Legal Issues

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

May 26, 2017 - Inside FHA/VA Lending

FCA Action Against Lenders Slows As DOJ’s List of FHA Targets Shrinks

False Claims Act enforcement against FHA lenders appears to have slowed with no new cases being filed by the Department of Justice or referred by the Department of Housing and Urban Development’s inspector general for nearly a year. Neither agency has gone after any lender for alleged False Claims Act violations since May of last year when the Department of Justice intervened in an FCA case brought by a whistleblower against Guild Mortgage, an FHA direct endorsement lender. The complaint alleged that San Diego-based Guild Mortgage knowingly approved loans that violated FHA rules while falsely certifying compliance with those rules. The alleged violations occurred between 2006 and 2011, resulting in “tens of millions of dollars” in losses to HUD. The case is pending in federal district court in Washington, DC. Indications are the FCA cases involving FHA lenders have ...


May 26, 2017 - Inside MBS & ABS

NY Court Requires Higher Burden of Proof in Ambac MBS Case; Deutsche Bank Holds Former Execs Liable

A Manhattan appeals court raised the burden of proof for Ambac Assurance, which seeks to recover monetary damages from Bank of America in an insurance case involving $1.68 billion in securities backed by high-risk mortgages from now-defunct Countrywide Home Loans. Attorneys with Shepherd Smith Edwards & Kantas said a panel of the Appellate Division, First Judicial Department, ruled that Ambac may not use New York insurance law as the sole basis for arguing that it does not have to prove certain elements of fraud in its claims against BofA. The court also barred Ambac from using the statute to recover damages. The court held...


May 25, 2017 - Inside Mortgage Finance

Industry Groups Push for Supreme Court to Take Up Case Involving ‘Super-Priority’ Liens

A split in court rulings in cases involving “super-priority” liens makes the issue ripe for consideration by the Supreme Court of the United States, according to industry trade groups. Last week, the Mortgage Bankers Association, the American Bankers Association and the U.S. Chamber of Commerce submitted a joint amicus brief to the Supreme Court, stressing that super-priority liens “eviscerate” the traditional standing of mortgages. The court case of interest to the trade groups is...


May 25, 2017 - Inside Mortgage Finance

Three-Judge Appellate Panel’s Ruling on RESPA in PHH Corp. v. CFPB Has a Good Chance of Enduring

There wasn’t much mention of the interpretation and enforcement of the Real Estate Settlement Procedures Act during oral arguments this week before the U.S. Court of Appeals for the District of Columbia Circuit in PHH Corp. v. Consumer Financial Protection Bureau. Instead, nearly all of the discussion revolved around constitutional questions. The biggest issue was about just how much power to “faithfully execute” the laws of United States the president is left with if the only way to remove the head of a single-director agency is “for cause.” The other constitutional issues that garnered some attention were...


May 22, 2017 - Inside the CFPB

Other Compliance News: Financial Freedom to Pay $89M to Settle Reverse Mortgage Charges

Financial Freedom, an Austin, TX-based servicer, agreed to an $89 million settlement with the U.S. Department of Justice to settle allegations that it violated the False Claims Act, the Financial Institutions Reform, Recovery, and Enforcement Act, and FHA servicing requirements in connection with its participation in FHA’s Home Equity Conversion Mortgages, or “reverse mortgage,” program. The Justice Department alleged that Financial Freedom sought to obtain insurance payments for interest from FHA “despite failing to properly disclose on the insurance claim forms it filed with the agency that the mortgagee was not eligible for such interest payments because it had failed to meet various deadlines relating to appraisal of the property, submission of claims to the Department of Housing and Urban ...


May 22, 2017 - Inside the CFPB

CFPB, DOJ Oppose State AG Settlement Funds Proposal

The CFPB and the Department of Justice have separately filed motions opposing a proposal from a handful of state attorneys general to take $15.14 million of unused settlement funds from the bureau’s $50 million enforcement action against Sprint and instead redirect it to two other purposes. The AGs of Connecticut, Indiana, Kansas and Vermont recently proposed taking $14.0 million of the unused money from the U.S. Treasury, which could receive it under the terms of the redress plan, and instead giving it to the National Association of Attorneys General to establish a National Attorneys General Training and Research Institute Center for Consumer Protection. The AGs also want to repurpose the remaining unspent amount, $1.14 million, and give it to a ...


