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Ohio Supreme Court Holds Website Notice of Sheriff's Sale Does Not Satisfy Due Process
On September 6, the Supreme Court of Ohio held that notice of a sheriff's sale via the sheriff's website was insufficient to satisfy due process and reversed an appellate court decision that denied a foreclosing lender's motion to set aside the sheriff's sale. PHH Mortg. Corp. v. Prater, No. CA2010-12-095, WL 3848454 (Ohio Sept. 6, 2012). The lender obtained a motion for default judgment and permission to foreclose on a borrower. The sheriff's office tried multiple times to schedule a sale and each time withdrew the sale at the lender's request. The sheriff's office informed the lender in a letter that the sheriff's office no longer would send notices of scheduled sales via letter, and that the lender would need to check the sheriff's website for future notices. Notice subsequently was posted on the website and the property was sold. Both the trial court and intermediate appellate court denied the lender's request to set aside the sale. The lender argued that the sale was invalid because it had not received written notice. In a unanimous decision, the Ohio Supreme Court held that the notice directing the lender to check the sheriff's website was notice of a change in procedure and did not constitute actual notice of the sale. While the court acknowledged that Internet publication may conserve resources, it held that such notice is akin to newspaper notice and is insufficient to satisfy due process. The court agreed with a dissenting appellate court judge who identified e-mail notice as a closer substitute for mail notice, and explained that, in any event, such a change in notice requirements would have to be effectuated through a change to state or local law. The court reversed the appellate court's decision and set aside the sheriff's sale.
State Law Update: Montana Adopts Mortgage Servicer Regulations
On September 6, the Montana Department of Administration published final rules governing mortgage servicers. In 2011, Montana enacted House Bill 90, which made numerous revisions to the Montana Mortgage Broker, Mortgage Lender, and Mortgage Loan Originator Licensing Act concerning the licensing and regulation of mortgage servicers. The bill also updated licensing and other requirements for brokers, lenders and originators. The new regulations implement these amendments, addressing mortgage servicer (i) quarterly reporting requirements, (ii) record keeping requirements and electronic record keeping rules, (iii) renewal application deadlines, and (iv) escrow fund requirements. The final rules also amend existing regulatory definitions and other provisions impacting all mortgage licensees. The adopted regulations largely track the proposed versions, with the exception of changes made in response to comments or to address technical issues.
Federal District Court Holds TILA Supports Vicarious Liability for Creditors
On August 30, The U.S. District Court for the Southern District of Florida held that a creditor may be vicariously liable for certain Truth in Lending Act (TILA) violations committed by its servicer. Kissinger v. Wells Fargo Bank, N.A. No. 12-60878, 2012 WL 3759034 (S.D. Fla. Aug. 30, 2012). In this case, a creditor sought to dismiss two borrowers' complaint alleging that the creditor was liable for its servicer's failure to provide information the borrowers requested about the owner of the promissory note. In response to the borrowers' request, the servicer had provided the name of the owner of the note, along with the servicer's address and telephone number. The borrowers claimed that the servicer's failure to provide the owner's address and telephone number constituted a violation of TILA. The creditor argued the case should be dismissed because TILA does not support vicarious liability, and in any event, the servicer was acting as a master servicer and was allowed under TILA to provide its own contact information. The court rejected the latter argument as one not suited to a decision on the law at this stage, ruling that the creditor must reserve the argument as a defense to be raised later. With regard to vicarious liability, the court relied in part on Davis v. Greenpoint Mortg. Funding, Inc., No 09-2719, 2011 WL 7070221 (N.D. Ga. Mar. 1, 2011), which held that a finding of no vicarious liability for creditors would render TILA's private right of action clause superfluous. The court thus held that TILA allows the application of agency principles so that creditors can be held liable for the actions of their servicers. Declining to follow another Florida case, Holcomb v. Fed. Home Loan Mortg. Corp., No 10-81186, 2011 WL 5080324 (S.D. Fla. Oct. 26, 2011) -- which held Congress did not intend to apply agency principles to TILA -- the court denied the creditor's motion to dismiss.
State Law Update: Washington Amends Consumer Loan Act and Mortgage Broker Practices Act Regulations
Recently, the Washington State Department of Financial Institutions finalized two rulemakings to amend existing regulations and adopt new regulations under the Consumer Loan Act and the Mortgage Broker Practices Act. The final rules make numerous changes impacting mortgage and other consumer lenders, including with regard to licensing and reporting. For example, the amendments to the Consumer Loan Act regulations (i) add requirements and prohibitions relating to force-placed insurance, (ii) clarify licensing exemptions for consumer lenders and mortgage originators, and (iii) add new provisions addressing the activities of servicers and third party residential mortgage loan modification services. The amendments under the Mortgage Broker Practices Act include some of the changes made under the Consumer Loan Act and, among other things (i) revise the definition of mortgage broker, (ii) require approval from the Department for an individual to work as a designated broker for more than one licensee, and (iii) clarify application of loan originator requirements to inactive licensees. All of the changes take effect on November 1, 2012.
Fannie Mae Announces Miscellaneous Servicing Policy Changes
On September 5, Fannie Mae issued Servicing Guide Announcement SVC-2012-20, which updates special investor reporting requirements to provide new guidance regarding reporting a foreclosure for a modified mortgage loan with principal forbearance. The Announcement also provides new contact information for servicers to use when a borrower or servicer of a first-lien mortgage requests information relating to a HomeSaver Advance Note.
