Bowlers owned their home in Arizona. In 2006, they obtained a home equity line of credit (HELOC) from Wells Fargo, secured by a deed of trust on their home. In 2009, Wells Fargo restricted the Bowlers' ability to use the line to obtain additional credit extensions. In January 2010, the Bowlers and Wells Fargo signed a modification in which the Bowlers consented to a permanent termination of their ability to draw additional amounts on the credit line. About a year later, they agreed to another modification, which again did not allow the Bowlers to draw additional amounts on the credit line.

But, in 2018, the Bowlers defaulted. In 2019, they applied for a loan modification and included supporting documents. In August 2019, the bank called the Bowlers and asked for more documentation, such as pay stubs and Social Security information, which the Bowlers sent three or four days later. On August 5^th, the Bowlers also sent a narrative letter the bank had requested.

The bank prepared an August 9^th letter that listed “next steps” for the Bowlers, including a table showing the status of the documents Wells Fargo needed from them to complete the application. The table indicated that some of the requested documents had not been received, some had been received but were incomplete, and other documents had been received and were complete. The Bowlers claimed they never received the letter.

On August 14^th, the bank called the Bowlers and asked for the “same documents.” The Bowlers said they’d already provided all of the documents. In response, a bank employee promised to see whether she could find them. On September 5^th, the bank told the Bowlers it had not received the “additional documentation” and would again look for them. The Bowlers then faxed “the requested documents” to Wells Fargo.

On September 13^th, the bank drafted a letter stating that the bank was no longer reviewing the account for assistance options, as it had not received all of the documentation it needed. The Bowlers claimed they never received this letter, too.

On September 18^th, the bank told the Bowlers that their application was “no longer in review.” The Bowlers frantically called the bank but were told there was nothing the bank could do to stop a foreclosure sale. The bank sold the property at the sale. Throughout the next week, Mr. Bowler “became increasingly anxious and upset,” and his blood pressure, previously well-controlled, increased to the high 180s/120s. He visited his doctor, who increased his blood pressure medication.

The Bowlers sued the bank for negligence, negligent infliction of emotional distress (“NIED”), and RESPA violations.

The court dismissed the claims. The negligence claims failed because Wells Fargo did not owe the Bowlers a duty of care. For those of you who are not familiar with this term, it is a legal requirement that a person act toward others and the public with the watchfulness, attention, caution, and prudence that a reasonable person in the circumstances would use. So, if a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence – that’s just a heavily ladened way of saying that the duty of care is a legal obligation to always act in the best interest of individuals and others, and not act or fail to act in a way that results in harm.

This litigation took place in Arizona, and the federal district courts in Arizona have routinely held that lenders and loan servicers have a non-contractual duty towards borrowers; that said, the duty is narrow and generally limited to the duty to disclose the correct amount of monthly payments, a duty not relevant to the Bowlers’ claims.

Thus the NIED claim failed because: (1) the Bowlers failed to plausibly allege that the husband’s mental anguish was in “the zone of danger so as to be subject to an unreasonable risk of bodily harm created by” Wells Fargo’s foreclosure proceedings; (2) the Bowlers did not even attempt to allege that Wells Fargo knew or should have known that either of the Bowlers was susceptible to an illness or bodily harm; and (3) while the Bowlers plausibly alleged Wells Fargo caused the husband’s emotional distress, Wells Fargo’s conduct did not involve an unreasonable risk in causing it.

Now, as to RESPA, the court rejected Wells Fargo’s argument that RESPA’s loss mitigation provisions did not apply to the Bowlers’ loan because it was an open-end line of credit; and, furthermore, the HELOC became a closed-end loan because of the modifications the parties made to disallow the Bowlers from drawing additional amounts. The court also concluded that the Bowlers’ allegations insufficiently alleged that they had supplied Wells Fargo with all the documents it requested for processing the loan modification.

The bank argued that the Bowlers had waived their RESPA claim by not obtaining an injunction before 5 PM on the day before the foreclosure sale. In support of this argument, the bank cited an Arizona statute that provides: “The trustor…shall waive all defenses and objections to the sale not raised in an action that results in the issuance of a court order granting relief pursuant to rule 65, Arizona rules of civil procedure, entered before 5:00 p.m. mountain standard time on the last business day before the scheduled date of the sale.”

The court rejected this purported waiver based on the Supremacy Clause of the U.S. Constitution. This clause makes the Constitution and all laws on treaties approved by Congress in exercising its enumerated powers the supreme law of the land. Thus, judges in state court must follow the Constitution or federal laws and treaties, if there is a conflict with state laws.

In this case, the court held that the Supremacy Clause prevented state laws, such as Arizona’s, from interfering with substantive federal law, including RESPA. Accordingly, the Arizona statute did not govern, and the Bowlers did not waive the RESPA claim.

Jonathan Foxx, Ph.D., MBA

Chairman & Managing Director

Lenders Compliance Group

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[i] Bowler v Wells Fargo Bank, 2020 U.S. Dist. (D. Ariz. July 24, 2020)