May 22, 2017 - Inside the CFPB

CFPB Did Not Fully Secure Sensitive Enforcement Data, OIG Finds

The CFPB had numerous lapses in protecting sensitive, confidential enforcement information, according to a new report from the agency’s Office of Inspector General. The objective of the OIG’s evaluation was to determine whether the bureau’s Office of Enforcement has effective controls to manage and safeguard access to its confidential investigative information (CII). “We found that the Office of Enforcement’s sensitive information has not always been restricted to Office of Enforcement employees who needed access to that information to perform their assigned duties,” the OIG said. The watchdog said it found that 113 unique users had access to at least one electronic application when it was no longer relevant to the performance of their assigned duties. “These users continued to have ...


May 22, 2017 - Inside the CFPB

CFPB Opens Another Can of RESPA Worms in Investigating Zillow

The CFPB has stepped back into the Real Estate Settlement Procedures Act enforcement ring by probing Zillow over issues related to co-marketing. The probe of the company’s co-marketing initiative was disclosed to the public earlier this month by Zillow CFO Kathleen Philips during the company’s first quarter earnings conference call with investors. “Over the past two years, the CFPB has been reviewing our program for compliance with RESPA,” Philips said. “Recently, the CFPB requested additional information and documents from us as part of their evaluation, which we are working with them on,” she added. “We believe our co-marketing program has, and continues to, allow agents and lenders to comply with the law while using our product.” This could be another ...


May 22, 2017 - Inside the CFPB

Servicers Ask for Guidance on Successor-in-Interest Issues

The Consumer Mortgage Coalition and the Mortgage Servicers Working Group asked the CFPB for guidance on how to comply with bankruptcy-related provisions when a confirmed successor-in-interest, who is not legally a borrower, has filed a bankruptcy petition. Under Regulations X and Z, these successors will be considered borrowers. Their inquiry came in response to the bureau’s request for comment on its plan to assess its 2013 mortgage servicing rules. One question the industry representatives had is whether the Fair Debt Collection Practices Act applies to the mortgage servicing rule’s early intervention requirements. They note that Section 1024.39(c) of Reg X provides some exemption from early intervention written notices if any borrower on the loan sends an FDCPA cease-communication notice “with ...


May 22, 2017 - Inside the CFPB

FSR Calls for White House to Change CFPB Structure, Rules

The Financial Services Roundtable advised the Trump administration that the structure of the CFPB needs to be changed, and that the agency should revise a handful of its key mortgage rulemakings, most notably the ability-to-repay/qualified mortgage rule, the Home Mortgage Disclosure Act rule and the Truth in Lending Act/Real Estate Settlement Procedures Act Integrated Disclosure rule, or TRID. The FSR’s call came in a detailed response to President Trump’s Executive Order 13777, “Reducing Regulation and Controlling Regulatory Costs,” issued earlier this year, directing the Treasury Department to conduct an assessment of financial regulations to evaluate how they align with the White House’s core principles of financial regulation. In terms of the bureau itself, the industry organization said the governance structure ...


May 19, 2017 - Inside MBS & ABS

Traders Agree to Settle Fraud Case with SEC; DOJ Probes Hedge Funds; Swiss Banks Settle with NCUA

The Securities and Exchange Commission this week charged two former head traders who ran the commercial MBS desk at Nomura Securities International with lying intentionally to customers to boost the profits of the firm as well as their commissions. The SEC complaint alleged that traders James Im and Kee Chan inflated the price on CMBS they bought and sold for customers on the secondary market. In certain instances, the two traders allegedly pretended they were negotiating bond purchases with a third-party seller at a higher price when Nomura had already purchased the bonds at a lower price. According to the SEC, the fraud generated...


May 18, 2017 - Inside Mortgage Finance

Trump Administration Needs to Press For Multiple Reforms to FHA Lending, FSR Suggests

The Financial Services Roundtable recently called for enacting comprehensive housing finance reform, including reform of the FHA’s single-family mortgage insurance program while focusing the agency’s mission on first-time and low- and moderate-income borrowers. The FSR’s call came in a detailed response to President Trump’s executive order earlier this year directing the Treasury Department to conduct an assessment of financial regulations. For starters, the trade group urged...


