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  • Eleventh Circuit Rules that Return of a Certified Mail Receipt Satisfies Regulation X of RESPA

    Courts

    In a per curiam opinion issued on March 1, 2017, the Eleventh Circuit Court of Appeals affirmed the dismissal of a complaint alleging that a mortgage servicer had violated Regulation X of the Real Estate Settlement Procedures Act (“RESPA”) by failing to “correctly or timely acknowledge receipt of his [written request for information (“RFI”)].” See Meeks v. Ocwen Loan Servicing LLC, [Order] No. 16-15536 (11th Cir. Mar. 1, 2017). Regulation X requires that, within five days of receiving an RFI, mortgage servicers must “provide to the borrower a written response acknowledging receipt of the information request.” 12 C.F.R. § 1024.36(c). Plaintiff alleged that the mortgage servicer violated 12 C.F.R. § 1024.36(c) when it signed and sent a Certified Receipt on the same day as receiving the RFI and when it sent a substantive response nine days later. Plaintiff sought actual damages of less than $100 and attorneys’ fees and costs.

    The Eleventh Circuit ruled, as a matter of first impression, that the mortgage servicer’s return of the Certified Receipt , which the plaintiff’s attorney “unquestionably received,” satisfied Regulation X. Alternatively, the Court affirmed the district court’s decision because the plaintiff “did not suffer any compensable damages from [the] alleged violation” and plaintiff’s counsel’s notice of error “falsely question[ed] the servicer’s receipt in order to create a claim for damages.” As to the claim for statutory damages, the Eleventh Circuit held that the plaintiff lacked Article III standing because he did not suffer a concrete injury-in-fact. Rather, because the plaintiff (and his attorney) “had undisputed actual knowledge of receipt of the RFI,” plaintiff “suffered at most ‘a bare procedural violation.’”

    Courts Lending Mortgages RESPA Regulation X

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  • Treasury Department Releases Report on Troubled Asset Relief Program (TARP)

    Lending

    On April 10, the Treasury Department released the March 2017 Monthly Report to Congress on the status of its Troubled Asset Relief Program (TARP). Among other things, the report provides updates on TARP programs such as the Capital Purchase Program, the Community Development Capital Initiative, and the Making Home Affordable Program, among others. Additionally, the report highlights, among other things, administration obligations and expenditures, insurance contracts, transaction reports, and projected costs and liabilities. On May 1, the Treasury issued a monthly TARP update noting principal, investment, income, and revenue totals affecting certain TARP programs.

    Lending Treasury Department TARP Mortgages

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  • CFPB Seeks Public Comment on its Plans for Assessing RESPA Mortgage Servicing Rule

    Agency Rule-Making & Guidance

    On May 4, the CFPB issued a request for comment on its plans for assessing the 2013 Real Estate Settlement Procedures Act (RESPA) servicing rule’s effectiveness in meeting the purposes and objectives outlined in the Dodd-Frank Act, which requires the CFPB to assess each significant rule or order it adopts under Federal consumer financial laws. According to the request for comment and a May 4 blog post on the CFPB’s website, the self-assessment will focus on objectives to ensure that: (i) “[c]onsumers are provided with timely and understandable information to make responsible decisions about financial transactions”;  (ii) “[c]onsumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination”;  (iii) “[o]utdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens”;  (iv) “[f]ederal consumer financial law is enforced consistently”; and (v) “[m]arkets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.”

    In 2013, the Bureau adopted the 2013 RESPA Servicing Final Rule and further amended the rule several times to address questions raised by the industry, consumer advocacy groups, and other stakeholders. The CFPB deemed the 2013 RESPA Servicing Final Rule, effective January 10, 2014, a “significant rule” for purposes of the Dodd-Frank Act. Importantly, however, in Footnote 10 of its most-recent request for comment, the Bureau clarifies that it “is not seeking comment on the amendments to the mortgage servicing rules that became or will become effective after the January 10, 2014 effective date.” (emphasis added) Accordingly, it appears that the Bureau is not presently seeking comments on the Amendments to Regulation X and Regulation Z that the CFPB published as a Final Rule (12 CFR Parts 1024 and 1026) in the October 19, 2016 edition of the Federal Register – see earlier InfoBytes coverage here – and which are slated to take effect in part on October 19, 2017 and in full on April 19, 2018.

