Compliance

The third-quarter Core Mortgage Risk Index, which forecasts the relative risk of residential loan delinquencies, stands 12% higher than it did a year ago, according to First American CoreLogic, Santa Ana, Calif. The risk index has risen for 11 of the late 12 quarters, the company said. "The CMRI is currently 55% above the base period of the first quarter of 2002, a period near the end of the last U.S. economic recession," said Mark Fleming, the company's chief economist. "Although significantly higher now than during this base period, the CMRI is likely to continue rising nationally over the next 18 months." Mr. Fleming said declining home prices are the "primary factor" in the most recent rise in mortgage risk. CoreLogic, a provider of mortgage risk assessment and fraud prevention systems, can be found on the Web at http://www.facorelogic.com.

"Advertising is definitely an issue" for state regulators, attorney Bonnie S. Nachamie told attendees Thursday at the New York Association of Mortgage Brokers annual convention in Melville, N.Y. The New York Banking Department has hired an advertising specialist, and state regulators are not just looking for compliance with state laws in this area, but federal ones as well. Ms. Nachamie said the banking department has "new friends" at the Federal Trade Commission. The FTC, the New York Banking Department, and the Department of Housing and Urban Development are all chatting with each other and making referrals. Another area where the banking department is spilling over into a federal issue involves mortgage brokers who are doing Federal Housing Administration loans without having a "mini-eagle," she said. There is also a crackdown by state regulators on mortgage brokers who take applications at unlicensed locations. Ms. Nachamie also warned the audience that mortgage brokers are not exempt from making a Home Mortgage Disclosure Act filing if they have 100 applications per year. This has not been on the regulators' radar screen in the past, but the issue is starting to come up.

The House Financial Services Committee has approved a bill that would allow nonprofit housing groups to continue to arrange downpayment assistance on Federal Housing Administration loans and give the FHA some latitude in pricing mortgage insurance premiums based on risk. The bill (H.R. 6694) would reverse provisions in a major housing bill Congress passed this summer that bans seller-funded downpayment assistance on FHA loans starting Oct. 1 and bars the FHA from using risk-based pricing for 12 months. The House is expected to pass the bill despite opposition from the Department of Housing and Urban Development. HUD has been trying to shut down the DPA programs for years because of high default and claim rates. When it comes to RBP, the department contends that the bill is too restrictive. "The RBP portion of the bill would make permanent the recently enacted [12-month] moratorium, which HUD strongly opposed, and place very tight restrictions on FHA's pricing structure," the department said. "HUD does not support it." The House is expected to pass H.R. 6694, but it will die in the Senate, according to industry lobbyists.

Housing Secretary Steve Preston vowed Wednesday morning to implement permanent changes to the Real Estate Settlement Procedures Act by year's end even though industry groups are fighting the agency's proposals on consumer disclosures. Speaking at a luncheon in Washington, HUD Secretary Preston said, "Our goal is to get RESPA completed by the end of this year and then provide the industry with a full year to implement the rule." He added, "I firmly believe this will be a big step forward for restoring trust and transparency between the industry and homeowners." Industry trade groups do not like what the Department of Housing and Urban Development has proposed and want the department to work with the Federal Reserve on simplified disclosure forms. HUD's proposal is now under review at the Office of Management and Budget. Fed staffers have urged HUD to take a more coordinated approach in revamping consumer disclosures. HUD has made major modifications to its original proposal based on conversations with the Fed and other government agencies, as well as 12,000 comment letters HUD has received, according to a HUD spokesman. It sent the final RESPA rule to the OMB on Aug. 21.

The Office of Comptroller of the Currency is checking national banks that fund brokered loans to make sure the mortgage brokers are properly disclosing their fees to consumers as outlined in a 2003 advisory letter. "We have been reviewing bank compliance with this particular section of our guidance recently since it has been more than five years since the advisory letter was issued," Michael Bylsma, the OCC's director of consumer law, told a Mortgage Bankers Association compliance conference. The OCC guidance calls for national banks to enter into written agreements with mortgage brokers to ensure they make loans that meet the consumer's "needs, objectives and financial situation," Mr. Bylsma said. These agreements "should limit total broker compensation to prevent inappropriate steering," he added. The 2003 advisory letter also calls for disclosure of broker fees to consumers, including a written agreement between the borrower and the broker. The broker's fees should be conspicuously disclosed in the agreement that is signed and dated by the consumer before the broker starts work. "National banks should have a process in place to review the written agreements," Mr. Bylsma said. The OCC officials declined to comment on the level of compliance with the advisory letter. National banks originated 45% of all home mortgages in 2007, according to the OCC.