National Mortgage Settlement Monitor Issues Progress Report
On August 29, National Mortgage Settlement Monitor Joseph Smith, Jr. issued a progress report “intended to inform the public about the nature of the settlement, the steps that have been taken to implement it and the results to date.” The report, which was not required by the settlement, summarizes the terms of the several consent judgments that make up the national settlement, reviews the Monitor’s progress in implementing the administrative aspects of the settlement, describes relief extended to borrowers as of June 30, 2012, and updates the status of servicing standards implementation. For example, the Monitor states that as of July 5, 2012, all five servicers subject to the agreement had incorporated at least fifty-six servicing standards into their business processes, while four of the five banks reported that they had implemented more than half of all of the standards.
State Law Update: California Enacts Blight Bill As Part of Homeowner Bill of Rights, Broadens Servicemember Protections
On August 27, California enacted Assembly Bill 2314, another bill included as part of the state’s proposed Homeowner Bill of Rights. The bill extends indefinitely portions of existing state law that (i) require property owners maintain vacant property obtained in foreclosure, (ii) authorize local enforcement of vacant property maintenance requirements, and (iii) provide for notice and processes to correct or contests violations. The extended provisions were due to sunset on January 1, 2013. The bill also provides a sixty day period for purchasers of foreclosed properties to remedy any violations of state housing law or building codes. Current law only requires a thirty day period for all properties in violation. Finally, the bill requires that an entity that releases a lien on a property subject to corrective action for maintenance violations must provide notice to the enforcement agency within thirty days of releasing the lien. These changes take effect on January 1, 2013.
Also on August 27, California enacted Assembly Bill 2475, which extends from three to nine months the period following military service within which it is unlawful to sell, foreclose upon, or seize a servicemember’s mortgaged property. These changes also take effect on January 1, 2013.
Eighth Circuit Finds No Merit in Borrowers' "Show-Me-The-Note" Case
On August 27, the U.S. Court of Appeals for the Eight Circuit upheld a district court’s dismissal of a suit by borrowers challenging the validity of a foreclosure completed by their mortgage servicer. Butler v. Bank of Am., N.A., No 11-2653, 2012 WL 3641469 (8th Cir. Aug. 27, 2012). On appeal, the borrowers argued that their putative class action suit should be reinstated because the district court mistakenly characterized their claims as a single “show-me-the-note” claim, rather than as a quiet title action. After a close review of the allegations and causes of action, the court found no merit in this “borderline frivolous lawsuit” and upheld the dismissal. The court characterized the borrowers’ claims that the foreclosure was invalid because the servicer held the mortgage but not the note as a “flawed theory” unsupported by Minnesota law. Under Minnesota law and previous application of that law by the Eighth Circuit and Minnesota Supreme Court, the court held that the servicer has an undeniable right to initiate foreclosure as the legal holder of title.
Fannie Mae Issues Numerous Selling and Servicing Updates
On August 21, Fannie Mae issued Selling Guide Announcement SEL-2012-07, which updates numerous Selling Guide topics, including changes to loan eligibility requirements. As of October 20, 2012, for adjustable rate mortgages, the maximum LTV ratios will be reduced and the minimum score requirement for manually underwritten loans will increase. Fannie Mae is also changing LTV ratios and minimum credit score requirements in certain areas to simplify the requirements and align product and property types. Also effective on October 20, 2012, Fannie Mae will (i) retire the Comprehensive Risk Assessment Worksheet for Manual Underwriting, (ii) update the eligibility criteria matrix for manually underwritten loans, (iii) implement several changes to the DU Version 9.0, and (iv) retire the FannieNeighbors product.
On August 22, Fannie Mae issued Servicing Guide Announcement SVC-2012-18, which announces several policy changes related to delinquency management and default prevention. To further short sale directives, and to support other policy changes, the Announcement updates Fannie Mae’s Uniform Borrower Assistance Form. The announcement also implements the extended stay of foreclosure protections enacted recently as part of the Honoring America’s Veterans and Care for Camp Lejeune Families Act and the extension of the federal Making Home Affordable Programs. Concurrently, Fannie Mae issued Announcement SVC-2012-17, which requires servicers to cancel hazard insurance coverage within fourteen days after a property has been inspected and is confirmed vacant by a broker, agent, or property management company designated by Fannie Mae. This change takes effect on October 1, 2012.
FHFA Announces New Short Sale Guidelines
On August 21, the FHFA announced new guidelines that align and merge Fannie Mae’s and Freddie Mac’s (the GSEs) short sale programs to facilitate quicker short sale processing. For mortgages owned or guaranteed by the GSEs, the consolidated guidelines, as implemented through Freddie Mac Bulletin 2012-16 and Fannie Mae Announcement SVC-2012-19, (i) reduce or eliminate the documentation borrowers must provide to demonstrate a need for a short sale, (ii) allow servicers to qualify certain borrowers for short sales—for example those based on hardship caused by death, divorce, or disability—without approval from the GSEs, even when the borrower is current, (iii) automatically qualify for short sale servicemembers receiving Permanent Change of Station Orders and borrowers who must relocate more than fifty miles for existing or new employment, (iv) waive the GSEs’ rights to pursue deficiency judgments in certain circumstances, and (v) allow the GSEs to expedite short sales by offering up to $6,000 to second lien holders. These changes take effect on November 1, 2012.