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Freddie Mac Publishes Revisions to Selling Requirements
On March 15, Freddie Mac published Single-Family Seller/Servicer Guide Bulletin 2012-8, which (i) updates mortgage eligibility and credit underwriting requirements Borrower Funds and Mortgage Credit Certificates for Borrower qualification, (ii) revises Forms 16SF and 1107SF regarding warehouse lender agreements and facilities, (iii) eliminates certain requirements for document custodians on Form 1034A, and (iv) updates certain delivery requirements under the Uniform Loan Delivery Dataset and clarifies delivery requirements for certain refinances under HARP.
Washington Expands Servicemember Protections
On March 7, Washington Governor Christine Gregoire signed Senate Bill 5627 which expands protection for members of the state National Guard. The law expands the definition of “military service” to include servicemembers called to service by the governor for more than thirty consecutive days. This change is designed to provide National Guard members activated by the governor the same protections already provided under state law to servicemembers called to federal service by the President or the Secretary of Defense. This law becomes effective June 7, 2012.
FDIC Warns Bank Directors and Officers Regarding Copying and Removal of Institution Information
On March 19, the FDIC issued Financial Institution Letter FIL-14-2012, which warns bank directors and officers that financial institution records belong exclusively to the institution, and supervisory records are the property of the FDIC. As such, directors and officers of failing institutions who make and remove copies of institution and supervisory records for “personal use” in preparing for anticipated litigation or enforcement activity (i) are breaching their fiduciary duty, (ii) are engaging in an unsafe and unsound banking practice, and (iii) may be violating the institution’s information security program. Personal use includes use by directors or officers to defend themselves against administrative, civil, and criminal proceedings or lawsuits based on actions taken in their official capacity. The Financial Institution Letter also reminds outside counsel to financial institutions that their legal and ethical obligations are only to the institution, and not to an institution’s directors or officers. The FDIC threatens bank directors and officers, and outside counsel with legal action for knowing or reckless violations of law or breach of fiduciary duty. In 2011, in a case in which the FDIC sued a law firm for having accepted copies of bank records from a bank prior to its closing to preserve for the defense of bank directors, BuckleySandler prepared an amicus brief for the American Association of Bank Directors asserting the right of bank directors to have free access to bank records that they need to defend themselves against administrative, civil, and criminal proceedings or suits.
FRB Releases Study on Use of Mobile Financial Services
On March 14, the Federal Rserve Board (FRB) released the results of a survey on the use of mobile financial services in the U.S. The findings, as summarized in the FRB release and report, include: (i) one in five Americans with mobile phones used their mobile phone to access financial accounts last year; (ii) mobile banking is poised to expand further over the next year, with usage possibly increasing to one in three mobile phone users by 2013, (iii) mobile banking use is highly correlated with age, (iv) underbanked consumers were relatively heavy users of mobile services, and widening use of mobile technology can expand access to financial servicers for underserved populations, (v) reviewing account balances was the most common activity, followed by account transfers, and (vi) consumers with mobile devices that do not use mobile banking cited either a lack of need or security concerns.
FHFA Issues Final Rule on Private Transfer Fees
On March 15, the Federal Housing Finance Agency (FHFA) issued a final rule to limit the ability of Fannie Mae, Freddie Mac and the Federal Home Loan Banks to deal in mortgages on properties encumbered by certain types of private transfer fee covenants and in certain types of related securities. The rule generally applies, with some exceptions, only prospectively to private transfer fee covenants created on or after the date of publication of the proposed rule, Feb. 8, 2011, and regulated entities must comply with the rule by July 16, 2012. The final rule largely mirrors the proposed rule, though the FHFA did make some changes in response to comments. For example, as described more fully in Section IV of the final rule, (i) certain changes ensure that the rule clearly restricts any activity dealing in mortgages on property encumbered by private transfer fee covenant, (ii) the exception for fees imposed by a court judgment, order or decree was removed, and (iii) the rule now will not apply to private transfer fee covenants imposed pursuant to a litigation settlement agreement or an agreement approved by a government body before February 8, 2011.
