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North Dakota establishes requirements for residential mortgage servicers
On April 12, the North Dakota governor signed HB 1068, which outlines provisions relating to residential mortgage loan servicers. The Act provides that a person may not engage in residential mortgage loan servicing in the state without being licensed by the commissioner. This applies to servicers, subservicers, or a mortgage servicing rights investor. “A person engages in residential mortgage loan servicing in the state if the borrower resides in North Dakota,” the Act explains. Exempt from licensure are financial institutions, state or federal housing finance agencies, institutions chartered by the farm credit administration, and not-for-profit mortgage servicers. The Act outlines application and fee requirements and specifies financial conditions for applicants and licensees. Large mortgage servicers must also abide by certain corporate governance conditions, including the establishment of a board of directors responsible for oversight and compliance monitoring. These licensees must also obtain external audits and establish risk management programs.
The Act outlines prohibited acts and practices and grants authority to the Department of Financial Institutions to promulgate rules and regulations to enforce the law and power to carry out the provisions, including through orders and injunctions. The commissioner will also oversee the licensure process, including provisions concerning the expiration, renewal, revocation, suspension, and surrender of licenses, and may issue orders suspending and removing residential mortgage loan servicer officers and employees. The commissioner may also conduct investigations and examinations and impose civil money penalties of not more than $100,000 for each occurrence and $1,000 per day for each day that the violation continues after issuance of an order. Licensees may appeal by filing a written notice within 20 days after the assessment of a civil money penalty. The Act is effective August 1.
District Court dismisses RESPA claims that servicer failed on QWRs
The U.S. District Court for the Western District of Washington recently ruled on a loan servicer’s motion for summary judgment concerning claims that the servicer violated RESPA when it failed to respond to multiple qualified written requests (QWR) alleging account errors and improperly reported alleged delinquencies to credit reporting agencies (CRAs). Plaintiffs executed a promissory note and deed of trust, and later entered into a Chapter 11 bankruptcy plan to modify the terms of the loan. Plaintiffs sued, asserting violations of RESPA and various state laws, claiming, among other things, that the servicer failed to timely respond to their QWRs, provided false information to CRAs, and failed to adjust the loan to reflect the modified payment schedule from the bankruptcy plan.
The court granted summary judgment in favor of the servicer. On the QWR-related allegations, the court found that, “while the [plaintiffs] say that [the servicer] did not address the issues raised in the QWRs, their brief does not identify a single issue that went unaddressed. . . Their brief does not, for example, point to a request in any QWR that went unanswered in [the servicer’s] corresponding response. Merely providing a laundry list of documents—without specifically identifying how [the servicer’s] responses were incomplete—is insufficient.” The court also found that the plaintiffs failed to show that the servicer’s responses were misleading, confusing, or incorrect. Though the plaintiffs provided a list of statements made by the servicer when responding to the QWRs, plaintiffs failed to explain what exactly was inaccurate or confusing about the servicer’s responses, the court said.
While the court flagged one possible inconsistency in at least one of the servicer’s responses (where the servicer incorrectly stated the monthly principal amount due but corrected the mistake less than a month later), the court determined that “this alone does not suffice under RESPA.”
With respect to plaintiffs’ allegations of false credit reporting, the court concluded that there was no evidence that the servicer submitted negative information about plaintiffs to a CRA, nor did the plaintiffs demonstrate how any such reports hurt their credit or identify whether the reports were filed within RESPA’s 60-day non-reporting period. Under RESPA, a servicer is prohibited from providing certain information regarding “any overdue payment, owed by such borrower and relating to such period or qualified written request, to any consumer reporting agency” during the 60-day period beginning on the date the servicer receives a QWR. The court further noted that the plaintiffs failed to show that they suffered actual damages “flowing from” the alleged RESPA violations, which is a requirement of the statute.
The court granted summary judgment on the RESPA claims in favor of the servicer and remanded the remaining state-law claims to state court.
FHA proposes earlier HECM claim submissions
On April 4, FHA issued FHA Info 2023-25, announcing proposed changes to the Home Equity Conversion Mortgage (HECM) program and documentation requirements for certain submission criteria. FHA explained that the documentation changes would apply to HECM Assignment Claim Type 22, which “is an option that allows a HECM servicer to assign a mortgage that is in good standing to FHA in exchange for payment of the loan balance, up to the maximum claim amount.” Specifically, the proposal would allow servicers to start submitting claim documentation for preliminary FHA review when a mortgage reaches 97 percent of the maximum claim amount (MCA), versus the 97.5 percent currently allowed. The change is intended “to expedite the payment of claim funds when the mortgage reaches 98 percent of the MCA, to mortgage servicers in light of current market liquidity considerations.” The proposal would also establish that the deadline for mortgagees to deliver original notes and mortgages to FHA is 90 days after the assignment claim payment date, and would align the deadline for delivering recorded assignments of mortgage for all HECMS by increasing the timeline to 12 months for HECMs with FHA case numbers assigned before September 19, 2017. Comments on the proposal are due April 11.
