Can FHA Lending Be Saved from the Department of Justice?

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The purpose of the Federal Housing Administration is "to help creditworthy low-income and first-time homebuyers, individuals and families often denied traditional credit, to obtain a mortgage and purchase a home." This system has been successful, and has aided in promoting homeownership. However, the FHA loan program and its related benefits are under threat as the Department of Justice continues to bring investigations and actions against lenders under the False Claims Act.

Criticism of the DOJ's approach is that the department is using the threat of treble damages available under the False Claims Act to intimidate lenders into paying outsized settlements and having lenders admit guilt simply to avoid the threat of the enormous liability and the cost of a prolonged defense. If the DOJ wanted to go after bad actors who are truly defrauding the government with dishonest underwriting practices or nonexistent quality control procedures, then that would be acceptable to the industry.

But the DOJ seems to be simply going after deep pockets, where the intentions of the lenders are well-placed and the errors found are legitimate mistakes. Case in point: as of December 2015, Quicken Loans was the largest originator of FHA loans in the country, and they are currently facing the threat of a False Claims Act violation. To date Quicken has vowed to continue to fight, and stated they will expose the truth about the DOJ's egregious attempts to coerce these unjust "settlements."

Shortly after filing a pre-emptive lawsuit over the matter last year, Quicken Loans CEO Bill Emerson said the DOJ has "hijacked" the FHA program, adding its pursuits are having a "chilling effect on the market." (A judge dismissed the primary claims in Quicken's initial lawsuit earlier this year.)

When an originator participates in the FHA program, they are operating under the Housing and Urban Development's FHA guidelines. As HUD cannot, and does not, check each and every loan guaranteed by FHA to confirm unflawed origination, the agency requires certification that the lender originating the file did so in compliance with the applicable guidelines. If the loan defaults, the lender submits a claim and the FHA will pay out the balance of the loan under the guarantee.

The False Claims Act provides that any person who presents a false claim or makes a false record or statement material to a false claim, "is liable to the United States Government for a civil penalty of not less than $5,500 and not more than $11,000...plus 3 times the amount of damages which the Government sustains because of the act."

The DOJ argues that when a loan with known origination errors is certified by the lender to the FHA, with a subsequent claim submitted by the lender to the FHA after a default, the lender is in violation of the False Claims Act — because they knew or should have known the loan had defects when they submitted their certification, and yet still allowed the government to sustain a loss when the FHA paid out of the loan balance.

In the mortgage space the potential liability is astronomical because of the aforementioned penalties. The major issues in a False Claims Act violation can be boiled down to two major points: lack of clarity and specificity around what the DOJ considers "errors;" and what constitutes knowing loans were defective under the DOJ's application of the act.

To the first point: are the errors of the innocuous, ever-present type found in a large lender's portfolio, or egregious underwriting errors knowingly committed to increase production while offsetting risk through the FHA program? Obviously, lenders are arguing the former.

Prior to Justice's aggressive pursuit of these settlements, if the FHA identified an underwriting error the lender would simply indemnify the FHA and not process the claim, effectively making it a lender-owned loan. This was an acceptable risk to lenders, as an error in the origination process could not become such an oversized loss. The liability would be capped to any difference between the borrower's total debt at the time of foreclosure sale and what the lender could recoup when the property was liquidated. The DOJ's use of the False Claims Act now triples a lender's risk when originating FHA loans by threatening damages that are triple the value of the amount paid out by FHA.

In his letter to all JPMorgan Chase & Co. shareholders in April, Chief Executive Officer Jamie Dimon outlined the bank's reasons for discontinuing its involvement with FHA loans. This perfectly illustrates how the DOJ is basically restoring all the lender risk to FHA-backed originations. Banks originating FHA loans are left with two choices: price in the new risk of underwriting errors into and pass the cost to the end borrower, making the product so costly it becomes pointless to offer; or cease or severely limit FHA offerings. If lenders take either approach, the DOJ will have negated the purpose of the FHA by limiting borrowers' access to credit.

Walking away from FHA lending is not as simple as it sounds. Most FHA borrowers tend to have lower credit scores and/or require lower down payments. Most FHA loans also tend to be for homes located in low- and moderate-income neighborhoods. Any decline in an institution's FHA offerings most likely will have a negative impact on an institution's Community Reinvestment Act ratings. One has to think the DOJ is well aware of this fact and believes it will keep lenders in the FHA business even with the elevated risk, and can simply continue to strong-arm lenders into settlements.

If the Justice Department continues to aggressively utilize the False Claims Act, originators will be forced to evolve and create a product that they can keep as a portfolio loan or sell privately that can reach the same borrowers the FHA-insured products currently do. Again, there is a high likelihood that these products will not have as attractive terms as the FHA loans that borrowers are currently enjoying.

Large lenders will continue to step away from FHA originations, and smaller lenders originating FHA loans should be strongly aware of the risk they are taking on by continuing to originate FHA loans and increasing their portfolios as the larger banks exit the FHA market. Many large lenders have faced or are currently facing these actions, and from the Justice Department's recent statements it does not appear they will abate anytime soon.

Craig Nazzaro is of counsel at the Baker Donelson law firm.