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Showing posts with label Mortgage Industry News. Show all posts
Showing posts with label Mortgage Industry News. Show all posts

Monday, January 6, 2014

The Hedgehog and the Fox: A Regulatory Parable

The 7th century BCE Greek lyric poet, Archilochus, observed: "the fox knows many things, but the hedgehog knows one big thing.”[i] Twenty-two centuries later, Erasmus transliterated Archilochus’s dictum by precisely rendering it into the Latin aphorism: “multa novit vulpes, verum echinus unum magnum.”[ii] When it comes to these two ways of thinking and acting, things didn’t change much between the 7th century BCE and the 16th century CE, when Erasmus penned his elucidation.

Isaiah Berlin, the British political philosopher, whose life span stretched nearly the whole 20th century,[iii] wrote a well-known essay in 1953, inspired by Archilochus’s apothegm. It was entitled “The Hedgehog and the Fox: An Essay on Tolstoy's View of History.”[iv]

Of Berlin’s essay, Arnold Toynbee, one of the great historians of our time, wrote:

“This fragment of verse by the Greek poet Archilochus describes the central thesis of Isaiah Berlin's masterly essay on Tolstoy, in which he underlines a fundamental distinction between those people (foxes) who are fascinated by the infinite variety of things and those (hedgehogs) who relate everything to a central, all embracing system.”[v] 

Since its inception, it seemed clear to me that the Consumer Financial Protection Bureau (the “Bureau”) is a hedgehog. It tends to view the world through the lens of a single defining idea: consumer financial protection. In accordance with this idea, the Bureau exercises this vision through a single, predominant, and coherent framework of regulations. As a hedgehog, the Bureau stays focused on this one foundational principle and repeatedly, unvaryingly, and rigidly seeks to implement that overriding proposition by applying the same methods and solutions, usually to the exclusion of other possible remedies.

This predilection is not simply a matter of judgment or style. Hedgehogs actually have one grand theory which they seek to extend into many domains, furthering their rule through a fervent belief in the guiding principle. They express their views with confidence; assurance; coolness; obstinacy; unrelenting drive; generally rigid adherence to an impliable mission; unwavering obedience and devotion to a regnant objective; a proclivity to roll results up into an aggregate value; and, a tendency to express themselves with such idiomatic phrases as “mission critical,” “the ends justify the means,” “by and large,” “ball-park figure,” “jack-of-all-trades,” “grand strategy,” “seeing the larger picture,” and “the system is the solution.” Usually, hedgehogs have a unique vision that gives rise to the ability to notice complex circumstances and discern the underlying patterns. In effect, their reach exceeds their grasp. Examples of hedgehogs are Plato, Dante, Proust and Nietzsche.

Residential lenders and originators (the “RMLOs”) are, as a group, foxes - they draw on a wide variety of experiences and do not believe for a second that the world can be boiled down to a single idea, evinced through an all-embracing framework, howsoever cogent it appears to be.

Foxes are skeptical about grand theories. They are constrained in their forecasts, and adaptive to actual events. They tend to be more accurate in their predictions than hedgehogs, since they are more agile in assigning probabilities to their expectations. While hedgehogs see the larger picture, thereby missing opportunities, foxes notice each and every pixel contributing to it, and thus quickly find opportunities. Because the fox is acutely aware of each part of the whole, it devises complex strategies to gain an advantage on the hedgehog. Often, it succeeds in its plans due to this advantage.

The kinds of idiomatic expressions that foxes use are “zero in on something,” “devil's in the details,” “under construction,” “mixed feelings,” “barking up the wrong tree,” “at this stage,” “first in class”, “trying something new,” and “let’s get another pair of eyes on this matter.” Foxes are centrifugal: they pursue divergent ends and usually possess a sense of reality, which keeps them from designing a logistical framework that purports to contain all possibilities. They instinctively know that complexity does not conduce to a unitary structure. Although foxes may have a broad vision and much agility in complex interactions, often their grasp exceeds their reach. Examples of foxes are Montaigne, Balzac, Goethe and Shakespeare.

Foxes pursue many ends at the same time, with much energy and cunning. They see the world in all its complexity. Hedgehogs simplify a complex world into a basic principle or concept that unifies and guides everything. Foxes tend to be scattered, diffused, and inconsistent. For hedgehogs, the world is reductive; that is, all challenges and dilemmas are reduced to simple hedgehog ideas, and anything that does not correlate to the hedgehog idea is without relevance. Hedgehogs see what is essential and ignore the rest.

Generally, the fox’s style is often deprived of rigorous models, specific goals, and global metrics. Foxes learn incrementally, over many iterations of experience. The foxy RMLO has a succinct advantage in swaying the hedgehog Bureau, because it nimbly responds to new information, constantly reconfiguring its market knowledge in reaction to changing circumstances. Such vital information leads to greater performance and the ability to provide solutions that open up new ways for the Bureau to fine tune its single overarching vision.

The Bureau has set compliance effective dates in January 2014 for many new rules that will affect RMLOs. As these rules go into effect, we enter the New Year noting a rather obvious example of the hedgehog’s vision and the fox’s hastening to fulfill it. Their relationship is bound by the unwavering path of the Bureau and the serpentine path of the RMLO. The Bureau’s grand vision presents a broad plan of action that must be implemented. In complying with the Bureau’s rules, the RMLO must bestir itself to be particularly attuned to working with the minutiae of details that are a part of the practical experience of actually originating and servicing residential mortgage loans.

In 2014, here are three questions to keep in mind about the relationship between the Bureau and the RMLO:

1) How prepared is your financial institution to comply with the Bureau’s expectations?
2) Are you ready to implement the Bureau’s complex requirements?
3) Does your company act like the visionary hedgehog or the nimble fox?

Foxes are cunning and have the advantage of knowing how reality works, poking holes in the hedgehog’s grand scheme of things, even as the many spindled hedgehog rolls into a big bulky ball. But beware of that ball! The hedgehog and the fox have learned never to underestimate each other. Although the fox is clever, swift, skilled in action, and knows many tricks, the hedgehog knows one big decisive trick: it can roll itself into a ball of sharp and painful spikes!

