InfoBytes Blog
Filter
Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
National Mortgage Settlement Monitor Issues Implementation Report
On February 21, Joseph Smith, Jr., the Monitor charged with overseeing the borrower relief and servicing standards aspects of the national mortgage servicing settlement, issued an implementation status report. The report states that the servicers subject to the agreement have provided nearly $46 billion of borrower relief to date and that one of the five servicers has been certified as having satisfied its borrower relief obligations under the settlement. The report notes that, effective January 1, 2013, each of the five servicers’ compliance with the servicing standards are being measured against a set of 29 metrics. The report does not provide any initial assessment of servicer compliance, but notes that the Monitor is currently reviewing each servicer’s compliance review report and, after completing a consultation process with each servicer and the Monitoring Committee, the Monitor will file a compliance report during the second quarter of 2013. The report also notes an increase in consumer complaints collected by the Monitor to date, but does not conclude whether the increase is due to greater awareness about the settlement or persistent servicing problems.
CSBS and AARMR Comment on CFPB Mortgage Servicing Transfer Bulletin
On February 20, the Conference of State Bank Supervisors (CSBS) and the American Association of Residential Mortgage Regulators (AARMR) issued a statement commending the CFPB for its recent guidance regarding mortgage servicing transfers. The statement explains that state regulators, who generally have jurisdiction over state member and non-member banks and non-depository institutions, similarly have identified potential for consumer harm when loans are transferred during the loss mitigation process. CSBS and AARMR strongly encourage state-supervised servicers to familiarize themselves with applicable state requirements, the various federal laws, and the CFPB guidance, and stated that they plan to update state uniform servicing examination procedures through appropriate Multistate Mortgage Committee processes to account for the new CFPB Guidance.
Freddie Mac Issues Numerous Loss Mitigation Policy Updates
On February 15, Freddie Mac issued Bulletin 2013-3, which provides a series of updates and revisions to its loss mitigation policies. The Bulletin reminds servicers of their obligations with regard to various transfers of property even where the only remaining borrower is a trust, and provides additional details about these obligations. Following Fannie Mae’s announcement last week, Freddie Mac similarly revised certain state foreclosure timelines and policies regarding compensatory fee calculations and reimbursement for property inspections. Effective for mortgages that become delinquent as of June 1, 2013, Freddie Mac will no longer provide a list of states in which servicers are required to preserve Freddie Mac’s right to pursue a deficiency. Instead, in all instances where additional attorney fees/costs will not be incurred above the approved expense limits, servicers must preserve Freddie Mac’s right to pursue a deficiency so that Freddie Mac may decide on a case-by-case basis whether to pursue the deficiency. The Bulletin also notifies servicers that Freddie Mac is eliminating a requirement announced in Bulletin 2012-17 that, for servicers participating in state modification programs, the modification include partial principal forbearance. Finally, the Bulletin also (i) revises Guide Form 710, Uniform Borrower Assistance Form, and medical hardship documentation requirement; (ii) revises requirements related to the verification of alimony, child support and separate maintenance income; (iii) expands the Freddie Mac Service Loans application process to enable servicers to obtain a property value and minimum net proceeds for borrowers being considered for a standard short sales and are less than 31 days delinquent; and (iv) updates the Guide to reflect that the Home Affordable Foreclosure Alternatives initiative is no longer an option in the loss mitigation evaluation hierarchy.
