Legal Issues

Browse articles from all of our Newsletters related to Legal Issues.

July 21, 2017 - Inside FHA/VA Lending

House Panel Earmarks $50 Million For Home Counseling Assistance

The House Appropriations Committee has recommended $50 million to fund the Department of Housing and Urban Development’s FY 2018 housing counseling assistance to homebuyers, homeowners and low and moderate-income renters. The allocation is $3 million more than the Trump administration had requested and $5 million below the amount appropriated for housing counseling in fiscal year 2017. In its budget report, the committee noted the continued improvement in the economy, which has resulted in fewer foreclosures. Foreclosure filings from 2016 were reported on 933,000 properties, representing a 10-year low and a 14 percent reduction from 2015, the report pointed out. “The foreclosure rate has stayed within a historically normal range for three years, even with the pipeline of legacy foreclosures resulting from the housing bubble,” it said. In addition, the bill retains language that ...


July 21, 2017 - Inside FHA/VA Lending

VA Clarifies, Underscores Use of Tidewater Process in Appraisals

The Department of Veterans Affairs is ratcheting up enforcement of its so-called Tidewater process to prevent veterans from paying more than the appraised value of the property when using a VA loan. In recent guidance, the VA reaffirmed its 2003 Tidewater Appraisal Initiative to help reduce the number of cases where appraisers have been asked to reconsider their initial appraisal, which had come in below the sales price. The guidance emphasizes procedures for improving communication of new sales data to VA fee and staff appraisers for a reevaluation of the low initial appraisal. “These guidelines should help limit the number of cases that reach the reconsideration-of-value phase and also provide a more timely response to those cases that are submitted for reconsideration,” the VA explained. The Tidewater procedure provides a designated “point of contact” (POC) the opportunity to ...


July 21, 2017 - Inside FHA/VA Lending

RHS Spells out Review Procedures For Approved Lenders, Servicers

The U.S. Department of Agriculture’s Rural Housing Service has clarified procedures for reevaluating approved lenders’ and servicers’ eligibility under the RHS Single Family Housing Guaranteed Loan Program. The guidance also provides procedures for updating lender information. The RHS intends to review and document lender eligibility in accordance with regulation and program requirements to protect government assets and minimize taxpayer losses. Office of Management and Budget regulations require federal agencies to reevaluate and record lender and servicer eligibility every two years. “For the [USDA single family loan guarantee program], it requires making sure that lenders and servicers participating in federal credit programs meet all applicable financial and program requirements,” wrote Richard Davis, acting RHS administrator. To meet the requirements, lenders must ...


July 21, 2017 - Inside FHA/VA Lending

MRB Suspends Lender’s Authority To Originate, Service FHA Loans

The Department of Housing and Urban Development’s lender disciplinary arm, the Mortgagee Review Board, has suspended a Pennsylvania FHA lender from originating or underwriting any new agency-insured loans. In addition, HUD’s enforcement center suspended owner John Seckel from doing business with the federal government. According to HUD, Seckle Capital of Newton, PA, and its owner submitted statements and certifications purporting to show the firm was properly audited by independent certified public accountants, when, in fact, it was not. The MRB said Seckel and his firm engaged in a “years-long pattern” of deceit and falsehoods. The action is the result of HUD’s ongoing effort to hold the mortgage industry accountable for the loans it originates, underwrites or services. According to HUD’s Neighborhood Watch website, Seckel Capital has a compare ratio of 164 percent. Of the 557 loans the ...


July 21, 2017 - Inside FHA/VA Lending

HUD Note Sales Program Operating With No Formal Procedures, Says IG

An internal watchdog audit alleges that the Department of Housing and Urban Development has been auctioning distressed notes to investors with no formal guidance or procedures in place. In a recent audit report, the HUD Office of the Inspector General said the department did not conduct rulemaking or develop standards for its single-family note sales program. The IG said it performed the audit due to the large amount of FHA claims paid on note sales as well as public concerns over the creation and administration of the program. In addition, the IG has never audited the program. In 2002, HUD referred to the initial note sales program as the Accelerated Claims Disposition Demonstration Program. The department later renamed it the Loan Sales Program, and subsequently to its current name: Distressed Asset Stabilization Program. DASP accepts assignment of eligible, defaulted single-family mortgage loans in ...