The regulator of the housing GSEs says Fannie Mae and Freddie Mac can continue to operate their multifamily businesses as usual, and they will not have to liquidate their holdings of Low Income Housing Tax Credits or mortgage revenue bonds. The support of the government-sponsored enterprises for multifamily housing finance is "central to the enterprises' public purposes," according to a statement issued by the Federal Housing Finance Agency. "FHFA has stated that business will continue as usual at the enterprises during the conservatorship -- this applies to both the single-family and multifamily businesses." Centerline Capital Group, New York, welcomed the FHFA statement. "Our multifamily financing business is still strong," Centerline president Marc Schnitzer said. "We expect to continue doing business with both companies in our multifamily and affordable housing lending practices."

Discussions between the New York attorney general, Fannie Mae, and Freddie Mac on appraisals reforms are continuing and "progress is bring made," according to Alfred Pollard, general counsel of the Federal Housing Finance Agency. The appraisal reforms announced by AG Andrew Cuomo, Fannie, Freddie, and the GSE regulator in March have already gone through a comment period that generated a very hostile response from industry groups and federal banking regulators. "Fannie and Freddie have reviewed the comments," Mr. Pollard told a Mortgage Bankers Association compliance conference. "They have done a very good job of looking at them and making changes that would be merited." Nevertheless, discussions with the New York AG's office are continuing. "The best I can tell you now is that progress is being made," FHFA official said.

Department of Housing and Urban Development officials have refused to testify before a House Financial Services subcommittee and defend its RESPA rule before congressional and industry critics who want to kill the rule. HUD told subcommittee Chairman Mel Watt, D-N.C., that they should not comment about the Real Estate Settlement Procedures Act rule while it is under review at the Office of Management and Budget. Rep. Watt said at the hearing that he was disappointed that HUD Secretary Steve Preston did not show up. "I though it would be fun to see a bipartisan pummeling of a federal government agency and a spirited defense," he said. Federal Reserve Board officials also declined to testify, "citing a reluctance to be critical of another federal agency," Rep. Watt said. Congressional critics have urged HUD to withdraw the RESPA rule and work with Federal Reserve staff in developing more simplified mortgage and real estate settlement cost disclosure forms. Fed staffers have also urged HUD to take a more coordinated approach in revamping the consumer disclosures. But HUD ignored the Fed and sent the final RESPA rule to the OMB on Aug. 21. Meanwhile, Rep. Judy Biggert, R-Ill., said she expects to get over 200 fellow members of Congress to sign a "dear colleague" letter that urges the OMB to postpone final approval of the RESPA rule until HUD holds public hearings on it.

Supporters of the controversial seller-funded downpayment assistance program rallied in Washington on Wednesday, calling on Congress to pass a bill that would save DPA from being eliminated Oct. 1. The Oct. 1 ban -- signed into law July 30 as part of the Housing and Economic Recovery Act of 2008 -- has mobilized community activists who say it will disproportionately affect minorities, especially first-time homebuyers and female-headed households. A recent analysis by Washington-based Matrix Global Advisors of government data on FHA-insured loans found that over 40% of African-Americans who receive FHA loans, and 27% of Hispanics, rely on seller-funded DPA. According to Scott Syphax, president and chief executive of DPA pioneer Nehemiah Corporation of America, 90% of the 300,000 families Nehemiah has directly served have not faced foreclosure. While stressing that roughly 40% of Nehemiah clients have been minorities, he called on the administration to right a wrong "by supporting H.R. 6694 and reinstating DPA indefinitely."

The Senate Banking Committee will hold a hearing Sept. 16 to quiz Treasury Secretary Henry Paulson and Federal Housing Finance Agency Director James Lockhart about their decision to seize control of mortgage giants Fannie Mae and Freddie Mac. According to the committee, Chairman Christopher J. Dodd, D-Conn., will ask about the eventual cost of the takeover, whether the move will stabilize financial markets, and what it means for mortgage affordability. Fannie's and Freddie's regulator, the newly created FHFA, working with the Treasury, placed the two government-sponsored enterprises under a government conservatorship on Sept. 7. About a month before the takeover, Mr. Lockhart said the two GSEs had enough capital to weather the housing crisis. Rep. Barney Frank, D-Mass., plans on holding a related hearing, but has yet to set a date.

