Compliance

Federal banking regulators are pressing the Office of Federal Housing Enterprise Oversight to exempt federally regulated institutions from proposed appraisal standards Fannie Mae and Freddie Mac agreed to implement under a settlement with New York Attorney General Andrew Cuomo. The appraisal standards or code would "materially disrupt mortgage lending processes and raise costs," according to a joint letter signed by the Federal Reserve Board, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, and the National Credit Union Administration. Comptroller of the Currency John Dugan previously urged OFHEO Director James Lockhart to withdraw the appraisal code, which would ban the use of in-house or affiliated appraisers on loans sold to the two government-sponsored enterprises. "If not withdrawn, the agreements and code should be revised to exempt federally regulated lenders," the June 19 letter says. Meanwhile, the Senate is likely to vote on an amendment to a major housing bill this week that directs OFHEO to issue regulations that establish appraisal standards for Fannie and Freddie. The appraisal amendment by Sen. Elizabeth Dole, R-N.C., would nullify the appraisal code the GSEs worked out with the New York AG. Senate Banking Committee Chairman Christopher J. Dodd, D- Conn., opposes the Dole amendment.

Former Bear Stearns executives Ralph Cioffi and Matthew Tannin, who managed two subprime hedge funds that collapsed last summer, have been indicted on securities fraud and insider trading in regard to the funds' management. Until recently, little was known about the hedge funds because they were organized under a Bear affiliate, Bear Stearns Asset Management, and incorporated in the Cayman Islands, where bankruptcy laws allow companies to disclose a minimum about their operations. According to the U.S. attorney's office in Brooklyn, where the indictments were handed up, the hedge funds held at least $1.4 billion in investors' money by the end of 2006. In a statement, the U.S. attorney's office said that Messrs. Cioffi and Tannin "believed that the funds were in grave condition and at risk of collapse. However, rather than alerting the Funds' investors and creditors to the bleak prospects of the funds and facilitating an orderly wind-down, the defendants made misrepresentations to stave off withdrawal of investor funds." (For the full story, see the June 23 issue of National Mortgage News.)

The Federal Bureau of Investigation is undertaking 19 subprime-related corporate fraud investigations, according to FBI Director Robert Mueller. "The majority of these corporate fraud investigations address accounting fraud, insider trading, and the failure to disclose the proper evaluations of the securitized loans or derivatives," Mr. Mueller said at a news conference. "In many of these investigations, we are working with the Securities and Exchange Commission and the Department of Justice to determine the criminal intent of these identified violations." The FBI director added that targets are "relatively large corporations." He declined to comment on when the first indictments would be issued in the cases.

Over 400 individuals have been charged with mortgage fraud as the result of a national "takedown" led by the Department of Justice and the Federal Bureau of Investigation. The law enforcement operation called "Malicious Mortgage" netted real estate agents, mortgage brokers, appraisers, and others allegedly engaged in lending fraud, foreclosure rescue schemes, and mortgage-related bankruptcy schemes. So far, the three-month sweep had led to 287 arrests and 173 convictions, and 82 individuals have been sentenced, the DoJ said. The Mortgage Bankers Association and the American Financial Services Association welcomed the crackdown. "We support efforts to prosecute unscrupulous operators who give the mortgage industry a bad name," AFSA president Chris Stinebert said. MBA president Kiernan Quinn said the sweep shows that federal authorities are taking the issue of mortgage fraud seriously. "We will continue to work with the FBI to help them target these kinds of crimes," Mr. Quinn said. The FBI said it has set up 42 task groups and working groups around the country that are investigating 1,400 mortgage fraud cases.

The National Association of Home Builders is supporting the housing bill despite it limitations, and the trade group is urging others to compromise so that the landmark legislation can be passed and sent to the president. "We are urging everyone to stop demagoguing and start compromising for the sake of economy," NAHB chief executive Jerry Howard said. The NAHB wanted a broader homebuyer tax credit and a net operating loss carry-back provision so builders could deduct losses in 2008 and 2009 from their profits in prior years and receive a tax rebate. But the housing bill now under consideration in the Senate limits the tax credit to first-time homebuyers, and the NOL provision has been dropped. Mr. Howard said the organization is willing to support the limited tax credit and expressed hope that "others on Capitol Hill that have a couple of outstanding issues will realize the value and necessity of being flexible, too." Otherwise the most important housing bill since 1992 "could go down the tubes," he said.

