Legal Issues

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

February 16, 2018 - Inside The GSEs

FHFA Challenges GSE Shareholder Suits Over Agency’s Structure

GSE shareholders seeking to challenge the Federal Housing Finance Agency based on its single-director structure may now face an added challenge. The Federal Housing Finance Agency has asked the courts to review the decision of the DC Circuit in PHH Corp. v. Consumer Financial Protection Bureau as it relates to similar complaints against the agency. When a 2016 ruling found that the similarly structured Consumer Financial Protection Bureau is not constitutional, Fannie Mae and Freddie Mac shareholders filed lawsuits asking the courts to vacate the Treasury sweep of GSE profits altogether.

February 16, 2018 - Inside MBS & ABS

Court Rules that Many CLO Managers Are Not Subject to Risk-Retention Requirements

A three-judge appellate court panel late last week ruled that federal regulators improperly set risk-retention requirements for managers of collateralized loan obligations. The ruling overturned a decision by a lower court but won’t take effect immediately as the federal government could appeal.

February 9, 2018 - Inside FHA/VA Lending

FHA Delinquencies Spike in Puerto Rico as Island Remains in Disarray

FHA delinquencies rose sharply in Puerto Rico following the devastation brought by hurricanes Maria and Irma last year. At the end of 2017, 28.8 percent of FHA mortgages on the island were at some stage of delinquency, including 15.8 percent that have fallen 90 days behind on their mortgage payments. Deutsche Bank Securities analysts believe the spike in delinquency rates overall is “a short-term phenomenon.” They noted that FHA, Fannie Mae and Freddie Mac have declared temporary moratoria on evictions and foreclosures in Puerto Rico and other hurricane-ravaged regions. Issuer exposures in devastated areas remain unclear and Ginnie Mae has not updated its MBS hurricane exposure data since October last year. In the initial disclosure, the agency reported 9.7 percent (1,066,028 loans) of its total MBS portfolio were impacted by Harvey, Irma and Maria. The affected loans’ unpaid principal ...

February 9, 2018 - Inside FHA/VA Lending

DOJ Memos May Change Approach To FHA Litigation, Attorneys Say

Two recent internal policy memos from the Department of Justice suggest that the agency is reevaluating its approach in two key areas of enforcement, which may significantly affect False Claims Act litigation in FHA cases. Issued last month (one was actually leaked), the memos pertain to the dismissal of frivolous whistleblower cases when the government declines to intervene, and the prohibition of DOJ attorneys relying on an entity’s noncompliance with agency guidance as presumptive or conclusive evidence that the entity violated the law. Written by Michael Granston, director of the DOJ’s Commercial Litigation Branch, Fraud Section, the leaked Jan. 10 memo directs federal prosecutors to consider dismissing meritless FCA complaints by whistleblowers when considering whether DOJ should intervene in the ...

February 9, 2018 - Inside FHA/VA Lending

VA Calls for Early Disclosures for IRRRLs to Ensure Vets Benefit

The Department of Veterans Affairs will require lenders to provide early disclosures to veterans seeking to refinance into a VA Interest Rate Reduction Refinance Loan. The new policy aims to ensure that the VA streamline refi loan they sought would actually lower their monthly mortgage payments and is not just a scam for lenders to charge higher fees. Loan churning, or serial refinancing, is at the root of the VA policy change. Churning refers to multiple refinancing of an unseasoned mortgage loan within a very short time, often within six months of origination. Serial refinancing may add more payments and interest to the new loan, prolonging debt repayment, and can strip equity. It also potentially raises the risk of default by the borrower. In addition, the risk of prepayment could affect pricing of Ginnie Mae securities, which could cause lenders to charge higher rates on VA loans to make up for the ...