May 12, 2017 - Inside FHA/VA Lending

VA Clarifies QM Safe Harbor Rules For Streamlined Refinancings

The Department of Veterans Affairs’ interim final rule on qualified mortgages (QM) implements the Dodd-Frank provision requiring creditors to make a reasonable and good faith determination that the borrower has a reasonable ability to repay the loan. The VA interim final rule defines QM to mean any loan that the agency guarantees, insures or originates. However, certain limitations apply to VA’s Interest Rate Reduction Refinance Loans (IRRRLs) in the rule’s guidance for “safe harbor.” Under the safe harbor requirements for an IRRRL, the loan being refinanced must have been originated at least six months before the new loan’s closing, and six payments must have been made. In addition, the veteran should not have been more than 30 days past due during the six months preceding the new loan’s closing. The QM rule’s six-month seasoning requirement, however, inadvertently created an ...


May 12, 2017 - Inside MBS & ABS

Attorneys Warn of ‘Third Wave’ of Lehman Suits; Citi Ramps Up Pressure on Correspondent Lenders

Industry attorneys are warning about a “third wave” of Lehman Brothers Holdings (LBHI) MBS trust claims against mortgage lenders and brokers based on the firm’s latest bankruptcy filing. Attorneys with the firm American Mortgage Law Group said Lehman Brothers for several years has been threatening to file residential MBS trust claims against the mortgage industry to counter trustee claims filed against LBHI in bankruptcy in 2009. The wait is...


May 8, 2017 - Inside the CFPB

Other News in Brief

SCOTUS Sides With City of Miami in Predatory Lending Case. The Supreme Court last week issued a narrow decision in favor of the City of Miami in a case stemming from losses the municipality claimed it suffered from predatory mortgages. Industry analysts are divided on what the ruling means for lenders... Goldman Sachs Continues Progress on Consumer-Relief Obligation Under Mortgage Settlements. Wall Street firm Goldman Sachs is more than one third of the way towards meeting its $1.8 billion consumer-relief obligation under the April 11, 2016, mortgage-related settlements it reached with the U.S. Department of Justice and the states of California, Illinois and New York, according to retired Boston University law professor Eric Green, the independent monitor of the consumer-relief portions of the agreements ...


May 8, 2017 - Inside the CFPB

Ocwen Faces Ratings Downgrades, Pending Class-Action Litigation

Ocwen Financial Corp. is facing more trouble than just its struggle with the CFPB and a number of state regulators. The mortgage lender/servicer also faces the increasing likelihood of some ratings downgrades as well as pending class-action lawsuits. Fitch Ratings recently revised Ocwen’s U.S. residential mortgage-backed securities servicer ratings outlook to negative. “The revision of the rating outlook for the servicer ratings is based on uncertainty surrounding the financial and operational impact of new regulatory actions taken by the CFPB and the multi-state actions following the findings of the Multi-State Mortgage Committee,” Fitch said. The negative rating outlook also takes into consideration Ocwen’s financial condition. Fitch placed the company’s and its corporate parent’s long-term issuer default rating on “rating watch ...


May 8, 2017 - Inside the CFPB

Ocwen Asks Court to Decide CFPB is Unconstitutional

Ocwen Financial Corp. recently filed two related motions that seek an early court ruling that the CFPB is unconstitutional, and therefore its enforcement action against the lender/servicer should be thrown out. Echoing an argument made earlier by PHH Corp. in its own dispute with the bureau, Ocwen told the U.S. District Court for the Southern District of Florida, West Palm Beach Division, that the CFPB is unconstitutionally structured because it vests “too much unfettered power” in the hands of the agency’s director and in the bureau itself. The company informed the court and the Department of Justice that it intends to directly challenge the CFPB’s constitutionality at the earliest possible opportunity and to seek dismissal of the case on this ...


May 5, 2017 - Inside Mortgage Trends

States Challenge OCC’s ‘Fintech’ Charter

State regulators filed a complaint last week seeking to prevent the Office of the Comptroller of the Currency from creating a national charter for nonbank financial technology companies. The charter would preempt state laws, eliminating a “patchwork” of compliance issues for marketplace lenders and other fintech companies. “If the OCC is allowed to proceed with the creation of a special-purpose nonbank charter, it will set a dangerous precedent that any federal agency can ...


