Its 7 am on a Sunday morning..... you are lying cozily in your bed when the cell phone next to your pillow starts its annoying ringing and vibration..... Your bleary eyes pick it up to look and its the dreaded unknown 800-NUMBER. You groan with disgust, turn off the phone roll over hoping they won't call back. But they do. Again, and again..... and again.....
Stay tuned readers as I take you through the myriad of tactics used by Debt Collectors to revive debts which are older than four years old for which they no longer have a right to sue you to recover..... the illegal phone calls threatening arrests, the lies..... the fake lawsuits.....
Stay tuned to find out legally what they can do and what rights you have to stop harassment so you can answer your phone again!
Have a great weekend friends......
Renay
Thursday, December 15, 2011
Thursday, November 17, 2011
WHERE IS THE ASSIGNMENT!!!!!! (the California Equivalent of WHERE'S THE NOTE?!?!?)
Hey gang.... Civil code section 2932.5 Check your Trustee's Deed upon Sale. Who was foreclosing beneficiary? Is there an assignment recorded to that Beneficiary? If not your foreclosure sale might have been VOID!!!!
Thursday, November 3, 2011
SHORT SALE FRAUD - BE C.A.R.-EFUL! in parts published by the California Association of Realtors Legal Department
Dear Readers:
Right now the economy is so bad that many of you couldn't or even wouldn't want to in a bankruptcy. So dump the house you live in you are contemplating doing a short-sale transaction. There is a right way to do it and a wrong way to do it. If you do it the wrong way, when it comes time to do your bankruptcy (if needed) you could be facing a lawsuit for fraud by your lender. It won't matter that your potentially unscrupulous broker PROMISED you that it was perfectly legal to do what you are doing. If you get busted by your lender, chances are you won't be able to find that broker any more easily than you could find the mortgage broker who may have given you your bad loan. So please read this information so you can educate yourself and help yourself understand when a broker is scamming you.
For my broker friends, I post this because it is educational to help you understand where the line is between a good short-sale transaction and a bad one. Nothing is worth putting your license at risk.
Thanks for reading!
Q 20. What is a scam involving a short sale package?
Right now the economy is so bad that many of you couldn't or even wouldn't want to in a bankruptcy. So dump the house you live in you are contemplating doing a short-sale transaction. There is a right way to do it and a wrong way to do it. If you do it the wrong way, when it comes time to do your bankruptcy (if needed) you could be facing a lawsuit for fraud by your lender. It won't matter that your potentially unscrupulous broker PROMISED you that it was perfectly legal to do what you are doing. If you get busted by your lender, chances are you won't be able to find that broker any more easily than you could find the mortgage broker who may have given you your bad loan. So please read this information so you can educate yourself and help yourself understand when a broker is scamming you.
For my broker friends, I post this because it is educational to help you understand where the line is between a good short-sale transaction and a bad one. Nothing is worth putting your license at risk.
Thanks for reading!
Q1. What is short sale fraud?
A Short sale fraud is a loose term for describing fraud, deceit, or trickery in connection with a short sale transaction. As background, a short sale is a sales transaction where: (1) the sales price is less than the seller’s existing mortgage loan balance, other liens, and costs; and (2) the existing creditors agree to a payoff of less than what’s owed. Short sales help homeowners to avoid the stress and stigma of foreclosure. Short sales also help mortgage lenders by avoiding the costs of foreclosure, including the burden of maintaining and reselling properties acquired through the foreclosure process.
Q 2. What are some examples of short sale scams?
A Like other types of scams, short sale fraud can take many forms. At one end of the spectrum, a short sale scam can be part of large, well-organized fraud ring, and at the other end, it can be one isolated incident.
Examples of short sale fraud include, but are not limited to, the following:
• Fraudulent short sale flips (see Questions 9 to 13);
• Short sale negotiator scams (see Questions 14 to 19);
• Short sale package scams (see Questions 20 and 21); and
• Improper payments (see Questions 22 to 25).
Q 3. How could a homeowner fall victim to a short sale scam?
A Short sale transactions are highly susceptible to scams. A typical short sale is complicated, difficult, and can drag on for many months. Yet, short sale sellers are often too financially strained to hire experts to advise them on the complicated financial, legal, tax, credit, and other issues raised by their situations. Sellers are also likely to be anxious to finalize their short sales quickly to avoid the possibility of losing their homes through foreclosure. On top of the stress and stigma of a looming foreclosure, short sale sellers may be dealing with other financial and emotional hardships, such as job loss, death of a loved one, divorce, or illness. Given these circumstances, the sellers can easily succumb to a scam artist’s lure of a guaranteed quick fix. As one victim of a foreclosure rescue scam said, “When you’re down and out you’ll believe anything.”