February 9, 2018 - Inside FHA/VA Lending

Ginnie Targets Issuers Responsible For Rapidly Prepaying VA Loans

Ginnie Mae this week warned nine VA lenders suspected of engaging in loan churning to each develop a plan to slow the rapid pace of prepayments they have triggered in the agency’s securitized loan pools. According to Ginnie, the issuers were directed individually to deliver correction action plans containing measures that could be deployed immediately to bring prepayment speeds in line with market peers. The agency told issuers they would be barred from multi-issuer pools if they do not come up with a plan. Participation would be allowed only in the agency’s custom pools. The latest action builds off the Ginnie Mae/VA Loan Churn Task Force, which has been working since September to resolve the churning problem. “We have an obligation to take necessary measures to prevent the lending practices of a few from impairing the performance of our multi-issuer securities, and thus raising the ... [ Chart ]

February 8, 2018 - Inside Mortgage Finance

Appeals Court Sends PHH’s RESPA Case Back to the CFPB for Reconsideration

The U.S. Court of Appeals for the District of Columbia Circuit last week saved PHH Mortgage and its parent more than $100 million when it sent the lender’s dispute with the Consumer Financial Protection Bureau over issues related to the Real Estate Settlement Procedures Act back to the bureau, basically starting over.

February 5, 2018 - Inside the CFPB

Servicers Express Concern About Bankruptcy-Related Provisions

The Consumer Mortgage Coalition recently wrote to CFPB Acting Director Mick Mulvaney to express the continuing, unresolved concerns its members have with some of the bankruptcy-related provisions of the bureau’s mortgage servicing rules. As of April 2018, mortgage servicers will have to send monthly billing statements to consumers in active bankruptcy cases and certain bankruptcy cases in which the debtor’s personal liability was previously discharged. This is problematic for a number of reasons, according to the CMC. First, these proposed rules conflict with well-settled bankruptcy law prohibiting a creditor from collecting from consumers who are in an active bankruptcy case or who have previously been discharged from personal liability in a prior bankruptcy case. “The courts have held these provisions ...

February 5, 2018 - Inside the CFPB

AD Mulvaney Consolidates, Restructures Fair Lending Office

The CFPB last week moved to restructure how the agency enforces fair lending laws, consolidating that function under the director’s office, which is headed by interim appointee Mick Mulvaney. In a statement provided to Inside the CFPB, John Czwartacki, senior advisor to the acting director, said: “The bureau’s statutory mandate includes the supervision and enforcement of fair lending laws and regulations [and] the bureau will continue to perform those functions.” He added: “The fact is, it never made sense to have two separate and duplicative supervision and enforcement functions within the same agency – one for all cases except fair lending, and the other only for fair lending cases. By announcing our intent to combine these efforts under one roof, we ...

February 5, 2018 - Inside the CFPB

CFPB Issues Request for Info on Civil Investigative Demands

Following up on the recent pledge by CFPB Acting Director Mick Mulvaney to “seek evidence” that the bureau is fulfilling its mission, the CFPB has issued a formal request for information on civil investigative demands, a source of tremendous controversy and uncertainty for the industry during the tenure of former director Richard Cordray. The agency asked for “comments and information from interested parties to assist it in assessing potential changes to the bureau’s CID processes, consistent with law, to consider whether any changes to the processes would be appropriate,” said the document. Entities that have received CIDs as well as their attorneys were invited to comment. “The issuance of CIDs is an essential tool for fulfilling the bureau’s statutory mission ...

February 5, 2018 - Inside the CFPB

Hensarling Wants CFPB AD Mulvaney to Appeal to SCOTUS

In response to last week’s ruling by the D.C. Circuit Court of Appeals that confirmed the constitutionality of the CFPB but rejected the bureau’s interpretation of RESPA in its legal dispute with PHH Mortgage, Rep. Jeb Hensarling, R-TX, suggested CFPB Acting Director Mick Mulvaney appeal to the Supreme Court of the United States. “I am deeply disappointed with the court’s decision and hope the Supreme Court will review the ruling in short order,” said Hensarling, chairman of the House Financial Services Committee. “In the meantime, I take great solace in the fact that Mick Mulvaney can use his unchecked, unilateral powers to continue the agency’s transformation into one that will, as he said, ‘exercise [its] statutory authority to enforce the ...

