On November 5, the FHFA announced that it had directed Fannie Mae and Freddie Mac to implement new restrictions on lender-placed insurance practices. In March, the FHFA sought comments on certain potential lender-placed insurance restrictions, including new policies to (i) prohibit sellers and servicers from receiving, directly or indirectly, remuneration associated with placing coverage with or maintaining placement with particular insurance providers, and (ii) prohibit sellers and servicers from receiving, directly or indirectly, remuneration associated with an insurance provider ceding premiums to a reinsurer that is owned by, affiliated with or controlled by the sellers or servicer. Following that comment process and related efforts by the FHFA to obtain feedback on these issues, the FHFA now has directed Fannie Mae and Freddie Mac to provide aligned guidance to sellers and servicers to prohibit servicers from being reimbursed for expenses associated with captive reinsurance arrangements. The announcement does not provide any timeline for the new guidance, but states Fannie Mae and Freddie Mac will provide implementation schedules with the new rules.
On November 15, Freddie Mac issued Bulletin 2013-23, which withdraws recently announced fraud training requirements and describes various changes to other requirements. Citing the need to assess industry feedback, Fannie Mae withdrew Bulletin 2013-18, which required, among other things, that seller/servicers provide third-party vendors retained to perform functions relating to origination and servicing of mortgages with training on fraud prevention, detection, and reporting. In addition, Bulletin 2013-23 (i) updates payment history verification requirements for manually underwritten mortgages; (ii) announces that previously announced eligibility requirements applicable to higher-priced mortgage loans (HPMLs) are applicable to higher-priced covered transactions (as defined in the CFPB ability to repay/qualified mortgage rule) and not solely to HPMLs; (iii) updates certain requirements for Freddie Mac Relief Refinance Mortgages; (iv) updates requirements for verifying tax information for borrowers with income derived from sources in Puerto Rico, Guam and the U.S. Virgin Islands; and (v) clarifies signature requirements for security instruments.
On October 29, Fannie Mae and Freddie Mac jointly published a Uniform Loan Delivery Dataset (ULDD) Phase 3 preview, which is intended to provide lenders and vendors with an early look at the next phase’s specification to help them prepare for implementation in the fourth quarter of 2015. The joint preview identifies 15 new data points—13 related to the CFPB’s new ability-to-repay rule and two other data points that were deferred from Phase 2. In addition, the joint publication provides additional implementation notes and guidance on the 17 new data points that will be implemented in ULDD Phase 2 in 2015 (the exact implementation date will be announced by the end of the first quarter of 2014).
On October 18, Freddie Mac issued Bulletin 2013-22, which updates servicing requirements related to foreclosures and management of abandoned properties. The Bulletin states that servicers may, without obtaining prior written approval, instruct foreclosure counsel to conduct a foreclosure in Freddie Mac’s name when applicable law precludes the servicer from conducting the foreclosure in its own name, and establishes other requirements for servicers that do so. The Bulletin also updates requirements regarding vesting the title after foreclosure, stating that for conventional mortgages servicers must ensure that the title to the property is vested in Freddie Mac’s name (if the property is not purchased by a third party), unless it is in Freddie Mac’s best interest to have the title vested in the servicer’s name after the foreclosure sale, and then have the title to the property transferred to Freddie Mac via quitclaim deed. With regard to preservation of abandoned properties, the Bulletin, for example, (i) informs servicers of new expense codes and limits, (ii) introduces new pricing requirements for property preservation expense items that identify the per unit cost that Freddie Mac finds reasonable, and (iii) removes the requirement that servicers obtain pre-approval for reimbursement of certain vacant property registration fees. The Bulletin also announces certain other changes related to foreclosures and abandoned properties.
On October 23, a jury found a bank liable on one civil mortgage fraud charge arising out of a program operated by a lender the bank had acquired. The jury also found against a former executive of the acquired lender. The verdict followed a four week trial in the first DOJ case alleging violations of the FCA and FIRREA in connection with loans sold to Fannie Mae and Freddie Mac. Judge Jed Rakoff of the Southern District of New York will consider briefing on the penalty—the DOJ originally had sought damages close to $1 billion. The bank stated that it will evaluate its options for an appeal. For more information about the government’s expanding FCA/FIRREA civil fraud initiative, please visit our resource center.