__________________________________________________________
 Jonathan Foxx
President & Managing Director
Lenders Compliance Group
Brokers Compliance Group


National Mortgage Professional Magazine - December 2013



[i] Archilochos (c. 680–c. 645 BC) was a Greek lyric poet from the island of Paros in the Archaic period.
[ii] Adagia, ("Erasmus") Desiderius Erasmus Roterodamus (October 27, 1466-July 12, 1536), Paris, 1500, from Robert Bland, Proverbs, Chiefly Taken from the Adagia of Erasmus, with Explanations; and Further Illustrated by Corresponding Examples from the Spanish, Italian, French & English Languages, Volumes 1-2, London, 1814
[iii] Sir Isaiah Berlin, (June 6, 1909-November 5, 1997), British social and political theorist, philosopher and historian of ideas.
[iv] Berlin, Isaiah, The Hedgehog and the Fox: An Essay on Tolstoy's View of History, Weidenfeld & Nicolson, London, 1953.
[v] Idem

Friday, May 13, 2011

Wells Fargo's "Seventeen Worthless Mortgages"

Foxx_(2009.04.02)
COMMENTARY: by JONATHAN FOXX
Jonathan Foxx is a former Chief Compliance Officer of two publicly traded financial institutions, and the President and Managing Director of Lenders Compliance Group, the nation’s first full-service, mortgage risk management firm in the country.

On March 1, 2011, the US Court of Appeals (Fourth Circuit) filed a Per Curiam opinion. In Wells Fargo Bank, N.A. v Old Republic Title Insurance Company, Wells Fargo sought to recover the value of "seventeen worthless mortgages" - the Court's own words! - it purchased from Financial Mortgage, Inc. (FMI), a mortgage banker, in the secondary mortgage market. The scheme involved Title Pro, an agent of Old Republic, colluding with FMI to fraudulently close the real estate transactions underlying Wells Fargo's mortgages. Wells Fargo claimed that Old Republic was contractually bound to indemnify Wells Fargo for its losses. 
The Court ruled in favor of Old Republic! Let's learn why.

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Commentary and Outline
This Commentary offers a brief outline. I am leaving out citations, where possible, for ease of reading. This outline is not meant to be comprehensive, authoritative, or relied upon for legal advice. It offers only a brief synopsis of the argumentation. For citations, exhibits, and argumentation, read the judicial decision (below).
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The Scheme
FMI originated mortgages and drew on its warehouse lines from several financial institutions. After the warehouse lenders advanced funds to FMI for a mortgage loan, FMI would then sell the mortgage to secondary investors, use the proceeds to pay back the warehouse lenders, and thereby replenish its lines of credit.
So far, so good.
But this is where the plot thickens.
Beginning May 2004, Wells Fargo entered into a standard Loan Purchase Agreement with FMI. This Agreement set forth the terms required by Well Fargo to purchase from FMI numerous residential mortgage loans secured by a note and deed of trust on real property, properly recorded and free from prior liens.
However, the very mortgages purchased by Wells Fargo from FMI failed at their inception, because FMI misrepresented to Wells Fargo that the mortgages were recorded in Virginia's public records system, providing Wells Fargo with first and exclusive priority over all other creditors. Eventually, Wells Fargo discovered that it actually had unsecured and/or subordinate positions on these loans, because they were not recorded nor free from the prior liens.
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An Agency Agreement       
Old Republic, like most title insurance companies, appoints agents to act on its behalf to sign, countersign and issue commitments, binders, title reports, certificates, guarantees, title insurance policies, endorsements, and other agreements under which the insurer assumes liability for the condition of title.
In Old Republic's Agency Agreement with TitlePro, the latter was expressly prohibited from acting as an agent of Old Republic when, on some occasions, TitlePro might serve as a settlement agent. That is, when TitlePro performed such services, the Agency Agreement expressly prohibits TitlePro from acting as an agent of Old Republic.
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FMI and TitlePro - Two Ways to Collude
Version One (Variations on a Theme) - 3 Bogus Mortgages
1) FMI secures a buyer of land or a refinancing opportunity.
2) FMI then sends the necessary mortgage documents to TitlePro.
2) TitlePro then uses the loan documents to create the appearance of loan closings (i.e., completing a HUD-1 Settlement Statement, et cetera).
3) TitlePro is now able to obtain funds from FMI's warehouse lenders (which does not include Wells Fargo).
4) After obtaining the funds, TitlePro fails to use those funds to clear title or pay off the pre-existing mortgage.
5) TitlePro transfers the funds to FMI.
6) For many transactions, FMI also creates multiple, unrecorded "first" mortgages on each property by having borrowers sign multiple sets of "original" loan documents at closing. (I'll call these "first" mortgages "bogus mortgages.")
7) FMI fabricates the notes.
8) FMI sells these unrecorded bogus mortgages to several secondary investors, including Wells Fargo.
9) In each of these transactions, FMI fails: (a) to disclose the existence of the other bogus mortgages with prior liens to purchasers of these mortgages and (b) to record the mortgages it subsequently sold.
10) Wells Fargo deals with FMI exclusively, sending payment for the notes directly to FMI's accounts.
11) Wells Fargo does not interact with TitlePro or Old Republic in any way.
Version Two - 14 Bogus Mortgages
1) TitlePro fills out a HUD-1 Settlement Statement and receives loan proceeds from the warehouse lender.   
2) The HUD-1 Settlement Statements requires TitlePro to use these funds to pay off the prior mortgages on the properties.
3) TitlePro fails to pay off the prior mortgages and release them of record.
4) TitlePro also fails to record the new mortgage in favor of FMI that "secured" the notes eventually sold to Wells Fargo.
5) In each of these transactions, FMI fails: (a) to disclose the existence of the other bogus mortgages with prior liens to purchasers of these mortgages and (b) to record the mortgages it subsequently sold.
6) Old Republic does not issue policies on these transactions, because Old Republic's Commitment letters requires the prior mortgages to be "paid and released of record" as a condition of issuing the title insurance policies.
7) For some of these transactions, Old Republic also issues a standard-form closing protection letter (CPL), agreeing to reimburse FMI for losses arising out of an issuing agent's misconduct in closing a transaction.
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Scammed!
Wells Fargo now possesses seventeen worthless mortgages, all of which are presently in default.
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District Court
When Wells Fargo began this action back in March 2009, it alleged six claims: (1) breach of contract; (2) a business conspiracy in violation of Virginia Code; (3) common law civil conspiracy; (4) fraud; (5) violations of Virginia's Wet Settlement Act, and (6) negligence. For all but the breach of contract claims, Wells Fargo alleged that TitlePro acted as Old Republic's agent when it closed the disputed transactions.
The District Court granted summary judgment to Old Republic because:
1) It rejected Wells Fargo's contention that Virginia's Consumer Real Estate Settlement Protection Act (CRESPA) made Old Republic liable, reasoning that CRESPA does no more than authorize non-attorneys, including title agents, who meet specific statutory conditions to serve as settlement agents.
2) It held that TitlePro did not have actual agency authority because the Agency Agreement explicitly prohibited TitlePro from acting as a settlement agent on Old Republic's behalf.
3) In accordance with Virginia law, it rejected Wells Fargo's theory of apparent authority, reasoning that Wells Fargo did not reasonably rely on Old Republic's conduct or statements allegedly cloaking TitlePro with apparent authority to act as a settlement agent on Old Republic's behalf.   
For these reasons, the District Court also granted summary judgment to Old Republic on the conspiracy, Wet Settlement Act, and fraud claims.
Plus:
4) The District Court rejected the breach of contract claim, reasoning that Old Republic could assert the same defenses against Wells Fargo as it could against the assignor of the contract, FMI, and one such defense -- fraud -- shielded it from contractual liability. (The District Court also ruled that the negligence claim failed because, in negligence claims, the common law duty protecting person or property does not extend to Wells Fargo's acquisition of worthless notes. Wells Fargo did not challenge this holding on appeal.)
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Appeals Court
Wells Fargo appealed, arguing that:
(1) an assertedly "ambiguous" agency agreement and Old Republic's course of conduct raise genuine issues of material fact as to the scope of TitlePro's agency;
(2) the District Court misinterpreted CRESPA;
(3) TitlePro furthered the conspiracy by issuing title insurance instruments, as authorized by Old Republic, thus making the latter liable in conspiracy; and,
(4) a provision in Old Republic's title insurance policy absolved Wells Fargo (an innocent purchaser for value) of any fraud-based defenses Old Republic may have against FMI.
Yet the Appeals Court upheld the District Court's ruling. Why?
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Back to that Agency Agreement
So, why did the Appeals Court affirm the District Court?
Because there are two provisions of the Agency Agreement, though seeming to conflict with each other, which rather serve separate, but complementary ends.
On one hand, a section requires TitlePro to record documents "necessary to insure the interest," not every document necessary to close the transaction. The primary purpose of this settlement-like duty is to "minimize the risk of loss under the title insurance policies," not create a general agency relationship capturing all the agent's settlement activities.
On the other hand, in another section, Old Republic unequivocally withholds consent for TitlePro to act as an agent when TitlePro performs "any escrow, closing or settlement" services. Courts throughout the country, including those interpreting Virginia law, agree that such an express limitation on agency duties controls.
Accordingly, Wells Fargo ran out of luck and Old Republic was off the hook.
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Justice Served?
On November 13, 2008, the owner of FMI, Vijay Taneja, pled guilty to one count of conspiracy to commit money laundering in violation of federal law and received a sentence of 84 months imprisonment, to be followed by three-years of supervised release.
But what about that little matter of those "seventeen worthless mortgages?"
Click for the Per Curiam Opinion.

