​Please note: All topics are subject to change based upon urgent or emergent issues that arise between now and July 2022.
SERVICER-ONLY NETWORKING + ROUNDTABLE
Join your fellow servicers in this always engaging brainstorming session. We'll discuss current challenges in loss mitigation, servicing rule implementation, curtailments, complaint management, Reg F, natural disasters, and other servicing headaches. Bring your challenges and be ready to jump in for collective problem-solving!
Thursday, July 14 | 3:30P - 5:00P CT

Session 1

Taking Judicial Notice: Case Law & Rule Update
CLE: 1.5 or 1.25 credits

​Tune in and gear up with the latest case law developments, rule changes, and trend analysis from the trenches. You'll hear from the attorneys who are defending, as well as servicers and investors who are monitoring, the latest challenges emanating from Federal and State courts, Bankruptcy Court, and the Consumer Bar. 
Friday July 15 | 8:30A - 9:45A CT
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Statutory Demands & Notices 
Statute of Limitations
  • NY-Freedom Mortgage Corp v. Engel 2021 NY Slip Op 01090 (37 NY3d1)  Freedom Mtge. Corp. v Engel (2021 NY Slip Op 01090) (nycourts.gov
    • ​Brought clarity to SLO. Acceleration of the loan occurred with filing of FC complaint; voluntary continuance evinces a revocation of that acceleration absent a servicer’s contemporaneous statement to the contrary  
    • Reaction to Engel: NY Foreclosure Abuse Prevention Act (FABA) pending enactment. Retroactive, so overrides Engel. 
  • https://www.nysenate.gov/legislation/bills/2021/S5473
  • FABA seeks to narrow conditions under which FC SOL can be extended/re-set  
  • Anticipate litigation over retroactive application 
  • Relevant cases in other jurisdictions 
Mortgage Products
Interest Accrual During Moratoria 
  • PNC Bank, National Association v. Page 2022 WL 964467
    • State emergency orders did not toll or suspend statutory post-judgment interest 
Federal Enforcement Actions 
  • When is a settlement not a settlement? CFPB v. Ocwen Financial Corp, (11th U.S. Circuit Court of Appeals) No. 21-11314 
    • Ocwen abided by 2014 settlement, but was sued again in 2017 for 10 alleged servicing violations by CFPB 
    • Court dismissed 9 of the 10 counts (CFPB dismissed 10th and appealed)
    • 11th Circuit: CFPB’s claims limited to alleged violations between 1/2014-2/2017 not covered by 2014 settlement enforcement regime; settlement terms not claims raised in 2017 complaint control.   
Bankruptcy Case Law
  • COVID-19 loan modifications 
    • Forbearance versus deferral 
    • Impact on Chapter 13 plans 
  • Statute of Limitations and bankruptcy discharge 
  • BK discharge commences Statute of Limitations (SOL) on every mortgage loan installment 
CFPB - Enforcement Aggression
  • UDAAP Revival  
  • Upping the ante 
    • Director Chopra floats scheme to impose harsher penalties on repeat offenders 
      • Move from extracting heavy fines and remediation for violations to revocation of licenses, servicing rights, etc. 
      • Would however require cooperation of enforcement arms of other government agencies
Effective Litigation Strategies
  • Falling on your sword before suit is filed 
    • Inevitable oversights in customer engagement during COVID
      • Use root-cause analysis to determine where mistakes made and remediate 
      • When did error/oversight occur? (ex. from 4/3/2020-11/2021 the CFPB suspended enforcement actions against servicers) 
    • Engage investor in resolution with borrower 
  • Documentation collection to refute borrower claims 
    • Evidence of compliance with CARES Act and all mortgage servicing rules 
    • Loss mitigation history and complete record of communication provided to counsel 
    • Borrower payment profile and full payment history 
    • Reg F compliance 
  • Discovery best practices 
  • Effective responses to defenses to foreclosure 
    • Procedural and compliance
      • Conditions precedent – use of stale notices, face-to-face meetings, service of process
      • Handling of loss mitigation requests, denials, and appeals   
    • Substantive 
      • Statute of limitations 
      • Standing 
      • Debt disputes 
Storm Clouds on the Horizon – Contested Foreclosures Rising
  • What issues are and will spawn suits? 
    • Debt disputes – errors in loan balance accounting for novel and layered loss mitigation programs 
    • HAF complexity and dual tracking risk 
    • Assertion of generic COVID complaints 
    • Increased CFPB scrutiny of servicing practices 
    • Bumpy forbearance exits 
  • Cost of litigation 
    • Return to in-person hearings raise litigation costs