First Circuit Holds Massachusetts Borrower Can Challenge the Validity of a Mortgage Assignment, but Holds the Assignment Valid
On February 15, the U.S. Court of Appeals for the First Circuit held a borrower had standing to challenge the assignment of the borrower’s mortgage under certain circumstances, even though the borrower was not a party to the assignment of the mortgage. Culhane v. Aurora Loan Servs. of Neb., 12-1285, 2013 WL 563374 (1st Cir. Feb. 15, 2013). The First Circuit reasoned that because Massachusetts law provides the borrower with the legal right to ensure any attempted foreclosure of her home was conducted lawfully, and because foreclosure is permitted without prior judicial authorization, the borrower had standing to challenge the assignment of a mortgage to the extent such a challenge was necessary to contest the foreclosing entity’s status as the mortgagee. Though MERS was named the legal owner of the mortgage in the original mortgage documents, the plaintiff alleged that MERS had no beneficial interest in the loan and, as such, had no ability to assign the mortgage to the noteholder. The First Circuit affirmed the lower court's ruling, finding the MERS assignment of the mortgage to the defendant was valid because the note and mortgage need not be held by the same entity and MERS had transferred what interest it held - bare legal title. Thus, the court determined, the defendant properly held the mortgage and possessed the authority to foreclose.
CFPB Plans Heightened Scrutiny of Mortgage Servicing Transfers
On February 11, the CFPB issued Bulletin 2013-01 to address concerns about "potential risks to consumers" posed by the increased number and size of recent servicing transfers between financial institutions. The guidance states that the CFPB generally will examine such transfers to determine compliance with consumer finance laws, but examiners also will focus on (i) how a transferor has prepared for the transfer of servicing rights, (ii) how a transferee handles the files transferred to it, and (iii) the policies and procedures adopted with regard to transferred loans with loss mitigation in process. The CFPB also plans to require, in appropriate cases, servicers engaged in "significant servicing transfers" to submit written plans detailing how the parties to a transfer will manage consumer risks, and information including: (i) the number of loans involved, (ii) the total servicing volume being transferred, (iii) the name(s) of the servicing platform(s) on which the transferor stored account-level information for transferred loans prior to transfer and information about compatibility with the transferee's systems, (iv) a detailed description of the transaction and system testing to be conducted to ensure accurate transfer of electronic information and a description of the summary report to be generated as a result of this testing, (v) a description of how the transferee will identify and correct errors identified in connection with the transfer, (vi) a description of the training plan and actual training materials for staff involved in reviewing, assessing, utilizing, or communicating information regarding the transferred loans, and (vii) a customer-service plan for responding to loss mitigation inquiries and identifying whether a loan is subject to a pending loss mitigation resolution or application. Servicers will not need CFPB approval of such plans prior to completing a transfer. Finally, the Bulletin offers guidance regarding policies and procedures to comply with the transfer-related aspects of CFPB's recently-issued servicing rules, which become effective on January 14, 2014.
Fannie Mae Updates Servicer Selection Form and Process, Publishes First Issue of New Quarterly Compliance Newsletter
On February 1, Fannie Mae issued a Servicing Notice requiring servicers to submit a Servicer Selection Form (Form 200) to Fannie Mae for each law firm the servicer will retain for default-related services. If a law firm practices in multiple jurisdictions, Fannie Mae requires a servicer to submit a Servicer Selection Form for each jurisdiction in which the servicer intends to retain the firm. The notice also provides a link to a step-by-step guide for completing and submitting Form 200.
On February 5, Fannie Mae published the first issue of The Quarterly Compass, a new newsletter providing projected timelines on upcoming key Fannie Mae initiatives and changes that may impact lenders’ and vendors’ operations, systems, and processes. The first issue includes, among other things, (i) a Quarterly Initiatives Timeline, (ii) a ULDD Phase 2 update, and (iii) information about loan delivery updates.