Q 5. Is there an easy way to detect a short sale scam?
A No. Short sale scams may not be easy to detect, but see Questions 6 and 7 for helpful guidelines. Outwardly, scam artists do not act or appear dastardly. On the contrary, the typical scam artists look nice and clean-cut, and they seem kind, helpful, patient, and trustworthy. Their purported companies are likely to appear well-established, reputable, and qualified to do the tasks at hand. The companies may even have names that sound altruistic, such as Community Short Sale Services or Short Sale Advocates. Some outfits may appear to be related to the government, such as administered by or an agency of the government. For instance, a scammer may pretend to offer a short sale under the U.S. Treasury’s Home Affordable Foreclosure Alternatives (HAFA) program, knowing that most people are unfamiliar with the details of this new government-subsidized program.
Scammers come from all walks of life, including, but not limited to, appraisers, accountants, attorneys, bank officers, landlords, tenants, friends, and colleagues. Scam artists may engage in "affinity marketing" tactics to attempt to lure people into their fraudulent schemes. Affinity marketing tactics involve scam artists who are, or pretend to be, members of the same racial, religious, social, or other group as their victims. For example, a scam artist may claim to be in the military, and use military terms and mannerisms, in an attempt to befriend someone in the military. Or a scammer may join a church to gain the trust of other members of that church before attempting to defraud them.
Q 6. What are the red flags for detecting a short sale scam?
A REALTORS® and their clients contemplating or engaging in short sale transactions should be aware of the different types of scams (see Questions 9 to 25). In addition, they should be wary when dealing with someone who does any of the following:
• Makes an offer that sounds too good to be true;
• Gives an unqualified promise, such as to obtain short sale approval, stop foreclosure, or other assurances;
• Is unconcerned about the sales price, possession of the property, and other significant terms of sale;
• Is unconcerned about the short sale seller’s financial situation;
• Is involved in a sales transaction where the seller is not the current owner of the property;
• Is involved in a sales transaction where a notice of default has been filed against the property;
• Is involved in a sales transaction under the Home Equity Sales Contract law (see C.A.R.’s legal article athttp://www.car.org/legal/2008articles/home-equity-sales-contracts/);
• Is involved in a sales transaction where the property owner has purportedly given someone an option to purchase;
• Represents that the buyer is an entity (such as a trust or LLC), rather than an individual person;
• Creates more than one sales contract for the same property;
• Asks for the payment of money upfront before providing any service;
• Asks for payment only in the form of cash, cashier’s check, or wire transfer;
• Asks for something to be done immediately without delay;
• Asks for a power of attorney;
• Asks for a transfer of title or an interest in the property outside of escrow;
• Asks for signatures on a grant deed or deed of trust;
• Asks for signatures without giving a lot of time to review the documents;
• Asks for signatures on a document that has lines left blank;
• Fails to provide copies of documents signed;
• Refuses or fails to provide written confirmation of an oral promise;
• Instructs the seller, listing agent, escrow officer, or someone else not to contact the short sale lender;
• Instructs a client not to discuss his or her situation with a housing counselor, banker, accountant, attorney, family, friends, or others;
• Has an answer for everything; and
• Engages in “shop talk” that sounds glib, but doesn’t in fact make sense.
Q 7. What should sellers, buyers, agents, and others do to protect themselves against short sale scams?
A The basic rule is "if it sounds too good to be true, it probably is." In addition to watching out for the red flags in Question 6, affirmative measure to take to protect against scams include, but are not limited to, the following:
• Before doing business with someone, check the legitimacy and qualifications of both the individual person and business entity. Check whether the individual person and business entity are properly licensed (see Questions 26 to 38). Ask for references and check out those references. Also check someone's background, credentials, and reputation. Search the Internet and check public records and trade group memberships. Remember, however, that even if someone has the proper credentials or comes highly recommended, the risk of a scam is less, but is not eliminated entirely.
• Do not panic. Do not make any rash decisions. It’s precisely when your chips are down that you must keep a clear head.
• Before entering into an agreement or arrangement, understand every aspect of what it entails. Read documents carefully and thoroughly before signing. If you do not understand a document or the consequences of a document, seek the advice of an attorney, accountant, or other professional as appropriate. If you do not speak the same language as the person you’re negotiating with, don’t use that person’s interpreter or translator -- bring your own instead.
• Do not sign your name to any false statements or documents with spaces left blank, especially if you’re told that signing will be harmless or inconsequential.
• Get as much information as you possibly can before making a decision. Ask questions. Conduct as much research and investigation as you can upfront. Look into different options and their financial, legal, tax, and other ramifications. Ask for advice and help from trusted family, friends, and professionals if appropriate.
