SDNY Orders Bank To Pay $1.3 Billion Following Verdict In GSE Civil Fraud Case

On July 30, the U.S. District Court for the Southern District of New York ordered a bank to pay a nearly $1.3 billion civil penalty after a jury found the bank liable in October 2013 on one civil mortgage fraud charge arising out of a program operated by a mortgage lender the bank had acquired. The case was the first in which the government alleged violations of FIRREA in connection with loans sold to Fannie Mae and Freddie Mac. The government originally sought damages of $1 billion based on alleged losses incurred by Fannie Mae and Freddie Mac. Subsequently the government argued the penalty should be calculated not based on loss to the GSEs, but rather based on gross gain to the lender, in order to accomplish “FIRREA’s central purpose of punishment and deterrence.” The government calculated a gross gain of $2.1 billion, and requested that the court impose a penalty in that amount.

In its order on civil penalties, the court noted that FIRREA provides no guidance on how to calculate a gain or loss or how to choose a penalty within the broad range permitted. To quantify the gain or loss on the 17,611 loans at issue, the court focused on the general principle that the “civil penalty provisions of FIRREA are designed to serve punitive and deterrent purposes and should be construed in favor of those purposes.” The court determined that both gain and loss should be viewed in terms of how much money the lender “fraudulently induced” the GSEs to pay. Even though many of the loans were in fact high quality, the Court included all of the loans in the gain and loss analysis because the jury found that the lender engaged in an intentional scheme to defraud the GSEs and that the lender intended to represent loans as being materially higher quality than they actually were. The court reasoned that the “happenstance that some of the loans may still have been of high quality should not relieve the defendants of bearing responsibility for the full payments they received from the scheme, at least not if the purposes of the penalty are punishment and deterrence.” As a result, the Court found the proper measure of both gain and loss to be the amount Fannie and Freddie paid for all loans at issue, and set $2,960,737,608 as the statutory maximum for the penalty. As a compensating factor, the court considered that 57.19 percent of the loans were not materially defective and reduced the penalty to 42.81 percent of the statutory maximum, or $1,267,491,770.

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FHFA OIG Assesses Risks From Smaller Lenders And Nonbank Mortgage Companies

On July 17, the FHFA Office of Inspector General (OIG) published a report on risks to Fannie Mae and Freddie Mac (the Enterprises) related to purchasing mortgages from smaller lenders and nonbank mortgage companies. The report states such lenders present elevated risk in the following areas: (i) counterparty credit risk—smaller lenders and nonbank lenders may have relatively limited financial capacity, and the latter are not subject to federal safety and soundness oversight; (ii) operational risk—smaller or nonbank lenders may lack the sophisticated systems and expertise necessary to manage high volumes of mortgage sales to the Enterprises; and (iii) reputational risk—the report cites as an example an institution that was sanctioned by state regulators for engaging in allegedly abusive lending practices. The report notes that in 2014 the FHFA’s Division of Enterprise Regulation’s plans to focus on Fannie Mae’s and Freddie Mac’s controls for smaller and nonbank sellers, which will include assessments of the Enterprise’s mortgage loan delivery limits and lender eligibility standards and assessment of the counterparty approval process and counterparty credit risk resulting from cash window originations. The report also notes FHFA guidance to the Enterprises last year on contingency planning for high-risk or high-volume counterparties, and states that the FHFA plans to issue additional guidance on counterparty risk management. Specifically, the Division of Supervision Policy and Support plans to issue an advisory bulletin focusing on risk management and the approval process for seller counterparties. The OIG did not make any recommendations to supplement the FHFA’s planned activities.