SEC moves to files amended complaint in FCPA enforcement action
On March 14, Fannie Mae followed its March 6 promise to update lender-placed insurance (LPI) requirements, by issuing Servicing Guide Announcement SVC-2012-4. The announcement details policy amendments and clarifications regarding the (i) use of LPI, (ii) coverage requirements, (iii) deductibles, (iv) carrier eligibility requirements, and (v) allowable reimbursable expenses. The Announcement also provides additional guidance to servicers for submitting property insurance claims and remitting outstanding insurance funds to Fannie Mae. The LPI updates will be published as a new section in Part II, Chapter 6 of the Servicing Guide, and servicers are required to implement the amended requirements by June 1, 2012. Additionally, on March 14, Fannie Mae announced the release of its 2012 Servicing Guide. According to SVC-2012-3, the new Guide incorporates all announcements issued through September 2, 2011. The new Guide does not include policies related to the servicing of reverse mortgages, which now form a new Servicing Manual. In addition, the new Guide includes certain policy clarifications regarding lender relationships and other miscellaneous issues.
Multiple States Reach Separate Settlements with Mortgage Servicers
On March 13, several major mortgage services notified the U.S. District Court for the District of Columbia that they have settled multiple suits brought by certain State Attorneys General (AGs). That court is tasked with approving or denying the multi-party servicer settlement between federal and state officials and the five largest residential mortgage servicers filed on March 12. The notice is intended to provide the court with “a more complete understanding of the terms of the proposed [Settlement] and related litigation.” According to the notice, the servicers have reached agreements with the California, Delaware, Florida, Massachusetts, and New York AGs to resolve certain claims of those states that were preserved under the multi-party agreement. For example, New York settled for $25 million its lawsuit against all of the servicers and MERSCORP, Inc. The notice filed with the court also states that Bank of America is in the process of resolving litigation brought by the AGs of Arizona, Nevada, and Washington.
Senators Push for CFPB Action on Payday Lending, Propose Federal Legislation
On March 12, Senators Jeff Merkley and Daniel Akaka released a letter sent to CFPB Director Richard Cordray urging that the CFPB take action to address online, offshore, and insured depository payday lending activities and products. The letter specifically pushes the CFPB to adopt rules and partner with state attorneys general to address (i) Internet-based lead generators that collect data on potential customers for payday lenders, (ii) offshore Internet lenders that avoid state laws by relying on loopholes in the rules covering debit transactions and remotely-created checks, and (iii) insured depository institutions that offer payday loan or similar products. In the same announcement, Senator Merkley revealed plans to introduce legislation that will, broadly, (i) require greater disclosure for online lending websites, (ii) address the abusive practice of providing false or misleading data to payday lenders and debt collectors to defraud consumers in paying debts they do not owe, (iii) attempt to limit the activities of offshore payday lenders, and (iv) address bank and insured depository institution payday loan products.
HUD Issues Mortgagee Letter Regarding FHA Refinance of Negative Equity Borrowers
On March 13, HUD issued Mortgagee Letter 2012-5, which amends and updates Mortgagee Letter 2010-23 regarding FHA’s Refinance of Borrowers in Negative Equity Positions. Effective immediately, the Mortgagee Letter offers program enhancements to (i) broaden the eligibility for FHA Short Refinance Trial Payment Plans, (ii) offer an additional option for first lien holders to extinguish second lien debt, (iii) increase the allowable housing debt-to-income ratio for loans that receive a “refer” risk calculation, and (iv) extend the program expiration date to cover all loans closed on or before December 31, 2014.
Freddie Mac Updates Multiple Servicing Requirements
On March 13, Freddie Mac issued Bulletin 2012-7 providing several updates to its Single-Family Seller/Servicer Guide. Effective immediately, Freddie Mac has revised the definition of “REO rollback” to include additional circumstances beyond bankruptcy petition filings and is requiring servicers to communicate an “REO rollback” through a new REO Rollback Request mailbox. Freddie Mac also announced in the Bulletin that (i) new and revised compensatory fees related to research and construction, “REO rollback”, and reporting noncompliance will be instituted under the Servicing Success Program; (ii) submission of requested file documentation that a servicer initially failed to provide under the Servicer Success File Review does not constitute an appeal; and (iii) upcoming enhancements to the Servicing Success Program will treat standard modification mortgages in the same manner as HAMP mortgages.