As the mortgage industry continues to evolve, mortgage-related government scrutiny continues. Buckley is a leading provider of legal services to the mortgage industry, representing the top mortgage originators and servicers in the United States. Our clients include the nation’s largest financial institutions, regional banks and lenders, start-up firms, mortgage insurers, title insurers, securities broker-dealers, private equity investors, specialty servicers, warehouse lenders, e-commerce and technology vendors, home builders, and mortgage industry trade associations.
Our comprehensive experience is based on decades of experience as trusted counselors across regulation, enforcement, litigation, transactions, and licensing, and our team approach informs our advice across the entire spectrum of work that we do. Our firm defends mortgage lenders and servicers in every stage of government investigation and enforcement, as well as federal and state court proceedings. We provide regulatory counseling on compliance matters for all aspects of the origination and servicing process, including fair and responsible lending and servicing, the complex set of federal and state disclosure and timing requirements, government insured and guaranteed lending, mortgage fraud and anti-money laundering (AML), preemption, privacy and information security, and electronic delivery of commercial and residential loans. We assist nonbank clients in analyzing state license requirements to engage in the various aspects of the mortgage business, as well as to obtain such licenses or approvals for changes of control. We work with our clients to develop new products as well as design and implement new policies, procedures, and disclosures that ensure compliance with recently enacted federal and state laws and regulations. We also advise on the purchase and sale of mortgage companies, servicers, settlement service providers, as well as mortgage loans and mortgage servicing rights, and assist in negotiating servicing sub-servicing, credit facility, joint venture, private-label outsourcing, technology, and other critical vendor agreements.
Significant work includes:
- Assisted a wide range of bank and nonbank lenders and servicers in adapting systems and procedures to implement the sweeping mortgage regulations adopted under the Dodd-Frank Act, including the Ability-to-Repay/Qualified Mortgage Rule, Loan Originator Compensation Rule, Mortgage Servicing Rules, Truth in Lending Act-Real Estate Settlement Procedures Act (TILA-RESPA) Integrated Disclosure Rule (TRID), and Home Mortgage Disclosure Act (HMDA)
- Represented numerous mortgage servicers in CFPB investigations regarding alleged violations of RESPA, the Mortgage Servicing Rules (MSR) and the prohibition on unfair, deceptive, or abusive acts or practices (UDAAP)
- Conducted due diligence and transactional work in connection with numerous mortgage lender and servicer acquisitions
- Conducted substantial reviews of disclosure and loan documents for mortgage lenders transitioning to new document vendors
- Represented mortgage servicer in complex investigation involving the interplay of the Bankruptcy Code and RESPA’s escrow rule
- Representation of numerous correspondent lenders in actions for breach of contract and indemnification brought by the ResCap Liquidating Trust as successor to Residential Funding Company (RFC) arising from the sale and subsequent securitization of residential mortgage loans
- Represented a U.S. financial services company in its exit from mortgage business
- Represented a U.S. financial services company in sale of mortgage servicing rights and a default servicing platform to Green Tree, which included a subservicing arrangement between the two entities
- Represented a federally chartered bank in the sale of mortgage servicing rights to Two Harbors
- Represented a private equity firm in an equity investment in a reverse mortgage lender
- Represented a mortgage company in $100M stock sale to private equity firm
- Represented a Wall Street bank in a mortgage loan private-label outsourcing arrangement, including related servicing and loan sale agreements
- Represented a client in the acquisition of two mortgage-related fintech companies
- Representing clients in connection with various portfolio retention structures
- Represented clients in establishing Affiliated Business Arrangements/joint ventures
Buckley is a leading provider of legal services to the mortgage lending industry and advises on all aspects of the origination process. We assist clients with product development, advertising and marketing, disclosures, loan originator compensation, underwriting/ability-to-repay, fair lending, applying Real Estate Settlement Procedures Act (RESPA) and other anti-kickback requirements to business development efforts, appraisal management, vendor relations, and electronic disclosure and signature. Our clients include mortgage lenders, brokers and insurers, as well as securities broker-dealers, consumer finance companies, home builders, document preparation firms, real estate brokers, lead generators, and mortgage industry trade associations. Our attorneys are recognized authorities on the laws affecting this industry, including the Equal Credit Opportunity Act (ECOA), Fair Housing Act (FHA), Truth-in-Lending Act (TILA), RESPA, Home Ownership and Equity Protection Act (HOEPA), Home Mortgage Disclosure Act (HMDA), Homeowners Protection Act, the Fair Credit Reporting Act (FCRA), and the myriad state laws applicable to mortgage origination.
