Entries Tagged as 'Loan Modifications/Workouts'

HUD Issues Hope for Homeowners Origination Guidance

The Department of Housing and Urban Development has issued Mortgagee Letter 08-29, “Hope for Homeowners Origination Guidance.”

In the Mortgagee Letter, HUD states: 

The Housing and Economic Recovery Act of 2008 amends the National Housing Act to authorize a new temporary FHA mortgage insurance program called the HOPE for Homeowners (H4H) Program. Under this Program, certain borrowers facing difficulty in paying their mortgages will be eligible to refinance into affordable FHA-insured mortgages.  The H4H Program is effective for endorsements on or after October 1, 2008 through September 30, 2011.

While underwriting mortgages for the H4H Program presents unique challenges for the industry, FHA has confidence in its approved mortgagees to exercise their ingenuity in meeting these challenges, while adhering fully to this mortgagee letter, without compromising their ability to make and support sound underwriting decisions.  The information, directions, and guidance provided in this mortgagee letter reflect statutory requirements as well as the standards, policies and regulations adopted by the Board of Directors (Board) for the H4H Program.

The Mortgagee Letter then discusses the following 12 topics:

  1. Eligibility of borrowers, mortgages and properties
  2. Consumer protection and disclosure requirements
  3. Appraisal requirements
  4. Terms and interest rates
  5. MIP
  6. Calculating the maximum mortgage amount
  7. Underwriting and qualifying borrowers
  8. Documentation requirements
  9. Prohibitions on subordinate financing
  10. Equity and appreciation sharing
  11. Extinguishment of subordinate liens
  12. Monitoring and program compliance

For a copy of the full Mortgagee Letter, please click here.

HUD Guidance on Treble Damages for Failing to Engage in Loss Mitigation

The Department of Housing and Urban Development has issued Mortgagee Letter 08-27, Treble Damages for Failure to Engage in Loss Mitigation.

The Mortgagee Letter reminds the public that HUD on April 26, 2005 published a final rule entitled “Treble Damages for failure to Engage in Loss Mitigation.” 

The Mortgagee Letter notes:

HUD’s National Servicing Center (NSC) is available to assist mortgagees in complying with FHA servicing requirements, including loss mitigation evaluation.  The NSC offers Loss Mitigation training to lenders via scheduled classes throughout the year and participates in joint training with regional and national industry groups such as the Mortgage Bankers Association (MBA). 

The NSC provides a toll-free telephone line (1-888-297-8685) to provide assistance regarding FHA’s Servicing requirements, including HUD’s Loss Mitigation Program.  This assistance is available to mortgagors and mortgage industry professionals.  Information from HUD’s National Servicing Center (NSC) is available via the following website: http://www.hud.gov/offices/hsg/sfh/nschome.cfm.

The Mortgagee Letter also provides three key actions mortgagees must take to help avoid treble damages:  (i) ensuring that loss mitigation evaluations are completed before four full monthly installments are due and unpaid, (ii) ensuring that the appropriate actions are taken based on these evaluations, and (iii) maintaining documentation of initial and subsequent loss mitigation evaluations and actions taken. 

HUD defined a failure to engage in required loss mitigation as: 

  1. A mortgagee’s failure to evaluate a loan for loss mitigation before four full monthly mortgage installments are due and unpaid to determine which, if any, loss mitigation techniques are appropriate (see 24 CFR § 203.605); and/or
  2. A subsequent failure to take appropriate loss mitigation action(s).

Mortgagees must be able to provide documentation of their loss mitigation evaluations and actions.  Mortgagees will be considered to be in compliance with 24 CFR § 203.501 where plausible loss mitigation options were offered to eligible borrowers.  The Department will not consider a mortgagee to have “failed to engage in loss mitigation” where the mortgagee can demonstrate that a borrower was uncooperative or ineligible.

For a full copy of the Mortgagee Letter, please click here.

For a full copy of the 2005 Final Rule, please click here.

HUD Issues Hope for Homeowners Servicing Guidance

The Department of Housing and Urban Development has issued Mortgagee Letter 08-30, “Hope for Homeowners Servicing Guidance.”

In the Mortgagee Letter, HUD states: 

The Housing and Economic Recovery Act of 2008 amends the National Housing Act to authorize a new, temporary Federal Housing Administration (FHA) mortgage insurance program called the HOPE for Homeowners Program (also referred to as the H4H Program).  Under the Program, a borrower facing difficulty paying his or her mortgage will be eligible to refinance into an affordable FHA-insured mortgage.  The H4H Program is effective for endorsements on or after October 1, 2008, through September 30, 2011.