    Agency Rulemaking & Guidance CFPB RESPA Regulation X Regulation Z Mortgages Dodd-Frank UDAAP

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  • NCUA Collects $445 Million from International Bank Due to Faulty Mortgage-Backed Securities, Recovers Nearly $4.7 Billion to Date

    Securities

    On May 1, the National Credit Union Administration (NCUA) announced it has collected $445 million from a Switzerland-based bank over claims stemming from losses borne by two liquidated credit unions related to faulty mortgage-backed securities they bought from the bank. As part of the settlement, NCUA will dismiss its 2012 lawsuit filed in the U.S. District Court in Kansas on behalf of the credit unions and brought against the bank for violations of federal and state laws through its alleged misrepresentations in the sale of mortgage-backed securities. Notably, the bank is not admitting fault as part of the deal. The $445 million in recoveries will be used to pay claims against the liquidated corporate credit unions, “including those of the Temporary Corporate Credit Union Stabilization Fund.” “This latest recovery . . . provide[s] a measure of accountability for the firms that sold faulty securities to the corporate credit unions,” acting NCUA Chairman Mark McWatters said. “It remains incumbent on NCUA to provide transparency in terms of the settlements, the legal fees and other costs that go with them, and how these affect the Stabilization Fund.” To date, NCUA’s recoveries from financial institutions alleged to have sold faulty securities to five corporate credit unions, leading to their collapse, have reached nearly $4.8 billion.

    Securities Mortgages credit union NCUA

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  • CFPB Releases Report on Diversity and Inclusion in the Mortgage Industry, Banking Agencies Attend Roundtable Meeting

    Consumer Finance

    On April 27, the Consumer Financial Protection Bureau published its report summarizing strategies intended to promote diversity and inclusion by mortgage industry participants. The report, Diversity and Inclusion in the Mortgage Industry: Readout from an Opening Roundtable, is the result of the Bureau’s collaboration with the financial services industry. The roundtable meeting—led by the Bureau’s Office of Minority and Women Inclusion (OMWI)—convened representatives from the mortgage industry, nonbank financial companies, and OMWI staff from the OCC, FDIC, Federal Reserve, and FHFA. OMWI was a created by Section 342 of the Dodd-Frank Act and charges directors with “increasing diversity in agency programs and contracts, and assessing diversity policies and practices of entities regulated by the agency.” The report highlights issues raised by roundtable participants and stresses the need to develop a “strong business case for diversity and inclusion.” The Bureau’s position on the strategies and practices discussed include the following:

    • promoting diversity and inclusion strengthens organizations and improves overall performance;
    • building in diversity and inclusion as “fundamental principles” and taking a “tone from the top” approach highlights the importance of leadership buy-in and accountability;
    • boosting diversity and inclusion through the recruitment, hiring, retention, and advancement of personnel creates opportunities for more diverse viewpoints;
    • promoting a more diverse workforce and tailoring products to the needs of different consumers fosters a greater understanding of the needs of a more diverse customer base; and
    • understanding the importance of data collection and analysis supports the business case for diversity.

    Consumer Finance CFPB Mortgages Diversity

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  • Fannie Mae to Allow Home Owners to Swap Student Loan Debt for Mortgage Debt

    Agency Rule-Making & Guidance

    On April 25, Fannie Mae issued updates to its Selling Guide allowing home owners to refinance their mortgages to pay off their student loan debt. The new policies will present opportunities for homeowners to (i) pay down student debt by refinancing their mortgage; (ii) no longer be required to include non-mortgage debt (credit cards, auto loans, and student loans) paid by others on loan applications; and (iii) increase the likelihood of qualifying for a mortgage loan while carrying student debt “by allowing lenders to accept student debt payments included on credit reports.” The updates also allow for debt to be excluded from the debt-to-income ratio if a lender can obtain documents showing that a non-mortgage debt has been paid by another party for at least 12 months. “These new policies provide . . . flexible payment solutions to future and current homeowners and, in turn, allow lenders to serve more borrowers,” stated Jonathan Lawless, Fannie Mae’s Vice President of Customer Solutions. The policy changes are effective immediately.

    Agency Rulemaking & Guidance Student Lending Mortgages Fannie Mae

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  • CFPB Releases Supervisory Highlights Focused on Student Lending and Mortgage Servicing

    Lending

    On April 26, the CFPB released its Supervisory Highlights for spring 2017, which outlines its supervisory and oversight actions in areas such as mortgage servicing and student loan servicing.  According to the Supervisory Highlights, recent supervisory resolutions have “resulted in approximately $6.1 million in restitution to more than 16,000 consumers.”

    Student loan servicing. Bureau examiners reported that student loan servicers (i) routinely acted on incorrect information about whether the borrower was enrolled in school, and (ii) failed to reverse certain charges, including improper late fees and capitalization of unpaid interest, even after they knew they had wrongly ended a deferment.

    Mortgage servicing. According to the report, the Bureau continued to see “serious issues for consumers seeking alternatives to foreclosure, or loss mitigation, at certain servicers.” CFPB examiners found problems with premature foreclosure filings, mishandling of escrow accounts, and incomplete periodic statements. Furthermore, examiners found that one or more mortgage servicers:

    • failed to identify the additional documents and information borrowers needed to submit to complete a loss mitigation application and then denied the applications for not including those documents;
    • launched the foreclosure process prematurely after receiving loss mitigation applications from borrowers, thereby failing to give required foreclosure protections to qualified consumers;
    • mishandled escrow accounts by using funds to pay insurance premiums on unrelated loans, creating shortages in the escrow accounts and higher monthly payments for consumers; and
    • issued incomplete periodic statements that used vague language such as “Misc. Expenses” and “Charge for Service” when describing transaction activity.