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Freddie Mac Updates Alternative To Foreclosure Requirements, Other Servicing Policies

On July 15, Freddie Mac issued Bulletin 2014-14, which announced a new automated settlement process for mortgage modification settlements. Effective December 1, 2014, servicers must submit the required settlement data for a modification of a conventional first lien Freddie Mac-owned or guaranteed mortgage via the new “Loan Modification Settlement” screen in Workout Prospector. Servicers may begin doing so on or after August 25, 2014. In addition, the Freddie Mac is amending mortgage modification signature requirements to provide that a servicer and any borrowers can agree to extend, modify, forbear, or make any accommodations with regard to a Fannie Mae/Freddie Mac Uniform Security Instrument or the Note, as otherwise authorized by Freddie Mac, without obtaining the co-signer’s signature or consent on the condition that the Security Instrument that was signed by the co-signer contained a provision allowing for such action. The bulletin also, among other things, (i) updates transfer of ownership and assumption requirements; (ii) revises certain requirements for mortgages insured by the FHA or guaranteed by the VA or Rural Housing Service; and (iii) adds several new expense codes related to attorney fees and costs and updates certain attorney fees and costs reimbursement requirements.

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Fannie Mae, Freddie Mac Publish Additional Uniform Closing Dataset Documentation

On July 15, Fannie Mae and Freddie Mac announced the availability of additional documentation to support the mortgage industry with the implementation of the Uniform Closing Dataset (UCD), the common industry dataset that supports the CFPB’s closing disclosure. The documents provide information to supplement the MISMO mapping document released in March 2014. Fannie Mae and Freddie Mac intend to collect the UCD from lenders in the future, but have not yet determined the method or timeline for that data collection.

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Mortgage Company Resolves HAMP-Related Criminal Allegations

On July 3, the DOJ announced the resolution of a multi-agency criminal investigation into the way a large mortgage company administered the federal Home Affordable Modification Program (HAMP). According to a Restitution and Remediation Agreement released by the company’s parent bank, the company agreed to pay up to $320 million to resolve allegations that it made misrepresentations and omissions about (i) how long it would take to make HAMP qualification decisions; (ii) the duration of HAMP trial periods; and (iii) how borrowers would be treated during those trial periods. In exchange for the monetary payments and other corrective actions by the company, the government agreed not to prosecute the company for crimes related to the alleged conduct. The investigation was conducted by the U.S. Attorney for the Western District of Virginia, as well as the FHFA Inspector General—which has authority to oversee Fannie Mae’s and Freddie Mac’s HAMP programs—and the Special Inspector General for TARP—which has responsibility for the Treasury Department HAMP program and jurisdiction over financial institutions that received TARP funds. This criminal action comes in the wake of a DOJ Inspector General report that was critical of the Justice Department’s mortgage fraud enforcement efforts, and which numerous members of Congress used to push DOJ to more vigorously pursue alleged mortgage-related violations. In announcing the action, the U.S. Attorney acknowledged that other HAMP-related investigations are under way, and that more cases may be coming.

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FHFA OIG Concerned About Specialty Servicers, Highlights FHFA Servicing Transfer Guidance

On July 1, the FHFA Office of Inspector General (OIG) issued a report containing its assessment of FHFA controls to ensure that Fannie Mae and Freddie Mac monitor nonbank special servicer performance and mitigate related risks. The report concluded that the FHFA has not established a risk management process to handle risks resulting from specialty servicers’ (i) use of short-term financing to buy servicing rights for troubled mortgage loans that may only begin to pay out after long-term work to resolve their difficulties; and (ii) obtaining large volumes of mortgage loans that may be beyond what their infrastructures can handle. The OIG asserted that such risks “are amplified by nonbank special servicers operating without the same standards and regulation as banks that service mortgage loans,” including capital requirements, which the OIG believes makes nonbank servicers “more susceptible to economic downturns” that could “substantially increase nonperforming loans that require servicer loss mitigation while at the same time impact[ing] the ability of the servicer to perform.” The OIG recommended that the FHFA (i) issue guidance on a risk management process for nonbank special servicers and (ii) develop a comprehensive, formal oversight framework to examine and mitigate the risks these nonbank special servicers pose. The report highlighted recent FHFA guidance that the OIG believes is sufficient to resolve the second recommendation—a June 11, 2014 FHFA Advisory Bulletin outlining supervisory expectations for risk management practices in conjunction with the sale and transfer of mortgage servicing rights or the transfer of the operational responsibilities of servicing mortgage loans owned or guaranteed by Fannie Mae and Freddie Mac. The Bulletin requires Fannie Mae and Freddie Mac to consider servicer capacity, including staffing, facilities, information technology systems, and any sub-servicing arrangements, as part of the analysis of mortgage servicing transfers. The FHFA agreed to also develop supervisory guidance on how Fannie Mae and Freddie Mac manage risks associated with servicing troubled loans.

