Consumer Financial Protection Bureau Sues a Chicago Mortgage Company Alleging “Redlining” Violations Based on Political Speech and Social Commentary Broadcast on Conservative Radio Station.
The Consumer Financial Protection Bureau (“CFPB”), the controversial brainchild of Senator Elizabeth Warren, filed suit in Chicago Wednesday against Townstone Financial, a small mortgage company, charging “redlining” violations based on political speech and social commentary broadcast on a conservative radio station. The Complaint alleges that statements made about crime in Chicago and support for police discouraged African-Americans from applying to their company and that the fact that their weekly radio show was broadcast on a conservative talk radio station discriminated against African-Americans.
James Bopp, Jr. of The Bopp Law Firm of Terre Haute, Indiana and co-counsel for Townstone, said that “The CFPB is using this case to drive all banking and mortgage companies away from advertising on conservative talk radio and to punish mainstream conservative political speech and social commentary. The CFPB has long been controversial and just lost a case in the United States Supreme Court for being improperly structured. They have been waiting years to file a case on the eve of a Presidential election to damage conservative voices. This is another federal agency weaponized to attack conservatives that needs to be stopped.”
I. What This Case is Really About
The CFPB's Director Kathy Kraninger has taken the unprecedented step of filing suit against a small three-person business, accusing it of discrimination based on its political speech about the crime rate and other societal problems in Chicago and in support of police in Chicago. The case is based entirely on the facts that: (1) Townstone advertised primarily on Chicago's AM 560 “The Answer,” a Salem media radio station; and (2) its owner and staff engaged in speech with which the left disagrees. Essentially, Director Kraninger is saying in this lawsuit that financial institutions are engaging in unlawful discrimination if they advertise too much on conservative media, or if their owners, executives, or staff express conservative political viewpoints such as statements in support of the police. This is the next step in the left's “cancel culture.” They are now using the enforcement powers of the federal government to attack the free speech that they do not want you to hear.
Significantly, this case will have chilling effects on free speech leading up to the November presidential election for those in the financial services industry. This is especially true as the presidential race shifts to a focus on law and order, as this case basically makes it a fair lending violation to make statements about the crime rate in Chicago and in support of the police. To avoid fair lending risk, financial institutions and their owners and executives will have to curb their conservative political speech and advertising in conservative media or at a minimum give “equal time” to advertising on liberal media outlets. The CFPB is engaging in an outrageous trampling on the First Amendment.
Regardless of the content of the political speech, whether it is liberal or conservative, neither the political speech of a financial services company or its owners or executives, nor the political leanings of the media outlets on which a financial services company advertises should be the basis of a fair-lending allegation by the CFPB or any other agency.
The CFPB began this investigation in June 2017. The CFPB referred the matter to the Housing & Civil Enforcement Section of the Department of Justice (DOJ). The DOJ declined to pursue any enforcement action and recently closed out its investigation in this matter. Now, almost one year later, the CFPB has filed suit.
Townstone is based in Chicago, Illinois, and advertised on a one-hour weekly radio show on a politically conservative AM talk radio station in Chicago, Illinois (AM 560 “The Answer”). In addition, Townstone has advertised on another conservative AM talk radio station in Chicago (WLS AM 890, a Cumulus Media radio station), as well as other AM talk radio stations (WGN AM 720, a Nexstar Broadcasting radio station, and WSCR AM 670 “The Score,” a Entercom Communications radio station). Townstone was a six-employee mortgage lender until 2018. Between 2014 and 2017, Townstone averaged only about $177 million in loan volume per year. Because of a difficult mortgage market at the time, Townstone downsized to become a mortgage broker in 2018 and now only has two employees.
III. The CFPB's Lawsuit Casts Townstone in an Egregiously Inaccurate Light
The CFPB alleges that Townstone did not reach out to minority areas of Chicago. However, Townstone decided to advertise on AM radio specifically to reach as broad a geographic area as possible. It is widely known that AM radio's signal strength is better than FM radio, and these AM radio stations' coverage maps reach as far as neighboring states. As a result, there cannot be a legitimate claim of actual, physical “redlining.” Further, these radio stations broadcast professional sports, which has a broad demographic that Townstone intended to reach. Townstone advertised on AM radio to reach as many listeners from as many backgrounds as possible.