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What do you think?
I would welcome your comments.
Please feel free to email me at any time.
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Friday, February 4, 2011

CFPB: Announces Website

On February 3, 2011, the U.S. Department of the Treasury announced the launch of a ‘beta’ Consumer Financial Protection Bureau (CFPB) website, ConsumerFinance.gov, the stated purpose of which is to provide "a critical link to the American public for soliciting ideas on the bureau's creation and priorities and for answering questions on its work." 
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WEBSITE STRUCTURE
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  • Blog
  • The Bureau
  • Protecting you
  • Get help now
  • Suggest
  • Receive Updates
  • Small Financial Services Providers
  • Protecting You
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Selected Sections
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Open for Suggestions
  • For use by consumers, businesses, and anyone who is interested in making consumer financial services markets work better for everyone.
  • This feature encourages communication directly with the CFPB implementation team through YouTube video questions, but suggestions can also be accepted through e-mail and other forms of online communication.
  • Comments from the public will help the CFPB implementation team understand what consumers and financial services providers need and will inform the work of the bureau.
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Interactive Display of Elizabeth Warren's Daily Calendar
  • One of the items most frequently-requested by the public is Elizabeth Warren's calendar.
  • The CFPB implementation team has put her calendar online in an interactive, clickable format.
  • Users can explore who Warren is meeting with and hearing from through the online tool, or they can download the iCal feed, subscribe via RSS, or view the calendar as a FOIA-compliant PDF file.
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Additional Resources
  • Selected financial education materials provided by other government agencies.
  • Tool for determining the agency with current authority for overseeing different providers of financial products and services (so that consumers can find help with their financial problems with the responsible agency while the CFPB is getting underway).
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SOCIAL MEDIA LINKS 
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Individuals can follow CFPB on several social media sites:
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Visit Library
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Treasury Department Announces Launch of 'Beta' Consumer Financial Protection Bureau Website - Press Release
February 3, 2011
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Tuesday, December 28, 2010

Singular destiny where the goal keeps shifting ...

COMMENTARY: by JONATHAN FOXX

Jonathan Foxx, former Chief Compliance Officer of two publicly traded financial institutions, is the President and Managing Director of Lenders Compliance Group, the first full-service, mortgage risk management firm in the country.