February 5, 2018 - Inside the CFPB

PHH Beats the RESPA Rap the Bureau Tried to Stick it With

The second part of last week’s ruling by the en banc panel of the U.S. Court of Appeals for the District of Columbia Circuit went in favor of PHH Mortgage in its lengthy legal dispute with the CFPB over issues tied to the Real Estate Settlement Procedures Act. The court upheld the original three-judge panel interpretation of RESPA and its application to PHH in this case, stating that it was improperly applied and that the lender is entitled to the relief granted. More specifically, the en banc court reinstated the Oct. 11, 2016, panel decision related to the RESPA issues, which included vacating the bureau’s order imposing $109 million in disgorgement penalties, and remanded the matter for further proceedings based ...

February 5, 2018 - Inside the CFPB

CFPB Beats the ‘Unconstitutional’ Rap PHH Tried to Hang it With

Last week, the en banc panel of the U.S. Court of Appeals for the District of Columbia Circuit issued its long-awaited decision in the tussle between the CFPB and PHH Corp. The ruling addressed two distinct issues in the dispute, the first being the leadership structure of the CFPB, which PHH alleged was unconstitutional. The district court had previously sided with PHH, but the appeals court reversed that component of the ruling, and did so largely on party lines. On the other hand, the appeals court judges transcended party orientation and sided with PHH on the part of the dispute that deals with the Real Estate Settlement Procedures Act. (See following story.) On the question of the constitutionality of the ...

February 2, 2018 - Inside The GSEs

GSE Roundup

Freddie Prices First Lower LTV STACR of 2018. Freddie Mac priced a $900 million Structured Agency Credit Risk debt notes offering last week, its first lower loan-to-value deal of the year. STACR 2018-DNA1 has a reference pool of single-family mortgages with an unpaid principal balance of approximately $34.7 billion. The reference pool includes loans with LTVs ranging from 60 to 80 percent. CoreLogic to Redistribute GSE CRT Data. CoreLogic announced this week that it is redistributing credit risk transfer loan-level data from Fannie Mae and Freddie Mac. The CRT redistribution will include Fannie Mae’s Connecticut Avenue Securities data as well as data from Freddie Mac’s Structured Agency...

February 1, 2018 - Inside Mortgage Finance

A Break on RESPA

The en banc panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled Wednesday in favor of PHH Mortgage in its long-running legal dispute with the Consumer Financial Protection Bureau over issues tied to the Real Estate Settlement Procedures Act.

January 26, 2018 - Inside FHA/VA Lending

Lennar’s Mortgage Arm Subject of DOJ Probe; Quicken Case Proceeds

The Department of Justice has had a busy month in terms of False Claims Act enforcement. Eagle Home Mortgage, a subsidiary of Lennar, is under government investigation for its FHA underwriting and quality-control processes – code words for a potential FCA lawsuit. Lennar, a nationwide builder of new homes, disclosed the probe in its annual Securities and Exchange Commission filing. The company said the Department of Justice has subpoenaed its mortgage subsidiary for documents relating to FHA-insured loans originated and sold in previous years. There were no other details. Lennar said Eagle has provided the DOJ with information related to the loans and is cooperating with investigators. “The DOJ has to date not asserted any claim for damages or penalties,” the Miami-based homebuilder said. Meanwhile, in federal district court in Detroit last week, government prosecutors argued with Quicken Loans’ attorney, Jeffrey Morganroth, over a motion to narrow the loan sample the ...

January 26, 2018 - Inside FHA/VA Lending

Ginnie Mae Sets Boundaries on Issuer Risk in MSR Portfolios

Ginnie Mae is expanding its guidelines to clarify the amount of risk it considers acceptable for an issuer’s mortgage servicing rights portfolio and what administrative actions an issuer with excessive portfolio risk could face. The move is part of the agency’s continuous monitoring of issuer activity and MSR portfolios to ensure they are not putting issuers, investors or the program at risk. In its revised MBS Guide, Ginnie provides examples that fall outside of the acceptable risk parameters. Issuers deemed to carry excessive risk will find their participation in the MBS program greatly restricted, the agency warned. In addition, Ginnie may require offenders to recalibrate their high-risk portfolio to more acceptable risk levels, diversify their portfolio, or restrict their participation in Ginnie’s co-issue program, Pool Issues for Immediate Transfer (PIIT) and/or multiple pools. Ginnie is urging issuers to review the ...