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FHFA Proposes Mortgage Insurer Eligibility Requirements

On July 10, the FHFA sought input on a proposal to establish new eligibility requirements for private mortgage insurers seeking to insure Fannie Mae and Freddie Mac (the Enterprises) mortgages. As described in an overview document, the FHFA proposes to revise business requirements to identify, measure, and manage exposure to counterparty risk. The FHFA also proposes new financial requirements and minimum quality control program requirements, which it states are intended to (i) facilitate an insurer’s monitoring of adherence to its underwriting and eligibility guidelines; (ii) ensure data accuracy; and (iii) prevent the insuring of fraudulent mortgages or mortgages with other defects. An insurer would be required to submit to each Enterprise a copy of its quality control program annually, with changes noted from the prior year’s version. The proposal also describes numerous potential remedies available to the Enterprises should an insurer fail to meet its requirements, ranging from more frequent dialogue or visits with an insurer to suspension or termination. All components of the requirements would become effective 180 days after the publication date of the finalized requirements. During the input period, and until the requirements are finalized, any insurer already approved to do business with the Enterprises that does not fully meet each Enterprise’s existing eligibility requirements would continue to operate in its current status and would be given a transition period of up to two years from the publication date to fully comply. Comments on the proposal are due by September 8, 2014.

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Inspector General Report Urges FHFA To Consider Lender-Placed Insurance Suits

On June 25, the FHFA Office of Inspector General (OIG) published a report that urges the FHFA to consider whether to pursue servicers and insurers for alleged lender-placed insurance (LPI) losses. The OIG cited prior determinations by state insurance regulators that LPI rates in their respective jurisdictions allegedly were excessive and that those rates may have been driven up by profit-sharing arrangements under which servicers allegedly were paid to steer business to LPI providers. The OIG believes that Fannie Mae and Freddie Mac “have suffered considerable financial harm in the LPI market.” The OIG explained that using a methodology similar to that utilized by a state insurance regulator, it estimates that for 2012 alone the combined financial harm due to “excessively priced LPI” amounted to $158 million. The OIG acknowledged that its assessments did not consider compensation already received by Fannie Mae or Freddie Mac from repurchase requests. The report also notes that the FHFA has yet to complete an assessment regarding the merits of potential litigation to recover alleged financial damages associated with the LPI market, but recommends that the FHFA do so and take appropriate action in response. In its response to the report, the FHFA concurred and pledged to complete the review in the next 12 months. The FHFA also pointed out that its litigation assessment would differ from the review conducted by the OIG and would consider potential legal arguments and litigation risks, economic assessments, and relevant public policies.

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Freddie Mac Updates MERS Requirements, Fraud Reporting, Other Selling And Servicing Policies

On June 19, Freddie Mac issued Bulletin 2014-12, which updates and revises numerous selling and servicing requirements. According to the Bulletin, Freddie Mac has determined that because sellers/servicers will have difficulty complying with the CFPB’s borrower notification requirements for ARMs with lookback periods less than 45 days, as of January 1, 2015, Freddie Mac will no longer purchase those loans. Freddie Mac also announced that, effective October 15, 2014, mortgages originated in Montana, Oregon, and Washington where MERS is not the original mortgagee of record, but is a subsequent assignee, are not eligible for sale to Freddie Mac. The Bulletin updates and clarifies several other MERS-related requirements. In addition, the Bulletin announces revisions to fraud reporting requirements to require a seller/servicer to report fraud and suspected fraud to Freddie Mac when the seller/servicer has a reasonable belief that certain actions occurred during origination or servicing of a mortgage, and to extend the number of days within which a seller/servicer must report fraud and suspected fraud to Freddie Mac from 30 to 60 days. Finally, the Bulletin provides numerous additional updates related to (i) certain servicing-related forms; (ii) relief refinance mortgages; (iii) monthly debt-to-income ratio requirements; (iv) requirements for verification of large deposits; (v) area median income estimates; and (vi) several other selling issues.

