The recent anti-arbitration announcement from the CFPB would create risks for consumer lenders and related asset-backed securities, according to a report from Moody’s Investors Service. Specifically, the bureau indicated it is contemplating instituting a ban on provisions in financial contracts that prohibit consumers from participating in class-action litigation. The agency is also considering whether to mandate that companies that include such arbitration clauses regularly submit to the CFPB information related to arbitration proceedings, possibly for release to the public. Such changes could end up driving more class-action litigation against lenders and servicers, a number of which play essential roles in the securitization process, analysts at Moody’s said. “The proposals, if adopted, would affect financial products including credit cards, automobile loans, ...

Industry recipients of a civil investigative demand (CID) from the CFPB may have been given a new way to cope, thanks to a recent decision from the District Court for the District of Columbia. In John Doe Company No. 1 v. CFPB, the target of a CFPB investigation brought an injunctive action against the agency seeking a temporary restraining order and a motion to seal the case. John Doe Company No. 1 asserted that sealing the case was justified on two grounds, the first of which is that bureau investigations are usually conducted confidentially. Further, sealing would protect the company from the harm that would result from the negative publicity if the CFPB’s ongoing investigation was made public. In coming ...

Are Home Builders Next on the CFPB’s MSA Hit List? Lender anxiety tied to the CFPB’s crackdown on marketing services agreements is reaching a new fever pitch these days, while spreading to other sectors of the housing finance industry, namely home builders and Realtors. Industry officials interviewed by Inside Mortgage Finance, an affiliated newsletter, recently said title insurance affiliates owned by Realtors and home builders are a particular area of concern – namely pushing customers into using service providers in which they have an ownership stake. “I’ll tell you where the RESPA [Real Estate Settlement Procedures Act] violation is – it’s pressing customers into using their title company,” said one trade group executive. “The idea is that the consumer gets to pick ...

Mortgage lenders are more willing to expand the credit box for FHA borrowers, but they appear to be getting more cautious about FHA lending, according to a new Inside FHA/VA Lending analysis of Ginnie Mae mortgage-backed securities data. Over two thirds of FHA loans securitized in the first nine months of 2015 had credit scores below 700, and 6.2 percent of them had scores of 620 or lower. By comparison, 47.0 percent of VA loans were below 700 and just 4.4 percent were in the lowest category. But FHA lenders became more cautious as the year wore on. In the first quarter, 6.8 percent of FHA loans had scores of 620 or lower. That fell to just 6.0 percent in the third quarter. The FHA purchase-mortgage sector skews even further away from the riskiest borrowers and toward safer ground. The share of FHA purchase loans with scores of 620 or lower fell from 5.8 percent in the first ... [ 2 charts ]

Facing the possibility of a potential False Claims Act lawsuit, PHH Corp. is reconsidering its participation in the FHA mortgage insurance program. Though PHH’s FHA segment represents only 3 percent of its mortgage volume over the past 12 months, the company will proceed cautiously as it evaluates the risk-adjusted return of FHA products and programs, said Glenn Messina, PHH president and chief executive.Ranked 50th among FHA lenders as of June 30, 2015, PHH expects more regulatory challenges in 2016 as well as rising compliance costs, said Messina during a third-quarter earnings call. In its latest quarterly filing, PHH disclosed receiving a subpoena from the inspector general of the Department of Housing and Urban Development for documents related to, among other things, FHA loan origination and underwriting practices. Like several other FHA lenders, PHH is ...

The Federal Home Loan Bank System is seeking to boost its share of government-backed lending and the Ginnie Mae market with a new servicing-release option for FHA, VA and rural housing mortgages that are sold into the Mortgage Partnership Finance program. The new feature adds to an existing servicing-retained execution in the MPF Government Mortgage-Backed Securities program. The current servicing-retained component requires participating lenders to service loans they originate and sell into the MPF conduit. The servicing-release option from Nationstar Mortgage, a top-10 mortgage servicer based in Dallas, will provide lenders with greater pricing flexibility so they can become more competitive in the communities they serve, said Matt Feldman, president of the Chicago FHLB. Only FHLBank members that are participants in MPF can use the government MBS program. In order to ...

A recent settlement between DBRS and the Securities and Exchange Commission suggests that in the years following the financial crisis, the rating service didn’t dedicate enough resources to reviewing ratings on outstanding non-agency MBS. The SEC found that between April 2009 and February 2011, DBRS employed only one analyst who was principally responsible for the majority of surveillance tasks for the firm’s outstanding ratings for non-agency MBS and real estate mortgage investment conduits. DBRS had more than 5,000 applicable ratings outstanding in that span. The SEC added...

The Securities Industry and Financial Markets Association recently filed an amicus brief in support of the defendants to reverse a case in which the Federal Housing Finance Agency argued that Nomura Holdings sold shoddy MBS to Fannie Mae and Freddie Mac. In the case of FHFA vs. Nomura Holdings, a judge ruled in May, after a three-week bench trial, that Nomura and RBS Securities were liable for the claims brought by the FHFA and knowingly sold bad MBS to the government-sponsored enterprises before the 2008 financial crisis. The MBS were backed by mortgages with an unpaid principal balance of about $2.05 billion at the time of purchase. Nomura appealed...

The FHA has issued temporary guidelines to ease the condominium approval process and increase the number of condo projects eligible for FHA financing. The guidelines take effect immediately and will be in place for one year to give FHA enough time to write and implement a more comprehensive rule. With the issuance of the guidelines, FHA anticipates an increase in the pool of FHA-eligible condo projects, which in turn will provide more affordable housing options for first-time and low- to moderate-income borrowers. The interim guidelines modify three key areas where lender complaints have been common. First, the guidelines revise requirements for recertification of condo projects. FHA-approved condo projects require recertification after two years to ensure that the project is still in ...

The legal table is set for a potentially pivotal court ruling on the mortgage industry’s use of marketing services agreements under the Real Estate Settlement Procedures Act, now that the Consumer Financial Protection Bureau submitted its “reply” brief with the U.S. Court of Appeals for the District of Columbia in the agency’s dispute with PHH Mortgage. In its filing last week in PHH Corp., et al., v. CFPB, the bureau did not try to assert that all MSAs are unlawful or illegitimate, in and of themselves. “Parties to illegal kickback agreements are unlikely to put those agreements into writing. So those agreements may have to be identified based on circumstantial evidence and inference,” said the CFPB. “But RESPA Section 8(c)(2) clarifies when it is not proper to infer an illegal agreement. Illegality cannot be inferred merely because a party that received referrals makes payments to a party that made the referrals. “Moreover, such an arrangement is...