May 4, 2017 - Inside Mortgage Finance

Supreme Court Decision in Miami Fair-Housing Lawsuits Against Lenders Gives Both Sides Hope

The Supreme Court of the United States this week ruled in favor of Miami in a case involving losses the city claimed were related to “predatory mortgages.” The ultimate impact of the ruling remains unclear, as the lawsuits will proceed in a lower court, potentially fizzling out or leading to a plethora of similar claims. In Bank of America v. City of Miami, BofA and Wells Fargo challenged lawsuits brought under the Fair Housing Act. The city alleged that discriminatory conduct by the banks in their origination of predatory mortgages before the financial crisis led to a disproportionate number of foreclosures and vacancies in majority-minority neighborhoods. Miami said the loans and foreclosures impaired the city’s effort to assure racial integration, diminished its property-tax revenue and increased demand for police, fire and other municipal services. In a 5-3 ruling supported by the Supreme Court’s more liberal-leaning justices, the court determined...


April 28, 2017 - Inside FHA/VA Lending

Federal Shutdown or Not, No Major Disruption Anticipated for FHA

As of press time, Congress passed a one-week stopgap spending measure to keep the government open through May 5, averting a looming government shutdown. The House passed H.J. Res. 99 by a vote of 373 to 30. The continuing resolution has been sent to President Trump. The continuing resolution provides lawmakers sufficient time to negotiate an omnibus spending bill. The previous spending bill was scheduled to expire at midnight, April 28, which would have resulted in a government shutdown similar to the one that paralyzed the federal government in 2013. A shutdown can cause grief for sellers and homebuyers and severely delay processing of mortgage loans if lenders cannot verify a borrower’s tax data or Social Security number. This time, however, the FHA and VA are prepared for such an eventuality, said industry observers. A 16-day government shutdown in October 2013 sent millions of ...


April 28, 2017 - Inside MBS & ABS

Moody’s, Fitch Pummel Ocwen with Downgrades Following Legal Actions by CFPB, State Regulators

Ocwen Financial’s travails continued to worsen this week after rating agencies announced adverse ratings actions amid the servicer’s mounting regulatory and legal problems. On April 24, Moody’s Investors Service placed Ocwen’s servicer assessment on review for a possible downgrade. On April 25, Fitch Ratings revised its previous rosy affirmation of the company’s primary servicer rating and stable outlook to negative. Both firms said the ratings actions were due to the increased regulatory scrutiny on Ocwen’s servicing operations, which could lead to hefty penalties that could pose a threat to the company’s financial stability. On April 20, a consortium of state mortgage regulators filed...


April 27, 2017 - Inside Mortgage Finance

Financial CHOICE Act Would Gut CFPB, Make Multiple Changes to Mortgage Rules

Late last week, House Financial Services Committee Chairman Jeb Hensarling, R-TX, released a detailed discussion draft of a revised version of his Financial CHOICE Act that would eviscerate the Consumer Financial Protection Bureau and make a number of other changes to the Dodd-Frank Act and a host of its mortgage-related regulations. Title VII of the draft, recently dubbed CHOICE Act 2.0, would dismantle the parts of the CFPB that the lending industry and other critics have found to be most problematic: its rulemaking, supervisory and enforcement authority, including unfair, deceptive or abusive acts or practices. The previous version of the bill would have retained...


April 24, 2017 - Inside the CFPB

Other News in Brief

School Accrediting Body Wins One Against the CFPB. The U.S. Court of Appeals for the D.C. Circuit has upheld a district court ruling that a civil investigative demand (CID) issued by the CFPB against the Accrediting Council for Independent Colleges and Schools (ACICS) is unenforceable. This is a big deal, and not just as it relates to the bureau. “The decision represents the first time in decades that a federal appeals court has struck down an administrative subpoena issued by the federal government,” said Allyson Baker of Venable LLP, who served as one of the lead counsel for the firm on behalf of ACICS....