This mortgagee letter provides HUD-approved servicing mortgagees with servicing and loss mitigation guidance on the new H4H Program.  The information, directions and guidance provided in the mortgagee letter reflect statutory requirements and the standards, policies and regulations adopted for the H4H Program by the Board of Directors of the H4H Program.

HUD then addresses the following topics:

  • Background;
  • Prohibition against subordinate financing;
  • Refinancing;
  • Capital Improvements;
  • Defaults and loss mitigation;
  • Impact of first payment defaults; and
  • Sale and payoff.

For a full copy of the Mortgagee Letter, please click here.

FHA Issues Mortgagee Letter Threatening Treble Damages

The Department of Housing and Urban Development has issued Mortgagee Letter 08-26, “Treble Damages for Failure to Engage in Loss Mitigation.”

In the Mortgagee Letter, HUD reminds FHA approved mortgagee that HUD has the authority to assess treble damages when a mortgagee fails to engage in required loss mitigation.  The treble damages rules stem from a final rule published April 26, 2005. 

The Mortgagee Letter states in part:

A mortgagee’s failure to evaluate a loan for loss mitigation before four full monthly mortgage installments are due and unpaid to determine which, if any, loss mitigation techniques are appropriate (see 24 CFR § 203.605); and/or

A subsequent failure to take appropriate loss mitigation action(s)[; and]

Mortgagees must be able to provide documentation of their loss mitigation evaluations and actions.  Mortgagees will be considered to be in compliance with 24 CFR § 203.501 where plausible loss mitigation options were offered to eligible borrowers.  The Department will not consider a mortgagee to have “failed to engage in loss mitigation” where the mortgagee can demonstrate that a borrower was uncooperative or ineligible.

For a full copy of Mortgagee Letter 08-26, please click here.

For a copy of HUD’s April 2005 final rule addressing the issue, please click here.

MBA Legal Issues and Regulatory Compliance Conference

Mortgage Law Blog reminds readers that the Mortgage Bankers Association’s Legal Issues and Regulatory Compliance Conference is April 28 to May 1.

The conference, held this year in Carlsbad California, is one of the premier events for lawyers in the mortgage banking industry.

The MBA describes the conference as follows:

This year has brought an unparalleled array of new legislative, regulatory and litigation developments to the mortgage industry.  MBA’s Legal Issues and Regulatory Compliance Conference 2008 at La Costa Resort and Spa in Carlsbad, Calif., will provide you with an in-depth understanding of all that is new and all that is anticipated so that you can meet the legal and regulatory challenges of today and tomorrow.

No other conference offers the mortgage industry as comprehensive a legal and regulatory program. At this conference — designed for managers, industry lawyers and compliance officers — industry experts present conference participants with the entire complement of legal and regulatory developments facing the industry, including:  

  • New Federal Anti-Predatory Lending Legislation 
  • New Home Ownership and Equity Protection Act (HOEPA) Regulations
  • New RESPA and TILA Reform Proposals
  • New State Laws
  • New Servicing and Loss Mitigation Standards
  • New Litigation Cases and Class Actions
  • New Secondary Market - GSE and Investor Requirements
  • New Initiatives to Protect Lenders Against Mortgage Fraud
  • New HMDA and Fair Lending Developments
  • New Data Security, ID Theft and Privacy Initiatives
  • New FCRA and FACTA Developments
  • New FLSA/Employment Law Cases
  • New Risk Mitigation Strategies
  • Legal Ethics
  • New issues in the legal, regulatory and compliance spheres
  • The conference is packed with excellent speakers and attendees from industry and government, including from the Department of Housing and Urban Development, state Attorneys General offices, Fannie Mae, Freddie Mac, numerous mortgage banking companies and others. 

    For more information about the conference, please click here.

    Mortgage Law Blog will not post during this period due to the Editor’s attendance at the conference.

    CSBS on Foreclosure Relief - Insufficient

    The Conference of State Banking Supervisors issued a press release stating that industry attempts to prevent foreclosures are insufficient.

    The release stems from the second report entitled “Analysis of Subprime Mortgage Servicing Performance” issued by the State Foreclosure Prevention Working Group (led by 11 states attorneys general and banking regulators, and the CSBS).  The report includes data from subprime servicers for the period from October 2007 to January 2008.  A prior report was issued February 7, 2008. 

