Compliance

America's Community Bankers has dropped it long-standing opposition to a key provision in a GSE regulatory reform bill that raises Fannie Mae's and Freddie Mae's loan limit in high-cost areas."We are not endorsing it, we are not opposing it," ACB executive vice president Robert Davis told MortgageWire. ACB adopted this neutral stance over the winter, and it stands in sharp contrast to its previous efforts to protect the jumbo mortgage market from encroachment from the two government-sponsored enterprises. Mr. Davis would not explain the reasoning behind the change in policy. The House GSE bill (H.R. 1427) allows Fannie and Freddie to purchase loans in high-cost areas where the median sales price exceeds the $417,00 conforming-loan limit -- up to 150% of the conforming-loan limit or the median cost in that area, whichever is lower.

Regulators and legislators should not go too far in reining in so-called "toxic loans," the chairman of the Mortgage Bankers Association said at the group's nonprime conference.Some loan products that lawmakers at the state and federal levels are seeking to bridle are "valuable tools" that enable people with affordability problems to achieve homeownership, San Diego mortgage banker John Robbins said. He said the market is already adjusting to the overzealousness of some originators, and today's loans are "significantly more conservative." "The market is efficient," he said. "It has [moved] and always will move at lightning speed" compared with those who oversee it. Rather than curb the use of such loans, or make it all but impossible for borrowers to qualify for them, Mr. Robbins called on lawmakers to work with the industry in repairing a lending process that includes, among other things, 21 federal forms "written in complex legal language which those within the industry cannot explain, much less understand." He said that as part of the fix, the industry's compensation structure must be "realigned" so that commissions to loan officers, account executives, and mortgage brokers do not contain excessive fees or yield-spread premiums. During his keynote address, Mr. Robbins took particular umbrage at what he said are "irresponsible" statistics being used by the Center for Responsible Lending. He said 86% of all subprime borrowers are currently paying their notes on time.

Proposed federal underwriting guidance could create "questionable distinctions" between prime and subprime borrowers that would cut off credit to some subprime borrowers in the name of consumer protection, according to mortgage banking attorneys at K&L Gates."The natural consequence is that prime borrowers are encouraged, or at least permitted, by national housing policy to seek to finance the purchase of a home, but subprime borrowers are subjected to more rigid restrictions," the K&LG attorneys point out in an alert to clients. The proposed guidance would require lenders to underwrite adjustable-rate mortgages for subprime borrowers at the fully indexed rate, while prime borrowers would continue to qualify at the lower teaser rate. "The imposition of differing standards for subprime vs. non-subprime borrowers raises many concerns, not the least of which is that such a practice may result in a disparate impact on borrowers based upon categorizations protected under the fair lending laws," the alert says.

Securitizers of subprime mortgages will likely face some assignee liabilities under a predatory lending bill that House Financial Services Committee Chairman Barney Frank, D-Mass., plans to introduce in May."I do believe there has to be some assignee liability," Rep. Frank told the National Association of Mortgage Brokers Legislative Conference. He said he believes some level of liability is needed to prevent the origination and securitization of bad loans. "It is the best enforcement mechanism we could have," he said. It will also give regulators leverage to get securitizers to exercise forbearance when there are problems in the subprime market. Chairman Frank also said he will steer away from a suitability standard, which is favored by many consumer advocates, and focus on the ability of the borrower to repay the loan.

Senate Banking Committee Chairman Christopher J. Dodd, D-Conn., has invited the chief executives of five major lending companies, including New Century Mortgage Co., to testify at a March 22 hearing on the causes of the "subprime crisis."The CEOs of HSBC Mortgage Corp. USA, Countrywide Home Loans, WMC Mortgage Corp., and First Franklin Mortgage are also invited to explain their subprime lending practices to the committee. Sen. Dodd blames predatory and irresponsible lending practices for rising defaults and foreclosures on subprime loans. "At the very least, homeowners facing foreclosure deserve to know what factors contributed to their dire straits, and what steps are needed to fix this pressing problem," Sen. Dodd said.