On October 11, Fannie Mae issued Servicing Guide Announcement SVC-2013-20 and Freddie Mac issued Bulletin 2013-21 to update their delinquency management and default prevention servicing requirements in response to the CFPB’s new mortgage servicing rules. These updated servicing requirements, which are effective for servicing activities completed on or after January 10, 2014, align with the CFPB’s final rules implementing the mortgage servicing provisions of RESPA and TILA. The policy changes announced by Fannie Mae and Freddie Mac include updates specific to mortgages secured by primary residences, as well as updates that apply to all mortgages. The servicing requirements affected by these policy changes, include, but are not limited to, (i) borrower inquiries and error resolution, (ii) written acknowledgement of a Borrower Response Package, (iii) early intervention and communication with delinquent borrowers, (iv) the evaluation of mortgage loan modification plans and the appeal process for the denial of such, (v) foreclosure referral and postponement, and (vi) pre-foreclosure reviews.
On October 8, Freddie Mac issued Bulletin 2013-19 to provide guidance related to the federal government shutdown that began on October 1. Fannie Mae recently issued similar guidance in Lender Letter LL-2013-08. The guidance addresses income verification for new loans to government employees and reminds servicers of forbearance options for borrowers impacted by the shutdown.
On October 8, Freddie Mac issued Bulletin 2013-20, which (i) announces tools and systems that provide estimates of property value generated by Freddie Mac’s proprietary automated property valuation model and (ii) updates requirements related to disclosure of property valuation information. Freddie Mac explains that its property value estimates can help sellers/servicers identify potentially inflated appraised values that may need additional review early in the origination process and also can be used to determine property values for Freddie Mac modifications or refinances, but that use of the valuation information may impact seller/servicers’ obligation to comply with the revised valuation disclosure requirements finalized by the CFPB earlier this year. For sellers, the Bulletin states that Freddie Mac will be adding disclaimers about the property value estimate, and provides additional options for system-to-system users. For servicers, Freddie Mac plans to provide supporting text for use in complying with the new disclosure requirements and to provide to borrowers. The Bulletin identifies certain other changes related to the use of property valuation data.
On October 1, Freddie Mac issued an industry letter and Fannie Mae issued Lender Letter LL-2013-07 to provide additional information regarding Freddie Mac’s and Fannie Mae’s new purchase eligibility requirements based on the CFPB’s final ability-to-repay/qualified mortgage (ATR/QM) rule. The letters inform sellers that, during an initial transitional period, the enterprises will not make any changes to their quality control processes and will not, except under certain circumstances, issue any repurchase requests related to the new points and fees eligibility requirements. The letters remind sellers that they must comply with all applicable laws regarding points and fees, including state laws and regulations that may be more restrictive than the CFPB ATR/QM rule, and withdraws prior guidance regarding excessive points and fees. Finally, the letters advise sellers that while Freddie Mac and Fannie Mae are not at this time requiring any additional documentation, sellers should retain all materials that might be necessary to demonstrate compliance with the new eligibility requirements.
On September 24, Freddie Mac issued Bulletin 2013-18, which updates and revises certain selling and servicing requirements. Effective October 1, 2013, Freddie Mac will require that seller/servicers (i) provide third-party vendors retained to perform functions relating to origination and servicing of mortgages with training on fraud prevention, detection, and reporting as outlined in the Seller/Servicer Guide, (ii) maintain written procedures for reporting fraud or possible fraud in connection with a mortgage sold to or serviced for Freddie Mac, and (iii) report to Freddie Mac when they first know or suspect an incident of fraud may have occurred in connection with a mortgage sold to or serviced for Freddie Mac, rather than when they have a reasonable belief of such an incident. With regard to selling requirements, the bulletin, among other things, (i) updates asset documentation requirements, including the requirements for verification of large deposits, (ii) updates requirements for underwriting borrowers on temporary leave, (iii) updates certain relief refinance requirements, and (iv) retires Investor Feature Identifiers for temporary subsidy buydown mortgages with special characteristics.
On September 20, the FHFA filed a motion requesting that the U.S. District Court for the Northern District of Illinois amend an order it issued after holding on August 23 that Fannie Mae and Freddie Mac are exempt from a 2011 City of Chicago ordinance that established new requirements for mortgagees and their agents regarding the maintenance of vacant property. The FHFA, as conservator of Fannie Mae and Freddie Mac, sued the city in December 2011 over the ordinance, which requires mortgagees to register vacant properties and pay a $500 registration fee per property. The FHFA asked the court “to specify the contents and persons” bound by its August 23 order. The motion was accompanied by a proposed order for declaratory and monetary relief, which would restate Fannie Mae’s and Freddie Mac’s immunity from the City’s ordinance and also would require the City to refund any payments that those the two enterprises, or any entities acting on their behalf, made pursuant to the ordinance.
