On July 23, the California Court of Appeal, Fourth Appellate District, held in a case of first impression that a section of California law that prohibits a deficiency judgment following a foreclosure on a purchase money loan similarly protects borrowers in short sales. Coker v. JP Morgan Chase Bank, N.A., No. D061720, 2013 WL 3816978 (Cal. Ct. App. Jul. 23, 2013). In this case, the lender approved a short sale subject to several conditions, including that the sale proceeds paid to the lender released the lender’s security interest, but that the borrower still was responsible for any deficiency balance. After the sale closed, the lender sought to collect from the borrower the unsatisfied portion of the loan. The borrower filed suit claiming that state law and common law prevented the lender from collecting. On appeal, the court reversed the trial court’s dismissal and held that a state law that has been applied to prohibit deficiency judgments following foreclosure sales also prohibits deficiency judgments following short sales. The court explained that there is nothing in the statute to modify or limit the term “sale” and no other requirement in the statute that a foreclosure must occur to trigger the deficiency judgment protections. Further, the court rejected the lender’s argument that the borrower waived the protection by agreeing as a condition of the sale to be liable for any deficiency after the sale. The court reversed the trial court and remanded for further proceedings.
On November 20, the FHFA Office of Inspector General (OIG) issued a report critical of Fannie Mae’s oversight of its short sale process and the servicers who participate in that process. The OIG determined—based on a review of 41 short sale transactions handled by multiple Fannie Mae servicers—that five servicers were not always collecting all of the required documentation before making borrower eligibility determinations or seeking Fannie Mae approval. The report states also that servicers sometimes failed to conduct adequate reviews supporting borrower eligibility determinations. Further, the OIG found that borrowers with potentially significant financial resources sold multiple non-owner occupied properties through Fannie Mae’s streamlined documentation program, which allows servicers to approve short sales based only on low FICO scores and delinquency status. The OIG recommends that Fannie Mae strengthen its oversight of the short sale program by (i) enforcing the requirement that all borrowers outside the streamlined documentation program provide a borrower-certified borrower assistance form; (ii) establishing controls to identify and resolve inconsistencies between the borrower assistance form and supporting documentation; (iii) considering whether its servicer compensation structure should include the quality of borrower eligibility determinations for short sales and success in limiting losses; and (iv) enhancing controls over collection and use of electronic information from servicers on the financial condition of borrowers. The OIG also suggests that the FHFA should: (i) determine whether the streamlined documentation program should be available to borrowers seeking approval to short sell non-owner occupied properties; and (ii) provide examination coverage of Fannie Mae’s short sale activities with particular emphasis on identifying systemic deficiencies related to borrower submissions, Fannie Mae eligibility determinations, servicer compensation structure, and reliability of electronic information used in managing short sales.
On December 13, Fannie Mae issued Servicing Guide Announcement SVC-2012-26 to update the maximum allowable foreclosure attorney fees for mortgage loans, participation pool mortgage loans, and MBS mortgage loans serviced under the special servicing option secured by properties located in Idaho, Montana, New Hampshire, Puerto Rico, U.S. Virgin Islands, and Wyoming. All listed fee revisions are effective as of January 1, 2013. Concurrently, Fannie Mae issued Frequently Asked Questions regarding its standard short sale and deed-in-lieu of foreclosure requirements, which were announced last month in SVC-2012-19.
Fannie Mae and Freddie Mac Announce Short Sale Agreements with Mortgage Insurers; Freddie Mac Announces Other Servicing Updates
On October 31, Fannie Mae announced that it reached agreements with nine major mortgage insurance companies that will allow servicers to complete short sales and deeds-in-lieu of foreclosure without first obtaining approval from the mortgage insurer. The new standard delegation agreement executed with each of the mortgage insurers replaces various individual delegation agreements and is intended to create a more consistent and efficient process for borrowers and servicers.
On the same day, Freddie Mac issued Single-Family Seller/Servicer Guide Bulletin 2012-23, which also announced new delegation agreements with its mortgage insurers that will streamline short sales and deeds-in-lieu of foreclosure. Freddie Mac revised other requirements for servicers’ loss mitigation activities and updated its mortgage insurance claim documentation policy to require delivery of documentation no later than sixty days following the foreclosure sale, short sale, or acceptance of deed-in-lieu of foreclosure. The Bulletin also (i) requires approval by Freddie Mac of foreclosures in certain circumstances, (ii) revises imminent default documentation requirements, (iii) authorizes use of ACH for expense reimbursements and incentive payments, (iv) clarifies the policy for reimbursement of interest, and (v) updates charge-off recommendation requirements.
On August 21, the FHFA announced new guidelines that align and merge Fannie Mae’s and Freddie Mac’s (the GSEs) short sale programs to facilitate quicker short sale processing. For mortgages owned or guaranteed by the GSEs, the consolidated guidelines, as implemented through Freddie Mac Bulletin 2012-16 and Fannie Mae Announcement SVC-2012-19, (i) reduce or eliminate the documentation borrowers must provide to demonstrate a need for a short sale, (ii) allow servicers to qualify certain borrowers for short sales—for example those based on hardship caused by death, divorce, or disability—without approval from the GSEs, even when the borrower is current, (iii) automatically qualify for short sale servicemembers receiving Permanent Change of Station Orders and borrowers who must relocate more than fifty miles for existing or new employment, (iv) waive the GSEs’ rights to pursue deficiency judgments in certain circumstances, and (v) allow the GSEs to expedite short sales by offering up to $6,000 to second lien holders. These changes take effect on November 1, 2012.