State AGs Announce Multistate Robo-Signing Settlement
On January 31, the state attorneys general (AGs) for 45 states obtained an agreement from a mortgage servicing and foreclosure vendor, and its former subsidiary, to resolve allegations that the company “robo-signed” foreclosure documents and engaged in other improper default servicing conduct. (See, e.g., announcements from the AGs for Iowa, Massachusetts, and New York.) The agreements require the company to pay a combined $120 million and finalize substantial revisions to its business and compliance practices. The company also must (i) properly execute documents, (ii) enhance oversight of its default services, and (iii) review of all third-party fees to ensure that the fees have been earned and are reasonable and accurate. The settlement also prohibits various conduct including, for example, (i) surrogate signing of documents; (ii) notarizing documents outside the presence of a notary; (iii) improper interference with the attorney-client relationship between attorneys and services; and (iv) unreasonable mark-ups or other fees on third party providers’ default or foreclosure-related services. The company must review documents executed during the period of January 1, 2008 to December 31, 2010 to determine if any must be re-executed or otherwise corrected. Borrowers also may request review and correction of any documents executed by the company at any time. The Michigan AG announced a separate agreement with the company on the same day, and three other state AGs previously settled similar allegations against the firm (see, e.g., Missouri AG settlement).
HUD, FHFA Extend Foreclosure Protections for Hurricane Sandy Victims
On January 31, HUD and the FHFA announced that the FHA, Fannie Mae, and Freddie Mac will extend for an additional 90 days protections against foreclosure actions for borrowers whose properties were damaged or destroyed due to Hurricane Sandy. Those protections were set to expire on January 31, 2013. For borrowers in certain counties, FHA is extending until April 30, 2013 its foreclosure moratorium and eviction suspension. Fannie Mae, through Lender Letter LL-2013-02, and Freddie Mac, through Bulletin 2013-1, also are extending their foreclosure and eviction moratoriums through the end of April.
CFPB Addresses Use of Electronic Periodic Statements for Residential Mortgage Loans
The CFPB’s recent rule amending Regulation Z (TILA), issued on January 17, included, among other changes, the requirement that mortgage servicers provide consumers with periodic billing statements. As required by the Dodd-Frank Act, the rule explicitly allows electronic distribution of the statements. However, the Bureau restricted the use of electronic statements only to instances where “the consumer agrees.” In describing the process through which this agreement must be obtained, the rule departs from the formal requirements of the federal ESIGN Act’s consumer consent process, authorizing instead a “simpler process” which requires only the consumer’s “affirmative consent.” The CFPB staff, in the accompanying Official Interpretations, indicates that consent may be presumed for consumers who are currently receiving electronic account disclosures from their servicer for any type of account, mortgage or otherwise. In light of concerns about information security, the Official Interpretations also indicate that mortgage servicers may make electronic periodic statements available on a secure website and notify the consumer that the statement is available, rather than delivering the statement directly to the consumer. Recognizing that some consumers may not desire regular notification emails, the Official Interpretations also allow a consumer who has demonstrated the ability to access statements online to opt out of receiving such notifications. Neither the rule nor the Official Interpretations address how the rule relates to other laws that may affect when an electronic communication is delivered, such as the sending or receipt requirements of state UETA statutes.
CFPB Issues Mortgage Servicing Standards
On January 17, the CFPB issued final rules amending Regulation Z (TILA) and Regulation X (RESPA) to implement certain mortgage servicing standards set forth by the Dodd-Frank Act and to address other issues identified by the CFPB. The rule amending Regulation Z includes changes to (i) periodic billing statement requirements, (ii) notices about adjustable rate mortgage interest rate adjustments, and (iii) rules on payment crediting and payoff statements. The rule amending Regulation X addresses (i) force-placed insurance requirements, (ii) error resolution and information request procedures, (iii) information management policies and procedures, (iv) standards for early intervention with delinquent borrowers, (v) rules for contact with delinquent borrowers, and (vi) enhanced loss mitigation procedures. While many of the rules implement changes required by the Dodd-Frank Act, other proposed requirements incorporate requirements similar to those placed on servicers as part of the national mortgage servicing settlement earlier this year, or corrective actions taken in 2011 by the prudential regulators. The new standards go into effect on January 10, 2014. The rule provides certain exemptions for servicers that service 5,000 or fewer mortgage loans and service only mortgage loans that they or an affiliate originated or own. BuckleySandler will provide additional analysis of key issues in the rules once we complete our review of them.