FHFA expands deferral policies for hardships
On March 29, FHFA announced enhanced payment deferral policies for borrowers facing financial hardships. Under the newly enhanced policies, Fannie Mae and Freddie Mac will allow borrowers to defer up to six months of mortgage payments, enabling borrowers “to keep the same monthly mortgage payment by moving past-due amounts to the end of the loan as a non-interest bearing balance, due and payable at maturity, sale, refinance, or payoff.” Fannie and Freddie will work with servicers to implement the enhanced payment deferral policies, which carry a voluntary adoption date of July 1, and a mandatory adoption date of October 1.
Recognizing that the more than one million Covid-19 payment deferrals completed by Fannie and Freddie during the pandemic helped borrowers stay in their homes, FHFA Director Sandra L. Thompson said the agency is making the payment deferral policies a key part of its standard loss mitigation toolkit that is available to all borrowers with eligible hardships.
Montana amends mortgage servicing laws
On February 16, the Montana governor signed HB 30, which amends certain provisions of the state’s mortgage laws. Among other things, the act outlines provisions related to financial condition requirements, model state regulatory prudential standards for nonbank mortgage servicers, risk assessments, and licensee reporting requirements. The act also permits remote work provided certain conditions are met, including that a licensee’s employees and independent contractors do not meet with the public in an unlicensed personal residence, business records are not stored at the remote locations, appropriate security measures are put in place to ensure the confidentiality of customer information, and the NMLS record reflects the designation of a properly licensed location as the mortgage loan originator’s official workstation. In addition, the act amends provisions related to the denial of a licensee’s application or renewal, and updates designated manager and branch office licensing requirements to account for the remote location allowance. The act further provides the Department of Administration (acting through the Division of Banking and Financial Institutions) with rulemaking authority for addressing the revocation or suspension of licenses for cause, investigations into alleged violations, and fees, among other things. Additional amendments address the sharing of confidential supervisory information with state and federal financial regulators. Exempt from the act’s requirements are not-for-profit servicers and housing financing agencies, while servicers solely involved in reverse mortgage servicing are exempt from certain portions of the act. Similarly, servicers with 25 or fewer loans, or servicers wholly owned and controlled by one or more state- or federally-regulated depository institutions are also exempt from certain portions of the act. A servicer that is also licensed as an escrow business may apply to waive or adjust certain financial condition requirements. The act is effective July 1.
FHA expands Covid-19 loss mitigation options
On February 13, HUD issued Mortgagee Letter 2023-03, which makes technical corrections to Mortgagee Letter 2023-02 issued in January that expanded and enhanced loss mitigation options for borrowers struggling to make payments on FHA-insured mortgages. The enhancements extend FHA’s Covid-19 loss mitigation options to all eligible borrowers, including non-occupant borrowers, who fall behind on mortgage payments, regardless of the cause of delinquency. Mortgage servicers must use FHA’s Covid-19 recovery loss mitigation “waterfall” of options to assess all borrowers who are in default (or at risk of imminent default). The enhancements also raise the maximum partial claim amount from 25 percent of the mortgage’s unpaid principal balance to the maximum 30 percent allowed by statute to help increase home retention. Mortgage servicers can also offer loss mitigation options to borrowers who qualified for or used homeowner assistance funds who may no longer technically be delinquent but require further assistance to avoid redefault. Additionally, the enhancements provide incentive payments to mortgage servicers when Covid-19 recovery options are successfully completed.
The availability of FHA’s Covid-19 loss mitigation options are extended for 18 months beyond the April 30 mandatory effective date for servicers to remove “uncertainties associated with the timing of the end of the National Emergency,” HUD explained, adding that “FHA is temporarily suspending the use of its FHA-Home Affordable Modification (FHA-HAMP) options concurrent with [Mortgagee Letter 2023-02]” in order to simplify loss mitigation options. Mortgage servicers may begin offering these options to borrowers immediately.