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In the last few years, the US has been undergoing significant economic and political changes - some of which have their roots in many past decades. We find the momentum of these changes, now forcefully underway, to be altering many of our financial, political, and professional plans.

Change is not easy to experience. Nor is crisis, fraught with uncertainty.

The Chinese character for crisis conveys our current circumstances: a perilous situation, an incipient moment when something begins or changes, and when one should be especially wary.

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Reflections

We are a unique generation of Americans, blessed with the benefits of advanced technologies, more affluent than our forebears, more aware of the world around us, able to explore our galaxy and see into the far reaches of the universe, indeed able to look deeply into the infinitesimally small, physical world within our own human being.

But no matter how much we learn about ourselves and our world, we will never open a brain and find the traces of a compassionate thought, or open a heart and find the feeling of love. Yet we do know what we think and how we feel. As both surveyors and inhabitants of our world, as its caretakers and caregivers, there are many ways and means to improve the quality of life for all living beings. Living not only for ourselves, we want to pass on a better world to the next generation. Yet it is through the application of knowledge, howsoever derived, that risks emerge and shape the future.

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Goals and Destiny

In these last few days of this year, reflecting on the crises facing the mortgage industry, it is clear that change has been blunt, quick, and irreversible. Many industry members have lost their jobs and their savings and, in some instances, their companies. A plethora of new regulations, new proposed regulations, new consumer protection laws, financial reform legislation, new federal and state disclosure requirements, and new rules regarding mortgage originator compensation, seem to be promulgated without end. Some market actors have been caught up in a dragnet of disputes, such as in foreclosuregate, loan modification delays, loss mitigation failures, mortgage loan fraud, appraisal fraud, identity theft scams, strategic defaults and high mortgage default ratios. FHA, Fannie, and Freddie are barely hanging on to their missions and corporate charters, even with potential or actual "bailouts" from taxpayers. Litigation and lobbying abound!

And yet, there are those on Wall Street who believe that subprime securitization will return soon. There are those who want to delay financial reform. There are those who want to deactivate plans for a consumer financial protection agency. There are those who believe that regulators should serve the banks, rather than to assertively monitor them on behalf of taxpayers and to preserve the public trust.

We have clients that have fought valiantly to stay in business at a time when their peers have had to shut down - and, to the former's credit, they have made it through the struggle. And we have clients that proactively come to us now and seek guidance in implementing the many new regulatory compliance requirements. Because I have witnessed our clients' commitment, fortitude, and drive, I know the mortgage industry will survive and continue to foster innovative leadership.

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Crossroads

In general, actors in a market have conflicting goals. The mortgage and financial markets are no exception. Conflicts are necessarily delineated between certain market participants.

At the crossroads of politics and economics, our democracy will find its way forward. But out of the differing expectations, all of us need to forge bold goals and transgenerational resolutions. And we need to identify the risks associated with our goals.

Perhaps 2011 will bring decisive options and opportunities, heretofore unrecognized, to bring closure to some of the mortgage industry's most pressing concerns.

As we meet the future, let's be mindful that we will be judged not on what we thought or felt, but on what we actually did at a time of crisis!

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Singular destiny where the goal keeps shifting …

Please consider Beaudelaire's penetrating verse,
as we boldly, compassionately, and humbly
seek our own precious goals in 2011:

Singulière fortune où le but se déplace,
Et, n'étant nulle part, peut être n'importe où!
Où l'Homme, dont jamais l'espérance n'est lasse,
Pour trouver le repos court toujours comme un fou!

Singular destiny where the goal keeps shifting,
And, being nowhere, can perhaps be anywhere!
Where Man, whose hope never grows weary,
Is always seeking a short respite like a fool!

"Le Voyage" (The Voyage)
from Les Fleurs du Mal - Charles Beaudelaire. (My translation)

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Best wishes from all of us to all of you -

for a safe, joyous, and fulfilling New Year!

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I would welcome your comments.

Please feel free to email me at any time.

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Thursday, December 2, 2010

HUD: Clarifies Lender Eligibility

The Helping Families Save Their Homes Act of 2009 (HFSH) and Mortgagee Letter 2009-31 stated that lenders are "subject to unresolved findings contained in a Department of Housing and Urban Development (HUD) or other governmental audit, investigation, or review."

A new Mortgagee Letter (ML 2010-38) clarifies that all principal owners and corporate officers of FHA mortgagees must confirm that their institutions and the officers, partners, directors, managers, principals, supervisors, loan processors, loan underwriters, and loan originators of their institutions who participate in FHA programs are not subject to any unresolved findings or federal lawsuits resulting from:

(1) an investigation, audit, or review by HUD, or
(2) other federal, state, or local governmental agencies, or
(3) any other regulatory/oversight entities (i.e., banking institution) with jurisdiction over the activities of their institutions and/or employees.

Entities already approved by FHA will not be permitted to renew their status at the next annual recertification date if they are not in compliance with the eligibility criteria.

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What are "Unresolved Findings"?

Include, but are not limited to:

  • Fair Housing Act lawsuits by the Department of Justice alleging an ongoing pattern or practice of discrimination
  • HUD letters of findings or charges alleging systemic violations of the Fair Housing Act
  • Open issues in any HUD OIG audit, investigation or review
  • Any action by HUD's Mortgagee Review Board
  • The suspension, surrender, or revocation of a license of any kind (i.e., Mortgage Broker License, CPA) by a state or local jurisdiction
  • The imposition of fines, settlement agreements, or other monetary sanctions by a state or local entity
  • Any other action taken by a government agency

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Confirmation Associated with Criminal Activity - Timeframes

FHA lenders must confirm that none of its employees or their subsidiaries are involved in investigations or reviews that may be due to an instance of fraud, embezzlement, forgery, or any other crime related to the real estate or mortgage loan industry.

Matters remain "unresolved" until such time as an action is taken by the investigating entity, or the entity formally determines that no action is warranted.

Confirmation must provide that their officers, partners, directors, managers, principals, supervisors, loan processors, loan underwriters, and loan originators participating in FHA programs have not been convicted of, or pled guilty or nolo contendere to, a felony related to participation in the real estate or mortgage loan industry:

(i) during the 7-year period preceding the date of the application for licensing and registration; or

(ii) at any time preceding such date of application, if the felony involved an act of fraud, dishonesty, or a breach of trust, or money laundering.