New York Attorney General Andrew Cuomo said Thursday that his office is investigating subprime lenders whose customers have fallen behind on their payments at the highest rate in four years, according to a published report.The Washington Post reported that Mr. Cuomo -- a former housing secretary in the Clinton administration -- revealed the investigation during a news conference but did not offer any details. According to the Quarterly Data Report, subprime foreclosures totaled 3% at the end of December. The overall delinquency rate stood at 14.35%. A year ago the foreclosure rate was 2.13%, but delinquencies totaled 15.89%, the QDR found.

LECG Corp., a global expert services and strategic advisory firm based in Emeryville, Calif., has announced that its subsidiary LECG LLC has agreed to acquire the Secura Group LLC, a privately held consulting firm specializing in financial services and regulatory compliance.The terms of the agreement were not disclosed. Headquartered in Vienna, Va., Secura was established in 1986 by William Isaac, former chairman of the Federal Deposit Insurance Corp., LECG reported. Secura works with financial industry clients in numerous areas, such as fair-lending analysis; anti-money-laundering programs; compliance management; Community Reinvestment Act ratings; subprime lending issues; and Home Mortgage Compliance Act reviews.

Congress may have to act quickly to protect subprime borrowers who are in danger of losing their homes over the next 18 months, according to Senate Banking Committee Chairman Christopher J. Dodd, D-Conn."We may need to get some forbearance or something like that to give them a chance to work through their problems," Sen. Dodd told reporters after speaking to the National League of Cities. "Clearly we are looking at what we can do to help out." Before deciding whether predatory lending legislation is needed, the committee chairman told reporters he wants to see how the subprime securities market behaves and what actions federal and state regulators take to correct underwriting standards on subprime loans. If the regulators finally do a "good job" and the market is "working well," that may be enough, Sen. Dodd said.

The best way to "cure" the serious problems in the subprime market is to pass Federal Housing Administration reform legislation that will allow lower-income homebuyers to get safer and affordable loans, HUD Secretary Alfonso Jackson has told a congressional panel."All you have to do is read the news articles to recognize that New Century and others created serious problems in the subprime market," the secretary of the Department of Housing and Urban Development testified. The FHA single-family reform bill would give the agency more flexibility in setting mortgage insurance premiums and downpayment requirements so it can serve more subprime borrowers. "I am convinced that is the best way to save" those homeowners, Secretary Jackson said. The HUD secretary also told the House panel that discussions with industry groups could soon lead to a consensus on reform of the Real Estate Settlement Procedures Act. "I think we are pretty close," he said.

There is a consensus within the National Association of Hispanic Real Estate Professionals that mortgage wholesalers and brokers should be held accountable for the loans they originate, but the trade group is still in discussions on how to formulate a suitability standard."Clearly the lenders need to have more accountability with respect to the types of loans they deliver to consumers," said NAHREP executive committee member Gary Acosta. The San Diego mortgage broker noted that mortgage brokers and other lenders at the point of sale should be more accountable than wholesalers. But wholesalers have the ability to ensure that a loan has some "tangible benefit" for the consumer, Mr. Acosta said. Meanwhile, NAHREP released a survey at its annual legislative conference in Washington showing that 65% of its members are counseling homeowners who can no longer afford their house payments due to an upward adjusting mortgage. Large majorities of the 500 respondents favor capping mortgage broker compensation and eliminating lender incentives for making loans with prepayment penalties. Nearly 50% of the respondents said they are not aware of Fannie Mae's and Freddie Mac's community-based lending programs.

The Federal Bureau of Investigation says mortgage fraud is "pervasive and growing" and that the incidence of such fraud has nearly doubled in the past three years.The FBI reported that it investigated 818 mortgage fraud cases in fiscal year 2006 (up from 436 in fiscal 2003), resulting in 263 indictments, 204 convictions, and recoveries of $630 million in restitution and fines. Currently pending cases total 1,014. The FBI estimates that 80% of all reported fraud losses involve collaboration or collusion by industry insiders. "The increased reliance by both financial institutions and nonfinancial institution lenders on third-party brokers has created opportunities for organized fraud groups, particularly where mortgage industry professionals are involved," the FBI's annual financial crime report says. Meanwhile, the Mortgage Bankers Association and the FBI have announced a memorandum of agreement to work together to promote the FBI's Mortgage Fraud Warning Notice. The warning states that it is a federal crime for any person to make false statement regarding income, assets, debt, or matters of identification, or to willfully overvalue any land or property in an effort to influence the action of a financial institution. The MBA and the FBI said they will foster the use of the notice by making it available to mortgage lenders for posting on their websites.