Our attorneys advise on mortgage servicing-related examination, enforcement, regulatory counseling, litigation, and transactional matters. We advise on all issues pertaining to loss mitigation foreclosure alternatives, collection activities, using affiliated providers for default or other services, payment application, managing escrows, portfolio retention, state licensing, and federal preemption for bank servicing loans given the impact of Dodd-Frank. We are involved in regulatory and private litigation actions pertaining to lender-placed insurance, fair and responsible servicing; loss mitigation and loan modifications; foreclosure and bankruptcy; affiliated and unaffiliated vendor management matters; and False Claims Act (FCA)-related issues. We guide clients through Consumer Financial Protection Bureau (CFPB) examinations and investigations, state regulator examinations and enforcement (including joint actions through the Multi-state Mortgage Committee (MMC)), Servicemember's Civil Relief Act (SCRA) investigations and enforcement actions, state attorney general investigations, and Federal Trade Commission (FTC) investigations. We negotiate mortgage servicing right purchase and sale agreements, sub-servicing agreements, and various types of vendor agreements. We also assist with remedial efforts to enhance servicing compliance policies, procedures, practices, and internal controls, including the preparation of comprehensive legal requirement inventories, risk assessments, policies, and procedures.
Our lawyers provide local, state, and federal compliance and risk management advice. We develop compliance management programs, including written policies, training, and ongoing monitoring to address compliance with evolving lending laws and regulations. We advise on the complex rules governing Federal Housing Administration lending and servicing. We have played an active role in federal compliance initiatives involving government agencies, including the various investigations and actions relating to the foreclosure crisis such as the interagency horizontal review of the mortgage servicing industry and related Independent Foreclosure Review process. We also regularly conduct 50-state surveys of laws governing the mortgage industry.
Our firm advises on mortgage-related enforcement matters initiated by the Consumer Financial Protection Bureau (CFPB), Department of Justice (DOJ), Federal Trade Commission (FTC), Federal Deposit Insurance Corporation (FDIC), Office of the Comptroller of the Currency (OCC), Federal Reserve Board (FRB), Federal Housing Administration, state regulators (both individually and through the MMC) and state attorneys general. We resolve complex parallel proceedings involving concurrent government enforcement and civil litigation, congressional investigations, and class actions. We assist our clients in responding to bank regulatory examinations, as well as Federal Housing Administration, Veterans Affairs (VA), and Ginnie Mae audits and inspector general reviews.
Our litigators defend mortgage-related class action and complex civil claims, ranging from multi-district class and mass actions and other complex civil litigation to arbitration and alternative dispute resolution (ADR) proceedings. Our experience involves allegations of fair and responsible lending, unfair competition and deceptive trade acts and practices, fraud, false statements, false claims, breach of contract, loan repurchase claims, and breach of fiduciary duties, as well as alleged violations of regulations and laws governing the mortgage industry. We offer our mortgage industry clients a strong appellate practice, and serve as amicus curiae counsel on cases that impact this industry.
Buckley is involved in the full range of transactions relevant to mortgage companies, servicers, settlement service providers, vendors, and investors. We negotiate the most favorable business terms possible for our clients by leveraging our knowledge of the mortgage industry and its business risks, our experience handling litigation and enforcement matters, and our deep understanding of the relevant laws, regulations, and the expectations of regulators, the government-sponsored enterprises (GSE), and Ginnie Mae. Our lawyers are experienced in regulatory and corporate due diligence of both acquisition or investment targets as well as service providers. We negotiate mergers and acquisitions of mortgage lenders, servicers, brokers, settlement service providers, and other service providers; asset purchase and sale transactions, including loans and servicing rights; and distressed asset purchases and sales agreements. We negotiate and document correspondent, wholesale lending, broker, servicing and subservicing, pooling and servicing, warehouse lending and other credit facility, outsourcing, co-branding, portfolio retention, and marketing and affinity marketing agreements. We are also involved in vendor transactions that include, loan origination, servicing, collections, settlement services, vendor arrangements, the provision of electronic/digital mortgage-related services, and joint ventures under Real Estate Settlement Procedures Act's (RESPA) affiliated business arrangement rules.