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Confirmation of SAFE Act Compliance

FHA lenders must confirm that their institution and its officers, partners, directors, principals, managers, supervisors, loan processors, loan underwriters, or loan originators participating in FHA programs are not in violation of the provisions of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act) or any applicable provision of state law.

Principal owners and corporate officers must confirm that all employees, as required, consistently meet their respective state's licensing requirements as well as all federally-mandated licensing or registration requirements including registration with the Nationwide Mortgage Licensing System and Registry (NMLS).

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Visit Library for Issuances

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Mortgagee Eligibility Requirements and Clarification of FHA's Electronic
Annual Certification Requirements and Procedures,

Mortgagee Letter 2010-38, November 17, 2010

Strengthening Counterparty Risk Management,
Mortgagee Letter 2009-31, September 18, 2009

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LENDERS COMPLIANCE GROUP is the first full-service, mortgage risk management firm in the country, specializing exclusively in mortgage compliance and offering a full suite of hands-on and automated services in residential mortgage banking.

Monday, November 8, 2010

Are Foreclosures Good For The Economy?

COMMENTARY: by JONATHAN FOXX

Jonathan Foxx, former Chief Compliance Officer of two publicly traded financial institutions, is the President and Managing Director of Lenders Compliance Group, the first full-service, mortgage risk management firm in the country.

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The foreclosure crisis has taken on new dimensions with the Obama Administration's apparent view that accepting the huge wave of foreclosures may be necessary and inevitable.

But have the borrowers who face foreclosure really been given every opportunity to save their homes?

Failed government programs, overwhelmed servicers and lenders, lack of systemic alternatives, and the absence of a coherent national plan or specially empowered agencies to stabilize the pandemic of foreclosures are depriving borrowers of ways and means to recover from this crisis.

"I've proposed a new Home Owners' Loan Corporation (HOLC), to launch a national effort to help homeowners refinance their mortgages. The original HOLC, launched in 1933, bought mortgages from failed banks and modified the terms so families could make affordable payments while keeping their homes. The original HOLC returned a profit to the Treasury and saved one million homes.

We can save roughly three times that many today. We should also put in place a temporary moratorium on foreclosures and freeze rate hikes in adjustable-rate mortgages. We've got to stem the tide of failing mortgages and give the markets time to recover." Hillary Clinton - September 25, 2008

The most recent report of foreclosures from RealtyTrac provides the following schematic.
RealtyTrac (2010.10)
Just this past Friday, the New York Times put the Obama administration's non-response to the foreclosure crisis in bold relief:

"In the most recent mortgage mess, the Obama administration has - oddly and disturbingly - been arguing that foreclosures are, in effect, good for the economy and should proceed apace as banks get their snarled paperwork in order."

However the foreclosure debacle does play itself out - and, let's be clear, there is no truly satisfactory outcome for lenders, borrowers, or the overall economy - it is important to identify who these defaulted borrowers really are: our neighbors, our co-workers, our professional class, our close friends and family, our most educated and least educated, our peers who have been downsized out of jobs, laid off, and whose jobs have been outsourced, our small business owners and self-employed.

For the most part, the foreclosed upon properties have not been demised by deadbeats - or "losers" (Rick Santelli) - or scammers or ignoramuses who would sign anything to own a house. That canard is the main stream media narrative, and it is not true at all. Statistic after statistic support the fact that most loans were underwritten pursuant to agency and investor guidelines, along with proper borrower verification.

Yet now, those same agencies and investors seem to be changing the rules. For instance, HUD is reevaluating the approval authority granted to FHA DE-mortgagees whose defaults are considered excessive, even though those mortgagees' FHA loans were underwritten to FHA guidelines.

And, since the foreclosure tsunami hit, millions of borrowers have endeavored in vain to save their homes through loss mitigation methods and loan modifications, only to find themselves, usually without the benefit of legal counsel, navigating the blizzard of new paperwork requirements in an often futile engagement with unresponsive servicers and intransigent lenders.

In some cases, borrowers in default are taking out second mortgages in order to save their homes - with payment of the proceeds going to their lawyer if the foreclosure is dismissed and the debt is reduced.

Is the appropriate response to foreclosure in this current economic environment to blame the victim?

Government assistance programs, such as HAMP, have been failures. Our servicer and investor clients are particularly frustrated by the enormous task they face to offer alternative loan terms, respond to thousands of inquiries, implement new mortgage instruments, properly execute all legal documents, and consistently and effectively track the progress of mitigated claims.

In the quote above, Mrs. Clinton stated that "We've got to stem the tide of failing mortgages and give the markets time to recover."

Maybe we should give our neighbors and neighborhoods the time to recover as well!

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So, What Do You Think?

I would welcome your comments and views.
Please feel free to email me at any time.

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LENDERS COMPLIANCE GROUP is the first full-service, mortgage risk management firm in the country, specializing exclusively in mortgage compliance and offering a full suite of hands-on and automated services in residential mortgage banking.

Wednesday, October 6, 2010

Fannie: Directs Servicers to Review Foreclosure Procedures

On October 1, 2010, Fannie Mae issued Lender Letter LL-2010-11 which directs all of its servicers to immediately undertake a review of their policies and procedures relating to the execution of affidavits, verifications, and other legal documents in connection with the default process.

Fannie issued this notice because it recently learned that there are potential defects with affidavits submitted by servicers in support of motions for summary judgment in states with judicial foreclosure processes. The issues pertain to "whether the individuals executing the affidavits on behalf of the servicer had the required personal knowledge of the information contained in the affidavits and whether the affidavits were notarized in accordance with applicable requirements."

