Legal Issues
Browse articles from all of our Newsletters related to Legal Issues.
May 18, 2012 - Inside The GSEs
Fired Fannie Staffer to Press Lawsuit Despite Ruling
Fannie Mae received a leg up earlier this month in its defense against a former staffer’s wrongful termination lawsuit when a federal judge ruled that the GSE is not legally considered a government entity while under the conservatorship of its regulator, the Federal Housing Finance Agency. Caroline Herron, a former Fannie vice president who left in 2007 but returned as a consultant in 2009, filed suit against the GSE in June 2010. Herron claims she was wrongly fired for reporting what she said was Fannie’s mismanagement of the Obama administration’s housing rescue initiatives. According to papers filed in U.S. District Court for the District of Columbia, Herron sought to prove that Fannie was not a private company but an adjunct of the state while under FHFA conservatorship as part of her claim against Fannie. Herron asserted a Bivens claim, a claim under the First Amendment for private damages against federal officials for civil rights violations outside the purview of the Federal Tort Claims Act.
May 18, 2012 - Inside The GSEs
FHFA Bank MBS Lawsuits Survive Dismissal Motion
Look for the Federal Housing Finance Agency to press its multiple legal actions against many of the nation’s biggest issuers of non-agency mortgage-backed securities after a federal judge rejected a bid by UBS Americas to turn back the FHFA’s lawsuit over its sale of non-agency MBS to Fannie Mae and Freddie Mac. Judge Denise Cote, of the U.S. District Court for the Southern District of New York, two weeks ago denied UBS’ motion to dismiss on statute of limitations grounds, while dismissing the FHFA’s negligent misrepresentation claims. The FHFA, as GSE conservator, sued UBS in July 2011 alleging that billions of dollars of MBS purchased by Fannie and Freddie were based on offering documents that contained “materially false statements and omissions.”
May 18, 2012 - Inside The GSEs
Delaware County Finds GSEs Not Exempt From Transfer Taxes
Real estate transactions in New Castle County, DE, will no longer be exempt from transfer tax as a conveyance from a governmental entity, following a new ruling from the county’s legal counsel.The New Castle county law department found that Fannie and Freddie are federally chartered private corporations and not governmental agencies. The county’s revised interpretation of the realty transfer tax statute earlier this month, “consistent with the growing practice in other jurisdictions,” has prompted the county to enforce the distinction starting in June.
May 18, 2012 - Mortgage Beat
Team Coverage of the ASF Annual Meeting
Members of the editorial department of Inside Mortgage Finance Publications will deploy to the Four Seasons Hotel in Washington, DC, early next week for team coverage of the 2012 Annual Meeting of the American Securitization Forum, where one of the featured...
May 18, 2012 - Inside MBS & ABS
Residential Capital Reaches $8.7 Billion Settlement With MBS Investors as Part of Bankruptcy Plan
Ally Financial negotiated an $8.7 billion settlement with investors in non-agency MBS issued by Residential Capital before putting the company, one of the pioneers in the securitization of jumbo, Alt A and subprime mortgages, into bankruptcy. Long before ResCap’s bankruptcy filing early this week, trustees for outstanding non-agency MBS had already been instructed by 17 investors to sue Ally Financial for compensation over alleged violations of ResCap representations and warranties. The deal was reached shortly before the filings, according to a source close to the matter. Ally said that some 290 MBS trusts...
May 14, 2012 - Inside Regulatory Strategies
Kansas. Judge Robert Berger of the U.S. Bankruptcy Court for the District of Kansas ruled in three decisions late last month that a mortgage naming Mortgage Electronic Registration Systems, Inc., as mortgagee is valid and enforceable, upholding MERS’ role as agent for its members. Judge Berger’s rulings in In re Van Nostrand, In re Huerter and In re Wilkinson found that there was no splitting of the mortgage and note because MERS held the mortgage on behalf of the note owner. “The MERS system has been scrutinized and analyzed by other courts, and, provided MERS can produce a complete...