Our firm offers law-related licensing services to mortgage lenders, loan investors, and mortgage servicing rights-owners, brokers, and servicers, as well as debt collectors, consumer finance companies, and other non-depository financial institutions. We assist with every phase of the licensing process, from identifying potential target licenses to interacting with state regulatory agencies. We work with our clients to obtain licenses in all 50 states, the District of Columbia, and most U.S. territories. Our experience includes federal and state licensing; mortgage, Federal Housing Administration, and loan originator/loan officer licensing; the Nationwide Mortgage Licensing System (NMLS); and license changes of control, modifications, upgrades, downgrades, and surrenders. We navigate our clients through amendments to corporate structure and change of control, management and location, and Certificate of Authority and DBA filings. Our attorneys have extensive experience working with state and federal regulators and licensing authorities on licensing and compliance matters. Our integrated approach to licensing give us an advantage when drafting initial applications and follow-on requests that have the best chance of obtaining timely approval.
Buckley delivers an in-depth understanding of mortgage lending operations, loan sale transactions, and market expectations in the representation of mortgage lenders in loan repurchase litigation brought by investors, trustees, and bond insurers alleging breaches of representations and warranties in loan purchase or credit enhancement agreements. We also assist clients in responding to repurchase demands made by private investors and government-sponsored enterprises (GSEs). As needed, our team can assist in the difficult, loan-by-loan analysis of the validity of repurchase requests.
Our attorneys routinely advise mortgage insurers on a broad range of compliance matters, including those involving the Real Estate Settlement Procedures Act (RESPA); federal, state, and international privacy laws; Equal Credit Opportunity Act (ECOA); Fair Housing Act; Fair Credit Reporting Act (FCRA); and Truth in Lending Act (TILA). We also counsel clients on issues pertaining to federal and state fair debt collection laws, state insurance statues, and other state and federal laws and regulations. We assist our clients in drafting and negotiating mortgage insurance contracts and ancillary agreements, contract underwriting, and other arrangements with various settlement service providers. We represent mortgage insurers before Congress, the Department of Housing and Urban Development (HUD), FTC, and federal banking and state regulatory agencies.
Buckley advises corporate clients and industry trade associations on pending federal and state legislative and regulatory developments affecting the mortgage industry. Our lawyers draft legislative and regulatory language, prepare comment letters, and advocate client positions before Congress, regulatory agencies, and state legislatures.
"The pendulum always swings twice: Disparate impact under the Obama, Trump, and Biden administrations" by Jeffrey P. Naimon and Sasha Leonhardt (American Bar Association Consumer Financial Services Committee Newsletter)
For over forty years, courts took the lead on interpreting the Fair Housing Act’s (“FHA’s”) prohibition on discriminatory housing practices, including home mortgage lending. While different administrations have varied as to whether the Supreme Court’s disparate impact theory from the Griggs v. Duke...Articles
Special Alert: CFPB proposes to halt foreclosure starts from August 31 until 2022 and create new loss mitigation requirements for servicers
The Consumer Financial Protection Bureau on April 5 issued a proposal that would broadly halt foreclosure initiations on principal residences from August 31, 2021 until 2022, and change servicing rules to promote consumer awareness and processing of Covid-relief loss mitigation options. Although...Special Alerts
"CFPB makes it clear: Fair servicing is back, for real this time" by Jonice Gray Tucker and H Joshua Kotin (HousingWire)
A new presidential administration and a clarion call from the Consumer Financial Protection Bureau has transformed fair servicing from a seemingly remote risk into a front and center mandate. After the 2008 financial crisis, regulators enhanced long-standing fair lending examination guidelines to...Articles
"CFPB order offers insight into pandemic mortgage servicing" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
The U.S. Consumer Financial Protection Bureau in December issued a consent order based on alleged violations of its 2014 mortgage servicing regulations. The consent order, which also bootstraps claims of unfairness and deception to alleged technical violations of the servicing regulations —...Articles
The Consumer Financial Protection Bureau last week released two final rules further defining what types of loans can be a “qualified mortgage loan” for purposes of the bureau’s Ability-to-Repay/Qualified Mortgage Rule (ATR/QM Rule). The General QM Final Rule substantially revamps the general rules...Special Alerts
Special Alert: Federal and state authorities take significant actions to address mortgage servicing concerns
On December 7, the Consumer Financial Protection Bureau, Multi-State Mortgage Committee of state mortgage banking regulators, and every state attorney general took actions against a large nonbank mortgage company for alleged violations pertaining to both mortgage origination and servicing practices...Special Alerts