Fannie Mae and Freddie Mac would be able to expand their mortgage portfolios again under a legislative proposal supported by the Bush administration, according to the administration's point man on GSE reform.James Lockhart, director of the Office of Federal Housing Enterprise Oversight, said a recent compromise on government-sponsored enterprises legislation instructs the new GSE regulator to consider the size and growth of the mortgage market in regulating the portfolios. Once Fannie and Freddie get their houses in order, "it is certainly possible that a mission-focused regulation would allow the portfolios to grow with the mortgage market," the OFHEO director told an America's Community Bankers meeting in Washington. Mr. Lockhart appeared to be responding to concerns expressed by Freddie and some of its allies that the new GSE regulator could order massive portfolio cuts. "Using the legislative guidance focusing on mission, it is unlikely that there would be drastic reductions in those portfolios, but rather a reallocation," Mr. Lockhart said.

A senior member of the Senate Banking Committee believes Congress will place the government-sponsored enterprises under a new, more powerful regulator before the end of the current session, but the Mortgage Bankers Association's chief lobbyist isn't nearly as optimistic.The MBA's Kurt Pfotenhauer told the Midwinter Conference in Park City, Utah, that there's less than a 50-50 chance the House and Senate will see eye to eye on legislation to place Fannie Mae and Freddie Mac under stricter supervision. And he said that if Congress doesn't act this year, there's a strong possibility the next Congress won't, either. However, Sen. Robert Bennett, R-Utah, told the conference that now that Treasury Secretary Henry Paulson has shown an interest in the question of how best to oversee the GSEs, there's a strong chance the two chambers can reach agreement. "With Secretary Paulson in the mix, the discussions have been more fruitful, and I think we'll get a bill," said Sen. Bennett, who is the second-ranking minority member of the banking panel. But Mr. Pfotenhauer, the MBA's senior vice president for government affairs, said that if a bill doesn't pass in the 110th Congress, "the odds are it will never be passed." And once the GSEs get beyond their financial problems, he added, "the whole issue fades away until there is another triggering event."

The Federal Bureau of Investigation's estimate that mortgage fraud costs the lending business $1.2 billion a year is off the mark by more than $3 billion, according to a fraud analyst speaking at the Midwinter Conference in Park City, Utah.And others say the FBI's calculation could be shy by more than that. The FBI's calculation is based on Suspicious Activity Reports that it receives from lenders and others who think they may have been cheated in one way or another. But Arthur Prieston, chairman of the Prieston Group, a California firm that offers integrated fraud protection, loss mitigation, and insurance services, puts fraud losses at $4.4 billion annually. He bases that figure on his firm's claims data for clients represented by its legal services affiliate, the American Mortgage Law Group, which chases down fraudsters. And he says the loss severity is at least 50% greater for lenders that are not insured and don't chase down perpetrators. At the same time, a former fraud detection specialist who asked to remain anonymous because he no longer works in the field said the annual take as a result of mortgage fraud is more like $6 billion and growing. He said "fraud for commission," in which originators will "do anything" to earn a fee, is just as prevalent as fraud for profit. "It's pervasive throughout the industry," the source said. "It's growing because the accountability is not there. If they do it and get away with it, they do it again."

Mortgage brokers would be required to disclose all fees they receive from borrowers and lenders seven days prior to closing under a bill that Rep. Luis Gutierrez, D-Ill., plans to introduce soon.The Mortgage Broker Licensing and Predatory Loan Disclosure Act calls for clearer disclosures on exotic and subprime mortgages. It also establishes liability for brokers that violate the new law. "The legislation will bring accountability, transparency, and stricter standards to this loosely regulated industry," said Rep. Gutierrez, who is a senior member of the House Financial Services Committee. "It will ensure that people understand the hazards of high-risk loans and the subprime market, and it will ensure that mortgage brokers are properly licensed and are operating in good faith." The bill also requires all mortgage brokers to be bonded, and it directs the Department of Housing and Urban Development to establish minimum licensing requirements for mortgage brokers. The National Association of Mortgage Brokers says it supports better and clearer disclosures. However, brokers should be treated like other lenders and not singled out, according to the association. "Everybody should live under the same standards," NAMB president Harry Dinham said.