April 24, 2017 - Inside the CFPB

Redlining, Mortgage Servicing Top CFPB Fair Lending Priorities

The CFPB’s latest fair lending report to Congress, quietly distributed earlier this month, indicates that two mortgage issues will stay on the agency’s front burner: redlining and servicing. On the redlining front, the CFPB said it will “work to evaluate whether lenders have intentionally discouraged prospective applicants in minority neighborhoods.” When it comes to servicing, the bureau indicated it will “determine whether some borrowers who are behind on their mortgage … payments have more difficulty working out a new solution with the servicer because of their race, ethnicity, age, or gender.” The agency continued: “We are committed to ensuring fair, equitable and nondiscriminatory access to credit by finding and eliminating discriminatory lending practices, and also by encouraging lenders to maintain ...


April 24, 2017 - Inside the CFPB

CSBS Asks Congress to Grant QM Status to Portfolio Loans

The Conference of State Bank Supervisors urged the leadership of the Senate Banking, Housing and Urban Affairs Committee to enact legislation that would grant qualified-mortgage status under the CFPB’s ability-to-repay rule for loans held in portfolio, as part of a broader set of proposals to stimulate economic growth. The CSBS was one of a number of groups that responded to an invitation by the banking committee to provide ideas for stimulating economic activity. “State regulators have long supported a flexible approach to underwriting for institutions that retain mortgages in portfolio because interests are inherently aligned between consumers and lenders that retain 100 percent of the risk of default,” said the CSBS. “One solution that would tailor the requirement to the ...


April 24, 2017 - Inside the CFPB

DOJ Wins a Place in PHH Case’s Upcoming En Banc Proceedings

The Trump administration’s Department of Justice has convinced the U.S. Court of Appeals for the District of Columbia Circuit to grant it 10 minutes to present its unusual case when oral arguments are heard in the upcoming en banc proceedings in PHH Corp. v. CFPB. “Upon consideration of the unopposed motion of the United States for leave to participate in oral argument, it is ordered that the motion be granted,” the appeals court said in its one-page order. PHH Corp. et al., as petitioners will have 30 minutes to make their case, as will the CFPB as respondent. “The United States agrees with petitioner PHH Corp. that the for-cause removal provision is unconstitutional, but agrees with the CFPB that the ...


April 24, 2017 - Inside the CFPB

Ocwen Disputes Allegations Raised By State Regulators

Ocwen Financial, stung by legal actions brought simultaneously last week by the CFPB and scores of state regulators, responded by issuing a detailed statement disputing the allegations made by state regulators and defending its business practices. “As with the recent CFPB enforcement action, Ocwen strongly disputes the key allegations made in the state regulators’ cease-and-desist orders that Ocwen’s mortgage loan servicing practices have caused substantial consumer harm,” the company said. “Ocwen will not sign unfair and unjust consent orders that make impractical demands that no other market participant could rationally accept, and which would harm consumers,” it added. “Under these circumstances, Ocwen has a responsibility to its customers, shareholders and employees to vigorously defend the company against unfounded claims while ...


April 24, 2017 - Inside the CFPB

Scores of States Take Actions Of Their Own Against Ocwen

The CFPB was not alone in its crackdown last week on Ocwen Financial over its alleged mortgage servicing failures and violations. The same day the bureau announced its action, Florida Attorney General Pam Bondi and Office of Financial Regulation Commissioner Drew Breakspear filed a federal civil consumer protection lawsuit against Ocwen and subsidiaries, Ocwen Loan Servicing, LLC, and Ocwen Mortgage Servicing, Inc., for what they called “mortgage servicing misconduct.” According to the complaint, Ocwen harmed citizens of the Sunshine State by filing illegal foreclosures, mishandling loan modifications, misapplying mortgage payments, failing to pay insurance premiums from escrow and collecting excessive fees. Ocwen services roughly 125,000 home mortgages in the state. The complaint, filed in federal court in West Palm Beach, ...


