The Ninth Circuit Court of Appeals has dismissed an argument in a whistleblower case, ruling that Fannie Mae and Freddie Mac are not “federal instruments” for the purposes of the False Claims Act, a federal statute that’s been used aggressively against FHA lenders. The FCA imposes liability on persons that defraud government programs and was originally enacted to penalize private parties that profited illegally in selling supplies to the U.S. Army during the Civil War. In the case of United States ex rel. Adams v. Aurora Loan Services, Inc., et al., the government argued...

One of the companies that purchased a large number of distressed homes from Fannie Mae following the housing crisis was the focus of a recent New York Times piece highlighting the problems brought on by investor-purchased homes that still linger today. Harbour Portfolio Advisors of Dallas is an investment firm that purchased thousands of single-family homes from Fannie in states like Florida, Georgia, Illinois, Michigan and Ohio, by way of a pool sales program that existed from 2010 to 2014. The article accused the firm of targeting and taking advantage of low-income buyers who don’t know what they’re getting themselves into once agreeing to buy a fixer-upper home from Harbour. The investment firm bought...

Some of the most well-known names in mortgage lending and servicing continue to deal with a variety of regulatory crackdowns and judicial disputes, some of which stem from the 2008 mortgage market collapse. In Massachusetts, HSBC has agreed to pay $4.1 million to resolve allegations that it violated state consumer protection laws by receiving commissions and other kickbacks from insurer Assurant Inc. relating to force-placed insurance policies that it procured for struggling homeowners in the state. Under the terms of the settlement, HSBC will provide...

The California Supreme Court late last week issued a ruling in a case where a borrower challenged the foreclosure of a loan that was included in a non-agency MBS issued in 2007. The court allowed the borrower’s claims to proceed, which could prompt a significant increase in foreclosure-related litigation for California mortgages in non-agency MBS. An opinion authored by Kathryn Werdegar, an associate justice of the California Supreme Court, stresses that the court’s ruling in Yvanova v. New Century Mortgage is narrow. “We hold only that a borrower who has suffered a non-judicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the challenged assignment,” Werdegar said. The ruling left...

An appeals court in Massachusetts recently ruled in favor of a borrower in a case involving the determination of the borrower’s ability to repay a balloon mortgage, setting a concerning precedent, according to industry lawyers. Moronta v. Nationstar Mortgage involves a refinance originated by Fremont Investment & Loan in January 2007 for a borrower in Quincy, MA. The refi included a first-lien 3/1 adjustable-rate mortgage that amortized over 50 years with a ...

Last week, the Consumer Financial Protection Bureau finalized its “no-action” policy towards market innovators that develop new financial services products, adopting its proposal largely unchanged. But industry experts think the new policy is not only useless but actually counterproductive in that it will likely discourage lenders from developing new loan products in an evolving mortgage market – not foster more innovation. This new policy – created under the CFPB’s Project Catalyst – “is designed to improve access to consumer financial products and services that promise substantial consumer benefits,” said CFPB Director Richard Cordray. “We want to foster a consumer financial marketplace where companies develop safe, innovative products and approaches that can help make people’s lives better.” Under the policy, bureau staff would issue...

The sale of jumbo mortgages – and even agency loans – by nonbanks continues to be problematic because of the CFPB’s integrated disclosure rule known as TRID. One mortgage official cited an example of a mortgage with TRID errors that was sold to one of the government-sponsored enterprises. “The lender self-reported the problems and was immediately asked to repurchase the loan,” this official said. Speaking of the GSEs, Fannie Mae and Freddie Mac issued $56.56 billion of single-family mortgage-backed securities in January, a modest 5.6 percent decline from the previous month, according to a new ranking and analysis by Inside The GSEs, an affiliated publication. December, however, may have been an anomaly. Many mortgage originators reported delays in loan closings in October ...

Since the Oct. 3, 2015, implementation of the CFPB’s integrated disclosure rule – TRID – attorney Daniella Casseres, an associate in the financial institutions regulatory practice at the Offit Kurman law firm in New York City, has received hundreds of questions concerning the new disclosure requirements.In a recent blog post, she provided answers to some of the most frequent and most pressing. Many have asked if they need to send all required three-day disclosures if the individual is just shopping. “The TRID rules require that you send a Loan Estimate and the home loan toolkit, when applicable, within three business days of receiving an application. An application for purposes of this rule, means the receipt of the following six pieces of ...

Mortgage lenders have had a little more than three months to get used to the CFPB’s integrated disclosure rule, but many are still squirming with uncertainty about civil liability and enforcement, particularly when it comes to errors in the Loan Estimate and the Closing Disclosure. Much of the problem stems from ambiguity in the wording of the rule itself. “Although TRID implements portions of the Truth in Lending Act and the Real Estate Settlement Procedures Act, the text of the regulation does not state which statutory liability applies to the various parts of the rule or forms,” K&L Gates attorneys Holly Spencer Bunting and Charles Weinstein said in a recent review. Instead, civil liability under TRID is a matter that ...

The recent death of conservative U.S. Supreme Court Justice Antonin Scalia may make it difficult for the nation’s highest court to consider a pending case that has far-reaching implications for the mortgage industry and the broader financial services sector. The specific question in Spokeo, Inc. v. Robins is whether the respondent (Robins) identified an injury-in-fact under Article III of the U.S. Constitution by alleging that the petitioner (Spokeo) had willfully violated the Fair Credit Reporting Act by publishing inaccurate personal information in consumer reports – in this case, on a consumer-reporting type website – without following reasonable procedures to assure the information’s accuracy. Spokeo tried to dismiss the suit on the grounds that Robins could not prove he suffered a specific financial ...