• Always try to stay a step ahead of scam artists. As society comes to know one type of scam, con artists will attempt to catch their victims off guard by devising new schemes. For example, with greater public awareness not to pay upfront for a short sale negotiator’s fee, scam artists may shift to structuring a short sale to include a buyer’s credit to pay the fee.
Q 11. What are the legal problems with a fraudulent short sale flip?
A Depending on the specific circumstances, the legal claims that may be raised a fraudulent short sale flip include, but are not limited to, the following:
• Mortgage Fraud: Sellers, buyers, agents, and others who misrepresent or actively conceal a short sale flip may be liable for, among other things, mortgage fraud, common law fraud, misrepresentation, and unlawful business practices. Under federal law, mortgage fraud includes anyone who knowingly makes a false statement for the purpose of influencing a federally-insured mortgage lender or other financial institution as specified (18 U.S.C. § 1014). A violation of federal mortgage fraud law is punishable by 30 years imprisonment, plus a $1 million fine (18 U.S.C. § 1014). For example, concealing the BC transaction from Seller A’s short sale lender or concealing the AB transaction from Buyer C’s mortgage lender may constitute mortgage fraud, among other things.
• Breach of contract: Sellers, buyers, and agents who make false statements in lenders’ short sale agreements may be liable for breach of contract. For example, in a lender’s short sale agreement, Seller A may falsely certify that the sales transaction is for fair market value, no other offers have been received, and the seller has no hidden understandings or secret proceeds. Those types of false assertions could be grounds for a breach of contract claim against the seller in a civil lawsuit seeking monetary damages or rescission.
• Breach of fiduciary duty: Agents involved in fraudulent short sale flips who fail to exercise due care may be liable to their clients for monetary damages suffered. If, for example, a listing agent both convinces Seller A to sell to Buyer B for $300,000, and facilitates Buyer B’s simultaneous resale to Buyer C for $350,000, the listing agent may have serious difficulty explaining why the seller only deserved the $300,000 Buyer B, not the $350,000 Buyer C procured during the listing agent’s listing period (see also Question 12).
• Licensing Violation: Agents involved in a fraudulent scheme could also face license revocation or other disciplinary action taken by the DRE (Cal. Bus. & Prof. Code §§ 10176 and 10177).
• Other Criminal Violations: In addition to mortgage fraud, illicit short sale flips may expose sellers, buyers, and their agents to other criminal claims, such as perjury (Cal. Penal Code § 118), conspiracy, and aiding and abetting a criminal scheme.
Q 13. How do I do a legitimate short sale flip?
A Legitimate short sale flips may be structured in many different ways. Some factors to consider to help ensure that an AB-BC short sale flip passes legal muster through the judicial process include, but are not limited to, the following:
• How close the sales price for the AB transaction is to fair market value.
• How well the property is listed and marketed to find prospective buyers.
• Whether Seller A and Buyer C are well represented by their own real estate agents, attorneys, accountants, and other professionals as appropriate.
• Whether the parties negotiated an arms-length transaction.
• Whether the different aspects of the transaction, including the profit to be made, are fully disclosed in a meaningful manner to, and approved by, the parties and lenders involved.
• How much time lapses between the close of escrow of the AB transaction and the close of escrow of the BC transaction.
• The extent of repairs, renovations, and improvements that Buyer B makes to the property.
• How much money Buyer B invests to purchase, maintain, repair, renovate, improve, and resell the property.
• Whether the profit Buyer B makes is reasonable under the circumstances, including existing housing market conditions.
• Whether the parties comply with licensing, agency, RESPA, and other laws.
• Whether compliance with these factors is in writing and well-documented.
The above list is an illustrative, not exhaustive list of factors to consider for a legitimate short sale flip. Compliance with all these factors does not guarantee that a short sale flip is legitimate. Similarly, not complying with one or more factor does not necessarily mean, depending on the specific circumstances, that a short sale flip is illegal, as ultimately decided by a judge, jury, arbitrator, or DRE Commissioner.
B. SHORT SALE NEGOTIATOR SCAMS
Q 14. What is a short sale negotiator?
A A short sale negotiator is generally someone who negotiates and facilitates a short payoff with a seller’s mortgage lender. Because short sales often involve very thick short sale packages and frequent attempts to contact the short sale lender, a legitimate short sale negotiator can facilitate and expedite the short sale process. A short sale negotiator can be the listing agent, someone else in the listing office, or someone in another office.
With full disclosure, among other things, hiring and paying for a short sale negotiator is not an illegal activity. However, certain scam artists impersonate or use short sale negotiators in furtherance of their improper and illegal schemes.
Q 15. What are some examples of short sale negotiator scams?