Townstone has made active efforts to reach minority, including African American, audiences in the past. Prior to focusing on an all-AM radio strategy, Townstone previously advertised on two FM radio stations in 2014, including one in Chicago that played popular music and one that played hip-hop music to a predominately African American audience in Hammond, Indiana. In addition, in part because Townstone employed Arabic and Chinese speakers, Townstone advertised in Arabic and Chinese language newspapers. Further, contrary to CFPB's allegations in the complaint, Townstone has employed an African American loan processor in the past as well as other minority employees, including Hispanic loan officers and Asian employees.
Townstone has been in business since July 2002 and has not received any fair lending complaints in its entire history 18-year history. And of the hundreds of thousands of Townstone's emails and other documents, the CFPB has not cited one with any racial slurs or other potentially offensive terminology in its Complaint.
Townstone is outraged by the inaccurate and defamatory allegations made by the CFPB because Townstone is dedicated to helping each and every consumer obtain the dream of homeownership, regardless of their race, ethnicity, or gender. While most other small lenders work primarily from referrals from real estate brokerages and agents, Townstone advertised directly to the public and provided free information in its radio program because it wanted to help consumers. The public can see this for themselves by doing their next loan with Townstone.
IV. Townstone's Advertising on AM 560 and its Podcast
- Townstone conducted a one-hour radio show on AM 560 “The Answer” on Saturday mornings during the time period mentioned in the lawsuit. The show was hosted by the owner of Townstone and the company's two loan officers at the time.
- The radio show provided a mix of political discussion and discussion of the real estate and mortgage markets, including occasional guest speakers from these industries.
- Townstone also took questions and provided answers to callers during the show.
- The political discussion included discussion of recent events occurring in the world or issues facing the Chicago community, such as the problem with violence in the city of Chicago.
- Because the owner and the loan officers on the radio show and podcast have different political viewpoints, the show presents a mix of different political viewpoints.
- Townstone also still conducts a weekly podcast that provides a similar mix of political and real estate/mortgage discussion.
- The radio and podcast comments cited in the CFPB's lawsuit are taken out of the context of a larger discussion, and do not reflect Townstone's radio and podcast. Townstone used the radio show and podcast to reach a wide geographic area and generate as many listeners as possible from all walks of life. In doing so, Townstone discussed current events that were happening during the week of those episodes, in addition to discussion of mortgage-related topics.
- The comments cited by the CFPB represent less than .1% of Townstone's total radio and podcast programming. Imagine someone taking a few sentences you uttered a few years ago out of context, and out of hundreds of hours of programming, to sue you under federal law, because they disagree with your conservative political viewpoints.
- Further, the comments are fact-based, citing facts about societal problems in the South Side of Chicago area with violence and the lack of adequate grocery stores.
- Jungle Jewel. It is well-known that people in Chicago called the grocery store referenced in the complaint “Jungle Jewel.” See http://theginaspot.com/?m=20121201 for a blog post from an African American blogger about the store.
- Hoodlum Weekend. The “hoodlum weekend” comment was simply referring to a term that Chicago police officers had used. In addition, the word “hoodlum” is not an inherently racial term, as the CFPB alleges. The word “hoodlum” is defined as “a violent person, especially one who is member of a group of criminals.” See https://dictionary.cambridge.org/dictionary/english/hoodlum. The word “hoodlum” is often used in normal discourse and not as a proxy for an African American.