​Session 2

Defining the Future of Servicing: Breakdown or Breakthroughs
CLE: 1.5 or 1.25 credits
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Join a seasoned group of attorneys and servicers to explore the future state of servicing as they discuss HAF, the many faces of loss mitigation, SII, CFPB touch points, complaint and vendor management, GSE litigation trends, and technology solutions.
Friday, July 15 | 10:15A - 11:30A CT
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The Current Environment
  • CFPB Full Throttle – Transition from focus on educating consumers/findings of demonstrated consumer harm to supervisory reports and enforcement actions 
    • April 3, 2020 
      • Agency announces policy of greater flexibility for servicers under Amended Mortgage Servicing Rules (AMSR) to work with borrowers on loss mitigation provided working in good faith 
      • Suspended supervisory/enforcement action for failure to meet RESPA timing requirements 
  • November 10, 2021 – Agency announces policy of flexibility eliminated; recommencement of enforcement of AMSR; being “unprepared is unacceptable.” 
  • Age of close monitoring/scrutiny of servicer and interactions with borrowers has returned  
  • CFPB alleges chronic FCRA violations by credit reporting agencies 
    • Issues guidance: CFPB Issues Credit Reporting Guidance During COVID-19 Pandemic | Consumer Financial Protection Bureau (consumerfinance.gov
      • More than 50% of complaints to CFPB during COVID from credit reporting issues (more med/ed bills than servicing); only 2% (vs 25% pre-COVID complaints resolved) 
      • Required to review where consumer reported incomplete or inaccurate information and consumer previously attempted to fix; failure is in reporting their determinations and actions to resolve to CFPB
      • Lots of complaints about broken promises to respond to consumer with over-reliance on templated responses 
  • CFPB’s Fair Servicing focus/UDAAP exposure 
    • Focus on tracking and analyzing loss mitigation data to detect racial disparities in credit decisioning. How should discretion in credit decisions be monitored, controlled, limited, and analyzed? 
    • Under CARES, verbal exchange for loss mitigation was allowed and even encouraged. Critical issues for servicers: 
      • Ensure documentation of substantiated manual/verbal decision-making and justification for that decision is present 
      • Examine all aspects of timing; review process and outcomes – compare and analyze 
      • Analyze servicing using HMDA data/statistical analysis of decisions   
      • Track, review, and analyze all data points such as assessment/waiver of fees, timelines, and credit reporting consistency  
  • Increased Scrutiny of Fees 
    • Launched request for comment from industry on fees; comment period ended  3/31/2022 
    • Alleges fees aren’t subject to competitive and fair pricing; characterize as “hidden back-end fees”  and consumer finance has become part of the  “fee economy”
    • Fees that exceed the “marginal cost of services”; taking advantage of a captive relationship; refer to their 2017 compliance bulletin re: fees for telephonic payments, etc. 
    • Solicitating examples of excessive fees and who is charging them from consumer groups
    • Focus in servicing is on title fees, property inspection fees, legal fees, BPO, FC fees, filing fees, forced place insurance, unexplained corporate advances, etc. 
    • CFPB has provided sample questions signaling they are looking for consumers and consumer groups to respond with stories and call out servicers 
  • Consumer Financial Protection Bureau Launches Initiative to Save Americans Billions in Junk Fees | Consumer Financial Protection Bureau (consumerfinance.gov​
Homeowner Assistant Fund (HAF)
  • Components  
    • Statutory authority: §3206 of American Rescue Plan https://home.treasury.gov/system/files/136/HAF-Guidance.pdf
    • Total of $9.961Billlion in aid to states; no less than $50M grant per state using an allocation formula
      • Funds awarded contingent on approval of a plan for distribution 
      • States encouraged to prioritize FHA/VA/USDA borrowers 
      • Awards for tribal nations  
      • No cap on amount awarded to borrowers 
    • Treasury Guidance: covers usage of funds
      • Grant application process/award, etc. strictly determined by state
      • Servicer makes no determination of income eligibility
      • State submits quarterly reports to treasury detailing distribution which may be publicly disclosed
      • Uses: prevent/cure default/FC, pay taxes, insurance, HOA fees, utilities, certain types of home repairs, etc.  
    • Eligibility can be a challenge to confirm 
      • Low/mod. income, owner occupied, 1st mortgage w/in conforming loan limits 
        • Income =/< 100% or 150% area median annual income (HUD definition), whichever is greater; Native American uses similar methodology; not <60% used for those =/<100% 
        • Can be second mortgage or reverse if meets treasury criteria
      • Fannie Mae/Freddie Mac loan limits (no jumbo) 
      • Self-certify financial hardship which occurred after 1/21/2020