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Fannie Mae, Freddie Mac Announce Targeted Modification Program

Recently, Fannie Mae (Servicing Guide Announcement SVC-2014-12) and Freddie Mac (Bulletin 2014-11) introduced a temporary modification option targeted to borrowers located in Detroit, Michigan as part of the FHFA-directed Neighborhood Stabilization Initiative. The announcements provide the borrower, property, and mortgage eligibility requirements, borrower documentation requirements, and other program details. The announcements also establish requirements for servicers to process the new modification options, which servicers must implement for all evaluations conducted on or after September 1, 2014.

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FHFA Requests Comments On Guarantee Fees

On June 5, the FHFA issued a request for input regarding its proposed increases to guarantee fees (g-fees) that Fannie Mae and Freddie Mac charge lenders. Earlier this year, FHFA Director Mel Watt halted g-fee changes announced by the agency under Mr. Watt’s predecessor. Those changes would have (i) raised the base g-fee for all mortgages by 10 basis points; (ii) adjusted up-front fees charged to borrowers in different risk categories; and (iii) suspended the up-front 25 basis point adverse market fee in all but four states. The FHFA now poses more than a dozen questions for commenters to consider and respond to as the FHFA assesses future policies regarding g-fees. Comments are due by August 4, 2014.

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Massachusetts AG Sues FHFA Over Foreclosure Policies

On June 2, Massachusetts Attorney General (AG) Martha Coakley filed a lawsuit against the FHFA, Fannie Mae, and Freddie Mac for allegedly violating the state’s 2012 foreclosure prevention law, which, among other things, prohibits creditors from blocking home sales to non-profits that intend to resell the property back to the former homeowner. The AG claims that the FHFA has refused to require Fannie Mae and Freddie Mac to comply with the law, and as a result the companies’ “arm’s length transaction” policies, under which the parties proposing to purchase a property must attest that there are no agreements that the borrower will remain in the property as a tenant or later obtain title or ownership, restrict the sale of properties in violation of the law. In addition to the alleged violation of the foreclosure prevention law, the AG claims that by illegally applying the arm’s length transaction policies, the companies engaged in unfair or deceptive acts or practices. The AG seeks an order enjoining the companies from applying policies in violation of the foreclosure law, and penalties of up to $5,000 for each unfair or deceptive act or practice. The AG recently notified the FHFA of the potential suit in a letter that also renewed the AG’s calls for the FHFA to allow Fannie Mae and Freddie Mac to include principal reductions as part of their loan modification alternatives.

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Freddie Mac Announces Numerous Servicing Policy Updates

On June 3, Freddie Mac announced revisions to numerous servicing policies, including policies regarding, among other things, short sales and deeds-in-lieu of foreclosure (DILs), the CFPB’s mortgage servicing rules, and unemployment forbearance.  Bulletin 2014-10 advises servicers that for new short sale and DIL evaluations conducted on and after August 1, 2014 (or sooner if a servicer chooses), Freddie Mac will permit a servicemember to qualify for a short sale or DIL provided the mortgaged property is or was previously the borrower’s primary residence. When such a short sale or DIL is approved for a servicemember as provided above, the servicemember will receive the existing benefits afforded to a service member with PCS orders. In addition, for any borrower seeking a short sale or DIL, Freddie Mac is establishing a new lookback period that requires the servicer to review the borrower’s credit report to determine that the borrower did not obtain a new mortgage in the six months preceding the delinquency or in the six months preceding the evaluation of the borrower for a short sale or DIL. In addition, Freddie Mac (i) is now requiring servicers to investigate any inquiries by mortgage creditors that appear on the borrower’s credit report to determine if the borrower obtained a mortgage in the lookback period; and (ii) soon will require the servicer to rely solely upon the results of the cash reserves and promissory note payment capacity formulae to determine when to request a contribution from a borrower who is 31 days or more delinquent. The Bulletin also includes revisions to the following requirements introduced in response to the CFPB’s mortgage servicing rules: (i) trial period payment adjustments after the borrower exercises the right to appeal; (ii) delay in referral to foreclosure or proceeding with the next legal action; (iii) foreclosure sale date timing; and (iv) borrower solicitation letters. Finally, among several other policy revisions, the announcement details unemployment forbearance policy changes similar to those announced by Fannie Mae on June 4, 2014.