January 26, 2018 - Inside FHA/VA Lending

VA Exceeds FHA by Wide Margin in Servicemembers’ Complaints in ‘17

The Consumer Financial Protection Bureau last year logged 988 servicemember complaints related to the origination and servicing of VA and FHA mortgages. CFPB data showed VA outscored FHA on the number of complaints, 740 to 248, respectively, in 2017. The top five reasons for servicemember complaints were trouble during the payment process, difficulty in paying the mortgage, loan servicing, applying for a purchase mortgage or refinance, and closing a loan. Other complaints were about loan modification and foreclosure, mortgage brokers, incorrect information, settlement process and costs, underwriting/credit decision, credit-reporting company’s investigation of a consumer problem, and improper use of a credit report. Abusive practices related to loan churning might not be reflected clearly in servicemembers’ complaints in 2017 compared to the previous year, but a deeper dive into the ... [Chart]

January 26, 2018 - Inside FHA/VA Lending

Hurricanes Clobbered FHA Loan Performance in Late 2017

The severe hurricanes that tormented a handful of markets during late summer of 2017 continued to push FHA default rates higher in the fourth quarter, a new Inside FHA/VA Lending analysis reveals. The number of FHA loans paying on time fell from 92.8 percent at the end of September to 91.9 percent at the end of the fourth quarter. Most of the deterioration took place in the more severe default categories. The number of FHA loans 90 days past due more than doubled during the three-month period, climbing to a hefty 0.92 percent of outstanding loans. And the number of FHA loans more than three-payments late increased by 39.7 percent, reaching 1.01 percent of the total outstanding. Three jurisdictions that bore the brunt of hurricanes Harvey, Irma and Maria – Texas, Florida and Puerto Rico – saw huge increases in FHA defaults. Puerto Rico saw a devastating impact in rising ... [Charts]

January 25, 2018 - Inside MBS & ABS

Lawyers Say More Statistical Sampling Used in MBS Suits Found Not Valid, ResCap Decision Warrants Watching

Statistical sampling, which gained widespread acceptance in MBS repurchase cases after the housing crisis, is being rejected in many courts today, legal experts say.

January 22, 2018 - Inside the CFPB

Will ATR, Servicing ‘Look Backs’ Bring Big Change to the Industry?

It’s likely that mortgage lenders and servicers will get some degree of consideration and accommodation from the CFPB during the Trump administration, thanks to some reviews the bureau is required to make of its major rulemaking as per the Dodd-Frank Act. “The Dodd-Frank Act requires the CFPB to look back and conduct an assessment of each significant rule not later than five years after its effective date,” said former CFPB official Benjamin Olson, now a partner in the Washington, DC, office of the Buckley Sandler law firm, during a webinar last week sponsored by Inside Mortgage Finance. The purpose of this assessment is to look at the effectiveness of the rule in meeting its purposes and objectives under the statute ...

January 22, 2018 - Inside the CFPB

Compliance Attorneys Expect Easing of Reg, Enforcement

Some top compliance attorneys are optimistic that the CFPB under Acting Director Mick Mulvaney, or another President Trump appointee, will provide greater regulatory relief and clarity for lenders, and an easing of enforcement activity. Included in that mix could well be a return to the more traditional interpretation the Department of Housing and Urban Development had for the Real Estate Settlement Procedures Act. Gerald Sachs, formerly senior counsel for policy and strategy at the bureau and now a partner with the Venable law firm in Washington, DC, told Inside the CFPB recently he anticipates that “mortgage rules would be amended or revised to lessen the regulatory burden, clarify industry concerns or issues, and allow more access to credit.” In addition, ...

January 22, 2018 - Inside the CFPB

CFPB Drops Litigation Against Payday Lenders. Is the Rule Next?