The principles outlined in the federal government's nontraditional mortgage guidance should apply to subprime hybrid ARMs, says Federal Reserve Board Chairman Ben Bernanke, and the new guidance will be issued "fairly soon."The Fed chairman told the House Financial Services Committee that lenders should use "good underwriting" in making subprime adjustable-rate mortgages. However, regulators are still working on the guidance and have not determined whether 2/28 ARMs should be underwritten to the fully indexed rate, he said. The guidance issued in September requires lenders to qualify borrowers of interest-only and payment-option ARMs at the fully indexed rate. They can no longer underwrite based on the teaser rate.

Up to 70% of mortgage early payment defaults can be linked to fraud, according to a new study by BasePoint Analytics, a Carlsbad, Calif.-based provider of fraud scoring software.The study, aimed at probing the link between fraud and payment trends in the early life of a loan, found that loans with "egregious misrepresentations" on the loan application were up to five times more likely to default in the first six months than other loans. "Many lenders are facing increases in repurchase requests and early payment defaults," said Tim Grace, president and chief executive of BasePoint. "We can demonstrate for lenders and investment banks how they can substantially reduce their EPD losses, and often within a short period of time." The company can be found online at http://www.basepointanalytics.com.

To help attorneys handle a mounting volume of foreclosed properties amid the tangle of state regulations, Bellevue, Wash.-based DepotPoint has introduced "the mortgage industry's first fully integrated intelligent foreclosure regulatory knowledgebase."Leveraging an automatic document-processing system embedded directly into the TrackPoint suite, this newest enhancement is designed to help attorneys remain in compliance with state foreclosure laws and manage processing foreclosure property files more efficiently, DepotPoint said. TrackPoint receives regular electronic communications from each jurisdiction detailing any changes to regulatory guidelines and updates the knowledgebase to reflect these modifications. Privately held DepotPoint was founded by technology veterans from InfoSpace and Microsoft, plus experienced trustees from national foreclosure firms. It can be found online at http://www.depotpoint.com.

Senate Banking Committee Chairman Christopher J. Dodd, D-Conn., says federal banking regulators need to "step up" and tighten the underwriting of certain subprime mortgage products that he contends are responsible for rising defaults and foreclosures.The committee chairman also said he is "annoyed" that the regulators have not responded to his December letter regarding subprime 2/28 adjustable-rate mortgages. In the letter, six members of the committee, including Sen. Dodd, urged the regulators to extend the protections of the nontraditional mortgage guidance to borrowers of 2/28 ARMs, who are disproportionately black and Hispanic. "It is unacceptable to me that they have gone this long without responding to the letter," Sen. Dodd told reporters after a hearing on subprime lending and foreclosures. Mortgage industry representatives presented evidence that there is nothing unusual about the recent rise in foreclosures. But Sen. Dodd maintains that certain subprime practices and loan products are causing the problem. "This is a problem that you cannot attribute to the kind of shocks that normally cause a spike in foreclosures rates," he said. The banking committee chairman is planning to call the regulators to testify before the committee in a few weeks.

The Bush administration's new budget relents on the issue of portfolio limits for Fannie Mae and Freddie Mac, but calls for greater "clarity" on where the primary mortgage market begins and ends.Released Feb. 5, the 2008 budget says "technological advances" have blurred the line between the primary and secondary markets, arguing that a "new level" of clarity "is required to establish permissible activities" under their charter acts "including the development of intellectual property." Up until last year, the White House had hoped to cap, or even shrink, the $1.4 trillion in on-balance-sheet holdings of the two government-sponsored enterprises. In the face of congressional -- and GSE -- opposition, the budget indicates that the White House will settle for GSE legislation that creates a "world class regulator" with the ability to "mitigate the risks" posed by their retained portfolios. The administration said it believes Fannie and Freddie pose a systemic risk to the U.S. financial system because their combined mortgage-backed securities and debt -- held by an array of financial institutions -- total $5.2 trillion, "higher than the total publicly held debt of the United States."