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  • CFPB addresses servicers’ obligations to respond to borrower inquiries

    Courts

    On April 4, the CFPB filed an amicus brief in a case on appeal to the U.S. Court of Appeals for the Ninth Circuit concerning a mortgage loan servicer allegedly failing to answer multiple inquiries from two separate consumers regarding their loans despite the requirement under Regulation X that servicers respond when a borrower submits a request for information that “states the information the borrower is requesting with respect to the borrower’s mortgage loan.” The plaintiffs filed suit after the defendant servicer declined to provide the information requested, stating that it would not respond “because the issues raised are the same or very closely related to the issues raised” in pending litigation surrounding the mortgages.

    The U.S. District Court for the District of Oregon dismissed the plaintiffs’ claims, noting that under RESPA, “a mortgage loan servicer only has an obligation to provide a written response to a [qualified written request] that seeks ‘information relating to the servicing of such loan,’” and that the plaintiffs’ inquiries regarding the ownership of their loans and requesting other miscellaneous information did not “trigger[] [the defendant’s] obligations to respond under Regulation X” because a servicer has a ‘duty to respond’ only if a request for information ‘relates to the servicing of the loan.’”

    In urging the appellate court to overturn the decision, the Bureau argued that under Section 1024.36 of Regulation X “servicers generally must respond to ‘any written request for information from a borrower’ that seeks ‘information ... with respect to the borrower’s mortgage loan.’” According to the Bureau, although a servicing-related request would fall under this provision, it is just one type of request that seeks information ‘with respect to’ a loan and thereby triggers a servicer’s obligation to respond” under the rules. The Bureau stated that Regulation X broadly requires servicers to respond to requests that seek information “with respect to” a borrower’s mortgage loan, explaining that it “included explicit language to that effect in the 2013 Rule to make clear that the rule created a unified set of requirements such that servicers’ obligations to respond were the same for a qualified written request as for any other information request,” and that it “did not exclude information requests that do not relate to servicing from the scope of § 1024.36.” The Bureau agreed with the plaintiffs that there is “no litigation exception to a servicer's obligation to respond to information requests under Regulation X.” The Bureau further noted in a blog post that,“[a] pending lawsuit does not take away a borrower’s right to a response from their loan servicer under Regulation X.”

    Courts Amicus Brief Ninth Circuit Appellate CFPB Consumer Finance RESPA Regulation X Mortgages Mortgage Servicing

  • FHFA suspends foreclosure for borrowers applying for HAF funds

    Federal Issues

    On April 6, FHFA announced that servicers with mortgages backed by Fannie Mae and Freddie Mac are required to suspend foreclosure activities for up to 60 days if the servicer is notified that a borrower has applied for mortgage assistance under the Treasury Department’s Homeowner Assistance Fund (HAF). As previously covered by InfoBytes, the HAF was created to provide direct assistance for mortgage payments, property insurance, utilities, and other housing-related costs to help prevent delinquencies, defaults, and foreclosures after January 21, 2020.

    Federal Issues FHFA Fannie Mae Freddie Mac Mortgages Foreclosure Consumer Finance Mortgage Servicing

  • District Court rejects borrower’s RESPA, TILA mortgage servicing claims

    Courts

    On March 15, the U.S. District Court for the Southern District of Ohio granted a defendant mortgage loan servicer’s motion for summary judgment in an action claiming violations of federal law based on alleged defects in the servicing of the plaintiff’s loan. According to the court, after settling similar claims against his two prior loan servicers, the plaintiff sued the companies that own and service his mortgage loan (collectively, defendants) disputing the precise amount of his delinquency and claiming the defendants failed to properly apply his mortgage payments or to respond to his notice of error (NOE). The plaintiff contended, among other things, that the defendants’ response to the NOE, misapplication of payments, and inaccurate periodic mortgage statements breached the terms of the mortgage agreement and violated RESPA, FDCPA, and TILA. In granting summary judgment, the court agreed with the defendants, finding that plaintiff’s breach of contract claim was foreclosed by a prior settlement agreement with his former servicer. The court also found that the servicer’s response to plaintiff’s NOE did not violate RESPA because it “fully addressed both ‘errors’ that the plaintiff presented,” and the perceived errors “amounted to confusion about basic arithmetic.” The court emphasized that “[n]othing in RESPA or Regulation X gives borrowers authority to dictate the parameters of a lender’s investigation,” and concluded that the servicer’s investigation and response was sufficient since the servicer provided the documents used to conclude that there was no misapplication of funds and “[e]ven a cursory investigation would have revealed that the specific errors alleged in the NOE did not occur.”