        • Experienced financial hardship associated with COVID-19; can have begun before 1/21/2020 but only expenses after 1/21/20 are eligible  
        • Defines required loss in income/increase in living expenses very broadly
      • Must be at least 90 days behind 
    • Servicer must sign Agreement
      • Contemplates servicer obtaining authority for the borrower to contact agency in state implementing HAF 
    • Many require SPOC; contemplates that servicer will provide arrearage info before Borrower is assessed 
    • Will notify Borrower of HAF availability upon denial of loss mit application
    • State will share award amount with servicer and expect “timely” application of funds 
    • Must review each state’s requirements as to application of funds and what they authorize which may vary based on the particular circumstances
    • Critical that state and servicer communicate to track payments to third parties 
  • Operational characteristics 
    • Many states (i) created portal/interface for state/servicer/other payees to register/share data securely re: Borrower, (ii) require execution of Agreement, (iii) prohibit dual tracking upon notification of HAF application  
    • Allows sharing of data securely using encryption, including payment information to protect PII; includes interface servicers use to share amount of delinquency 
    • HAF is not a stand-alone solution; one of many tools servicers should be using to assist distressed homeowners 
    • Should it be considered a “last resort”? 
    • Expectation: “all servicers” (whether required to be licensed under state law or not) participate in helping Borrowers through HAF program 
    • Servicers may not require borrower to apply for HAF before servicer offers loss mitigation options 
    • Any borrower denied loss mit by Servicer should be made aware of HAF
    • Some states refer to use of borrower outreach letter  
    • Some states (MA) require servicers to stop FC process if have signed agreement with state; others, like MD, stop where possible and avoid set sale while application is pending 
    • HAF participation is not a substitute for compliance with CFPB mortgage servicing rules re: early intervention/evaluation timing and dual tracking continue to apply; many states specifically incorporate reference to 12 FCR §1024.41 
  • Program risks for servicers 
    • Each state has different aspects and requirements for their program – care must be taken to map this 
    • Maybe deemed as making fraudulent/misleading statements under state consumer protection statues if servicer fails to account for HAF; issues statement that doesn’t apply HAF or files affidavit which states not qualify for loss mitigation without taking into account HAF
    • Communication of initiation of application, progress, status of application, and decisioning largely between and dependent on state and borrower; some but not all states have a specific period of time (e.g., 14 days) when a servicer can expect a decision on a HAF application by the state
    • State, not servicer collects documents
    • Servicer must access portal used to interface with state using their provided system to maintain visibility  
    • How does servicer track status of progress if portal isn’t being updated by state?  
    • Most states are experiencing staff shortages impacting process time 
    • Inadvertent dual tracking is a risk and could be future source of litigation  
      • Some states prohibit dual tracking upon notification of HAF application  
      • FHFA notification re: FC suspension for HAF 
  • Foreclosure Suspension for Borrowers Applying for Relief through the Homeowner Assistance Fund | Federal Housing Finance Agency (fhfa.gov
  • Can pre-FC demands, etc. be sent during this period?  
  • Oversight by state regulators (e.g., recent letter from 20 AGs/Hawaii/DC counterpart to HUD alleging failure of servicers to offer 2021 FHA loan mods/loss mit options in program required to be implemented by 10/21/2021) 
    • Expectation is that HAF funds and loss mitigation will allow Borrower to reinstate loan and save home; states will be tracking distribution of HAF funds and subsequent impact on loan performance  
    • One-sided conversation between state and borrower. Many states have complaint portal. Assume that any perceived problems with servicing that a borrower/HAF applicant perceives will be communicated to state regulators.   
    • Servicer must ensure payment statements (P and I, escrows) are accurate and easy to understand or risk shortfall and process for precise application of HAF funds and recalculation of loan balance 
    • State has no system for tracking BK filings, no records relating to loan history, prior loss mitigation attempts  
    • States “urge” servicers to notify borrowers who are 3+ payments behind of availability of HAF  
    • State has sole authority to determine eligibility/amount of award. Funds are remitted directly to servicer/HOA/tax authority, etc. and must be applied exactly as directed. Servicer can’t apply to escrows and must include payment amounts; know that will be scrutinized if apply first to late fees, prop preservation, etc. Adds another layer of unanticipated scrutiny by state regulators. 