May 14, 2012 - Inside Regulatory Strategies
Concerns About Dodd-Frank and Federal Preemption Overblown
Industry and legal concerns that enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act made substantial changes to the federal preemption landscape are “much ado about nothing,” according to two legal scholars at the law firm Barnett Sivon & Natter PC in Washington, DC. In a scholarly work scheduled for publication in the Virginia Law and Business Review this fall, the pair addresses the view of some commentators that the Dodd-Frank Act changed the standard used to determine if a state law is preempted. Some have felt that state law is only preempted if the law...
May 14, 2012 - Inside Regulatory Strategies
Borrower Only Needs to Notify Lender of Intent to Rescind
In Gilbert v. Residential Funding LLC, the U.S. Court of Appeals for the 4th Circuit became the first federal appellate court to rule that a borrower only needs to send notice of rescission within the three-year period to exercise a valid right to rescind. In this case, the borrowers are appealing a district court’s dismissal of their claim that Deutsche Bank Trust Company Americas, as trustee for Residential Accredit Loans, Inc., Residential Funding LLC and GMAC Mortgage LLC, violated various consumer protection laws in connection with a refinance mortgage the borrowers secured...
May 14, 2012 - Inside Regulatory Strategies
Appeals Court Rules Servicer Can Be Sued as a Debt Collector
In Bridge v. Ocwen Federal Bank, FSB, the U.S. Court of Appeals for the Sixth Circuit recently ruled that a pro se plaintiff stated a Fair Debt Collection Practices Act claim against a mortgage servicer where the mortgage was not actually in default, reversing the district court’s dismissal. The court came to the conclusion that the mortgage servicer and the purchaser of the mortgage came under the scope of the FDCPA because the mortgage servicer treated the mortgage as if it were in default and tried to collect on it as a debt that was in default. In Bridge, the homeowner...
May 14, 2012 - Inside Regulatory Strategies
Top Mortgage Servicer Disputes CFPB Position in FDCPA Lawsuit
The Consumer Financial Protection Bureau has sided with borrowers in an appeals case being brought under the Fair Debt Collection Practices Act, Birster v. American Home Mortgage Servicing, Inc., which is currently before the 11th Circuit Court of Appeals. The FDCPA prohibits debt collectors from using certain means to collect debts and from engaging in certain conduct in connection with the collection of a debt. In order for a plaintiff to successfully sue under the act, he or so must show two things: that the defendant is in fact a debt collector under the law, and the behavior...
May 14, 2012 - Inside Regulatory Strategies
Industry Challenges CFPB on TILA Case
Three mortgage lending industry groups have challenged the position of the Consumer Financial Protection Bureau in a key Truth in Lending Act case by asserting that borrowers must file a lawsuit within three years of a mortgage loan’s signing in order to exercise their right of rescission. As far as the industry is concerned, the crux of the dispute in Rosenfield v. HSBC Bank, No. 10-1442, currently before the 10th District Court of Appeals, is whether borrowers who notify lenders of their intent to rescind must also sue their lenders within three years. TILA gives certain...
May 14, 2012 - Mortgage Beat
Facing increasing issues over loan repurchases and MBS litigation, Residential Capital filed for bankruptcy early Monday morning. The move creates wanted distance from parent company Ally Financial in the process. Despite the spin-off, Ally said ResCap will not stop...
May 11, 2012 - Inside FHA Lending
DOJ Announces $202M Settlement with Lenders
Deutsche Bank and its mortgage subsidiary MortgageIT this week agreed to pay $202 million to settle civil claims that they engaged in a decade of misconduct and deception to qualify risky mortgage loans for FHA insurance. The civil fraud lawsuit was brought against the two companies by the Department of Justice as a result of a referral from the Department of Housing and Urban Development. Filed in May last year, the government lawsuit sought damages and civil penalties under the False Claims Act. The suit alleges that MortgageIT, which Deutsche Bank acquired in 2007, used its authority as a direct endorsement lender (DEL) to ...