July 21, 2017 - Inside FHA/VA Lending

House Appropriators Pass HUD Funding Bill, Reject Proposed Fee

The House Appropriations Committee this week approved a FY 2018 spending bill for the Department of Housing and Urban Development with a $135 million allocation for information technology upgrades in lieu of a proposed lender fee. The set-aside also covers quality control and risk management improvements as well as other administrative costs. The recommended funding is $5 million more than the FY 2017 enacted level for administrative contract expenses and $25 million below the budget request. Approved by a vote of 31 to 20, the bill provides HUD with $38.3 billion in discretionary spending for FY 2018, down $487 million from the current level. The House bill authorizes $400 billion for loan guarantees under the FHA Mutual Mortgage Insurance Fund, including the Home Equity Conversion Mortgage program, and $500 billion for Ginnie Mae. Ginnie will also receive $25.4 million for agency staffing, which is ...


July 21, 2017 - Inside MBS & ABS

CFPB Arbitration Rule Could Fuel Litigation, Impair Securitization Market Liquidity

Last week, the Consumer Financial Protection Bureau issued its long-awaited rule banning mandatory arbitration in consumer financial contracts. The industry concern is that, if left intact, the rule could lead to a rash of litigation impairing liquidity in the secondary markets and limiting consumer access to credit as companies seek to pull back on their risk exposure. The final rule prohibits “covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service.” It further requires...


July 20, 2017 - Inside Mortgage Finance

Nevada Supreme Court Gives Fannie, Freddie A Win in HOA Super-Priority Lien Case

In a recent ruling, the Nevada Supreme Court decided that in the case of Nationstar Mortgage, LLC v. SFR Investments Pool 1, LLC, a homeowner’s association priority lien cannot extinguish a first deed of trust in an HOA foreclosure sale. This is a win for Fannie Mae and Freddie Mac. Twenty-two states have super-lien laws that allow HOAs to take priority over first mortgages and foreclose the property to collect unpaid fees of up to six months’ worth. In 2014, the Nevada Supreme Court ruled that an HOA could indeed extinguish a senior mortgage. But Nationstar Mortgage argued...


July 20, 2017 - Inside Mortgage Finance

CFPB Suffers Another RESPA Blow as Law Firm’s Affiliated Business Arrangement Validated by Court

Affiliated business arrangements may not be dead after all. Late last week, the U.S. District Court for the Western District of Kentucky ruled that such a network at the heart of a lawsuit brought by the Consumer Financial Protection Bureau was in fact legitimate as constituted under the Real Estate Settlement Procedures Act. In this case, which the bureau brought four years ago, the agency accused the Borders & Borders law firm of Louisville, KY, and its principals, Harry Borders, John Borders Jr. and J. David Borders, of illegally paying kickbacks for real estate settlement referrals through a network of shell companies. According to the CFPB’s complaint, the law firm operated...


July 17, 2017 - Inside the CFPB

Arbitration Rule a Risk to Banks’ Safety and Soundness, OCC Says

It’s one thing for a regulatory agency to promulgate a rule and catch a lot of slack from the affected industry. It’s quite another when another regulatory agency takes issue with a rule. The CFPB got a bit of a surprise in this regard when it issued its arbitration final rule last week: the Office of the Comptroller of the Currency expressed concerns about the potential risk the rule could pose to the safety and soundness of the U.S. banking system. In a letter to CFPB Director Richard Cordray, OCC Acting Comptroller of the Currency Keith Noreika, a recent appointee of President Trump, said, “The OCC has a mandate to ensure the safety and soundness of the federal banking system...


July 17, 2017 - Inside the CFPB

Bureau Issues Final Rule to Ban Mandatory Arbitration Clauses

The CFPB has finally issued its long-awaited final rule banning mandatory arbitration in consumer financial contracts. For starters, the final rule prohibits “covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service.” Further, the final rule requires “covered providers that are involved in an arbitration [proceeding] pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the bureau and also to submit specified court records.” The new rule applies to the major markets for consumer financial products and services overseen by...


July 14, 2017 - Inside The GSEs

GSE Roundup

NV Supreme Court Favors GSEs in HOA Litigation. In Nationstar Mortgage, LLC v. SFR Investments Pool, the court found that mortgage servicers have standing to assert, on behalf of the GSE investor, that the Housing and Economic Recovery Act preempts state law and prevents extinguishment of the GSE loan at a Homeowners Association foreclosure sale. Freddie Prices $1.1 Billion Multifamily K-Deal. This week, Freddie Mac announced that it recently priced a new offering of Structured Pass-Through Certificates (K Certificates). The company expects to issue approximately $1.1 billion in K Certificates, which are expected to settle on or about July 24, 2017. Fannie Updates DU with New HomeReady Income Limits. As of July...