    • State may require different types/varying amounts of documentation than servicer for qualification such as tax returns, mortgage statements, etc.
Navigating Loss Mitigation in a Post-Pandemic World 
  • Communication, communication and more communication! 
    • Consistency is key as delinquency amounts rise
    • Call center reboot 
      • More effective management of inbound call volume and spikes in volume from industry changes (e.g., FHFA announcement re: delay of FC for HAF review)  
      • Protocols around use of text, email, etc. (see Reg X) 
      • Aim for resolution with one call – track customer engagement rates 
      • Approaches will vary depending on the borrower - borrower with chronic history of default vs. borrower encountering default for first time 
      • Revisiting role of SPOC 
      • Educate borrower about process without straying into ethical quagmire 
  • Economic situation overlay 
    • Accounting for refinance window closing for borrower as interest rates rise 
    • Borrowers who are small business owners encountering continuing challenges
    • Rapidly rising inflation impacting housing and living costs which undermine ability to pay
Complaint Management – Tracking & Resolution
  • The new face of complaint management
    • Borrower has more vehicles to route complaints – CFPB, state regulators, HAF          funding sources, etc. 
    • What’s working/what’s not in complaint tracking and resolution? 
Vendor Management
  • General regulatory guidance for vendor management
    • Agencies view and assess vendor’s conduct as if it was that of the company who engaged them
    • Any company engaging with consumers is charged with managing and monitoring their vendor network to evaluate risk on a consistent basis  
    • Expectation: company assesses level of risk inherent in the business function being outsourced to vendor as well as the quality of its controls in place to create customized management plan; one size does not fit all!  
    • “If it isn’t in writing, it didn’t happen.” Maintenance of audit trail on all aspects of vendor performance is critical. 
    • Particular scrutiny on companies who rely heavily on unaffiliated third parties (vendors) to deliver services
    • What is the level of discretion a vendor will be given in delivering services (less is more); create a management strategy that aligns with that 
  • CFPB 
    • Given vested authority under Dodd Frank Wall Street Reform and Consumer Protection Act to assess compliance of vendors with enumerated consumer protections laws, including FDCPA/Reg F, Reg Z, EFTA, FCRA, FCBA, SCRA, TCPA, E-SIGN, Mortgage Servicing Rules, etc. https://www.govinfo.gov/app/details/USCODE-2010-title12/USCODE-2010-title12-chap53-subchapV-partB-sec5514
    • Regulations are applicable to banks and nonbanks and by extension their vendors 
      • Section 26 of 12 USC 5481 includes vendor in broad definition of “service provider” as “…any person who provides a material service to a covered person…” in connection with delivery of a “consumer financial product or service.” https://www.law.cornell.edu/uscode/text/12/5481#26
    • Empowers CFPB to impute liability/legal responsibility to servicer for unlawful actions/inactions of vendors  
    • Sets forth expectations/requirements for vendor management 
      • Must exercise due diligence in onboarding, clearly state compliance responsibilities, and consequences for breach  
      • Require documentary proof of vendor’s compliance program – procedures, protocols, internal quality controls/monitoring, and internal audit outcomes  
      • Insists on robust internal compliance training for employees/officers
        • Must produce materials with version controls; explanation for changes/deletions 
        • Annual compliance training with satisfactory test results 
    • Very sensitive to FDCPA and other consumer protection violations, unlawful discrimination, periodic billing/payment application errors, improper communication with third parties as to debt
    • Liberal use of UDAAP to support enforcement actions against servicer for vendor actions
    • Insists on training/prompt remediation plan in response to examination findings, audit results, customer complaints relative to vendor 
    • Scrutiny of customer complaint process - means of tracking, escalation, remediation, and resolution 
    • All of above extends to fourth parties engaged by vendor 
  • Actions taken in response to vendor errors 
    • Consumer redress/penalties for billing errors (see In re US Bank, NA (2014-CFPB -0013)) 
    • Comprehensive action plan/lengthy monitoring period  
    • Compliance committee required 
    • Monetary penalties 
    • Suspension of acquisition efforts 
    • Suspension of servicing of debt/loans 
  • Federal Reserve/FDIC/OCC Proposed Interagency Guidance on third party management  
    • Desire to introduce consistency into existing guidance issued by each agency at separate times; includes OCC FAQs issued in 2020 
    • Proposed interagency guidance issued on July 19, 2021
Litigation Trends