Lender Technologies Corp., a wholly owned subsidiary of the Mortgage Bankers Association, has released the final request for proposal for the creation of a national database to help prevent and detect mortgage fraud. Respondents will have until Nov. 6 to review and respond to the RFP. LTC said the primary focus of the project is to develop and maintain a database that will improve a mortgage lender's ability to identify and stop fraud at the point of origination. The project will be implemented in phases. "The database will allow lenders to better protect themselves -- as well as consumers, taxpayers, and communities -- from the substantial costs associated with mortgage fraud," said MBA chairman Kieran P. Quinn. "Lenders, servicers, and investors will be able to interface with the database directly as well as through authorized agents."

EMC Mortgage Corp. has agreed to $28 million settlement with the Federal Trade Commission for allegedly engaging in "unlawful" servicing practices, abusive collection practices, and charging unauthorized fees. The FTC conducted a multiyear investigation of the Lewisville, Texas, servicing company and found that the subsidiary of Bear Stearns & Co. "allegedly paid inadequate attention to the integrity of consumers' loan information" and made inaccurate claims on consumers. "Like other companies that send a bill, mortgage servicers must make sure that the amount they say is due is really the amount due," said Lydia Parnes, the FTC's director of consumer protection. "Consumers have a right to expect accuracy from the company that collects their mortgage payments." The $28 million will be distributed to homeowners affected by EMC's practices. JPMorgan Chase & Co. acquired Bear Stearns and EMC last May following the collapse of Bear Stearns. The settlement does "not apply" to JPMorgan Chase, the final order says. JPMorgan Chase declined to comment on the settlement. EMC serviced $86.5 billion in mortgage loans as of March 31.

Home equity lenders need to do some deep soul-searching, or consumer-friendly lawmakers in Washington will do it for them, according to a high-ranking official in the Office of the Comptroller of the Currency. Timothy Long, senior deputy comptroller for bank supervision policy and the OCC's chief banking examiner, told the Consumer Bankers Association's annual Home Lending Conference in Austin, Texas, that as lenders work their way through the current crisis, they also need to perform a "lessons-learned" evaluation. "You need to take an introspective look at what you did wrong and make some fundamental changes," he said. Mr. Long said the national banks overseen by the OCC can expect "stronger guidance" from the agency, especially regarding underwriting. He also said lenders can expect changes in how the Federal Reserve Board looks at unfair and deceptive practices, particularly concerning suitability. And he warned that Congress could get in on the act, too. "There is an overall sense in Washington that there has been a lot of victimization -- that borrowers have been taken advantage of and need protecting," the OCC official said.

The Mortgage Bankers Association is hoping to open up a dialogue with the Federal Housing Finance Agency on reducing guarantee and delivery fees charged to Fannie Mae and Freddie Mac seller/servicers. In an interview with MortgageWire, new MBA chief John Courson said, "We'll encourage the new conservatorship management to take a fresh set of eyes" to both types of fees, especially those charged on mortgages with high loan-to-value ratios. According to company figures, the average g-fee on a newly delivered Fannie Mae loan was 27.8 basis points in the second quarter. The charge on Freddie loans were much lower -- 22 bps, which indicates that the company was having a harder time passing on costs to its lending customers. The MBA says the two government-sponsored enterprises had also been tacking on delivery fees in the range of 25-50 bps. One executive, requesting that his name not be used, said some delivery fees were as high as 100 bps.

Denver-based idBusiness, a provider of information security systems for small to medium-size businesses, has announced the launch of the Red Flag Compliance Module. The module is designed to enable mortgage companies to meet the requirements of the so-called red-flag rules under the Fair and Accurate Credit Transactions Act, idBusiness said. "A mortgage banker or broker is facing about 20 serious challenges to his business every day, one of which is red-flag compliance," said idBusiness chief executive Scott Brooks, himself a mortgage professional. "With the Compliance Module, we created a simple tool that achieves compliance first, but second, gives you a tool to build your business in a tough market." The module goes beyond the 26 identity theft "red flags" outlined by the legislation, providing customers with 37 potential signs of identity theft and integrating them into the day-to-day functions of a mortgage company's employees, idBusiness said. The company can be found online at http://www.idbusiness.com.