    The report acknowledged that the number of homeowners receiving loss mitigation help has increased.  But so have the number of homeowners delinquent on payments.  Private initiatives are “barely keeping pace” CSBS noted.

    CSBS notes the following major findings from the report:

    Seven out of ten seriously delinquent borrowers are still not on track for any loss-mitigation outcome.  The number of borrowers in loss mitigation has increased, but it has been matched by an increasing level of delinquent loans; thus, the relative percentage has remained about the same.  Given creative servicer outreach efforts and increased public awareness of the HOPE Hotline during Oct.-Jan., this large gap suggests a more systemic failure of servicer capacity to work out loans.  

    Data suggests that servicers’ loss-mitigation departments are severely strained in managing the current workload.   The report noted that almost two-thirds of all loss-mitigation efforts started are not completed in the following month.  We are concerned that servicers overall are not able to manage the sheer numbers of delinquent loans.  Data suggests that the burgeoning numbers of delinquent loans that do not receive loss-mitigation attention are clogging up the system on their way to foreclosure.  We fear this will translate to increased levels of vacant foreclosed homes that will further depress property values and increase burdens on government services.

    Homeowners who do receive loss-mitigation help are most likely to receive some form of loan modification.  The Group said such modifications are a solution that seems to offer better long-term prospects for successful resolution of problem loans.  Many servicers are replacing their use of repayment plans in favor of loan modifications.

    To solve the perceived problems, the report suggests that industry and state officials work on:

    Developing a more systematic loan work-out system to replace the intensive, individual, “hands-on” loss-mitigation approach.  Initial efforts to develop systemic approaches are far too limited to make a difference in preventable foreclosures.  Without a systematic approach, we see little likelihood that ongoing efforts will make a serious dent in the level of unnecessary foreclosures.  The Group will continue to work with servicers to promote systematic solutions to modify loans in a more streamlined and efficient manner.

    Slowing down the foreclosure process to allow for more work-outs.  Targeted efforts to slow down subprime foreclosures may give homeowners and servicers more time to find solutions to avoid foreclosure.  Many states have enacted or are considering such measures, the report noted.

    Mortgage Law Blog notes that “barely keeping pace” is still keeping pace.  This would seem to be an accomplishment if the numbers of delinquent borrowers continue to surge as the report suggests.  This is not to suggest that industry sit on its hands, but the industry’s side of the story continues to be lost in the maelstrom.

    The Ohio AG, among others, will speak at the Mortgage Bankers’ Association’s Legal Issues and Regulatory Compliance Conference next week.  It will be interesting to hear the views presented.

    For a copy of the CSBS press release, click here.

    For a copy of the State Working Group’s reports, click here.

    Federal Regulators Testify on FHA Expansion

    The Comptroller of the Currency, John C. Dugan, and Governor Randall S. Krozner of the Board of Governors of the Federal Reserve, among others, today testified before the House Committee on Financial Services regarding the ”Federal Housing Administration Housing Stabilization and Homeownership Retention Act of 2008.”

    The bill was announced by Chairman of the House Committee on March 13. 

    According to an OCC press release, the Comptroller told the Committee that the proposal “could provide another possible tool for helping banks avoid larger losses from foreclosure without raising significant safety and soundness issues.”

    Boiled down, the press release noted, the voluntary proposal has three elements.  “First, if the borrower and mortgage holder agreed and the borrower met certain criteria, the mortgage holder would reduce the principal to an amount that the borrower could afford.  Second, the mortgage holder would accept a corresponding loss.  Third, the mortgage would be refinanced into a new FHA-insured mortgage product at the lower amount.”

    The Comptroller noted that the voluntary nature of the program should keep safety and soundness considerations should be manageable.

    Governor Krozner’s testimony provided insight to the Fed’s view on the complicated housing picture and the difficulties underlying some of the proposed solutions.  Mr. Krozner summed up by saying:

    FHA modernization and GSE reform are needed to address the ongoing shortcomings of current mortgage-oriented government initiatives. In addition, the GSEs should be strongly encouraged to raise additional capital so that they can fulfill the expanded role that the Congress has recently extended to them.