Session 3

Regulatory Revival
CLE: 1.5 or 1.25 credits

The CFPB and other federal regulators have awakened from hibernation with a blizzard of long-awaited regulations, mortgage servicing rules, supervisory highlights, and enforcement actions against servicers while inviting consumer advocates in mortgage servicing to name names, all destined to turn up the heat and consequences for violations. Join these battle-scarred industry veterans as they share the latest regulatory wisdom, including Reg F implementation pitfalls, nuances of the Amended Mortgage Servicing Rules, vendor management directives, fair credit and fair lending snares, and the war on fees.​
Friday July 15 | 1:00P - 2:15P CT
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Scrutiny of Ancillary Fees & Costs 
  • CFPB Request for Information Regarding Fees Imposed by Providers of Consumer Financial Products or Services (Docket No. CFPB-2022-0003)https://www.consumerfinance.gov/compliance/supervisory-guidance/cfpb-bulletin-2022-03-servicer-responsibilities-in-public-service-loan-forgiveness-communications/
  • Bureau’s concern regarding fees: “The CFPB is concerned about fees that far exceed the marginal cost of the service they purport to cover, implying that companies are not just shifting costs to consumers, but rather taking advantage of a captive relationship with the consumer to drive excess profits.”
  • Default servicing fees referenced: inspection fees, new title fees, legal fees, appraisal and valuation fees, broker price opinions, force-placed insurance, foreclosure fees, and miscellaneous, unspecified “corporate advances”
  • Response of 22 State Attorneys General—Convenience Fees:
    • Urges CFPB “to consider prohibiting mortgage servicers from imposing convenience fees” 
    • Expresses concern “that the convenience fees charged by these servicers exceed the actual cost to the servicer to accept payments made through a website or over a phone”
    • Claims that “since mortgage borrowers are a captive market for their particular servicer, borrowers can’t simply avoid the fees by taking their business elsewhere”
    • Asserts discretionary fees imposed by servicers warrant “special attention” 
    • Overview of responses
  • What action(s) might the Bureau take?
  • Recent Cases of Interest
    • Williams v. PHH Mortgage Corporation, 2021 WL 3556633 (S.D. Tex. 2021)
    • Mariscal v. Flagstar Bank, FSB, 2021 WL 4260879 (C.D. Cal. 2021)
    • Martindale v. MegaStar Financial Corporation, 2021 WL 5331464, E.D. Cal. 2021)
    • McFadden v. Nationstar Mortgage LLC, 2022 WL 1001253 (D.D.C. 2022)
    • Alexander v. Carrington Mortgage Services, LLC, 23 F.4th 370 (4th Cir. 2022)
Reg F Validation Letters Outside of the Special Rule 
  • CFPB’s October 29, 2021 Guidance Document 
    • Loan Servicing Platform Functionality
Scope of Requests for Information & Notices of Error
  • Overview of 12 U.S.C. §2605(e), 12 C.F.R. §1024.36, and 12 C.F.R. §1024.35 
    • QWRs—12 U.S.C. §2605(e)
  • Requests for information—12 C.F.R. §1024.36(a)
    •  “Servicing” Defined—12 U.S.C. §2605(i)(3)
    •  Notice of Error—12 C.F.R. §1024.34(a)
  • CFPB’s Amicus Brief Filed in McCoy v. Wells Fargo Bank, N.A., No. 21-35892 (9th Cir.)
    • QWR One Type of RFI: The Bureau “adopted an interpretive comment clarifying that ‘[a] qualified written request is just one form that a written information request may take,’ and that the requirements of §1024.36 apply ‘irrespective of whether the servicer received a qualified written request.’”
    • Expansion of servicers’ obligations: The Bureau maintains that “§1024.36 of the 2013 Rule broadened servicers’ obligations such that they must now respond to requests for information ‘with respect to the borrower’s mortgage loan,’ . . . including those ‘that do not specifically relate to servicing.’”
  • Recent Cases of Interest
    • McCoy III v. Wells Fargo Bank, N.A., 2021 WL 4451423 (D. Or. 2021): “[M]ortgage loan servicers only have an obligation to provide a written response to inquiries under RESPA or Regulation X if the inquiry relates to the servicing of the loan.”  
    • Gary v. BWW Law Group, LLC, 2021 WL 4521329 (D. Md. 2021): “There appears to be some confusion among federal courts applying RESPA as to whether a NOEs and RFIs are subsets of QWRs, or whether they are three different categories of communication, each requiring a different kind of response. The CFPB’s Official Interpretation supports the latter view…”  
    • Friess v. Shellpoint Mortgage Servicing, 2022 WL 742728 (D. Ariz. 2022): “Plaintiff’s request for information must relate to the ‘servicing’ of the loan to qualify as a QWR."
    • Rakestraw v. Nationstar Mortgage, LLC, 2022 WL 656104 (11th Cir. 2022): “Borrower satisfaction is not the standard by which we measure a servicer’s response to a request for information, and Rakestraw’s confusion does not equate to a RESPA violation.”