- Regarding the “war zone” comment: it is a well-known fact – recognized by people from across the political spectrum – that the South Side of Chicago has a high crime rate. Chicago's South Side has often been described as a “war zone” by many people who are working to quell violence on the South Side. NBC News interviewed Deborah Gorman-Smith, Dean at the University of Chicago's School of Social Service Administration and Director of the Chicago Center for Youth Violence Prevention about growing up on the South Side of Chicago and she stated, “it's like navigating through a war zone.” https://www.nbcnews.com/news/us-news/they-re-soldiers-chicago-s-children-are-learning-save-lives-n1018196. President Trump has also repeatedly described Chicago's violence as worse than Afghanistan, an actual war zone.
- Statements in support of our police are not discriminatory.
- Skydiving. We simply do not see how this statement is at all offensive. The South Side of Chicago has a high crime rate, a factual statement that cannot be refuted. Walking at night in a high crime area is dangerous. Skydiving similarly is dangerous. In fact, Townstone believes anyone who has lived in any urban area, not only the South Side of Chicago, would understand the concern with, or warn friends and relatives from walking around in the middle of the night, regardless of the racial demographics of the area.
- Confederate Flag. This was a statement by Townstone's former co-owner, who left the company in June 2015. The comment is about “taking down” a Confederate flag, not putting one up. It is not discriminatory to talk about taking down a Confederate flag.
- Markham. This was also a statement by Townstone's former co-owner, who left the company in June 2015. As noted above, if an area has a high crime rate, that is a fact. Discussing facts and how one should stay safe in an area of high crime cannot be the basis of a fair lending violation.
- Women having lower credit scores is a societal problem that has been found by studies by reputable organizations, including a Credit Sesame study in 2016. The discussion of a societal problem cannot be the basis of a fair lending violation. These issues are discussed in this blog post. https://www.creditsesame.com/blog/mortgage/the-womans-guide-to-buying-a-home/ Reputable news organizations have also reported on this study and this societal problem. https://www.washingtonpost.com/news/get-there/wp/2016/02/17/how-being-a-woman-can-ding-your-credit-score/
- The CFPB is struggling so hard to find evidence of discrimination that it has reached back over five years to quote two statements made by a former owner, and not by anyone currently at Townstone.
V. Research Shows No Discrimination by Townstone
- Consumer Testing of the Clips Cited by CFPB Shows No African American Participants Offended
- Townstone's counsel engaged an outside firm to conduct consumer testing of the audio clips from the Townstone radio program and podcasts that the CFPB had cited as problematic in its investigation. The goal was to gauge the reactions of African American testing participants from the South Side of Chicago and explore if there was any perception of discrimination from particular content of Townstone's radio show and podcasts.
- The CFPB is basing its case on how the CFPB's Enforcement attorneys assigned to the matter believe African American consumers in Chicago should react to such statements. Townstone's consumer testing shows how African American consumers from Chicago actually reacted after they listened to such statements.
- Townstone's counsel engaged Kleimann Communication Group, Inc., a research and consumer testing firm that the CFPB and many other federal agencies have used to support their rulemakings (the CFPB used Kleimann for its largest rulemaking, the TRID rule)
- The consumer testing found that:
- No participant commented on the radio show or podcast as discriminatory.
- Most participants were willing to consider Townstone for a mortgage of their own. In fact, two participants asked for the name of the company, because they wanted to apply to Townstone.
- Most participants stated that they would suggest their friends and family consider Townstone if they needed a mortgage.
- HMDA Peer Analysis Shows Townstone is Not an Outlier
- Townstone's counsel also engaged a nationally-renowned compliance and fair lending consulting firm, CrossCheck Compliance LLC, to provide an analysis of public Home Mortgage Disclosure Act (HMDA) data to compare Townstone's level of applications from African American majority areas of Chicago to its “peers,” to determine whether Townstone was an outlier in its level of applications from African American majority areas of Chicago.
- Chicago-based CrossCheck Compliance LLC found that Townstone was not an outlier compared to its “peer” institutions.
Townstone is represented by Richard Horn of Garris Horn LLP, Sean Burke of Mattingly Burke Cohen & Biederman LLP, Marx Sterbcow of The Sterbcow Law Group LLC, and James Bopp, Jr. of The Bopp Law Firm.
For more information, please contact James Bopp, Jr. at [email protected]