July 14, 2017 - Inside The GSEs

Newly Filed Shareholder Cases Challenge FHFA’s Structure

GSE shareholders are continuing to argue that the structure of the Federal Housing Finance Agency is unconstitutional. The topic has come up ever since a 2016 ruling found that the similarly structured Consumer Financial Protection Bureau is not constitutional. Two new cases filed within the past month in Michigan and Minnesota are asking the courts to vacate the Treasury sweep of GSE profits altogether. In late June, three GSE shareholders filed a fresh lawsuit in the U.S. District Court for the District of Minnesota. The three plaintiffs, Atif Bhatti, Tyler Whitney and Michael Carmody, also want the court to strike the...


July 14, 2017 - Inside The GSEs

FHFA Ends Litigation Against RBS With a $5.5 Billion Settlement

In the second largest settlement so far involving Federal Housing Finance Agency-initiated lawsuits from 2011, the FHFA and the Royal Bank of Scotland this week reached a settlement for $5.5 billion. This represents near closure for charges filed against 18 issuers and underwriters alleging securities law violations and fraud regarding non-agency mortgage-backed securities sold to the GSEs. Under the terms of the settlement in FHFA v. The Royal Bank of Scotland Group plc et al., Freddie Mac will get approximately $4.525 billion and Fannie Mae will get about $975 million. The court cases date back to 2011 and involve senior classes of subprime and Alt A MBS Fannie and Freddie purchased from RBS between 2005 and 2007.


July 14, 2017 - Inside MBS & ABS

Royal Bank of Scotland Settles with FHFA for $5.5B in 2011 Lawsuit Over Non-agency MBS

Federal Housing Finance Agency lawsuits over pre-crisis non-agency MBS are winding down with one of the last holdouts, Royal Bank of Scotland, reaching a settlement this week for $5.5 billion. In 2011, the agency filed charges against 18 issuers and underwriters alleging securities law violations and fraud regarding non-agency MBS sold to Fannie Mae and Freddie Mac. JP Morgan Chase settled for $4.0 billion, Deutsche Bank for $1.9 billion and Goldman Sachs for $1.2 billion. Most of the cases were settled in 2013 and 2014. The two government-sponsored enterprises purchased...


July 14, 2017 - Inside MBS & ABS

Non-Agency MBS Trustees Expected to Follow Wells in Withholding Funds for Deals Subject to Clean-up Calls

Wells Fargo’s recent maneuver to hold back funds on vintage non-agency MBS subject to clean-up calls could have broader implications for the market, according to industry analysts. Other trustees appear likely to follow the lead set by Wells, which could limit clean-up calls by servicers. In June, Wells withheld $94.3 million in funds from investors in 20 non-agency MBS that were subject to clean-up calls by New Residential Investment. The deals in question are the subject of a lawsuit involving MBS investors alleging that Wells failed to perform its duties as trustee. Wells disputed the charges and withheld the funds to cover potential litigation costs. Analysts at Bank of America Merrill Lynch said...


July 13, 2017 - Inside Mortgage Finance

Courts Divided on Whether Mortgage Underwriters are Exempt From Overtime After Provident Loses Appeal

An appeals court ruled in favor of mortgage underwriters last week in a dispute regarding overtime eligibility. The issue could be taken up by the Supreme Court of the U.S. as the ruling furthered a split among lower courts on the issue. Mortgage underwriters from Provident Savings Bank filed a lawsuit in 2012 against the bank after the employer said they qualified for the Fair Labor Standards Act’s administrative exemption to overtime payments. A district court ruled in favor of the bank in 2015 in the case of McKeen-Chaplin v. Provident Savings Bank. The U.S. Court of Appeals for the Ninth Circuit overturned...


July 7, 2017 - Inside FHA/VA Lending

Around the Industry

Chicago HECM Lender Arraigned on Fraud Charges. Mark Steven Diamond, a mortgage loan originator with offices in Chicago and Calumet City, IL, was arraigned on fraud charges in connection with a $7 million reverse mortgage scheme that targeted elderly homeowners and FHA lenders. According to the Department of Justice, Diamond deceived lenders into making FHA-insured reverse mortgage loans to homeowners who did not apply for a loan or had been beguiled to do so by the smooth-talking suspect. Diamond allegedly pocketed title-company checks intended for the borrowers, with the help of an unindicted co-schemer. Cynthia Wallace, who posed as a representative of the Department of Housing and Urban Development, was indicted along with Diamond. Using at least three aliases, Wallace allegedly collected money from victims for home repairs, which she claimed Diamond would ...