    Separately, the Congress should carefully evaluate whether to take additional actions to reduce the rate of preventable foreclosures. Properly designed, such steps could promote economic stability for households, neighborhoods, and the nation as a whole. Although lenders and servicers have scaled up their efforts and have adopted a wider variety of loss-mitigation techniques, more can, and should, be done.

    The fact that many troubled borrowers have properties that are now worth less than the principal amounts remaining on their mortgages suggests that lenders and servicers should give greater consideration to the use of principal reductions as one of the loan modification options in their tool kit. Principal write-downs would be facilitated by providing the FHA the flexibility to insure a broad range of refinancing products for a larger number of at-risk borrowers, including products that offer borrowers an affordable, restructured mortgage if their lender voluntarily agrees to write-down the principal amount of the borrower’s mortgage. The voluntary nature of the program assures that only borrowers who the servicer or lender believes cannot successfully carry their current mortgage contract would be considered for such a program. If the Congress decides to move down this road, it should carefully consider the steps that should be taken to mitigate moral hazard, avoid adverse selection, and ensure that the financial interests of the taxpayer are adequately safeguarded.

    For the House Committee’s press release summarizing the proposal, click here

    For a copy of the discussion draft of the bill proposed by the House Committee, click here.

    Click here for a copy of the OCC’s press release regarding the Comptroller’s testimony.

    Click here for a copy of Governor Krozner’s prepared remarks.

    FTC Advisory Opinion on Foreclosures and Debt Collection

    The Federal Trade Commission has issued an advisory opinion responding to questions posed by the U.S. Foreclosure Network. 

    The questions generally inquire whether the Fair Debt Collection Practices Act prohibits a debt collector in the foreclosure context from discussing settlement options in the collector’s initial or subsequent communications with the borrower.

    The first issues addressed are:

    Does a debt collector violate the FDCPA when he, either in conjunction with the sending of a “validation notice” pursuant to Section 809(a) of the FDCPA or subsequent to such notice, notifies a consumer of settlement options that may be available to avoid foreclosure?

    In its opinion, the FTC stated that “there is no per se violation of Section 809(a) of the FDCPA if a debt collector includes information in these communications.  However, the conclusion does not prevent a finding that the communications, on a case-by-case basis, violate the FDCPA if they overshadow or are inconsistent with the disclosures of the consumer’s right to dispute the debt.

    The second issue addressed is:

    Does a debt collector commit a false, misleading or deceptive act or practice in violation of Section 807 of the FDCPA when he presents a consumer with information about settlement options available to the consumer to avoid foreclosure?

    The FTC opinion provides that there is no per se violation of Section 807 in presenting such information.  However, particular information could be found on a case-by-case review to violate the Act if it contained a false or misleading representation or omission of material fact.

    The FTC’s press release can be found here.  A copy of the opinion can be found here.

    Paulson Adamant - No Taxpayer Funded Bailouts

    Secretary Henry M. Paulson, Jr. made clear Monday that the Department of Treasury opposes taxpayer funded bailouts. 

    In statements to the National Association of Business Economists, Secretary Paulson stated that “housing poses the biggest downside risk to our economy, and most forecasters expect a prolonged period of adjustment.”

    He noted that a number of initiatives focused on the housing have provided significant amounts of data that were being examined.  For example, HOPE NOW issued a release the same morning indicating it had helped 1.035 million homeowners since July 2007. 

    HOPE NOW indicated there were 3 times as many workouts as completed foreclosure sales.

    Secretary Paulson then went on to state that the current data led him to three conclusions:

    First, many in Washington and many financial institutions have been floating proposals for a major government intervention in the housing market, with U.S. taxpayers assuming the costs of the riskiest mortgages. Today, 93 percent of American homeowners – 51 million households - pay their mortgages on time. Many are on tight budgets, sacrificing other things in order to make that payment. Only 2 percent are in foreclosure.

    Most of the proposals I’ve seen would do more harm than good — bailing out investors, lenders or speculators who, instead of getting a free-pass, should be accountable for the risks they took. Let me be clear: I oppose any bailout. I believe our efforts are best focused on helping homeowners who want to stay in their homes.

    Second, this is a shared responsibility of industry, government and homeowners. We in government are working to expand options through the FHA, and we’ve worked with the industry to reach as many homeowners as possible to let them know that help is available. There is more that government and industry can do, and our efforts will continue to evolve. Homeowners have responsibilities as well. If borrowers won’t ask about solutions, there is only so much that can be done on their behalf.