    In granting the defendants’ request for summary judgment regarding claims that the plaintiff received five inaccurate mortgage statements in violation of the FDCPA and TILA, the court concluded that the periodic statements contained all the fields required under Regulation Z, and explained that allegations contesting the accuracy of the information contained in the statements did not violate TILA because “12 C.F.R. § 1026.42(d) does nothing to regulate the accuracy of information presented in a periodic statement.” As to the plaintiff’s FDCPA claim, which was premised on allegations that plaintiff’s prior servicer misapplied funds which caused defendants to collect amount that plaintiff did not owe, the court found that that the disputed periodic statement was truthful and accurate and that the plaintiff released the defendants of any liability under the FDCPA in his settlement agreement with the prior servicer.

    Courts RESPA FDCPA TILA Regulation X Consumer Finance Mortgages Mortgage Servicing

  • OCC applies heightened risk governance standards to mortgage servicer

    Recently, the OCC published Interpretive Letter #1180 addressing the application of heightened risk governance standards under 12 C.F.R. Part 30, Appendix D, OCC Guidelines Establishing Heightened Standards (Guidelines) to a supervised bank. Specifically, the OCC determined that the bank’s operations were highly complex and presented a heightened risk. This determination was based on information provided by the Supervisory Office, which concluded that the bank’s operations, including significant mortgage servicing activities, warranted application of the Guidelines to the bank. “The Guidelines provide that a covered institution should establish and adhere to a written risk governance framework to manage and control its risk-taking activities,” the OCC stated, adding that the Guidelines “also provide minimum standards for an institution’s board of directors to oversee the risk governance framework.” In the interpretive letter, the OCC stated that it had notified the bank last December that it was considering exercising its reservation of authority to apply the Guidelines; however, the bank responded that application of the Guidelines was not appropriate at that time. The bank is expected to comply with the Guidelines by February 29, 2024.

    As previously covered by InfoBytes, last October the OCC issued a consent order against the bank for allegedly maintaining inadequate risk management controls related to its servicing and default servicing activities. The OCC asserted that the bank had previously been informed about the alleged risk management deficiencies and did not take timely corrective action. Under the terms of the consent order, the bank was required to take comprehensive corrective measures, including developing and implementing internal controls that are “commensurate with the types and complexity of risks associated with all transactions the [b]ank executes.” 

    Bank Regulatory Federal Issues OCC Risk Management Mortgages Mortgage Servicing

  • CFPB reminds servicers to use HAF funds to prevent foreclosure

    Federal Issues

    On March 14, the CFPB published a blog post strongly encouraging mortgage servicers to participate in the Homeowner Assistance Fund (HAF) to help borrowers avoid foreclosure and resolve delinquencies. While participation is voluntary, the Bureau reminded servicers that it remains focused on preventing avoidable foreclosures, and HAF funds can only help “if mortgage servicers work with state housing finance agencies and HUD-approved housing counselors to help borrowers” complete the process. HAF funds may allow borrowers to pay down the amount owed on a mortgage and help them enter loan modifications with lower payments. The Bureau also encouraged servicers to offer HAF program training to customer service representatives to ensure borrowers are provided accurate information about the loss mitigation process. Additionally, servicers should maintain policies and procedures that are designed to properly evaluate loss mitigation applications and should review existing policies and procedures to ensure borrowers are not improperly referred to foreclosure, especially in cases where a borrower’s HAF application is pending, or a borrower is awaiting HAF funds. The Bureau reminded servicers that it will continue to closely monitor servicer conduct and review mortgage servicing complaints to ensure compliance with all applicable federal consumer financial laws.