CFPB updates Mortgage Servicing Examination Procedures
On January 18, the CFPB released an updated version of its Mortgage Servicing Examination Procedures, detailing the types of information examiners should gather when assessing whether servicers are complying with applicable laws and identifying consumer risks. The examination procedures, which were last updated in June 2016, cover forbearances and other tools, including streamlined loss mitigation options that mortgage servicers have used for consumers impacted by the Covid-19 pandemic. The Bureau noted in its announcement that “as long as these streamlined loss mitigation options are made available to borrowers experiencing hardship due to the COVID-19 national emergency, those same streamlined options can also be made available under the temporary flexibilities in the [agency’s pandemic-related mortgage servicing rules] to borrowers not experiencing COVID-19-related hardships.” Servicers are expected to continue to use all the tools at their disposal, including, when available, streamlined deferrals and modifications that meet the conditions of these pandemic-related mortgage servicing rules as they attempt to keep consumers in their homes. The Bureau said the updated examination procedures also incorporate focus areas from the agency’s Supervisory Highlights findings related to, among other things, (i) fees such as phone pay fees that servicers charge borrowers; and (ii) servicer misrepresentations concerning foreclosure options. Also included in the updated examination procedures are a list of bulletins, guidance, and temporary regulatory changes for examiners to consult as they assess servicers’ compliance with federal consumer financial laws. Examiners are also advised to request information on how servicers are communicating with borrowers about homeowner assistance programs, which can help consumers avoid foreclosure, provided mortgage servicers collaborate with state housing finance agencies and HUD-approved housing counselors to aid borrowers during the HAF application process.
NY restricts lenders’ ability to reset statute of limitations on foreclosures
In December, the New York governor signed A 7737-B, the “Foreclosure Abuse Prevention Act,” which amends the rights of parties in foreclosure actions. Among other things, the law provides that a lender or servicer’s voluntary discontinuance of a foreclosure action does not reset New York’s 6-year statute of limitations on foreclosures, according to New York CPLR §213. Further, pursuant to the new law, if an action to foreclose a mortgage or recover any part of the mortgage debt is time-barred, any other action seeking to foreclose the mortgage or recover the debt is also time-barred. The amendments are effective immediately and, notably, apply to all pending actions in which a final judgment of foreclosure and sale has not been enforced.
District Court grants summary judgment to bank in discriminatory lending suit
On December 19, the U.S. District Court for the Northern District of Illinois granted summary judgment in favor of a national bank with respect to discriminatory lending allegations brought by the County of Cook in Illinois (County). As previously covered by InfoBytes, the County alleged that the bank’s lending practices were discriminatory and led to an increase in foreclosures among Black and Latino borrowers, causing the County to incur financial injury, including foreclosure-related and judicial proceeding costs and municipal expenses due to an increase in vacant properties. In 2021, the court denied the bank’s motion to dismiss the alleged Fair Housing Act violations after determining that all the County had to do was show a reasonable argument that the bank’s lending practices resulted in foreclosures, and that the bank failed to dispute that the County properly alleged a financial injury sufficient to support standing.
The court explained in its December 19 order, however, that two of the County’s expert witnesses did not make valid comparisons when measuring the denial rate for minority borrowers compared to white borrowers. According to the court, the expert witnesses failed to properly account for the financial conditions of the borrowers seeking mortgage modifications, leaving the County with “no other evidentiary basis to establish that [the bank] engaged in intentionally discriminatory servicing practices that caused minority borrowers to disproportionately suffer default and foreclosure.” The court found that, accordingly, the County cannot demonstrate “intentional discrimination against minority borrowers that proximately caused the County’s injuries, and its disparate treatment claim accordingly cannot survive summary judgment.” Additionally, the court found that the County failed to cite authority for its arguments that the bank can be liable for loans it purchased “and for which it did not commit any discriminatory acts in servicing” or for loans it originated but sold and never serviced.
Massachusetts reaches settlement in unfair debt collection and mortgage servicing matter
On December 22, the Massachusetts attorney general announced a settlement with a South Carolina mortgage servicer to resolve claims that it allegedly failed to assist homeowners avoid foreclosure and engaged in unfair debt collection and mortgage servicing practices. According to an assurance of discontinuance filed in Suffolk Superior Court, the servicer allegedly violated the Massachusetts’ Act to Prevent Unlawful and Unnecessary Foreclosures, which requires servicers to make a good faith effort to help borrowers with certain unfair loan terms avoid foreclosure. Among other things, the servicer allegedly failed to (i) properly review borrowers’ income, debts, and obligations when assessing affordable loan modifications; (ii) provide borrowers with the results of these assessments; or (iii) provide borrowers with notice of their right to present a counteroffer after being offered a loan modification. The servicer also allegedly violated the state’s debt collection regulations by failing to timely issue compliant debt validation notices, and calling borrowers more than twice in a seven-day period. While denying the allegations, the servicer agreed to pay $975,000 to the state and will undertake significant business practice changes and provide ongoing reporting to the AG to ensure compliance.