Several financial services groups, and even the U.S. Chamber of Commerce, say they support a major housing bill pending in the Senate, but they want a section of the bill dealing with the licensing and registration of mortgage originators dropped from the legislative package. Title VI has "serious faults" and imposes suitability requirements on employees of lending institutions that will create uncertainty in the origination and underwriting process, according to the six industry groups. The American Financial Services Association, the Consumer Bankers Association, the Consumer Mortgage Coalition, the House Policy Counsel of the Financial Services Roundtable, the Mortgage Bankers Association, and the CoC signed the June 17 letter. "We strongly support" the GSE regulatory reforms and the FHA modernization provisions in the housing bill, as well as the FHA foreclosure rescue program, says the letter addressed to Sens. Christopher J. Dodd, D-Conn., and Richard C. Shelby, R-Ala. "Therefore, we urge that Title VI be separated from the rest of the bill and be considered separately once the licensing and registration provisions are perfected," the groups say.

Nine Republican senators are demanding the right to fully debate and amend a major housing bill that Senate leaders may try to bring to the floor Tuesday, but their demands could delay passage of the bipartisan bill until after the July Fourth recess. The bill would "greatly expand access to taxpayer-backed Federal Housing Administration loans for delinquent borrowers," and "reorganize the regulation of Fannie Mae, Freddie Mac and the Federal Home Loan Banks," according to a June 16 letter the senators sent to Sen. Mitch McConnell, the Republican leader. "Due to the seriousness and complexity of this issue, we ask that you protect our rights to fully debate and amend this legislation." Supporters of the housing bill want to limit debate and amendments. But the nine Republicans, including several Senate Banking Committee members, could stonewall the proceedings when the measure comes up for debate. Meanwhile, sources say that Sen. McConnell wants to move the bipartisan housing bill through the Senate. However, the Republican leader is trying to block other Democratic initiatives, which could also delay legislative action.

The Department of Housing and Urban Development is finding few supporters for its RESPA reform proposal, so three key players are recommending that HUD refocus its efforts on refining the good-faith estimate and add a summary page that highlights key loan terms and payment information. In a joint letter to HUD, the National Association of Realtors, the American Land Title Association, and the Center for Responsible Lending say they have reached an agreement on the summary page, which is attached to the June 12 letter. The CRL wants a more prominent disclosure of the mortgage broker's fee, however. "Our organizations also share the belief that a summarized GFE should be accompanied by a more detailed GFE with explanations of each subcategory of fees to help consumers understand more fully the services and accompanying fees for which they are being charged," the joint letter says. The comment period on HUD's Real Estate Settlement Procedures Act proposal ended June 12, and the NAR and ALTA have urged HUD to withdraw the proposal. The American Bankers Association and the Consumer Bankers Association also want HUD to withdraw it. The Independent Community Bankers of America has said it opposes the rule.

The Federal Housing Administration has added mortgage subsidiaries and outside vendors to its list of entities that are exempt from its 90-day "anti-flipping" rule. The FHA will not insure a mortgage on any property that was owned by the seller for fewer than 90 days before transferring it to a new owner. A waiver exempts properties owned by the FHA, Fannie Mae, Freddie Mac, and state- and federally chartered financial institutions. But to satisfy the anti-flipping rule, many third-party vendors are forced to leave foreclosed properties vacant for 90 days. "This harms neighborhoods, frustrates homebuyers, and delays recovery," FHA Commissioner Brian Montgomery said at the Mortgage Bankers Association's Government Housing and Loan Production Conference in Washington. The exemption allowed for vendors will last for one year, at which time "recovery should be under way," Mr. Montgomery said. The FHA can be found online at http://www.fha.gov.

The new head of the Department of Housing and Urban Development says the short seven months he will have on the job is enough time to "make a profound, powerful difference" in what has become the "American nightmare." In his first public appearance since being sworn in, HUD Secretary Steve Preston told the Mortgage Bankers Association's Government Housing and Loan Production Conference in Washington that "where there's urgency and commitment, there is terrific opportunity." What lawmakers, the administration, and the mortgage business do now to address the rising tide of defaults and foreclosures "can set the market on a firm foundation for future growth," said the former head of the Small Business Administration, who had been on the job at HUD for only four days. Calling on Congress to modernize the Federal Housing Administration and improve oversight of the housing government-sponsored enterprises, he said the "situation demands action now." And noting that the default situation will get worse before it gets better, Secretary Preston asked the industry to "continue to be aggressive" in reaching out to troubled borrowers.