July 7, 2017 - Inside FHA/VA Lending

FHA Provides Additional Guidance For Using New Loan Review System

The latest issue of FHA’s Lender Insight provides additional information to lenders regarding the new Loan Review System that was launched on May 15, 2017. FHA urged lenders to keep their contact information current in FHA Connection and in the Lender Electronic Appraisal Portal so that they receive automated system notifications on time. Also, lenders should review current FHAC user access for appropriate roles, the agency added. Lenders’ in-house FHAC application coordinators are authorized to grant access to, and assign roles within, the LRS. Having the correct roles should enable users to access the system from the FHAC menu, the FHA said. In addition, the lender must take a photo of any error messages that might appear on screen before contacting the FHA Resource Center, the agency advised. Be prepared to provide the date and time of the attempted login, user ID, lender user ID and the ...


July 7, 2017 - Inside FHA/VA Lending

VA Seeks Continued Use of Form Allowing Lenders to Auto-Close

The Department of Veterans Affairs is seeking approval from the Office of Management and Budget to continue collecting information considered crucial in approving certain lender requests to close VA loans automatically. Currently, non-supervised VA lenders requesting approval to close VA loans on an automatic basis use VA Form 26-8736 to submit the information needed for VA approval. Upon receiving the form, the appropriate VA regional loan center processes and evaluates the information. Without the required data, VA would not be able to determine if a non-supervised lender is qualified for automatic loan processing. The required data include, among other things, a resume of each principal officer’s experience in mortgage lending in a managerial capacity and the latest financial statements audited and certified by a certified public accountant. The form also requires a listing of all ...


July 7, 2017 - Inside FHA/VA Lending

VRM Wins 10-Year Contract to Oversee REOs, Service VA Loans

The Department of Veterans Affairs has awarded a 10-year contract to VRM Mortgage Services to manage VA’s real estate-owned assets and service its loan portfolio. The contract requires VRM, a 10-year-old California-based real estate services contractor, to manage, market and sell VA REO properties, and provide other real estate services as well. The new contract was negotiated from a previous five-year contract that was awarded to VRM when VA consolidated both REO management and portfolio servicing into a single contract.VA has often sold conveyed properties with seller loan financing, known as vendee loans, to help keep distressed vet homeowners in their homes. Vendee lending is an arrangement whereby a buyer uses VA financing to purchase a property in the agency’s REO inventory. “Once a loan is sold under the vendee financing program, we would monitor that loan as well as ...


July 7, 2017 - Inside FHA/VA Lending

FHA Lender Pays $4.2 Million to Resolve False Claims Allegations

Prospect Mortgage of Sherman Oaks, CA, this week joined a growing list of FHA lenders that have opted to settle federal false claims allegations arising from flawed underwriting and poor quality control. Prosecutors with the U.S. Attorneys Offices for the Northern Districts of Georgia and California announced a $4.16 million settlement with Prospect stemming from alleged fraudulent FHA lending practices at two of its Southeastern branches. An FHA direct endorsement lender, Prospect’s branches in Florida and North Carolina allegedly violated the False Claims Act by falsely certifying compliance with FHA underwriting and quality control requirements. Consequently, the FHA suffered substantial losses in claim payments when the loans defaulted. HUD’s Atlanta Home Ownership Center reported that Prospect had a 12.29 percent default rate, well in excess of the national average, between December 2007 and ...


July 7, 2017 - Inside FHA/VA Lending

DOJ, HUD Expand FCA Scrutiny to FHA Servicing, Reverse Mortgages

Mortgage compliance experts are cautioning FHA servicers to tread carefully around loss mitigation, annual certifications and reverse mortgages, which could be a potential minefield for False Claims Act lawsuits. While FHA lenders’ exposure to FCA risk remains, the Department of Justice and the Department of Housing and Urban Development have increased their scrutiny of FHA servicing practices for potential violations, according to Phil Schulman and Kristie Kully, both partners in Mayer Brown’s Washington office. In a recent podcast, Schulman warned of increasing DOJ and HUD scrutiny of FHA servicing practices in the last 18 months, a worrisome shift from the origination side, which has seen an estimated $5 billion in settlements and penalties since 2011 for violations of the FCA and the Financial Institutions Reform, Recovery and Enforcement Act. Since 2008, mortgagees participating in ...


July 7, 2017 - Inside Nonconforming Markets

Ocwen’s Legal Issues Expected to Drag On

A resolution of the charges against Ocwen Financial brought by the Consumer Financial Protection Bureau and state regulators is expected to be “protracted,” according to industry analysts. In April, the CFPB and state regulators took a number of actions against the nonbank, alleging servicing- and lending-related violations. Ocwen is appealing the findings. The legal issues prompted mixed reactions from rating services. Fitch Ratings affirmed its B- issuer-default rating for ...