The issuance provides citations to Fannie's Mortgage Selling and Servicing Contract and Servicing Guide provisions with regard to:

  • Servicer's basic duties and responsibilities
  • Compliance with applicable laws and mortgage documents
  • Servicer's audit and control systems
  • Consequences of non-performance of servicer's duties and responsibilities and non-compliance with applicable laws and mortgage documents

Highlights

Servicer's Basic Duties and Responsibilities

The servicer must have sufficient and properly-trained staff, and adequate controls and quality assurance procedures in place:

  • to carry out all aspects of their servicing duties
  • to protect against fraud, misrepresentation, or negligence by any parties involved in the mortgage servicing processes
  • to protect Fannie Mae's investment in the security properties
  • to provide borrowers with assistance when it is requested
  • to ensure that its staff is knowledgeable in all aspects of mortgage servicing to comply with Routine vs. Non-routine Litigation procedures, and contact Fannie Mae's Regional Counsel via e-mail if:
    • any routine legal proceeding becomes contested (i.e., the defendant in any proceeding files any appeal, motion for rehearing, or similar procedure
    • the servicer receives notice of a non-routine action that involves a Fannie Mae-owned or - the securitized mortgage loan or that will otherwise affect Fannie Mae's interests, regardless of whether Fannie Mae is also named as a party to the action.

Compliance with Applicable Laws and Mortgage Documents

All federal, state, and local laws (including statutes, regulations, ordinances, administrative rules and orders that have the effect of law, and judicial rulings and opinions) that apply to any of its origination, selling, or servicing practices or other business practices (including the use of technology) that may have a material effect on Fannie Mae, including:

  • fair housing
  • equal credit opportunity
  • truth-in-lending
  • wrongful discrimination
  • real estate settlement procedures
  • borrower privacy
  • escrow account administration
  • mortgage insurance cancellation
  • debt collection
  • credit reporting
  • electronic signatures or transactions
  • predatory lending
  • terrorist activity
  • the enforcement of any of the terms of the mortgage loan

Servicer's Audit and Control Systems

The servicer must maintain adequate internal audit and management control systems to ensure that mortgage loans are serviced in accordance with sound mortgage banking and accounting principles; to guard against dishonest, fraudulent, or negligent acts; and to guard against errors and omissions by officers, employees, or other authorized persons.

Requires the servicer to provide for at least the following:

  • a delinquent loan servicing system
  • a system to control and monitor bankruptcy proceedings
  • a foreclosure monitoring system

Consequences of Non-performance of the Servicer's Duties and Responsibilities and Non-compliance with Applicable Laws and Mortgage Documents

  • Agreement to Indemnify and Hold Harmless
  • Compensatory Fees
  • Specific Breaches of Contract
    • Specific breaches of the Contract as they relate to execution of affidavits, verifications, and other legal documents include:
      • Failure To Properly Foreclose Or Liquidate
      • Failure To Properly Manage, Dispose Of, Or Effect Proper Conveyance Of Title
  • Remedies for Breach of Contract

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Fannie Mae: Servicer Review of Procedures Relating to the Execution of Affidavits, Verifications, and Other Legal Documents -
Lender Letter LL-2010-11
October 1, 2010

LENDERS COMPLIANCE GROUP is the first full-service, mortgage risk management firm in the country, specializing exclusively in mortgage compliance and offering a full suite of hands-on and automated services in residential mortgage banking.

Monday, October 4, 2010

Can't blame the homeowners!

COMMENTARY: by JONATHAN FOXX

Jonathan Foxx, former Chief Compliance Officer of two publicly traded financial institutions, is the President and Managing Director of Lenders Compliance Group, the first full-service, mortgage risk management firm in the country.

In each of the first two meltdowns, many people believe that regulators failed to enforce existing regulations - even if some of those regulations were inadequate or dysfunctional. But this third meltdown has occurred for the most fundamental of all reasons: not complying with the execution of affidavits! This is basic legal process. What good are implementing statutes already on the books, if the entities subject to those laws do not comply with them?

The culprits? Lenders, and only the lenders, and nobody but the lenders.

By now most of you know that GMAC, JPMorgan Chase, and Bank of America have put tens of thousands of foreclosure processes on hold. When news first came out about this recently, many in the industry had no idea why this happened! Yet my conversations with several industry leaders indicate, sadly, that they were disappointed but not surprised. Disappointed - because this debacle further delays financial recovery and creates even more uncertainty; and, not surprised - because banks have made this kind of mess before, placing expediency over exacting regulatory compliance, and should have known better - given their own culpability in the financial and mortgage meltdowns.

As I write, the aforementioned 3 companies have suspended foreclosures in 23 states; Fannie Mae has issued a Lender Letter (LL-2010-11) that directs all of its servicers "to immediately undertake a review of their policies and procedures relating to the execution of affidavits, verifications, and other legal documents in connection with the default process;" the OCC has ordered its regulated banks to review foreclosure processes for flaws in their document management systems; and, Old Republic National Title Insurance, certainly one of the country's largest title companies, has advised that it would not insure title to GMAC and JPMorgan Chase foreclosures (thereby imperiling clear title). Rippling through the states, some AGs are now calling for a moratorium on all foreclosures in their states.

Plaintiffs' attorneys must be positively gleeful!

And a new term has crept into the vernacular: "robo-signing." Briefly put, this is a technique - if you want to call it that! - which a lender's servicer uses to approve foreclosure cases without personally reviewing the underlying foreclosure documents or without signing affidavits pursuant to required legal procedures. A lender seeking foreclosure must file a specified affidavit in many states' courts. And, of course, such affidavits attest to various facts about the subject foreclosures, such as a description of the lender's legal standing to foreclose. The affidavit is attested to by the bank's representative, who submits the affidavit in support of motions for summary judgment in states with judicial foreclosure processes. But "robo-signing" short cuts this procedure by having the individuals executing these affidavits on behalf of the servicer "sign" the documents en masse without inspecting the attested documents, without actually having the personal knowledge of information contained in the affidavits - and without determining that the affidavits were notarized in accordance with applicable requirements!

I suppose an argument can be made that this situation will eventually straighten out and most foreclosures will be completed in the fullness of time. This is a procedural matter that will require a legal solution. Most foreclosures are not going to be reversed, once this legal mess gets disentangled, although regulatory oversight may be considerably strengthened.

