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HUD Plans To Work With The Mortgage Industry To Expand Availability of Home Loans.
On September 16, HUD Secretary Julian Castro spoke at the Bipartisan Policy Center 2014 Housing Summit on the principles his department intends to implement in order to improve the economy. Castro focused on housing reform and referenced the “frustration from lenders when it comes to their FHA business” that the department has seen in the wake of the financial crisis. Castro assured the Summit that his department intends to work with the lenders to better manage their risk, pointing out that “[s]ome believe it was too easy to get a home loan [a few years ago]. Today it’s too hard.” The department’s overhaul of its “Single Family Handbook” will clarify the compliance process, helping lenders “better identify loan defects and determine how serious those loan defects are.”
Senate Democrats Issue Confirmations To Floor
On September 17, the Senate confirmed by a voice vote Laura Werthheiner as Inspector General of FHFA. In addition, Bradford Raymond Hunter was confirmed as the Chief Financial Officer of HUD.
Federal District Court Defers To HUD On Disparate Impact Rule Burden-Shifting Framework
On September 3, the U.S. District Court for the Northern District of Illinois declined to invalidate to the burden-shifting framework established by HUD in its 2013 disparate impact rule, but remanded to HUD for further consideration certain comments on the rule submitted by insurers. Property Casualty Insurers Assoc. of Am. V. Donovan, No. 13-8564, WL 4377570 (N.D. Ill. Sept. 3, 2014). An association of insurers challenged HUD’s rule, which authorized so-called “disparate impact” or “effects test” claims under the Fair Housing Act. The insurers filed suit to enjoin HUD from applying the rule to the homeowners’ insurance industry, arguing that HUD’s refusal to build safe harbors for homeowners’ insurance violates the McCarron-Ferguson Act and is arbitrary and capricious. The court agreed that HUD acted in an arbitrary and capricious manner because HUD did not give adequate consideration to comments from the insurance industry relating to the McCarran-Ferguson Act, the filed-rate doctrine, and the potential effect that the disparate impact rule could have on the nature of insurance. Therefore, the court remanded those issues back to HUD for further explanation. The court also addressed the burden-shifting approach established by HUD to determine liability under a disparate impact claim. Under the rule, once a practice has been shown by a plaintiff to have a disparate impact on a protected class, the defendant has the burden of showing that the challenged practice “is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent . . . or defendant . . . . A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative.” The court held that the final burden-shifting framework “reflects HUD’s reasonable accommodation of the competing interests at stake—i.e., the public’s interest in eliminating discriminatory housing practices and defendants’ (including insurer-defendants’) interest in avoiding costly or frivolous litigation based on unintentional discriminatory effects of their facially neutral practices[,]” and deferred to HUD’s interpretation of the Fair Housing Act pursuant to Chevron v. U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Texas Federal Court Upholds HUD's Suspension of Mortgagee
On August 5, the U.S. District Court for the Southern District of Texas held that HUD's decisions to immediately suspend a HUD mortgagee and its CEO were not “arbitrary and capricious” and did not violate due process. Allied Home Mortg. Corp. v. Donovan, No. H-11-3864, 2014 WL 3843561 (S.D. Tex. Aug. 5, 2014). In October 2011, a U.S. Attorney’s Office sued the mortgagee, its CEO, and related parties under the False Claims Act and FIRREA for allegedly making false statements and false claims to HUD in connection with FHA-insured mortgage loans. Shortly thereafter, based on information obtained by the U.S. Attorney’s Office, HUD immediately suspended the mortgagee’s HUD/FHA origination and underwriting approvals and suspended the CEO from participation in procurement and nonprocurement transactions as a participant or principal. The mortgagee plaintiffs argued that such suspensions were “arbitrary and capricious” (and thus violated the Administrative Procedure Act) given the age of the evidence against the CEO and the limited evidence directly attributable to the mortgagee. Specifically, the mortgagee plaintiffs argued that HUD failed to follow its own standards for issuing immediate suspensions because it did not have adequate evidence of any present or imminent threat to the financial interests of the public or HUD that would warrant an immediate suspension. The court, however, held that the evidence uncovered in the investigation was sufficient to support HUD’s action, and that HUD “drew rational inferences based on the severity, persistence, and length of the [alleged] misconduct.” The court also denied the mortgagee plaintiffs’ due process claim, reasoning that the initial suspensions were temporary and could have been administratively appealed. The court denied the mortgagee plaintiffs’ motion for summary judgment and dismissed the case with prejudice.
HUD Announces Disability Income Fair Housing Conciliation Agreement
On August 13, HUD announced that a nonbank mortgage lender agreed to pay $104,000 to resolve allegations that the lender’s underwriting practices resulted in discrimination against mortgage applicants who rely on disability income. HUD filed a complaint claiming the lender required loan applicants to submit medical and other documentation related to an applicant’s disability income that it did not require from non-disabled applicants, in violation of the Fair Housing Act. Working with HUD, the lender identified 69 applicants whose loan files contained evidence of a request for additional disability documentation or evidence that a loan may have been denied on the failure or inability of the applicant to provide such documentation. The lender agreed to compensate those applicants using a tiered system, under which each applicant will receive $1,000, $2,000, or $5,000 in damages. The lender did not admit to any fault, guilt, or liability, and denied that it discriminated against any loan applicant on the basis of disability. The lender also submitted to a monitoring requirement and implemented a modified fair lending training program for its employees.