On August 18, the CFPB released a Notice of Proposed Rulemaking (NPRM) to create a new category of Qualified Mortgages to be called “Seasoned QMs”. The CFPB concluded that if a loan has performed for a long enough period of time and meets certain underwriting conditions and product restrictions, it...Special Alerts
Special Alert: California Assembly to introduce legislation for Covid-19-related relief for mortgage loans, vehicle-secured credit, PACE financing, and deferred deposit transactions
We understand that the California State Assembly will shortly propose amendments to Assembly Bill No. 2501 to create the “COVID-19 Homeowner, Tenant, and Consumer Relief Law of 2020.” Note: The proposed legislation was available on California’s legislative service website shortly after publication...Special Alerts
The risks presented by the coronavirus pandemic have forced innovation in executing consumer contracts — and fast. Not least affected is the mortgage industry, which typically relies on in-person interactions for document execution to satisfy legal requirements and investor guidelines. Office...Articles
"Will private flood insurance keep mortgages from going underwater?" by Melissa Klimkiewicz and Sara Ruvic (HousingWire)
Spoiler: We aren’t certain whether private flood insurance will help homes retain their value, but we do know that the new flood insurance rules are presenting surprising challenges for lenders. For years, homeowners in high flood-risk areas have relied on subsidized flood insurance that the...Articles
On March 31, Fannie Mae and Freddie Mac issued bulletins updating and clarifying their respective requirements for remote online notarizations as they seek to reduce in-person notarizations during the Covid-19 pandemic. Remote online notarization allows a notary to use electronic tools — typically...Special Alerts
Special Alert: CARES Act places significant burdens on servicers of consumer debt but provides some relief to depositories
President Trump late last week signed the Coronavirus Aid, Relief, and Economic Security Act that attempts to soften the negative economic effects of the Covid-19 pandemic on consumers, including by suspending payments for certain student loan borrowers and enabling mortgage loan borrowers to...Special Alerts
On March 25, California Governor Gavin Newsom announced a financial relief package (Proposal) and related guidance to assist borrowers in California experiencing financial hardship as a result of the Covid-19 outbreak. According to the news release, the relief efforts are being supported by several...Special Alerts
On October 28, HUD and DOJ announced a long-awaited Memorandum of Understanding (MOU), which provides prudential guidance concerning the application of the False Claims Act to matters involving alleged noncompliance with FHA guidelines. The announcement was made by HUD Secretary Dr. Benjamin S...Special Alerts
"HUD’s disparate impact proposal clarifies fair lending laws" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
The U.S. Department of Housing and Urban Development last month released its long-anticipated proposal to revise its disparate impact rule under the Fair Housing Act. Although the proposal has attracted some criticism from those who believe the proposal would make it more difficult for plaintiffs...Articles
"Dorian update: How state laws protect servicemembers" by Jeffrey P. Naimon, Sasha Leonhardt, and Jessica M. Shannon (Law360)
Hurricane Dorian devastated the Bahamas and southeastern United States in late August and early September, and the governors of Florida, Georgia, North Carolina, South Carolina and Puerto Rico authorized the activation of state National Guard forces for response efforts. In addition, the Rhode...Articles
"FHA enforcement: What decreased reliance on the False Claims Act means for FHA lenders and servicers" by Melissa Klimkiewicz, Michelle L. Rogers, and Katherine Brockway Katz (HousingWire)
Top offcials at the U.S. Department of Housing and Urban Development are looking to chart a new course to win back banks that have fled the Federal Housing Administration lending program following a series of multimilliondollar False Claims Act settlements. In the past, HUD has partnered with the U...Articles
"Alternative data and fair lending face off: The relationship is complicated" by Jonice Gray Tucker and Caroline M. Stapleton (Mortgage Compliance Magazine)
Thinking of getting into a relationship with alternative data? You're not alone. Use of "alternate data," a term broadly used to describe consumer information gathered from non-conventional sources, is becoming increasingly attractive to mortgage lenders, their service providers, and even consumers...Articles
"Breaking down (language) barriers: A practical approach to LEP borrowers" by Jessica L. Pollet and Susanna K. Sedrak (Westlaw Journal)
In roughly 5.3 million households in the United States, the head of the house doesn’t speak English as the primary language or has limited ability to understand it.1 But like most individuals seeking full participation in the U.S. economy, those with limited English proficiency need access to...Articles
On May 10, the U.S. Court of Appeals for the Second Circuit determined that class members have constitutional standing to sue a national bank for allegedly violating New York’s mortgage-satisfaction-recording statutes, which require lenders to record borrowers’ repayments within 30 days. The...InfoBytes