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FHFA Director Outlines Strategic Plan

On May 13, FHFA Director Mel Watt presented a new strategic plan for the FHFA under his direction, which will focus on fulfilling the FHFA’s obligations under current law, and will shift away from efforts to position the agency—and Fannie Mae and Freddie Mac—for a potential future role in a reformed secondary market. Mr. Watt discussed the representation and warranty framework changes announced by Fannie Mae and Freddie Mac (see Byte below), and also announced that (i) for loans with DTI above 43%, the FHFA will continue to permit the use of compensating factors in each company’s underwriting standards; (ii) the FHFA will not alter loan limits, as proposed under prior leadership; (iii) the FHFA will not expand HARP but will “retarget” the program to capture already qualified borrowers; and (iv) the FHFA will launch a new modification pilot program. Mr. Watt’s remarks did not cover principal reduction or servicing rights transfers, but during a question and answer session he indicated both issues are on the FHFA’s agenda for further consideration. Further, Mr. Watt explained that under his leadership the FHFA will not seek to affirmatively reduce Fannie Mae’s and Freddie Mac’s footprint, though the FHFA will continue to work to increase the role of private capital, and soon will issue a request for comment on potential guarantee fee changes. The FHFA also will focus on private mortgage insurance counterparties, including by strengthening master policies and eligibility standards for private mortgage insurers. Finally, the FHFA will continue to build a common single-family securitization platform and transition Fannie Mae and Freddie Mac to a single common security, but the FHFA is taking steps to “de-risk” the securitization platform project, including by emphasizing that the agency’s top objective for the common platform is to ensure that it works for the benefit of Fannie Mae and Freddie Mac and their current securitization operations.

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Fannie Mae, Freddie Mac Change Representations and Warranties Framework

On May 12, Fannie Mae and Freddie Mac announced numerous changes to the companies’ representations and warranties framework to expand repurchase relief for lenders. As detailed in Fannie Mae Selling Guide Announcement SEL-2014-05 and Freddie Mac Bulletin 2014-08, effective for whole loans purchase on and after July 1, 2014 and for loans delivered into MBS with pool issue dates on and after July 1, 2014, the companies will provide two separate paths for sellers to obtain relief from representations and warranties: (i) based on the borrower’s acceptable payment history; or (ii) based on a satisfactory conclusion of a quality control loan file review. Relief based on an acceptable payment history will be triggered upon the borrower’s 36th monthly payment, as opposed to the current 60th payment. The announcements also detail payment history relief triggers for each company’s refinance loan products. Relief based on a quality control review will be triggered when the company (i) completes the review of the loan file, which includes a review of the credit underwriting and eligibility of the borrower, the property (including its value), and the project in which the property is located, if applicable, and determines that the mortgage is acceptable; (ii) completes the review and determines the mortgage is not acceptable because of a specific, curable, selling deficiency and the lender cures such deficiency; or (iii) completes the quality control loan file review and determines the mortgage is not acceptable but may be eligible for a repurchase alternative which expires or terminates by its terms. In addition, the companies will no longer automatically require loan repurchase when notified that the primary mortgage insurance has been rescinded. Both announcements provide a chart comparing the new relief triggers to those announced in September 2012, and Fannie Mae and Freddie Mac will soon begin providing lenders with reports listing mortgage loans that met the eligibility requirements for relief. Finally, for certain mortgage loans acquired on and after July 1, 2014, the companies will allow lenders to avoid repurchase for termination of primary mortgage insurance by paying the full mortgage insurance claim amount that would have been payable under the original mortgage insurance policy if the mortgage loan liquidates.

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