July 7, 2017 - Inside MBS & ABS

Wells Fargo Withholds MBS Recovery Funds; HSBC In Settlement Talks; WI Court Favors Countrywide

Wells Fargo is defending last week’s decision to hold back more than $90 million from investors attempting to recoup losses from legacy single-family MBS. The bank said it withheld distribution of reserve amounts to the plaintiffs in the 2014 trustee lawsuit “when certain RMBS transactions were liquidated at another party’s direction.” A Bloomberg report said New Residential Investment Corp. exercised its cleanup buyback option to reduce its own administrative expenses. “Cleanup buyback” refers to early redemption of the remaining issue amount by the seller when the principal has been paid down to an insignificant amount. In a statement, Wells Fargo explained...


July 7, 2017 - Inside MBS & ABS

Another GSE Shareholder Case Filed; Recently Filed Cases Challenge Agency’s Structure

More Fannie Mae and Freddie Mac shareholders are arguing that the structure of the Federal Housing Finance Agency is unconstitutional and are calling for courts to vacate the third amendment that sweeps the profits of the mortgage giants into the Treasury Department. Within the past month, two new cases have been introduced in Michigan and Minnesota, likely piggybacking on last year’s decision in which the single-director structure of the Consumer Financial Protection Bureau was found to be unconstitutional. Several shareholders of the government-sponsored enterprises filed...


July 3, 2017 - Inside the CFPB

The Latest in Compliance: CFPB Rep Disputes Notion Bureau is More Active, Post-Election

A top official at the CFPB rejected industry claims that the bureau has backed off of rulemaking and amped up its enforcement activity in the wake of the 2016 elections. Speaking during a regulatory panel at the 2017 American Bankers Association’s regulatory compliance conference in Orlando last month, Virginia O’Neill, senior vice president for the ABA’s Center for Regulatory Compliance, said, “There seems to have been a pause in rulemaking. Yet at the same time, it feels like there’s an uptick in enforcement. It’s concerning to everybody out there.” Christopher D’Angelo, associate director of supervision, enforcement and fair lending at the bureau, disputed that perception. “There’s been a lot of chatter lately about this idea that somehow our enforcement activity ...


July 3, 2017 - Inside the CFPB

Court Puts Kibosh on State AG Request to Snag Sprint Funds

An effort by a handful of state attorneys general to intervene in an enforcement action brought by the CFPB against Sprint Corp. back in 2014 and lay claim to the unspent settlement funds will likely come to naught, after the U.S. District Court for the Southern District of New York blocked the effort. In its enforcement action, brought in December 2014, the CFPB accused Sprint of billing wireless customers tens of millions of dollars in unauthorized third-party charges from 2004 to 2013. The issue here involved charges for what are known as “premium text messages” or “premium short messaging services” because they are frequently delivered by text messages. Examples of such products and services include ringtones, wallpaper images, and text ...


July 3, 2017 - Inside the CFPB

CFPB Cuts Mortgage Servicers Some Slack for Three Days

The CFPB recently released some non-binding policy guidance on early compliance with the 2016 amendments to its 2013 mortgage servicing rules, including a three-day grace period. Each of the changes are scheduled to take effect on either Thursday, Oct. 19, 2017, or Thursday, April 19, 2018. This is a problem for mortgage servicers who face the very real prospect of operating under one set of rules one day and having to switch systems, policies and procedures to comply with another set of rules the very next day. The regulator acknowledged this was an issue and decided to give the industry what amounts to a three-day grace period. “The bureau has heard concerns that these midweek effective dates for the 2016 ...


June 30, 2017 - Inside Mortgage Trends

More Questions on Ocwen’s Future

An “excess” servicing deal tied to $117.0 billion of mortgage servicing rights between New Residential Investment Corp. and Ocwen Financial appears to be dragging on longer than expected, causing anxiety in some circles. The transaction – which changes the fees paid to Ocwen resulting in a short-term (gross) gain of $425 million – was unveiled on May 1 and has yet to close. Piper Jaffray analyst Kevin Barker and his team write in a recent report that the deal was slated to be ...


June 30, 2017 - Inside MBS & ABS

SFIG Pushes Court to Support Payment Priority For MBS and ABS, Even in Bankruptcy Cases

The Structured Finance Industry Group called for an appeals court to enforce industry-established payment priority provisions in a significant case involving Lehman Brothers’ collateralized-debt obligations and a bankruptcy filing. Lehman Brothers Special Financing Inc. v. Bank of America N.A. centers on a “flip clause” included in 44 CDOs issued by the failed investment bank. SFIG noted that a flip clause redirects or reprioritizes cash flow upon bankruptcy, and is often incorporated in securitizations that include swaps. “As is common in the market, in structuring these transactions, the parties bargained...