The CFPB has decided to abandon its pursuit of a group of payday lenders it had accused of misleading consumers about the true extent of the costs associated with its loans, which purportedly carried interest rates as high as 950 percent a year. The agency gave no explanation about its decision to reverse course. An interesting twist is that payday lenders are generally regulated at the state level, and since the lenders in this case happen to be associated with a Native American tribe, they can argue that state laws do not apply to them. Payday Lending Rule Kaput? Also last week, the CFPB indicated it might just deep-six its controversial payday lending rule. “Jan. 16, 2018, is the effective ...

January 22, 2018 - Inside the CFPB

Mulvaney Keeps Pressure on Nationwide Biweekly Admin

Despite the fear expressed by consumer advocates that CFPB Acting Director Mick Mulvaney might give financial service industry participants a “get out of jail free” card upon request, the bureau recently filed a motion in opposition to the request of Nationwide Biweekly Administration, a biweekly mortgage payment company, to alter, amend or vacate the prior judgment against the firm. This past September, the CFPB won one and lost one in a ruling from the U.S. District Court for the Northern District of California in the case. The agency won a $7.9 million civil penalty from the defendants. However, it lost out on $74 million in sought-after restitution. The bureau also originally insisted the defendants post a bond, even though that ...

January 22, 2018 - Inside the CFPB

Sen. Warren Asks if Data Collection Limits Are Restricting Examiners

Sen. Elizabeth Warren, D-MA, recently questioned whether CFPB Acting Director Mick Mulvaney is intentionally trying to undermine the bureau, utilizing some Inspector General concerns about the agency’s data security as a pretext. In a letter to Mulvaney and Leandra English, the deputy director of the federal regulator, Warren said the CFPB cannot fulfill its core functions without collecting personally identifiable information. “When a consumer submits a complaint, the CFPB asks for information such as their name and account number to enable the agency to help resolve the dispute,” Warren said. “CFPB bank examiners and enforcement lawyers regularly use account-level data provided by regulated institutions to detect improper and unlawful activity.” Similarly, the bureau’s Office of Fair Lending collects and analyzes ...

January 22, 2018 - Inside the CFPB

After Expected Denial, English Makes Her Case to Appeals Court

In recent days, Judge Timothy Kelly of the U.S. District Court for the District of Columbia circuit ruled, as expected, to deny CFPB Deputy Director Leandra English’s personal legal bid soliciting a preliminary injunction to unseat Acting Director Mick Mulvaney and install her in the job. For multiple reasons, “including that English has not demonstrated a likelihood of success on the merits [of her case] or shown that she will suffer irreparable injury absent injunctive relief, her request for a preliminary injunction is denied,” the judge wrote. Further, “The president has designated Mulvaney the CFPB’s acting director, the CFPB has recognized him as the acting director, and it is operating with him as the acting director,” he continued. “Granting English ...

January 19, 2018 - Inside The GSEs

GSE Shareholders Continue Battle Against Government Agencies

In a joint brief filed this week, federal respondents took issue with arguments made by GSE shareholders in their fight against the net worth sweep and said a shareholder petition for a Supreme Court review of their case should not be granted. Shareholders in several cases filed three petitions for a writ of certiorari back in November. The plaintiffs asked the Supreme Court of the United States to intervene to “restore certainty and uniformity.” They claim that the Federal Housing Finance Agency acted unconstitutionally when it imposed the net worth sweep.

January 19, 2018 - Inside Mortgage Trends

United Shore in a Legal Battle After a Data Breach

A data breach involving United Shore Financial Services and Xerox has prompted a class-action lawsuit from borrowers and a legal battle between the lender and the loan document software vendor. United Shore is the parent company of United Wholesale Mortgage, a major player in the wholesale channel. In 2011, United Shore was using BlitzDocs to process and store loan documents. At the time, the software program was operated by Xerox Mortgage Services. Al Leibovic, a borrower, filed ...

January 19, 2018 - Inside MBS & ABS

Eighth Circuit Raises the Bar for Indemnification Claims, Ruling Benefits Mortgage Sellers, Insurers

Correspondent lenders and insurers may benefit from a recent decision by the U.S. Appeals Court for the Eighth Circuit regarding indemnification for prior settlements.