May 11, 2012 - Inside Nonconforming Markets
The Federal Housing Finance Agency’s non-agency mortgage-backed security repurchase claims against UBS can proceed, according to a ruling last week by U.S. District Judge Denise Cote in Manhattan federal court. The decision could also be applied to the other 16 lawsuits the FHFA filed against non-agency MBS issuers. Among other issues, the ruling refuted claims ... [Includes two briefs]
May 11, 2012 - Inside MBS & ABS
The massive legal action initiated by the Federal Housing Finance Agency last summer against many of the nation’s biggest lenders has survived its first legal challenge relatively unscathed following a federal judge’s rejection of the defendant’s motion to dismiss. Judge Denise Cote of the U.S. District Court for the Southern District of New York last week denied UBS Americas’ motion to dismiss on statute of limitations grounds. The ruling permits the FHFA to proceed full steam ahead with its claim that UBS violated federal securities laws by misleading Fannie Mae and Freddie Mac into purchasing $6.4...
May 10, 2012 - Mortgage Beat
Federal Court Finds Fannie Not a Government Entity in Firing Lawsuit
Fannie Mae received a leg up last week in its defense against a former staffer’s wrongful termination lawsuit when a federal judge ruled that the GSE is not legally considered a government entity while under the conservatorship of its regulator, the Federal Housing Finance Agency...
May 4, 2012 - Inside Mortgage Trends
Ally Financial Imposes Modification Deadline
Ally Financial announced a deadline for borrowers seeking a modification under the $25 billion multistate servicing settlement finalized in February. In a financial filing last week, Ally wrote, “We are committed to providing loan modifications to all eligible borrowers who accept a modification offer within three months of the solicitation. We have also agreed to provide loan modifications to borrowers who accept a modification offer within six months of the solicitation, unless and until total borrower relief provided exceeds $250 million.” Of the five banks in the settlement, Ally is on the...
May 4, 2012 - Inside The GSEs
FHFA Official: HARP 2.0 Work-In-Progress
Even as the still-regenerating Home Affordable Refinance Program is already proving itself to be a boon for banks’ bottom lines, participants of an exclusive Inside Mortgage Finance webinar last week said so far there’s little indication borrowers are disadvantaged because there are currently fewer new lenders originating HARP 2.0 as same servicers. Since January, one month after the revised program took effect, lenders have reported intense interest and a more significant uptick in new refinance applications.
May 4, 2012 - Inside MBS & ABS
Bank of America’s pending $8.5 billion settlement with non-agency MBS investors appeared to gather some momentum last week following a BofA-favorable ruling by a New York state court. New York State Supreme Court Justice Barbara Kapnick ruled the case will move forward under Article 77 rather than a broader plenary action sought by investors opposed to the amount of the settlement. The proposed settlement reached last June with 22 institutional investors would resolve BofA’s liability related to non-agency MBS issued by Countrywide. Supporters of the settlement, including the trustee, Bank of New York Mellon...
April 30, 2012 - Inside Regulatory Strategies
Illinois. Gifford State Bank, the defendant lender in Re Crane (Case 11-90592, U.S. Dist Ct, C.D. IL), recently appealed the February ruling of the U.S. Bankruptcy Court for the Central District of Illinois, a decision that let a bankruptcy trustee avoid an Illinois mortgage as to other creditors of the estate because the mortgage failed to expressly state the maturity date and interest rate of the underlying debt. Legislation that would contravene the Crane decision has been introduced in the state House of Representatives with the hope it can be passed before the May 31 end of the session...
April 30, 2012 - Inside Regulatory Strategies
No Private Right of Action Under HAMP, Appeals Court Rules
A homeowner does not have a private right of action against his mortgage servicer under the Obama administration’s Home Affordable Modification Program, the U.S. Court of Appeals for the Eleventh Circuit ruled late last week. In this case, the borrower, Jason Miller, owned a parcel of real property in Hiawassee, GA, which he was able to purchase by taking out a mortgage loan from the unidentified predecessor of the defendant, Chase Home Finance, LLC (Chase). In February 2009, Miller asked for a loan modification from Chase, citing financial difficulties. Chase agreed to...
April 30, 2012 - Inside Regulatory Strategies
TILA/GFE Reform, Fair Lending Top Lender Compliance Concerns
The forthcoming combined Truth in Lending Act and Good Faith Estimate disclosure form and related rule pending at the Consumer Financial Protection Bureau is at the top of the list of greatest compliance concerns of mortgage lenders, according to the fourth annual compliance survey by QuestSoft, a provider of compliance software and services to the mortgage industry. Of the 426 lenders that were surveyed on their level of anxiety for regulatory changes, a whopping 81 percent identified this CFPB project as at least a medium (33 percent) or a high (48 percent) concern...