HUD Requires Electronic Retention Of Foreclosure-Related Documents
On July 23, HUD issued Mortgagee Letter 2014-16, which requires FHA mortgagees to retain electronic copies of certain foreclosure-related documents and extends the record retention period to seven years after the life of an FHA-insured mortgage. HUD advises that, in addition to any requirements for retaining hard copies or original foreclosure-related documents, loss-mitigation review documents also must be retained in electronic format. Those documents include: (i) evidence of the servicer’s foreclosure committee recommendation; (ii) the servicer’s Referral Notice to a foreclosure attorney, if applicable; and (iii) a copy of the document evidencing the first legal action necessary to initiate foreclosure and all supporting documentation, if applicable. The letter adds that mortgagees also must retain in electronic format a copy of the mortgage, the mortgage note, or the deed of trust. If a note has been lost, mortgagees must retain both an electronic and hard copy of a Lost Note Affidavit. The letter is effective for all foreclosures occurring on or after October 1, 2014.
HUD Updates Requirements For Pre-Foreclosure Sales And Deeds-In-Lieu Of Foreclosure
On July 10, HUD issued Mortgagee Letter 2014-15, which updates requirements for pre-foreclosure sales (PFS) and deeds-in-lieu (DIL) of foreclosure for all mortgagees servicing FHA single-family mortgages. The letter explains that if none of FHA’s loss mitigation home retention options are available or appropriate, the mortgagee must evaluate the borrower for a non-home retention option, with mortgagors in default or at imminent risk of default being evaluated first for a PFS transaction before being evaluated for a DIL transaction. The letter details eligibility and documentation requirements for standard PFS, streamlined PFS, and DILs, as well as rules for calculating cash reserve contributions for standard PFS transactions. Further, the letter advises mortgagees that they may, under certain conditions, approve a servicemember for a streamlined PFS or DIL without verifying hardship or obtaining a complete mortgagor workout packet. The letter also addresses numerous other topics, including: (i) requirements for real estate agents and brokers participating in PFS transactions; (ii) an initial listing period requirement for PFS transactions; (iii) updated sample language for the PFS Addendum; (iv) validation requirements for appraisals; (v) the criteria under which the HUD will permit non-arms-length PFS transactions; and (vi) minimum marketing period for all PFS transactions.
S.D.N.Y. U.S. Attorney Obtains FHA, GSE False Claims Settlement
On July 1, the U.S. Attorney for the Southern District of New York announced that a large bank agreed to pay $10 million to resolve allegations that prior to 2011 it violated the False Claims Act and FIRREA by failing to oversee the reasonableness of foreclosure-related charges it submitted to the FHA and Fannie Mae for reimbursement, contrary to program requirements and the bank’s certifications that it had done so. The government intervened in a whistleblower suit claiming that, notwithstanding FHA program requirements and the bank’s annual FHA certifications, prior to 2011, the bank failed to create or maintain an adequate FHA quality control program to review the fees and charges submitted by outside counsel and other third-party providers to the bank, which the bank then submitted to FHA for reimbursement. The government also claimed that the bank failed to create or maintain Fannie Mae audit and control systems sufficient to ensure that the fees and expenses submitted by outside counsel and other third-party providers to the bank, which the bank then submitted to Fannie Mae for reimbursement, were reasonable, customary, or necessary. In addition to the monetary settlement, the bank was required to admit to the allegations and agreed to remain compliant with all rules applicable to servicers of mortgage loans insured by FHA and to servicers of loans held or securitized by Fannie Mae and Freddie Mac.
HUD Announces Two Maternity Leave Fair Housing Agreements
On July 1, HUD announced a conciliation agreement with a California mortgage lender, pursuant to which the lender will pay $48,000 to resolve allegations that it violated the Fair Housing Act when it denied or delayed mortgage loans to women because they were on maternity leave. Under the Fair Housing Act, it is unlawful to discriminate in the terms, conditions, or privileges associated with the sale of a dwelling on the basis of sex, including denying a mortgage loan or mortgage insurance because a woman is pregnant or on family leave. After a married couple complained to HUD that the lender denied their refinancing application because the wife was on maternity leave, HUD commenced an investigation that revealed the lender also allegedly denied four other applicants who were on maternity leave, or delayed their applications until after the women returned to work. The agreement requires the company to pay $20,000 to the couple that filed the complaint, and $7,000 to each of the other four applicants identified by HUD. The company no longer originates mortgages, but agreed to provide annual fair lending training to employees and management staff should it resume its mortgage operation. In a similar action last month, HUD required a Utah credit union to pay $25,000 to resolve allegations that the credit union discriminated against prospective borrowers on maternity leave. The HUD investigation was initiated after a married couple claimed their mortgage loan application was wrongly denied because the wife was on maternity leave. The credit union asserted that its mortgage insurer’s guidelines for calculating income for women on maternity leave allowed regular pay to be considered only if the women returned to work before the loan closed. Although the complainants previously resolved their claims, the credit union agreed to pay $10,000 to an allegedly affected borrower identified during HUD’s investigation, and $15,000 to a qualified organization to help educate the public about fair lending requirements and obligations, including the rights of borrowers on maternity, paternity, pregnancy, or parental leave at the time of an application for a home mortgage loan. The credit union also agreed to adopt an FHA-compliant policy with regard to calculation and treatment of maternity, paternity, and pregnancy leave income, and to identify when employment income may be used based upon the timing of a scheduled return to work date.
Senate Confirms HUD Secretary
On July 9, the Senate voted 71-26 to confirm Julian Castro to serve as HUD Secretary. The former San Antonio, Texas mayor will replace Shaun Donovan, who the Senate subsequently confirmed to lead the Office of Management and Budget.