April 24, 2017 - Inside the CFPB

CFPB Takes Action Against Ocwen, Stock is Slammed but Rebounds

The CFPB last week filed a massive civil damage case against top-ranked mortgage servicer Ocwen Financial, accusing the nonbank and its subsidiaries, Ocwen Loan Servicing, LLC, and Ocwen Mortgage Servicing, Inc., of “failing borrowers at every stage of the mortgage servicing process.” The agency alleges that Ocwen’s “years of widespread errors, shortcuts and runarounds cost some borrowers money and others their homes.” Ocwen allegedly botched basic functions like sending accurate monthly statements, properly crediting payments, and handling taxes and insurance. The agency added that Ocwen also illegally foreclosed on struggling borrowers, ignored customer complaints, and sold off the servicing rights to loans without fully disclosing the mistakes it made in borrowers’ records. Among the CFPB’s major allegations was that the ...


April 21, 2017 - Inside The GSEs

FHLBank of NY Settles in Lehman Lawsuit Over Swaps

The Federal Home Loan Bank of New York settled a lawsuit with Lehman Brothers last week stemming from claims the bank undervalued interest rate swaps in 2008. In Lehman Brothers Holdings Inc. v. Federal Home Loan Bank of New York, documents show that the bank will pay $70 million to the Lehman bankruptcy estate. A recent FHLBank of NY filing with the Securities and Exchange Commission revealed...


April 14, 2017 - Inside FHA/VA Lending

Patenaude for DepHUDSEC? Bright To Replace Tozer at Ginnie Mae?

The Trump White House has yet to fill key positions at the Department of Housing and Urban Development and agencies that fall under the HUD umbrella, including the FHA and Ginnie Mae. According to industry officials who claim to have some knowledge of the process, the administration is seriously considering Pam Patenaude to be the deputy HUD secretary. Patenaude is president of the J. Ronald Terwilliger Foundation for Housing America’s Families. She served as HUD assistant secretary for community, planning and development during the George W. Bush administration. Meanwhile, Michael Bright has been mentioned as a candidate to be the next president of Ginnie Mae. Bright currently serves as director, Center for Financial Markets at the Milken Institute. During his career he has worked for mortgage lender/servicer PennyMac, investment banking firm BlackRock and ...


April 14, 2017 - Inside FHA/VA Lending

GNMA Servicing Market Thawing? Stakeholders Hope as Market Stirs

When it comes to selling Ginnie Mae mortgage servicing rights the past two years, it’s been mostly a bear market, but all that may be changing soon. At least that is what sellers and their merger and acquisition advisors hope. Mark Garland, executive vice president of MountainView Financial Solutions, Denver, said that of late, “We have seen a few Ginnie trades go off at a level closer to full value.” Garland told Inside FHA/VA Lending that he expects this trend to continue with prices tightening over the summer “provided rates hold and [prepayment] speeds stay largely in line with expectations.” And if that happens, there could be an increase in the ability of FHA/VA lenders to securitize excess cash flows. But that’s getting a little ahead of the equation. Over the past 24 months, the Ginnie MSR market has been difficult for two reasons: the fear of lawsuits/sanctions tied to FHA lending, and fast ...


April 14, 2017 - Inside FHA/VA Lending

GNMA Officials Attribute Decline in VA Refis to Anti-Churning Policy

A steep drop in VA-backed securities issuance in the first quarter of 2017 suggests that Ginnie Mae’s efforts to curb serial refinancing of VA loans are working, according to agency officials. Speaking on a panel at the annual VA Lenders Conference in Kansas City, MO, this week, Ginnie executives said that a change in pooling requirements for streamlined refinance mortgages appears to have curbed a destructive appetite for refinancing new VA loans within six months of closing. The practice has caused faster prepayments in Ginnie mortgage-backed securities pools and smaller payouts to investors. VA refi volume fell 42.7 percent from the previous quarter (see chart on page 2), contributing significantly to the 32.2 percent decline in total VA loan securitization during the period. John Getchis, senior vice president at Ginnie Mae, said he does not think the churning trend will continue because the ...


April 14, 2017 - Inside Nonconforming Markets

Ocwen Looks Forward, Emphasis on Compliance

With the potential for restrictions placed on Ocwen Financial to be removed in the near future, officials at the nonbank stress that Ocwen has transformed compared with when the restrictions were applied. Near the end of 2014, Ocwen agreed to a $150.0 million settlement with the New York Department of Financial Services. Among other provisions, the settlement required Ocwen to meet certain benchmarks and receive approval from the state regulator before acquiring ...


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