April 30, 2012 - Inside Regulatory Strategies
Industry Supports Multiple Efforts To Codify Privileged Protections
A handful of mortgage lending-related trade groups joined together to express their strong support of the Consumer Financial Protection Bureau’s proposed rule to codify the legal protections for privileged information that CFPB-regulated financial institutions submit to the bureau. The proposal would make clear that an institution that submits privileged information to the CFPB does not waive any applicable privilege having to do with third parties. It also would make clear that the bureau’s transfer of privileged information to another federal or state agency does not result in a...
April 30, 2012 - Inside Regulatory Strategies
Lenders Press CFPB for QM Full Safe Harbor
The Consumer Financial Protection Bureau must structure the definition of a “qualified mortgage” under its forthcoming ability-to-repay rule as a legal safe harbor with clear, well-defined standards if regulators want to make sure that qualified borrowers across the credit spectrum maintain access to affordable financing, representatives of the financial services, home building and real estate industries said. Writing to the CFPB late last week, a group of 23 trade associations said, “Structuring the QM as a safe harbor and focusing litigation and enforcement activity on...
April 27, 2012 - Inside Nonconforming Markets
Mixed Views on Lender-Placed Insurance
Regulatory scrutiny of lender-placed insurance is increasing, but non-agency servicers claim that they are compliant with existing and impending regulations for such insurance coverage. The Consumer Financial Protection Bureau is focusing on lender-placed insurance, provisions were also included in the recent $25.0 billion servicing settlement, Fannie Mae recently updated its policies and a number of state investigations are underway. “There appear to be a number of very significant problems with ...
April 27, 2012 - Inside Nonconforming Markets
Option One Settles Non-Agency Claims with SEC
The company formerly known as Option One reached a $28.2 million settlement with the Securities and Exchange Commission this week regarding issuance of subprime mortgage-backed securities in early 2007. The SEC said Option One’s MBS “operated as a fraud or deceit” against non-agency MBS investors. “The offering documents misled investors about Option One’s precarious financial condition and, hence, its inability to fulfill its obligations on its own to repurchase ...
April 27, 2012 - Inside MBS & ABS
BayernLB Files Securities Fraud Lawsuit Charging Deutsche Bank With Selling ‘Crap’ Residential MBS
Germany’s second largest state-owned bank is looking to the U.S. courts for relief after accusing Deutsche Bank of perpetuating a fraud on it in the sale of over $810 million in toxic residential MBS. Last week, Bayerische Landesbank (BayernLB) filed suit against Deutsche in New York State Supreme Court in Manhattan alleging that Deutsche packaged risky and poor quality loans into securities while simultaneously taking short positions against the securities. According to the complaint, Deutsche officials internally disparaged the quality of the loans underlying the residential MBS even as it...
April 27, 2012 - Inside MBS & ABS
Option One Settles Charges Over Subprime MBS Issuer’s Inability to Honor Repurchase Demands
Option One Mortgage Corp. this week agreed to pay $28.2 million to settle charges brought by the Securities and Exchange Commission over the former subprime lender’s MBS disclosures regarding its ability to cover repurchase demands. Much of the litigation over failed non-agency MBS has focused on alleged misrepresentation about the quality of the loans delivered to securitization trusts, the servicing of those loan pools and the performance of trustees. The Option One settlement stems from the SEC’s contention that the company, one of the leading subprime lenders and securitizers during the heyday of...
April 26, 2012 - Inside Mortgage Finance
Comptroller of the Currency Thomas Curry urged elected officials, businesses and grassroots leaders to encourage borrowers to ask for an independent review of their foreclosure files to determine whether they have been damaged financially by improper servicing practices. In remarks to the Greenlining Institute in Los Angeles last week, Curry called upon conference participants to spread the word to borrowers about the independent foreclosure review, a stipulation in the consent orders that 14 major mortgage servicers agreed to a year ago in a deal with federal banking regulators to settle allegations of deficient...