Fannie Mae, Freddie Mac Extend Streamlined Modifications, Announce HAMP Changes, Increase Certain State Foreclosure Timelines
On September 16, Freddie Mac issued Bulletin 2013-17, and on September 18, Fannie Mae issued Servicing Guide Announcement SVC-2013-18, which extend those entities’ streamlined modification programs to include all streamlined modification trial period plans that become effective by December 1, 2015. Fannie Mae and Freddie Mac also extended the expiration date for HAMP such that Trial Period Plan Effective Dates must be on or before March 1, 2016 and Modification Effective Dates must be on or before September 1, 2016. Fannie Mae further applied these extended time frames to Second-Lien Modification Programs. In addition, Fannie Mae and Freddie Mac revised their eligibility requirements for proposed HAMP modifications that are submitted through the Treasury Net Present Value Model on or after January 1, 2014. Further, both Fannie Mae and Freddie Mac (i) retired the annual servicer “Pay for Success” incentive for HAMP-eligible mortgages, effective for modifications with effective dates on or after April 1, 2014 and (ii) updated requirements for repurchased loans subject to a HAMP permanent mortgage loan modification or trial plan. Finally, the Freddie Mac bulletin increased state foreclosure timelines by 30 days in Nevada, New Mexico, and Washington, for all foreclosure sales completed after September 1, 2013, while Fannie took the same action through a separate servicing notice.
Federal District Court Holds Fannie Mae, Freddie Mac Exempt From Chicago’s Property Maintenance Ordinance
On August 23, the U.S. District Court for the Northern District of Illinois held that Fannie Mae and Freddie Mac are exempt from a 2011 ordinance that established new requirements for mortgagees and their agents regarding the maintenance of vacant property. FHFA v. City of Chicago, No. 11-8795, 2013 WL 4505413 (N.D. Ill. Aug. 23, 2013). The FHFA, as conservator of Fannie Mae and Freddie Mac, sued the city over the ordinance, which requires mortgagees to register vacant properties and pay a $500 registration fee per property. The ordinance also imposes maintenance and other obligations on mortgagees and their agents (including servicers, Fannie Mae and Freddie Mac), regardless of whether the properties are foreclosed upon, and mandates fines for non-compliance. The court granted summary judgment for the FHFA, holding that the statute that created the FHFA—the Housing and Economic Recovery Act of 2008 (HERA)—preempts the local ordinance. The court reasoned that although HERA does not expressly preempt local laws, Congress intended for the FHFA to be the only entity responsible for operating Fannie Mae’s and Freddie Mac’s business and could not have intended to allow thousands of municipalities to impose varying obligations on the FHFA. On those grounds, the court granted the FHFA’s motion for summary judgment. The court also held in the alternative “for purposes of completeness” that the registration fees imposed on Fannie and Freddie by the ordinance would constitute an impermissible tax on the FHFA in violation of the federal government’s immunity from taxation.
On August 20, Fannie Mae issued Announcement SEL-2013-06 and Freddie Mac published Bulletin 2013-16, both of which update numerous selling requirements in response to the CFPB’s final Ability-to-Repay/Qualified Mortgage (ATR/QM) rule. As promised in their July 2013 notices to sellers, the issuances (i) detail new mortgage eligibility requirements (e.g., retirement of mortgages with original maturities in excess of 30 years and making mortgages with prepayment penalties ineligible for sale) (ii) revise thresholds for points and fees, (iii) revise higher-priced mortgage loans eligibility requirements, and (iv) remind sellers of other policies, including those related to the representation and warranty framework announced in September 2012. The changes take effect when the ATR/QM rule goes into effect on January 10, 2014.
On August 15, Freddie Mac issued Bulletin 2013-05, which, among other things, revises requirements relating to the SCRA and similar state laws and explains servicer responsibilities to effectively implement military relief legal protections. Specifically, Freddie Mac eliminated the requirement that servicers collect and report official documentation of a servicemember’s disability or death and available government benefits in the event a servicemember dies or becomes disabled while on active duty. In addition, Freddie Mac added a new guide section to include the additional foreclosure relief Freddie Mac provides to servicemembers and their dependents, and repurposed another guide section to remind servicers of their responsibilities to evaluate servicemembers and their dependents for the most appropriate relief or workout option from Freddie Mac’s existing options when a servicemember or dependent: (i) does not qualify for mortgage relief under the provisions of the SCRA or similar state laws; or (ii) qualifies for mortgage relief under the provisions of the SCRA or similar state law, but chooses to explore other relief options.