    Federal Issues CFPB Mortgages Consumer Finance Mortgage Servicing Foreclosure

  • FHFA re-proposes GSE seller/servicer eligibility requirements

    Federal Issues

    On February 24, FHFA re-proposed updated eligibility standards that Fannie Mae and Freddie Mac (collectively, GSEs) mortgage sellers and servicers would have to meet. The updated proposed requirements are designed to provide transparency and consistency of capital and liquidity requirements for sellers and servicers with different business models, and would differentiate between the servicing of Ginnie Mae mortgages and GSE mortgages. FHFA noted that the updated proposed requirements, which reflect coordination with other federal agencies, also incorporate feedback from a January 2020 proposal (covered by InfoBytes here), as well as lessons learned from the Covid-19 pandemic.

    Under the updated proposed requirements, all GSE sellers and servicers (both depositories and non-depositories) would be required to maintain a tangible net worth requirement of $2.5 million, plus 35 basis points of the unpaid principal balance for Ginnie Mae servicing and 25 basis points of the unpaid principal balance for all other 1-to-4 unit residential loans serviced, including GSE loans. Current GSE sellers and servicers, as well as new applicants, will be required to comply with the updated proposed requirements by December 31, 2022, minus the exception that Capital and Liquidity Plan requirements must be submitted to the GSEs by December 31, 2023, and are due annually by the end of each year thereafter. Comments on the proposed changes are due in 60 days. FHFA stated it anticipates finalizing the updated proposed requirements in the second quarter of 2022, with most requirements taking effect six months after finalization.

    Federal Issues FHFA Mortgages Fannie Mae Freddie Mac GSE Ginnie Mae Covid-19 Mortgage Servicing

  • FDIC approves final rule for trust, mortgage servicing accounts

    On January 21, the FDIC published a final rule that amends the deposit insurance regulations for trust accounts and mortgage servicing accounts. According to the FDIC, the final rule is “intended to make the deposit insurance rules easier to understand for depositors and bankers, facilitate more timely insurance determinations for trust accounts in the event of a bank failure, and enhance consistency of insurance coverage for mortgage servicing account deposits.” The final rule, among other things: (i) establishes a formula to calculate deposit insurance coverage for all revocable and irrevocable trust accounts; (ii) “provides a maximum amount of deposit insurance coverage of $1,250,000 per owner, per insured depository institution for trust deposits”; and (iii) establishes that “a deposit owner’s trust deposits will be insured in an amount up to $250,000 per beneficiary, not to exceed five beneficiaries, regardless of whether a trust is revocable or irrevocable, and regardless of contingencies or the allocation of funds among the beneficiaries.” Additionally, the final rule allows principal and interest funds advanced by a mortgage servicer to be included in the deposit insurance calculation. The rule is effective April 1, 2024. In addition, the FDIC released a fact sheet on the final rule.

    Bank Regulatory Agency Rule-Making & Guidance FDIC Mortgages Mortgage Servicing Deposit Insurance

  • States say FHA must require servicers to comply with Covid-19 loss mitigation options

    State Issues

    On December 21, a coalition of attorneys general from 20 states and the District of Columbia sent a letter to the FHA urging the agency to address mortgage servicers’ alleged failure to adequately implement Covid-19 recovery loss mitigation options for eligible borrowers. As previously covered by InfoBytes, FHA issued Mortgagee Letter 2021-18 in July, which required mortgage servicers to offer a zero-interest subordinate lien option to eligible homeowners who can resume their existing mortgage payments under the “COVID-19 Recovery Standalone Partial Claim” option. For borrowers that are unable to resume their monthly mortgage payments, FHA established the “COVID-19 Recovery Modification” option, which extended the term of a mortgage to 360 months at market rate and targeted a 25 percent principal and interest reduction for all eligible borrowers. At the time, FHA informed servicers that they could start offering the options as soon as operationally feasible but were required to use the new options within 90 days.