April 26, 2012 - Inside Mortgage Finance
NCRC to Continue Challenging Discriminatory Use Of Credit Overlays As HUD Wraps Up Investigation
Even as it awaits the outcome of a government fair-lending investigation that it helped initiate, the National Community Reinvestment Coalition says the majority of lenders under review have reacted favorably but the widespread use of “credit overlays” remains a problem in the industry. In December 2010, the NCRC filed complaints with the Department of Housing and Urban Development after its investigation found that 22 lenders set minimum borrower credit scores as high as 640 for FHA loans, even though FHA guarantees loans to borrowers with scores as low as 580. The NCRC claims the credit...
April 25, 2012 - Mortgage Beat
No Private Right of Action Under HAMP, Appellate Court Rules
Borrowers may not sue servicers who deny them a permanent loan modification even if they have met all the requirements for conversion from a trial mod under the Home Affordable Modification Program, according to the U.S. Court of Appeals for the 11th Circuit. In Jason...
April 20, 2012 - Inside MBS & ABS
A Chicago police officers’ pension fund has filed suit against Bank of America and U.S. Bancorp, claiming that the two banks failed to protect investors during their turn as MBS trustees and violated an obscure, seven-decade-old federal securities statute. The lawsuit, brought last week by the Chicago Policeman’s Annuity & Benefit Fund, said that BofA, and later U.S. Bank as successor trustee, “regularly disregarded their contractual and statutory duties” by failing to oversee some 41 Washington Mutual trusts backed by home loans. “By failing to perform their duties, defendants have caused MBS holders...
April 20, 2012 - Inside MBS & ABS
Obama’s RMBS Task Force Tapping FIRREA To Make Prosecution of Misconduct Easier
The Obama administration’s Residential MBS Working Group, set up in January to probe misconduct that drove the financial crisis, is apparently trying to tap the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 to make such cases easier to bring. Although it hasn’t been used that much, the appeal of pursuing criminal investigations under FIRREA is apparently the relatively lower burden of proof than bringing more traditional criminal charges. Also, FIRREA has a longer statute of limitations than do other finance-related laws, along with the potential for large fines...
April 19, 2012 - Inside Mortgage Finance
Mortgage Industry Wins a Few in State Challenges to Loan Servicing Practices
Lawmakers in California this week pulled from their agenda a series of bills designed to help borrowers in a significant, if temporary, victory for the mortgage industry in the long drawn-out legal battles spawned by the mortgage collapse in 2008. The proposed California Homeowner Bill of Rights featured many of the requirements that have been incorporated in evolving national servicing standards. One new provision would require servicers to pay a $25 “fine” each time a borrower defaults; the money would go to a fund to investigate fraud. But two of the six bills in the package were suddenly pulled from...
April 19, 2012 - Inside Mortgage Finance
CFPB Emphasizes Disparate Impact in Move To Crack Down on Discriminatory Lending
The Consumer Financial Protection Bureau this week indicated it will be pulling out its disparate impact playbook as it launches an offensive against the providers of mortgage credit and other lenders it believes are engaging in discriminatory behavior towards consumers. “We want consumers to avoid the marketplace’s silent pickpocket – discrimination,” said CFPB Director Richard Cordray. “We cannot afford to tolerate practices, intentional or not, that unlawfully price out or cut off segments of the population from the credit markets.” In CFPB Bulletin 2012-04 (Fair Lending), the bureau asserted its...
April 18, 2012 - Mortgage Beat
HUD, DOJ Crack Down on FHA Mortgage Fraud Schemes
The Departments of Housing and Urban Development and Justice continued their crackdown on mortgage fraud schemes against the FHA with debarment orders against conspirators in a reverse mortgage scam and a prison term for a loan officer who facilitated fraud by lying about borrower...