    The report also outlined the Bureau’s position on employee production incentives and presented guidance and examples of where “incentives contributed to substantial harm.”

    Lending CFPB Student Lending Mortgages

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  • District Court Says Bank/RMBS Trustee Must Face Suit Filed by Institutional Investors Claiming Breach of Trust Agreement

    Securities

    On March 30, a federal court in the Southern District of New York denied in part a bank’s motion to dismiss claims brought in five consolidated actions by institutional investors alleging breach of contract and conflict of interest in connection with billions of dollars of alleged losses stemming from the bank’s role as a trustee of 53 residential mortgage-backed securities (RMBS). The RMBS investors alleged, among other things, that the trustee took “virtually no action” to require lenders to repurchase or cure defaulted or improperly underwritten loans that backed the securities, despite having knowledge of “systemic violations.” The investors further alleged that the trustee’s failure to take corrective action was due to concerns that it might expose its own “misconduct” in other RMBS trusts and/or jeopardize its business dealings with lenders and servicers.

    Ultimately, the Court granted in part and denied in part the bank-trustee’s motion to dismiss, finding that the plaintiffs may pursue breach of contract and conflict of interest claims related to the trusts, as well as certain claims alleging breaches of fiduciary duty and due care. In reaching its conclusion, the Court explained that, having identified internal bank documents that raise legitimate questions about whether bank officials knew about lenders’ “alleged breaches of the trusts’ governing agreements” and failed to address the problems, the plaintiffs’ allegations “go far beyond many other RMBS trustee complaints, which themselves have been found sufficient to state a claim.” The Court did, however, dismiss the investors’ claims that alleged negligence and those alleging a breach of the covenant of good faith and fair dealing and negligence because, among other reasons, “[a] tort claim cannot be sustained if it ‘do[es] no more than assert violations of a duty which is identical to and indivisible from the contract obligations which have allegedly been breached.’” The Court also nixed several claims asserting violations of certain provisions of the New York law governing mortgage trusts for which no private right of action exists.

    Securities SDNY Mortgages

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  • FDIC Releases Third Volume in its Affordable Mortgage Lending Guide

    Agency Rule-Making & Guidance

    On April 6, the FDIC released the third volume of its Affordable Mortgage Lending Guide (Guide). The Guide is designed to help community bankers understand and compare various affordable mortgage-related programs, as well as their Community Reinvestment implications. This third installment of the Guide provides an overview of Federal Home Loan Bank programs designed to support single-family home purchases, such as down payment and closing cost assistance—many of which can be used in conjunction with other federal and state housing finance agency and government-sponsored enterprise programs. The Guide also provides alternatives for selling mortgages on the secondary market. As previously reported in InfoBytes, the first and second volumes in the series were published last year.

    Agency Rulemaking & Guidance FDIC Mortgages Affordable Housing Fair Lending Lending

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  • FDIC Q4 2016 Quarterly Banking Profile Reveals Community Bank Deposits, Office Count Both Up; OCC Reports Uptick in Mortgage Performance through End of 2016

    Agency Rule-Making & Guidance

    Earlier this week, the FDIC released the latest issue of both its Quarterly Banking Profile and the FDIC Quarterly Report–a “comprehensive summary of the most current financial results for the banking industry” that is published quarterly by the FDIC’s Division of Insurance and Research. According to its latest Report, community banks—which represent 92 percent of insured institutions—reported net income of $5.6 billion in the fourth quarter of 2016, a 10.5% increase over 2015. According to the Report, “the increase was driven by higher net interest income and noninterest income, which was partly offset by higher loan-loss provisions and noninterest expense.” The Report also reveals an 8.3 percent 12-month growth rate in loan balances at community banks. The Report notes further that “community banks accounted for 43 percent of small loans to businesses.” Notably, the FDIC observed that, although deposits across the banking industry grew, the number of non-community bank offices actually shrank. By contrast, however, the number of community banks increased during 2016.

    Also this week, the OCC announced the release of its  “OCC Mortgage Metrics Report, Fourth Quarter 2016,” its quarterly report based on performance data from seven national bank servicers, including over a third of all outstanding U.S. residential mortgages. As explained in the OCC’s Q4 2016 Report, foreclosure activity declined and mortgage performance continued to improve through the fourth quarter of 2016, with 94.7 percent of mortgages current and performing at the end of 2016, compared with 94.1 percent a year earlier. Servicers initiated 45,495 new foreclosures in the fourth quarter, a decrease of 5.1 percent from previous quarter and a decrease of 28.2 percent year-over-year. Notably, the number of mortgage modifications—most involving a reduction in borrower monthly payments—similarly reflected a substantial 9.3 percent decrease from the previous quarter. The OCC also notes, among other things, that the percentage of seriously delinquent mortgages dropped to 2.3 percent of the portfolio, down from 2.7 percent reported in the fourth quarter a year earlier.

    Agency Rulemaking & Guidance FDIC Community Banks OCC Mortgages

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