Session 4

Ethical Considerations in a Socially Distant Environment
Ethics CLE: 1.5 or 1.25 credits

Explore the latest ethical dilemmas, conflicts, and risks inherent in the mortgage servicing industry with an experienced team of attorneys and in-house counsel. Discussion will include issues presented by the new mortgage servicing world order, fee applications, remote worker oversight, UPL challenges of virtual and remote law practice, communication between servicers and outside counsel, conflicts created by diversification of legal practices, and inherent conflicts associated with use of third-party vendors.
Friday, July 15 | 2:45P - 4:00P CT​
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CONFIDENTIALITY (ABA Model Rule 1.6)
  • https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/
  • Remote working has added a new level of concern for confidentiality of information
    • Cybersecurity concerns have increased exponentially 
  • “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information related to the representation of a client.”
  • Greater controls over remote access
    • Dual authentication 
    • Password strength
  • Workspace protections
    • “Zoom bombing”
    • Conference call or video call password protections
      • Ability to know who’s on the other line/watching
    • Smart speakers – Alexa, Google, and the like 
    • Family/roommate access – private space or kitchen table
    • Necessary security should be proportionate to the actual risk involved
    • Where is the client’s data?
    • What devices are being used?
      • Personal computers, tablets, phones, etc.?
COMPETENCE (ABA Model Rule 1.1)COMMUNICATION (ABA Model Rule 1.3)SUPERVISION (ABA Model Rule 5.1, 5.2, 5.3) UNAUTHORIZED PRACTICE OF LAW – multijurisdictional practice (ABA Model Rule 5.5)VIRTUAL PRACTICE LIMITATIONS
  • Accounting
    • Must still maintain ability to deposit and write checks
    • Must always maintain a trust account
    • Paper mail
    • Payoffs/reinstatements/people wanting to come into the office
      • Must ensure proper signage at physical location
    • Court filings and recording of documents in those states that are not electronic
    • Original signature requirements
      • Notarization
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