April 16, 2012 - Inside Regulatory Strategies
Fed Forces Settlement Over Saxon Foreclosure, Servicing Practices
The Federal Reserve Board recently brought a consent order against Morgan Stanley to deal with what it characterized as a pattern of misconduct and negligence in residential mortgage servicing and foreclosure processing at the Wall Street firm’s Saxon Mortgage Services subsidiary, once the 34th largest mortgage servicer in the United States. “As noted in the announcements relating to the 2011 enforcement actions, the Federal Reserve believes monetary sanctions are appropriate and plans to announce monetary penalties in these cases,” the Fed said. The monetary penalties...
April 16, 2012 - Inside Regulatory Strategies
Justice Dept. Reveals What Prompts ECOA Referral Litigation
The U.S. Attorney General’s recently released 2011 annual report to Congress on the Equal Credit Opportunity Act Amendments of 1976 provides some useful insight as to what prompts it to litigate referrals from other agencies, as opposed to bumping them back for administrative resolution. Referrals that are most likely to be returned generally share a few characteristics, such as whether the practice at issue had ceased and there is little chance that it will be repeated. Another characteristic is whether the violation may have been accidental or stemmed from ignorance of the...
April 13, 2012 - Inside FHA Lending
Lenders Settle Charges of Bias vs. Pregnant Women
The Department of Housing and Urban Development has announced discrimination settlements with two mortgage lenders accused of denying FHA mortgage loans to expectant mothers. Two women filed separate complaints against Magna Bank in Nashville, TN, and Home Loan Center in Irvine, CA, alleging a violation of the Fair Housing Act. According to the complaints, the women’s loan applications were rejected because they were pregnant and temporarily on leave. The settlement agreement with Magna Bank requires the bank to pay the complainant $14,085 for allegedly ...
April 13, 2012 - Mortgage Beat
Conflict-of-Interest Could Complicate Settlement: FREE STORY
With the $25 billion mortgage servicing settlement finalized, attention turns away from the politicking of achieving an agreement to the nitty-gritty of implementation. A story from this week’s Inside Mortgage Finance does a great job illustrating one of the many pitfalls that...
April 13, 2012 - Inside Nonconforming Markets
The $25 billion servicing settlement involving five major bank servicers was approved by the US District Court for the District of Columbia on April 4 without a formal challenge from the Association of Mortgage Investors or anyone else. The servicers and settlement monitor Joseph Smith will agree on deadlines to implement the settlement’s various provisions, with the deadlines to be set between 60 days after approval of the settlement and up to 180 days after approval ... [Includes four briefs]
April 12, 2012 - Inside MBS & ABS
Despite Allegations That RMBS Working Group Is Missing Investigators, Task Force Is ‘Very Busy’
Some liberal interest groups are questioning whether the RMBS working group formed by federal and state enforcement agencies to coordinate securitization investigations is moving fast enough. In an email circulated earlier this week, CREDO, a progressive network, wrote that the Department of Justice has yet to deliver on its promise of 55 investigators to the RMBS working group. As federal and state enforcement agencies were wrapping up the contentious $25 billion settlement with five mortgage servicers in late January, U.S. Attorney General Eric Holder announced a new task force designed to “stream...
April 12, 2012 - Inside MBS & ABS
Judge Upholds Investors’ Claim Disputing Bank of America’s Proposed Settlement
A legal action brought by a group of four pension funds against Bank of New York Mellon alleging that the bank failed in its role as trustee to Countrywide MBS investors will proceed in federal court, albeit on much narrower grounds, a U.S. District Court judge has ruled. Last week, Judge William Pauley of the U.S. District Court for the Southern District of New York reduced “with prejudice” the number of Countrywide MBS trusts on which the plaintiffs could sue from 530 to 26. The case is Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago, et al v. the Bank of New York...
April 12, 2012 - Inside Mortgage Finance
Conflict-of-Interest Provision Could Potentially Delay Implementation of $25 Billion Settlement
A conflict-of-interest provision in the $25 billion robo-signing settlement approved by the court last week could make it harder for independent settlement monitor Joseph Smith to organize an oversight monitoring team within the agreement’s timeline. Smith, North Carolina’s former commissioner of banks, may have to issue or seek clarifying guidelines that would allow him to recruit attorneys and other professionals for his monitoring team and begin a phased implementation of the settlement’s servicing standards and mandatory relief requirements, according to an industry attorney. Last week...
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