On May 5, the U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of a mortgage servicer in an action asserting claims arising from a homeowners’ association’s (HOA) nonjudicial foreclosure on real property in Nevada. According to the opinion, Fannie Mae originally...InfoBytes
On May 6, the U.S. District Court for the Central District of California preliminarily approved a revised class action settlement concerning allegations that a mortgage servicer charged borrowers a $15 convenience fee for making mortgage payments over the phone. The plaintiff filed a class action...InfoBytes
On May 7, FHA issued a notice clarifying when it is appropriate to begin reviewing borrowers for loss mitigation options outlined in the “Review of Borrowers in a Pandemic-Related Forbearance for a Covid-19 Loss Mitigation Option.” The notice acknowledges that some mortgagees are unsure about when...InfoBytes
On May 3, FHFA published a final rule requiring Fannie Mae and Freddie Mac (GSEs) to develop “credible resolution plans” (also known as “living wills”) to facilitate their rapid and orderly resolution in the event FHFA is appointed receiver per the Housing and Economic Recovery Act of 2008. Similar...InfoBytes
On April 30, HUD announced a Charge of Discrimination against a California-based mortgage modification service (respondents) for allegedly violating the Fair Housing Act by discriminating against Hispanic homeowners. According to HUD, the complainants alleged that the respondents targeted them for...InfoBytes
On April 30, the FDIC released a list of administrative enforcement actions taken against banks and individuals in March. During the month, the FDIC issued 10 orders consisting of “five Prohibition Orders, three Orders to Pay Civil Money Penalties, two Section 19 Applications, one Order to Correct...InfoBytes
On May 4, the CFPB released two reports analyzing mortgage borrowers’ challenges due to the ongoing Covid-19 pandemic. The first report explores the characteristics of borrowers who are delinquent or in forbearance based a sample of nearly 662,000 loans for owner-occupied properties. The report...InfoBytes
On April 28, the FHFA announced that Fannie Mae and Freddie Mac will implement a new refinance option for low-income borrowers with Enterprise-backed single-family mortgages. The option applies to eligible borrowers that (i) have an owner-occupied Enterprise-backed one-unit single-family mortgage...InfoBytes
On April 26, the CFPB announced presentations from the Bureau’s first two tech sprints—forums that gather “regulators, technologists, financial institutions, and subject matter experts from key stakeholders for several days to work together to develop innovative solutions to clearly-identified...InfoBytes
WASHINGTON, D.C. (March 7, 2018) – Buckley Sandler LLP today formally announced the launch of APPROVED , a new approach to licensing for financial services companies. Buckley Sandler is building upon years of financial services experience and licensing know-how to offer APPROVED, a technology-...Press Releases
Buckley Sandler today announced the publication of the second edition of the CFPB Mortgage Origination Rules Deskbook. Produced in partnership with the American Bankers Association, the book is the definitive guide for bank and nonbank mortgage originators navigating the Consumer...Announcements
BuckleySandler LLP hosted its eighth annual Fair Lending Today conference in Washington, DC on March 13-14, 2016. The two-day event featured an evening of interactive roundtable discussions on fair lending issues, followed by a full day of seminars. The sessions were led by BuckleySandler attorneys...Press Releases
Buckley Sandler Files Amicus Curiae Brief on Behalf of Industry Group in RESPA Case; Marks First Appeal Against CFPB Director Decision
On October 5, 2015, Buckley Sandler attorneys filed an amicus curiae brief on behalf of the Consumer Mortgage Coalition (CMC) in the first case to come up on appeal to the District of Columbia Circuit since the CFPB was founded in 2011. In the CMC’s brief, Buckley Sandler attorneys argued that the...Press Releases
Buckley Sandler LLP hosted its annual Fair Lending Today conference in Washington, DC, March 15-16, 2015. The two-day event featured an evening of interactive roundtable discussions on fair lending issues, followed by a full day of seminars. The roundtables and seminars were led by Buckley Sandler...Press Releases
WASHINGTON, D.C. (October 9, 2014) – Buckley Sandler LLP , a leading financial services and criminal and civil enforcement defense law firm, is pleased to announce the availability of “The New CFPB Mortgage Origination Rules Deskbook.” Published in partnership with the American Bankers Association...Press Releases
Our Mortgages Team
"CFPB makes it clear: Fair servicing is back, for real this time" by Jonice Gray Tucker and H Joshua Kotin (HousingWire)
"CFPB order offers insight into pandemic mortgage servicing" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
Special Alert: CFPB redefines Qualified Mortgage; “GSE Patch” to expire
Recent Blog Posts
May 14, 2021
2nd Circuit affirms borrower standing in mortgage recordation delay suit
May 14, 2021
9th Circuit: Federal Foreclosure Bar preempts Nevada HOA law, maintaining Fannie Deed of Trust
May 13, 2021
District Court signals approval of $3.3 million mortgage convenience fee settlement
May 7, 2021
FHA clarifies timing to review Covid-19 loss mitigation options for borrowers
May 5, 2021
FHFA finalizes GSE resolution plan requirements