June 29, 2017 - Inside Mortgage Finance

MBA Argues for Class-Action Waivers and Arbitration Clauses in Employment Agreements

The Mortgage Bankers Association recently submitted a brief to the Supreme Court of the United States in a pending case regarding class-action waivers and arbitration clauses in employment agreements. The MBA and eight state-affiliated MBAs argued that class action waivers are critical for smaller employers such as independent mortgage companies. The Supreme Court has agreed to hear Epic Systems Corp. v. Lewis as part of its term that begins in October. Epic Systems, a health care software company, required certain groups of employees to agree to bring any wage-and-hour claims against the company only through individual arbitration. Circuit courts have issued...


June 23, 2017 - Inside FHA/VA Lending

VA Explains How Condo Financing Could be Difficult for Vets, Lenders

The VA condominium-financing process can be difficult for both veteran borrowers and lenders, according to experts at a recent VA lender conference. The big issue for borrowers is finding a condo development that has VA approval or one that can obtain approval quickly enough to complete the loan process in the shortest time possible. A development that has a high number of foreclosures, a significant number of condo owners that are behind on their association dues, or pending litigation against the homeowner association is unlikely to win VA approval, experts said. Such factors could put the VA and the lender at risk. As such, securing VA approval for a development is crucial. In 2009, VA stopped accepting HUD/FHA condo project approvals in lieu of a VA project review, said Phyllis Chilton, valuation officer at VA’s Phoenix regional loan center. Condo projects that were accepted previously by ...


June 23, 2017 - Inside FHA/VA Lending

Senate Chairman Seeks Data on ‘Slush Fund’ Payments to Groups

The chair of the Senate Judiciary Committee is looking into whether monies from mortgage-settlement funds were channeled to partisan advocacy and community organizations that Congress had previously defunded. In a recent letter to Attorney General Jeff Sessions, Chairman Chuck Grassley, R-IA, revived a long-standing request by the committee for a list of all settlement agreements reached during the Obama administration that involved alleged payments to community groups. Grassley’s request came in the wake of Session’s June 7 directive prohibiting the DOJ from entering into any settlement agreements that provide for payment to third parties that were not directly harmed by the alleged misconduct. Sessions said the directive ends the previous administration’s practice of requiring or encouraging defendants to make payments to third parties as a condition of settlement. The directive would ...


June 23, 2017 - Inside FHA/VA Lending

MBA Urges DOJ, HUD to Suspend Future FCA Enforcement Actions

The Mortgage Bankers Association is calling for a moratorium on future claims against FHA lenders under the False Claims Act to give the Department of Housing and Urban Development sufficient time to streamline its defect taxonomy and revise its loan-level certification requirements. In letters to HUD and the Department of Justice, the MBA said the FHA has yet to issue clear standards identifying specific errors that could trigger an FCA claim and those that do not. FCA enforcement actions can result in very significant damage to a lender’s reputation and bottom line, warned Dave Stevens, MBA president and chief executive officer. Although FHA lenders work hard to ensure compliance with strict underwriting and documentation standards, origination, insurance and servicing depend heavily on human efforts, which could easily result in technical errors, he added. While lenders process ...


June 23, 2017 - Inside MBS & ABS

Jury Finds One of Three Ex-Nomura Traders Guilty of Conspiracy, Acquits Another Trader in MBS Fraud

A Connecticut jury has found a former securities trader guilty and acquitted a second trader in an MBS fraud case brought by the Securities and Exchange Commission two years ago. A conspiracy charge against a third Nomura trader was unresolved. Although multiple charges were brought against the former traders – Michael Gramins, Ross Shapiro and Tyler Peters – only Gramins was found guilty of conspiracy, according to an analysis by Shepherd Smith Edwards & Kantas of Houston. All three defendants were...


June 22, 2017 - Inside Mortgage Finance

Wells Fargo Denies Claims of Improper Use of Bankruptcy Laws to Force Debtors to Accept Illegal Loan Modifications

Wells Fargo Bank finds itself in yet another legal quagmire, accused of illegally making “stealth modifications” to mortgage payments of borrowers in bankruptcy without their permission – a charge the bank vehemently denies. A class-action lawsuit filed recently in the U.S. Bankruptcy Court for the Western District of North Carolina alleges that Wells Fargo made unauthorized mortgage modifications that neither the bankrupt debtors, their attorneys nor the bankruptcy court requested or approved. In some cases, 30-year loans were...