The Securities and Exchange Commission wants the credit rating agencies to publicly disclose the information they use in rating mortgage-backed securities (including information about the underlying mortgages) to provide more transparency for investors and other rating agencies. "That would permit broad market scrutiny, as well as competitive analysis by other rating agencies that are not paid by the issuer," SEC Chairman Christopher Cox said. The proposal approved by the commissioners for public comment would prohibit credit rating agencies from assisting MBS issuers in structuring their deals to get a certain rating. However, it would be acceptable to tell the issuer how much overcollateralization is needed to achieve a triple-A rating, an SEC staffer said. The rating agencies would also have to maintain a history of their rating actions, including default statistics for the initial rating and defaults that occur after a rating is withdrawn. The wide-ranging proposal addresses conflicts of interest, disclosures, internal practices, and business practices of the rating agencies and is designed to prevent another "subprime mess," Mr. Cox said.

Six attorneys general have stood out for their creative leadership and aggressive response to the nation's foreclosure crisis, according to a new report from ACORN. The organization said these AG's -- Connecticut's Richard Blumenthal, Massachusetts' Martha Coakley, New York's Andrew Cuomo, Illinois' Lisa Madigan, Iowa's Tom Miller, and Minnesota's Lisa Swanson -- earned A-plus grades for actively seeking real data from mortgage servicing companies, pursuing cutting-edge cases against the industry's bad actors, speaking out on matters of state and federal importance, and putting their offices to work for distressed borrowers. ACORN -- the Association of Community Organizations for Reform Now -- says these AGs are cracking down on rescue scams and pushing the industry to perform better. ACORN collected examples of the work done by all 51 attorneys general and has recommended best practices and strategies used by the AGs. The report lists 18 attorneys general who earned A's, six with B's, eight with C's, one with a D, 12 with F's, and six with Incompletes.

To stem losses to the FHA insurance fund, the Department of Housing and Urban Development is reissuing a proposed rule that would ban seller-funded downpayment assistance on Federal Housing Administration-insured mortgages. HUD has been tangling for several years with nonprofit groups that arrange for low-income homebuyers to receive downpayment assistance from home sellers. HUD maintains that foreclosures on these FHA loans are three times higher than for other loans because the seller jacks up the price to recoup the downpayment "gift." In March, a federal district court judge ruled that HUD violated the Administrative Procedures Act in issuing a similar rule to stop seller-funded DPA programs. FHA Commissioner Brian Montgomery said the judge provided HUD with a "roadmap" to modify the proposed rule and reissue it for a new 60-day comment period. The FHA commissioner also told the National Press Club Monday that the FHA has booked $4.6 billion in "unanticipated long-term losses" mostly due to seller-funded DPA loans. He stressed that the FHA is solvent but may need a congressional appropriation if such losses continue. Meanwhile, downpayment assistance providers are ready to block the rule again. "We will not watch Commissioner Montgomery or HUD sever the only lifeline available to the low- to moderate-income families," said Scott Syphax, president and chief executive of Nehemiah Corporation of America.

National City Mortgage has agreed to pay $4.6 million to settle claims by the U.S. Department of Justice that it submitted mortgages to the Federal Housing Administration for mortgage insurance that were already in default. The Miamisburg, Ohio, lender allegedly submitted 58 loans for FHA endorsement where the borrowers had already missed a payment. FHA requires lenders that submit mortgages 60 days after origination to certify that the payments are current. "Lenders must follow the Department of Housing and Urban Development's rules and be held accountable if they knowingly submit loans that are not eligible for insurance," acting assistant attorney general Gregory Katsas said. National City Mortgage is one of the largest FHA lenders and it has "a long history as a responsible lender," a spokesman said. "As stated in the settlement agreement, National City refuted the government's allegations and denied any liability." The HUD Inspector General referred the National City case to the Justice Department. In 2006, IG auditors found that NCM had originated 34,838 FHA mortgages between Feb. 1, 2004 and Aug. 31, 2005 and 1,476 of those loans were in default within the first six payments.

More than 11,000 loan officers have already registered with the five-month-old Nationwide Mortgage Licensing System. Add more than 8,700 principals, owners, and branch managers who also have joined the system, and the tally is nearly 20,000, according to figures released at the Conference of State Bank Supervisors' annual conference in Amelia Island Plantation, Fla. The CSBS operates the licensing system, which went live in January in eight states. Created in conjunction with the American Association of Residential Mortgage Regulators, the system is designed to bring greater accountability and transparency to the mortgage business. The system now contains more than 6,100 company, branch, and individual licensees, and nearly 11,200 more applications are pending. Some 330 licenses have been "terminated" since the NMLS went live Jan. 2, most likely because they were voluntarily surrendered but possibly because some were revoked. A total of 18 states are scheduled to participate in the NMLS by the end of the year, and 42 agencies in 40 states have signed letters of intent to join the system eventually.