At this point, it seems that lenders did not willfully evade compliance. Taking short cuts - Maybe. We'll all find out soon enough the extent of legal culpability and any willful failure to comply with the law. But perception is a critical issue - especially when we are dealing with the heart wrenching condition of foreclosure.

One has the sense that yet another avoidable situation in our industry could really have been avoided.

At a time of lowered consumer confidence in the economy in general and the mortgage industry in particular, it is incumbent on all of us - the market participants - to police ourselves better and hold ourselves to the highest standards.

Let's not allow ourselves to be 'called out' again like this!

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So, What Do You Think?

I would welcome your comments and views.
Please feel free to email me at any time.


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LENDERS COMPLIANCE GROUP is the first full-service, mortgage risk management firm in the country, specializing exclusively in mortgage compliance and offering a full suite of hands-on and automated services in residential mortgage banking.

Monday, September 27, 2010

Fannie: Launches EarlyCheck™ - Prior to Closing

EarlyCheck™ is a new web-based program that provides lenders with access to Fannie Mae Loan Quality Initiative (LQI) delivery data checks at any point in the lender's business process. The goal is to help lenders identify potential problems prior to loan delivery.

The initial offering of EarlyCheck has these access options:

  • Support for loans prior to closing: weekend of September 25, 2010, two new EarlyCheck access options were implemented.
  • An integration solution that can be directly integrated with a lender's LOS
  • A Web-based user interface
  • Support for loans in post-closing through the pre-delivery stage: effective with the July 26, 2010 Loan Delivery Release Notes, lenders access EarlyCheck data checks via the Loan Delivery system.

EarlyCheck has its own web page at eFannie.com that contains all the information needed to get started, including Registration, Release Notification, Additional Services, Resources, Training and Education, and Support.

The Early Check facility responds in real-time, and Fannie claims it offers loan-level results in a user-friendly report or data file. Findings contain messages that highlight the issues that need to be resolved (i.e., failed checks), the corresponding delivery severities, and key result data (including key calculated values and the standardized property address for the subject property).

For DU loans, the findings also show a comparison of the input loan data with the data used in the most recent DU submission, as well as key DU Underwriting Findings information.

There is also a new management reporting capability that assists lenders in monitoring usage of the EarlyCheck access options for loans prior to closing and help identify recurring potential eligibility and/or data quality issues that may need to be addressed.

We have been keeping you up to date on Fannie's LQI developments, guidelines, and requirements.

For more information and documentation, please visit eFannie's LQI web page.

Highlights

Identify Potential Data Issues

  • Helps identify potential data issues early in the loan process, when they can be remedied more effectively through:
    • Fewer delivery stops and corresponding financial and operational impacts;
    • Less manual error resolution during the delivery process and post-purchase;
    • Reduced funding/pooling delays resulting from delivery issues.

Process Points Access

  • At any point in their processes prior to delivery:
    • Underwriting
    • Prior to loan closing
    • Prior to funding correspondent loans
    • During post-closing and secondary marketing process

Supports Various Underwriting Methodologies

  • Desktop Underwriter (DU)
  • Manually underwritten loans
  • Non-DU AUS loans.

Checks

  • DU Compare (comparison of input loan application data with the data used in the most recent DU submission)
  • SSN checks
  • Occupancy checks
  • Address checks
  • Unit number checks
  • DTI checks
  • Loan limit checks
  • Required delivery fields
  • Other basic eligibility and data integrity checks.

The initial release does not include:

  • Product eligibility checks (loan terms, mortgage insurance coverage, Etc.)
  • Customer contract and commitment pricing checks
  • Pooling rules

Access Options

  • Via the Loan Delivery system to support loans in the post-closing stage. Users can import a Fannie Mae 2000-character delivery file, run the checks, and view or download the results.
  • EarlyCheck access options to support loans prior to loan closing include:
    • An integration option that can be directly integrated with a lender's LOS via a DU-like integration solution (i.e., it takes a 1003 flat file or MISMO AUS 2.3.1 file as input and returns viewable results and/or a result data file).
    • A Web-based user interface that enables a user to import loan data in a 1003 flat file format (which can be exported from most loan origination systems) or the MISMO AUS 2.3.1 file format, run the checks, and view the results.

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EarlyCheck™ FAQs, July 29, 2910
EarlyCheck™ Release Notification, July 29, 2010
Loan Delivery Release Notes, July 26, 2010

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LENDERS COMPLIANCE GROUP is the first full-service, mortgage risk management firm in the country, specializing exclusively in mortgage compliance and offering a full suite of hands-on and automated services in residential mortgage banking.

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Thursday, September 23, 2010

Fannie: Introduces Second Lien Modifications

On August 13, 2009, the US Department of Treasury (Treasury) published Supplemental Directive 09-05, introducing the Second Lien Modification Program designed to work in tandem with the Home Affordable Modification Program (HAMP). The Supplemental Directive 09-05 was revised on March 26, 2010.

HAMP and the Second Lien Modification Program (which is named "2MP") are meant to create a "comprehensive solution to help borrowers achieve greater affordability by lowering payments on both first-lien and second-lien mortgage loans."

On September 21, 2010, Fannie issued Announcement SVC-2010-14, which introduces its Second Lien Modification Program and provides guidelines to Fannie servicers.

All Fannie Mae-approved servicers must participate in the program for all eligible Fannie Mae second-lien mortgage loans and must implement the 2MP program no later than January 1, 2011.