June 22, 2017 - Inside Mortgage Finance

Senate Judiciary Committee Chairman Looks into Return of Settlement Monies Paid to Third Parties

Weeks after the Trump administration banned the practice, the Senate Judiciary Committee is looking into whether the Obama administration used mortgage-related settlement funds to funnel money to political organizations that Congress deliberately defunded. In a recent letter to Attorney General Jeff Sessions, Sen. Chuck Grassley, R-IA, chair of the Senate Judiciary Committee, revived a standing request to the Department of Justice for a list of all settlement agreements reached during the previous administration that involved alleged payments to partisan community organizations. He gave the agency until June 28 to respond to his request. Specifically, Grassley asked...


June 19, 2017 - Inside the CFPB

Should CFPB Delay New HMDA Requirements? Experts are Torn

Industry compliance officers, trade group representatives and legal experts at the American Bankers Association’s regulatory compliance conference, held in Orlando last week, expressed mixed sentiments about whether the CFPB ought to delay the effective date of the new requirements it is ushering in under the Home Mortgage Disclosure Act. They were responding to the suggestion of such a delay made by the Treasury Department in its recent report as per President Trump’s Executive Order 13772. “Obviously, a delay has to be for at least a year because the nature of HMDA is such that you can’t delay for six months,” Rodrigo Alba, the ABA’s senior vice president and senior regulatory counsel for mortgage finance, told an audience during a working ...


June 19, 2017 - Inside the CFPB

Pros Offer Tips on Nailing Down Third-Party Risk Management

Third-party oversight is becoming more of a focus of regulators these days, according to some top compliance professionals, and one of the most important emerging themes is an increasing regulatory emphasis on staff expertise. “This is something that [all the regulators] are thinking about,” Krista Shonk, vice president and senior regulatory counsel at the American Bankers Association, said during a presentation early last week at the ABA’s annual regulatory compliance conference in Orlando. Staff expertise includes things such as the ability to perform proper due diligence analysis and contract management and oversight. But personnel also need to avoid any attempts to transfer their institution’s inherent responsibility for compliance with laws and regulations. On the other hand, lenders should not put ...


June 19, 2017 - Inside the CFPB

Mortgage Servicing Amendments May Conflict With State Law

One of the top concerns among compliance professionals is the seeming inevitable conflict that the CFPB’s amendments to its mortgage servicing rules will have with various state laws – in particular, the possibility that compliance with one may put the servicer out of compliance with the other. That was one of the key takeaways from a break-out session early last week at the American Bankers Association’s annual regulatory compliance conference in Orlando. “One issue that comes up fairly frequently has to do with what a servicer should do when there is a conflict between state and federal law. We’ve seen this come up especially when it comes to the various early intervention notices that servicers have to send to delinquent borrowers,” ...


June 19, 2017 - Inside the CFPB

The Latest in Compliance: CFPB’s Complaint Database Offers Important Clues for Compliance

The information the CFPB collects and reports on consumer complaints offers lenders a tremendous resource in terms of abiding by the letter and the spirit of the bureau’s numerous rules, according to some top compliance professionals. “The CFPB’s annual report on complaints really is an incredible source of information,” said Barbara Boccia, senior director at Wolters Kluwer, during a presentation early last week at the American Bankers Association’s annual regulatory compliance conference in Orlando. “First, it really is a lot of information. Also, the way they structure the information that they receive is instructive,” she said. “You really want to make sure you are structuring your [complaint] information the same way, in terms of what they are looking at – for ...


June 19, 2017 - Inside the CFPB

Industry Details Fair Lending Concerns in Paper to Treasury

The American Bankers Association recently detailed a handful of major concerns it continues to have with the approach federal regulators take toward fair lending. The first such concern it listed in a new white paper sent to the Treasury Department is the expanded use of the disparate-impact concept. “Federal agencies responsible for ensuring compliance with national fair lending laws have in the last few years aggressively applied a controversial legal theory, disparate impact, to brand banks with violations of fair lending rules,” said the ABA. Under the disparate-impact theory, regulators rely heavily, sometimes solely, on statistical sketches to justify lawsuits or other enforcement actions, it added. “In doing so, since June 2015 they have largely ignored the analytical framework established ...


