The Federal Housing Finance Agency filed a motion last week to dismiss a lawsuit that was filed by Fannie Mae and Freddie Mac shareholders in Delaware this summer who argued that the Treasury sweep of the government-sponsored enterprises’ profits is illegal under state law. The complaint stated that with Fannie chartered under Delaware law and Freddie under Virginia’s jurisdiction, the preferred stock of a corporation cannot be given a cumulative dividend right equal to all the ...

Servicers’ use of property-management contractors has helped save costs and increase efficiencies but also opened servicers to liability, according to an analysis of litigation involving contractors. Christopher Odinet, an assistant professor of law at the Southern University Law Center, noted that servicers’ reliance on property-management firms increased in recent years due to long timelines for delinquencies and foreclosures. Servicers hire the firms to inspect ...

With the CFPB’s legal action against PHH Corp. pending before the U.S. Court of Appeals for the District of Columbia, a number of experts are revisiting the bureau’s enforcement actions related to marketing services agreements for clues as to how best to proceed going forward. What some of them are finding should give the industry pause. During a webinar this week, Jonathan Foxx, president and managing director at Lenders Compliance Group, a consulting firm ...

With the mortgage lending industry’s use of marketing services agreements under the Real Estate Settlement Procedures Act likely hanging in the balance, the CFPB detailed its anti-kickback legal arguments against PHH Corp. and its mortgage units in its “reply” brief with the U.S. Court of Appeals for the District of Columbia, filed earlier this month. In PHH Corp., et al., v. CFPB, the first main argument the bureau made is that PHH violated RESPA Section 8(a) because it entered into agreements with mortgage insurers so that whenever an insurer received a referral from PHH, the insurer paid PHH a kickback in the form of premiums for mortgage reinsurance. “PHH thus committed a separate violation every time it accepted a kickback ...

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 ...

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 ...