    The AGs alleged in their letter that several servicers of FHA-insured loans are reportedly failing to adequately implement these Covid-19 relief programs, and are instead “routinely sending borrowers letters that fail to include the Covid-19 Recovery Modification as an available option, are requiring paperwork and imposing qualifications that are not necessary under the FHA’s guidelines, and are instructing borrowers during customer-service phone calls that this option does not exist.” The AGs expressed deep concerns over these reports and requested that FHA take immediate action to ensure that FHA’s loss mitigation options, including the Covid-19 Recovery Modification, are fully implemented, and that borrowers receive accurate, up-to-date information. The AGs asked that FHA-approved lenders and servicers be required to demonstrate that they are taking affirmative actions to implement these Covid-19 relief options and requested training for all customer service staff to ensure borrowers receive the necessary information.

    State Issues State Attorney General FHA HUD Mortgages Mortgage Servicing Covid-19 Federal Issues Consumer Finance Loss Mitigation

  • 5th Circuit says bank and mortgage servicer did not engage in “dual tracking”

    Courts

    On December 15, the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment in favor of defendants in a mortgage foreclosure action. According to the opinion, after the plaintiff fell behind on his mortgage payments, the defendant bank’s mortgage servicer approved him for a trial loan modification plan that required timely reduced payments for a period of three months. The plaintiff stated that he complied with the trial plan but that the defendant bank nevertheless foreclosed on his property and sold the property to a third defendant. The plaintiff further claimed that he did not learn about the sale of his property until two months after it happened when the third defendant sought to evict him. The plaintiff sued the bank and mortgage servicer for violating RESPA and the Texas Debt Collection Act (TDCA), and sued the purchaser of the property “asserting claims to quiet title and for trespass to try title.” All defendants moved for summary judgment, which the district court granted based on evidence that refuted each allegation. The plaintiff appealed.

    On appeal, the 5th Circuit first reviewed, among other claims, the plaintiff’s RESPA claim, which alleged the bank and mortgage servicer engaged in “dual tracking” by initiating foreclosure proceedings while the plaintiff’s trial modification plan was purportedly still active. According to the court, dual tracking occurs when “the lender actively pursues foreclosure while simultaneously considering the borrower for loss mitigation options.” The appellate court agreed with the district court’s conclusion that summary judgment was appropriate because the plaintiff did not submit his first payment by the deadline established under the trial modification plan, and thus “did not timely accept the Trial Modification Plan.” As such, the bank and mortgage servicer did not engage in “dual tracking” because there was no obligation to notify the plaintiff of any denial of a permanent loan modification or to provide an opportunity to appeal, and accordingly was not considering the plaintiff for loss mitigation options. The court also found deficiencies in the plaintiff’s Texas law and TDCA claims.

    Courts Appellate Fifth Circuit RESPA Consumer Finance Mortgages State Issues Mortgage Servicing Foreclosure

  • FDIC updates videos on the mortgage servicing rules

    On December 17, the FDIC announced that it updated the technical assistance videos on the mortgage servicing rules. According to the announcement, the information in the five videos provides a high-level overview, which is intended to help FDIC-supervised institutions understand and comply with the mortgage servicing rules. The announcement also noted that the videos incorporate the 2016 Mortgage Servicing Rule and the 2016 Fair Debt Collection and Practices Act Interpretive Rule, and that the video series generally focus on the small servicer, as defined in Regulation Z. Highlights of each video include, among other things: (i) an overview of mortgage servicing and information for determining whether a servicer qualifies as a small servicer under Regulation Z (Video 1); (ii) key provisions for which small servicers do not have an exception (Video 2); (iii) an overview of some of the requirements that apply to large servicers and not small servicers (Video 3); (iv) information regarding successors in interest (Video 4); and (v) information and examples related to developing a compliance management system (Video 5).

    Bank Regulatory Federal Issues FDIC Mortgages Mortgage Servicing Regulation Z

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