June 19, 2017 - Inside the CFPB

House Committee Threatens CFPB’s Cordray With Contempt

The House Financial Services Committee recently threatened to file contempt charges against CFPB Director Richard Cordray over the agency’s alleged failure to comply with the committee’s request for documentation related to the bureau’s response to the Wells Fargo scandal involving the creation of unauthorized customer accounts. “In response to the committee’s records request, the CFPB did not produce a single internal record related to its Wells Fargo branch sales practice investigation,” the HFSC staff said in a report. Over the course of six months, the bureau only produced 1,010 pages of records, “comprised almost entirely of records easily obtainable” from Wells or the Office of the Comptroller of the Currency, it added. After six months of the CFPB’s “refusal to ...


June 16, 2017 - Inside The GSEs

Appeals Court Rules Against Fannie Mae in Foreclosed Property Case

The Missouri Court of Appeals recently reversed a judgment that was in favor of Fannie Mae in a case the GSE brought against a couple who purchased a foreclosed property. The disagreement about the property, purchased by Harvey and Christine Pace in 2002, centers on who owns the title to the home. At the time of the home purchase, the property’s seller lived out of state and executed a special warranty deed conveying the property to the Paces. But the promissory note to purchase the home only identified the husband as borrower because the wife did not sign the note or the deed of trust.


June 16, 2017 - Inside MBS & ABS

U.S. Appeals Court Rejects Claims that Would Have Extended ECOA Liability to Loan Purchasers

The U.S. Court of Appeals for the Fifth Circuit rebuffed arguments that would have subjected mortgage lenders and other secondary-market participants to increased liability under the Equal Credit Opportunity Act. In a published opinion that appeared in the Banking Law Journal, the Fifth Circuit court rejected plaintiffs’ argument that mortgage investors that promulgate discriminatory lending guidelines could be held liable as the original creditor. ECOA prohibits...


June 16, 2017 - Inside MBS & ABS

FHFA to Seek Authority from Congress to Examine Nonbank Servicers, Other Service Providers to GSEs

The Federal Housing Finance Agency is backing recommendations for additional authority that would allow it to examine third parties that do business with Fannie Mae and Freddie Mac. In its 2016 Annual Report to Congress released this week, the FHFA said it concurs with recommendations made by both the Government Accountability Office and the Financial Stability Oversight Council that Congress grant the agency authority to oversee the entities that provide critical services to the government-sponsored enterprises. While counterparty oversight is critical to the safety and soundness of the GSEs, it is...


June 15, 2017 - Inside Mortgage Finance

DOL to Seek Public Comment on Blocked Overtime Rule, Whether to Proceed with Appeal or Revise 2016 Final Rule

The Trump administration plans to issue a request for information (RFI) regarding a Department of Labor final rule currently on hold that would raise the annual salary threshold for employee exemption from overtime pay. Testifying before the House Committee on Appropriations last week, Labor Secretary Alexander Acosta said the proposed RFI would seek public comment regarding the economic or anticipated impact of raising the annual salary requirement for overtime exemption from the current $23,660 to $47,476, as the previous administration had proposed. The Obama administration issued...


June 9, 2017 - Inside FHA/VA Lending

Hunt for GNMA Chief Continues, Business as Usual at the Agency

Ginnie Mae is sailing without a captain, a fact that is causing some concern among mortgage bankers and mortgage-backed securities investors. The agency tasked with securitizing government-backed mortgages has been without a president since Democrat Ted Tozer left on Jan. 20, 2017, the same day that President-elect Donald Trump was sworn in as the 45th president of the United States. Since that time, Nancy Corsiglia, a career Ginnie official, has been acting president. She was elevated from her position as chief operating officer. Industry officials who claim to have knowledge of the selection process maintain that mortgage banke David Kittle, president of the Mortgage Collaborative, is the leading candidate to fill the post with Michael Bright, a director at the Milken Institute, a close second. One source close to the situation claimed that background checks by the Trump White House are likely ...


June 9, 2017 - Inside FHA/VA Lending

OMB Approval Sought on Key Borrower Forms for VA Loans

The Department of Veterans Affairs is seeking clearance for two information-collection forms that are crucial to a veteran’s ability to obtain or cure a VA-guaranteed mortgage loan. The Office of Management and Budget is currently reviewing the forms. The VA also has published notices in the June 1 Federal Register seeking public comment on the proposed revised forms. Comments for both notices are due July 3, 2017. The first form relates to information a veteran must provide to be exempted from paying a funding fee. Borrowers are required to pay a funding fee to obtain a loan with a VA guaranty, unless the borrower is a disabled veteran receiving VA compensation for his or her service-connected disability. Loans made to unmarried surviving spouses of veterans who have died in service or from a service-related disability also are exempted from payment of the funding fee (regardless of whether the ...


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