Downey Financial Corp., Newport Beach, Calif., has announced that the company and its subsidiary, Downey Savings and Loan Association, have agreed to consent orders with the Office of Thrift Supervision relating to regulatory capital and real estate disposition, among other things. Downey said the orders "to a large extent, formalize certain measures previously announced by the company to enhance the bank's financial strength." As a result of the orders, Downey also announced the sale of certain noncore real estate assets that produced aggregate cash proceeds of $110 million, adding that it expects to report a net pretax gain of approximately $68 million from the sale. The gain, combined with a dividend to the bank from a wholly owned subsidiary, will result in an increase of approximately $109 million in the bank's regulatory capital, Downey said. Downey chairman Michael Bozarth said the orders "reflect a number of measures that Downey has already taken and, in some cases, is close to completing." The company can be found online at http://www.downeysavings.com.

First American Field Services and First American Real Estate Tax Service have announced the availability of a new vacant-property registration service aimed at helping lenders and servicers comply with changing municipal ordinances. The service identifies properties in a lender's servicing or real-estate-owned portfolio that require vacant-property registration and then manages the registration process, including the disbursement of fees. "As new ordinances are passed in various jurisdictions, our vacant-property registration database is updated and we are able to revise the registration information on behalf of our clients as needed," said Paul Dauterive, president of First American Field Services. ".... This new service reduces the lender's risk of compliance-related penalties by ensuring that all necessary properties remain properly registered throughout the default process." The First American Corp., the Dallas-based parent company of the two units, can be found online at http://www.firstam.com.

Lenders and servicers choosing to participate in a special Federal Housing Administration refinancing program will have to worry about "second guessing" by FHA, which has a reputation for seeking indemnification for losses when loans go into default, according to mortgage banking attorney Laurence Platt. "Presumably, lenders that closely follow the new underwriting requirements developed by the [Hope for Homeowners Oversight] Board will be insulated from attack by FHA," the K&L Gates partner says in a Mortgage Banking Alert to clients. However, the Hope program loans are expected to have high default rates because lenders will be refinancing subprime borrowers that have defaulted or are expected to default. "It will be interesting to see how 'squishy' the new underwriting guidelines are, because the risk of second-guessing is greater when the standards are more ambiguous," the Sept. 2 alert says. Meanwhile, the House Financial Services Committee is holding a hearing Sept. 17 to see if FHA and the oversight board will be ready to launch the Hope program by Oct. 1. Committee chairman Barney Frank, D-Mass., also wants to know if servicers are holding off on foreclosures for borrowers who might be refinanced through the Hope program.

Interthinx, Agoura Hills, Calif., has launched specific FHA Requirement Solutions to help lenders ensure compliant Federal Housing Administration lending programs. Interthinx said its features and services -- such as income verification, identity validation, occupancy status, automated regulatory compliance checks, and third-party certifications -- provide data validation to meet many requirements to support the rapidly growing share of FHA business. For training purposes, a multitude of Interthinx Red Flags have been mapped to specific FHA requirements to help underwriters understand exactly what loan information needs further scrutiny. For example, the company noted, section 4155.1 of the FHA handbook states that the FHA will insure owner-occupied principal residences only -- at least one borrower must occupy the property. Interthinx provides a minimum of 11 Red Flag alerts around the issue of occupancy that, under various circumstances, will trigger and notify an underwriter of potential fraud or risk. The company can be found on the Web at http://www.interthinx.com.

State Farm's federally chartered thrift can use the insurance company's independent agents to market residential mortgages and home equity loans without complying with state licensing requirements, according to a U.S. appeals court. However, the circuit judges noted that their decision may be moot once a new federal law goes into effect that sets registration and licensing requirements for all mortgage originators. The 6th Circuit Court of Appeals ruled that operations of State Farm Bank are not subject to an Ohio law that would require the independent agents to be licensed as mortgage brokers. "We reach this conclusion because the Ohio Act's application to State Farm Bank's exclusive agents fits within the categories of state laws that are expressly preempted by OTS regulations," the appeals court said. Banking attorney Steven Kaplan, a partner at K&L Gates, said, "We have to see how this plays out with the new federal [licensing] law. But at the moment, it is a significant victory for federally chartered entities. It allows them flexibility in how and to whom they solicit customers." The NAMB can be found on the Web at http://www.namb.org.