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Highlights

Modification Eligibility

  • Borrowers in Bankruptcy
  • Coordination with Other Making Home Affordable Programs

Modification Process

  • Matching Second Liens to HAMP First Liens
  • Reliance on First-Lien Data
  • Standard Modification Steps
  • Compliance with Applicable Laws
  • Borrower Communication
  • Trial Period Requirements
  • Borrower Response
  • Effective Date of 2MP Modification
  • Reclassification or Removal of MBS Mortgage Loans Prior to Effective Date of Modification
  • Borrower Notice
  • 2MP Modification Documents
  • Assignment to MERS

Use of Suspense Accounts and Application of Payments

  • Monthly Statements

Reporting Requirements

  • Reporting to Fannie Mae Through HSSN
  • Reporting to Treasury
  • Reporting to Credit Bureaus

Mortgage Insurers

  • Mortgage Insurer Approval
  • Reporting to Mortgage Insurers

Fees and Costs

  • Servicing Fees
  • Late Fees
  • Administrative Costs

Incentive Compensation

  • Servicer Incentive Compensation
  • Borrower Incentive Compensation
  • Re-default and Loss of Good Standing

Compliance

Record Retention

Transfers of Servicing

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Fannie: Home Affordable Modification Program:
Introduction of Second Lien Modification Program
SVC-2010-14
September 21, 2010

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LENDERS COMPLIANCE GROUP is the first full-service, mortgage risk management firm in the country, specializing exclusively in mortgage compliance and offering a full suite of hands-on and automated services in residential mortgage banking.

Wednesday, September 22, 2010

FHA: Issues FHA Connection Update for Sponsored TPOs

In my article, entitled FHA Issues Guidance for Lender Approvals (July 2010, National Mortgage Professional Magazine), I discussed the many changes that would be required pursuant to Mortgagee Letter 2010-20.

This ML, issued on June 11, 2010, outlines some of the most important revisions that HUD-FHA has made to its single family loan origination program and contained the long-awaited guidance regarding the implementation of its Final Rule. That Final Rule adopted changes pertaining to the approval of mortgage lenders by the Federal Housing Administration (FHA) that are designed to strengthen FHA by improving its management of risk.

If your organization has not drafted and begun implementing policies and procedures to comply with Mortgage Letter 2010-20, I highly urge you to do so immediately.

After December 31, 2010, loan correspondents (i.e., Third-Party Originators, so-called "TPO"s) will only be permitted to continue participation in FHA programs by establishing a sponsorship relationship with an FHA-approved mortgagee. Indeed, loan correspondents will no longer have access to non-public FHA systems, beginning January 1, 2011 (i.e., FHA Connection). Only FHA-approved mortgagees will be permitted to order FHA case numbers from the FHA Connection. HUD will provide future guidance, with respect to the processing of case numbers ordered prior to the January 1, 2011.

Mortgagee Letter 2010-33 has been expected. It describes the system enhancements to FHA Connection, providing notice to mortgagees who are sponsors ("Sponsoring Mortgagees') of sponsored third party originators ("Sponsored Originators") of new FHA Connection data submission requirements as was announced in Mortgagee Letter 2010-20.

For transactions originated by an FHA-approved loan correspondent, mortgagees should follow the current process through December 31, 2010.

FHA Connection enhancements will be implemented on October 4, 2010, and sponsoring mortgagees must begin complying with the new data entry requirements on that date.

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Highlights

EFFECTIVE DATES

On or After October 4, 2010

  • All required sponsored origination data fields must be completed on assigned case numbers assigned.
  • Sponsoring mortgagees will no longer enter their 10 digit FHA ID in the FHA Connection as the loan originator for loans involving a sponsored originator, as previously advised in Mortgagee Letter 2010-20, as a temporary workaround pending this system enhancement release.
  • For mortgagees using B2G (FHA Connection Business to Government) that are unable to modify their systems to accommodate the transmission of the Employer Identification Number (EIN) by October 4, 2010, the FHA Connection Case Number Assignment screen must be used to order a case number for sponsored originator transactions.
  • The modified HUD/VA Addendum to the Uniform Residential Loan Application (92900-A) is required for all applications.

Until January 1, 2011

  • For loan originations not involving a sponsored originator, FHA mortgagees may use the prior version of the 92900-A (dated 5/2008) until January 1, 2011.

As of January 1, 2011

  • The FHA-approved loan correspondent program will no longer be available, and B2G mortgagees must comply with new systems requirements to support collection of sponsored originator data. Only FHA-approved entities will have direct access to FHA Connection.

SYSTEM AND SCREEN CHANGES

  • New Sponsored Originator Maintenance Screen Modified Case Number Assignment Screen
  • Modified Case Transfer Screen
  • Modified Insurance Application and HECM Insurance Application Screens
  • Modified Case Query Screen
  • Viewing Sponsored Originator Performance in Neighborhood Watch
  • FHA TOTAL Scorecard Changes

FORM CHANGE AND NEW SIGNATURE COMPLIANCE

HUD/VA Addendum to Uniform Residential Loan Application (92900-A)

  • Modified on page 3 to capture necessary information for sponsored originators, as follows:
    • Loan Origination Company - Entity's Legal Name of the originating mortgagee
    • Loan Origination Company Tax ID -- Employer Identification Number issued by the Internal Revenue Service (IRS)
    • NMLS ID of the Loan Origination Company - The unique identifier of the company, if licensed with NMLS
  • For those loans originated by a sponsored originator, the sponsoring mortgagee must enter its name and address in block 15 on pages 1 and 3. Directly below block 15 on page 3 are the new fields the mortgagee must enter for capturing the sponsored origination information described above.
  • The revised form 92900-A (dated 9/2010) must be used for all loan applications taken by a sponsored originator on or after October 4, 2010.
  • For loan originations not involving a sponsored originator, FHA mortgagees may use the prior version of the 92900-A (dated 5/2008) until January 1, 2011.

Uniform Residential Loan Application

  • On the Universal Residential Loan Application (URLA), the actual interviewer's name, signature and telephone number must appear on page 4, regardless of who employs the interviewer (e.g., a sponsored originator).
  • While common practice in the industry is for the interviewer to also sign page 1 of the 92900-A, if a sponsored originator is involved, it is now required that the sponsoring mortgagee must sign and date page 1 of the URLA.

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FHA Connection Enhancements to Support
Sponsored Third Party Originations (Sponsored Originations)

Mortgagee Letter 2010-33, September 21, 2010

LENDERS COMPLIANCE GROUP is the first full-service, mortgage risk management firm in the country, specializing exclusively in mortgage compliance and offering a full suite of hands-on and automated services in residential mortgage banking.