    Third, the current public discussion often conflates the number of so-called “underwater” homeowners – that is, those with mortgages greater than the value of their house – with projections of foreclosures. Let’s be precise: being underwater does not affect your ability to pay your mortgage, nor create a government responsibility for assistance. Homeowners who can afford their mortgage should honor their obligations — and most do.

    Obviously, being underwater is not insignificant to homeowners in that position. But negative equity does not necessarily result in foreclosure. Most people buy homes as a long-term investment, as a place to raise a family and put down roots in a community. Homeowners who can afford their payments and don’t have to move, can choose to stay in their house. And let me emphasize, any homeowner who can afford his mortgage payment but chooses to walk away from an underwater property is simply a speculator – and one who is not honoring his obligations.

    We know that speculation increased in recent years; a resulting increase in foreclosures is to be expected and does not warrant any relief. People who speculated and bought investment properties in hot markets should take their losses just like day traders who speculated and bought soaring tech stocks in 2000.

    For a complete copy of the comments, click here.

    Senator Christopher J. Dodd (D-CT), Chairman of the Senate Committee on Banking, Housing and Urban Affairs, quickly criticized the Secretary’s position, stating:

    The Treasury’s efforts are certainly one piece of the puzzle but, frankly, Hope Now does not have the resources or capacity to deal with the sheer size of the problem that has millions of Americans in financial dire straits. The program is far from perfect – repayment plans outnumber modifications by over two-to-one so far. There is also a question as to whether these modifications are long-term, or whether the servicers are simply adding arrears back into the loan, resulting in a higher payment for some borrowers that receive a so-called modification. Furthermore, media reports call into question exactly how Treasury is crunching its numbers, and how much of their agenda is merely a publicity ploy. It is hard to imagine that the same Administration whose oversight – or lack thereof – led us into the mortgage crisis will be able to devise a plan strong enough to pull us out of it. We need a multipronged approach to this complex problem, which is why I have introduced several ideas to help as many homeowners as possible.

    The Chairman’s statement did not address whether he also opposes a taxpayer bailout of investors, lenders and speculators as the Secretary identified.  And the Secretary’s statement did not indicate whether homeowners who stretched too far to purchase overpriced homes are also included in the term speculators.

    The answers to these two questions would prove very insightful.

    HUD Issues Annual Performance Plan - Revitalizing FHA

    The Department of Housing and Urban Development has issued its Annual Performance Plan for Fiscal Year 2009. 

    The Plan’s highlights include:

    • promoting homeownership, especially in minority and low-income communities and first-time homebuyers, through a revitalized FHA;
    • promoting preservation of homeownership through housing counseling assistance and policies addressing subprime mortgages;
    • strengthening communities through housing rehabilitation and improved coordination of federal resources for neighborhood revitalization;
    • ensuring housing assistance to those most in need, including quality housing for approximately 4.8 million rent-assisted and public housing families, and assistance to the homeless;
    • strengthening the ability of fair housing groups to enforce the laws prohibiting discrimination in housing;
    • helping lead the federal government in tapping the potential of faith-based communities; and
    • continuing to improve HUD’s management, internal controls and information technology systems.

    The Mortgage Law Blog welcomes the continued emphasis on making the FHA program more user-friendly.  Lenders will recall that only a year FHA’s percentage of the marketplace had declined to only about two percent.  Naturally, there were many reasons for the shrunken market share.  A primary reason, however, was that the program was viewed as overly bureaucratic, with far too much red tape. 

    In addition, HUD’s enforcement team and the Office of the Inspector General were viewed as overly aggressive and sometimes outright hostile to lenders.  With the risk of serious civil penalties, indemnification requests and other possible sanctions always hanging in the balance, many in the industry simply stopped using the program.  Some even predicted FHA’s ultimate demise. 

    By chance, FHA has been given a second chance.  The unfortunate circumstances in other parts of the marketplace have opened the doors for a renewed and refreshed FHA.  At the same time, senior level staff within FHA have shown real determination to improve the efficiency and usability of the program.  Similarly, Congress has increased the loan limits to enable FHA to be used in higher cost areas.  In all, this excellent government sponsored program, which has been around since the New Deal era, basically invented the 30-year mortgage and created loss mitigation, and is the biggest game in town in the reverse mortgage arena, is rising from near death. 

    Thankfully, HUD’s Plan indicates the agency seems determined to assist.

    A copy of HUD’s Plan can be found here.