The chief economist at Moody's Economy.com says the housing market has a long way to go before it turns the corner. "The housing downturn is now comparable to the Great Depression," Mark Zandi told the Conference of State Bank Supervisors' annual meeting at the Amelia Island Plantation in Florida. "And it is evident across the country." The "most fundamental problem" with housing is excess capacity, "and it's getting worse," Mr. Zandi said. Citing Census Bureau data, the economist said the number of "completely vacant" unsold houses now totals 2.25 million units. That's twice the number of houses that were sitting on the shelves in 2004, and the current situation "won't stabilize soon," he told the state regulators. The economist also said most places are now experiencing price declines. Not so long ago, he was predicting that prices would fall 20% or so from peak to trough. But he told the CSBS that the 20% figure "doesn't cut it anymore." Now, he's looking for a 20%-25% drop in prices by the time the free-fall is over, and perhaps 30% in some places in California, Florida, Nevada, and Arizona.

The Federal Deposit Insurance Corp. will issues guidelines next week on managing third-party risks, FDIC Chairman Sheila Bair has told the Conference of State Bank Supervisors' annual meeting. The guidelines will deal, in part, with compensation of mortgage brokers. Until now, the FDIC has been dealing with the issue on a case-by-case basis, Ms. Bair said at the meeting at Amelia Island Plantation in Florida. But in that loan brokers "could steer" consumers into dangerous loans or mortgages they don't fully understand, how state-chartered banks pay third-party originators "deserves closer scrutiny," she added. Ms. Bair also held out hope for her plan to prevent a million foreclosures by reworking "underwater" mortgages. While expansion of the Federal Housing Administration's loan programs will be "extremely helpful" in the long term, her rescue plan would "give borrowers a breather" in the short term, she said. "It's for people who want to stay in their homes and ride out the housing crisis," she told the state banking regulators. Ms. Bair said it's possible that a floor amendment incorporating her proposal would be added to the Senate housing bill as a "nice complement" to FHA expansion. The FDIC chair also urged lenders and regulators to move back to common-sense underwriting. "If I'm going to point to two culprits" for the mortgage market calamity, she said, it would be the failure to underwrite at the fully indexed rate and the ability of borrowers to repay.

The GSE reform bill passed by the Senate Banking Committee gives the new regulator broad powers to raise Fannie Mae's and Freddie Mac's capital requirements and determine the appropriate size of their investment portfolios, according to a Credit Suisse report. It is likely that the new regulator will determine that the government-sponsored enterprises "should be less leveraged," CS research analyst Moshe Orenbuch says. "Such a determination by the regulator could either limit the growth of the GSEs or require that they raise additional equity." He reiterated an Underperform rating for Fannie and Freddie. Freddie Mac says it supports the legislation. "We would stress, however, that if not applied carefully, the bill could adversely impact the mortgage market," a spokesman said. Fannie Mae also has concerns about "elements in the bill that could inhibit the GSEs' ability to provide the greatest possible support for mortgage markets and housing affordability," a Fannie spokesman said.

The Mortgage Bankers Association has issued a policy paper backing its position that legal/regulatory efforts in the wake of the recent market crisis should make distinctions between mortgage bankers and brokers in four areas. The MBA's position runs counter to the National Association of Mortgage Brokers' longtime assertion that there should be a "level playing field" where legal and regulatory efforts are concerned. David Kittle, the MBA's chairman-elect, indicated during a teleconference Tuesday morning that the association has taken brokers' concerns into account. "Many of our members are brokers," he said. "We just want transparency." The MBA wants brokers to disclose "responsibilities and compensation" and to be "treated legally as agents" if they "claim to be, or act as, borrower agents." The mortgage bankers group also wants a national minimum net worth requirement for brokers, and "appropriate" bonding. The MBA can be found online at http://www.mortgagebankers.org.

A new GSE regulator should require Fannie Mae and Freddie Mac to adjust their investment portfolios in a "countercyclical manner" so they could provide more liquidity for the mortgage market the next time the housing market goes bust, according to the director of the Office of Federal Housing Enterprise Oversight. OFHEO Director James Lockhart told a banking conference that the two government-sponsored enterprises loaded up on risky loans and securities during the recent housing boom, and now they are dealing with credit losses and have been forced to raise capital. In a future downturn, Fannie and Freddie could provide more liquidity for the mortgage market if their regulator requires them to build up capital during the boom and sets standards for the operation of the portfolios so they can provide "liquidity and stability to the secondary mortgage market at all points in the credit cycle," Mr. Lockhart said. Congress is working on a GSE reform bill that would authorize the new regulator to set such standards. "An important issue for supervisory agencies is how to create incentives for institutions to behave in a less pro-cyclical manner without interfering with their ability to earn reasonable returns on capital," the GSE regulator said.