January 19, 2018 - Inside MBS & ABS

GSE Shareholders Continue to Appeal, Argue Their Case Against FHFA, Treasury in 2018

After their case against the Federal Housing Finance Agency was dismissed by the U.S. District Court for Delaware in November, government-sponsored enterprise shareholders David Jacobs and Gary Hindes recently filed an appeal.

January 12, 2018 - Inside FHA/VA Lending

Around the Industry

FHA Announces Revised Method for Calculating Initial MIP for HECM Refis. FHA has modified the formula for calculating the initial mortgage insurance premium for Home Equity Conversion Mortgage refinances with case numbers assigned on or after Sept. 19, 2017. The formula was modified on Nov. 14, 2017. The change conforms to the final rule FHA implemented last year to strengthen the HECM program. The revised formula has been posted on FHA’s HECM page on, FHA Connection Release Notes, dated Dec. 28, 2017. The FHAC Release Notes outline the changes and processing instructions for lenders to calculate the initial MIP for HECM refis. HUD Releases Guide to Help Borrowers and Disaster Victims Avoid Foreclosure. The Department of Housing and Urban Development has released the Homeowners Guide to Success to help struggling homeowners and ...

January 12, 2018 - Inside FHA/VA Lending

Florida District Court Allows U.S. to Intervene in FHA FCA Suit v. BofA

A federal district court in Florida has agreed to a government motion to intervene in a False Claims Act lawsuit against Bank of America in order to reach a settlement on behalf of a relator. Bruce Jacobs, a foreclosure attorney and relator in South Florida, filed the lawsuit. A former Miami prosecutor, he now represents homeowners in foreclosure proceedings initiated by financial institutions, including BofA. In his lawsuit, Jacobs alleged that BofA submitted false claims in violation of the FCA. Specifically, the bank allegedly submitted endorsements with unauthorized signatures and false mortgage assignments that would confer standing to foreclose. In addition, Jacobs additionally asserted a reverse FCA claim alleging that BofA made false statements when entering into the 2012 National Mortgage Settlement (NMS) consent judgment with the U.S. government. The landmark $25 billion settlement with ...

January 12, 2018 - Inside FHA/VA Lending

VA Clarifies Buyout Criteria for Uninsured, Unguaranteed Loans

Ginnie Mae is redefining the term “defective mortgage” to remind issuers of their obligations when confronted by a mortgage that does not have federal insurance or guarantee. The action also clarifies options issuers may consider in dealing with defective mortgages. Under their guarantee agreement with Ginnie, issuers are required to cure, buy out or replace single-family mortgages or manufactured home loans that are missing the requisite FHA insurance or VA or U.S. Department of Agriculture guarantee within 120 days after the issue date of the mortgage-backed securities. Ginnie made clear that mortgages that do not have federal insurance or guarantee by the deadline for final certification of the related pool or loan package are defective. In addition, mortgages that have been rejected by FHA, VA or USDA, or for which federal insurance or guarantee have been withdrawn, are defective as ...

January 12, 2018 - Inside FHA/VA Lending

VA, Ginnie Mae Working on Long- Term Cures to Rapid Refinancing

Ginnie Mae and the Department of Veterans Affairs have announced additional measures to curb serial refinancing of VA loans. Testifying before a House Veterans Affairs subcommittee this week, officials from both agencies said the latest measures will complement guidelines Ginnie issued last year to deal with the loan-churning problem. Lenders urged Congress and the two agencies to be cautious in prescribing fixes that could potentially cut off VA funding. Jeffrey London, director of the VA Loan Guaranty Service, said a proposed rule that includes a net tangible benefits test for veterans as well as seasoning and recoupment requirements will be issued soon. The VA is also planning to require upfront lender disclosure of the terms and benefits of a streamline or cash-out refi, including the recoupment period of the new transaction. Even though serial refinancing is not systemic to the VA portfolio, it has grown in ...


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