A As with any profession, some short sale negotiators are reputable, legitimate, and qualified to negotiate and facilitate short sales, whereas others are not. Scammers may lure homeowners and their agents into their schemes by promising to expedite the short sale process and obtain approval from the short sale lender. What scammers in fact do include putting together and submitting bogus short sale packages to the short sale lenders (see Questions 20 and 21), performing little or no service (see Questions 24 and 25), or engaging in other wrongdoing.
Some scams revolve around the payment of the short sale negotiator’s fee. A seller’s short sale lender may disapprove payment to a third-party short sale negotiator, so the scammer makes a secret agreement for the seller, buyer, agent, or someone else to pay that fee, usually outside of escrow. As one variation of the scheme, the purchase agreement may indicate that the seller will give the buyer a credit, but a secret agreement is made for the buyer to use that credit to surreptitiously pay the short sale negotiator fee.
For legal claims that may be raised in a fraudulent scheme involving a short sale negotiator, see Question 16.
Q 16. What are the legal problems with unscrupulous short sale negotiator?
A Depending on the specific circumstances, the legal claims that can be asserted against a short sale negotiator scam include, but are not limited to, the following:
• Licensing Violation: Short sale negotiator, short sale facilitators, and other individuals negotiating the short sale with the seller’s lender should generally be licensed by the DRE (see Questions 26 to 33). Furthermore, agents involved in a scam could face license revocation or other disciplinary action taken by the DRE (Cal. Bus. & Prof. Code §§ 10176 and 10177).
• Mortgage Fraud: Sellers, buyers, agents, and others who misrepresent or actively conceal a short sale negotiator fee from a seller’s short sale lender may be liable for, among other things, mortgage fraud, common law fraud, misrepresentation, and unlawful business practices. Under federal law, mortgage fraud broadly includes anyone who knowingly makes a false statement for the purpose of influencing a federally-insured mortgage lender or other financial institution as specified (18 U.S.C. § 1014). A violation of federal mortgage fraud law is punishable by 30 years imprisonment, plus a $1 million fine (18 U.S.C. § 1014). As an example, deliberately waiting until the last minute to insert the short sale negotiator fee into the final HUD-1 Statement may not suffice as a meaningful disclosure to the short sale lender.
• Breach of contract: Sellers, buyers, and agents who make false statements about short sale negotiators in the lenders’ short sale agreement may be liable for breach of contract. For example, if a seller certifies in a lender’s short sale agreement that there are no hidden terms, a secret agreement to pay a short sale negotiator may constitute a breach of contract.
• Breach of fiduciary duty: A short sale negotiator who creates an agency relationship with a seller or buyer and fails to exercise due care may breach his or her fiduciary duty to do what is in the client’s best interest. Additionally, the listing agent or buyer’s agent in a transaction who fail to exercise due care with respect to a third-party short sale negotiator may also be liable to their clients. For example, a listing brokerage attempting to collect short sale negotiation fees to pad its own pocket with no regard for the seller’s best interest may be in breach of its fiduciary duty to the seller. Also, absent the seller’s consent, a listing agent’s refusal to present a buyer’s offer to the seller unless the buyer agrees to pay the short sale negotiator fee may also constitute a breach of the fiduciary duty the listing agent owes to the seller.
• RESPA Violation (HUD-1 Statement): Omitting from a HUD-1 Statement any short sale negotiator charges paid at settlement by either a buyer or seller may violate the Real Estate Settlement Procedures Act (RESPA) (Appendix A to 24 C.F.R. Part 3500). RESPA generally pertains to transactions of one-to-four residential units with a federally-related mortgage loan (12 U.S.C. § 2602(1)).
• RESPA Violation (Unearned Fee): Charging or accepting a short sale negotiator fee without performing any actual service may violate RESPA (12 U.S.C. § 2607(b); see also Martinez v. Wells Fargo Home Mortgage, Inc., 598 F.3d 549, 554 (9th Cir. 2010) (holding that RESPA’s prohibition against unearned fees does not extend to overcharges)). RESPA generally pertains to transactions of one-to-four residential units with a federally-related mortgage loan (12 U.S.C. § 2602(1)).
• Other Criminal Violations: Depending on the circumstances, improper short sale negotiator activities may expose sellers, buyers, and their agents to other criminal claims, such as perjury (Cal. Penal Code § 118), conspiracy, and aiding and abetting in a criminal scheme. Additionally, anyone who pays an unlicensed person for performing licensed activities is guilty of a misdemeanor punishable by a $100 fine (Cal. Bus. & Prof. Code § 10138).
Q 17. How do I check whether a short sale negotiator is legitimate?
A Factors to consider to help ensure that a short sale negotiator is legitimate include, but are not limited to, the following:
• Whether the negotiator and the negotiator’s employing broker if any are both properly licensed with the DRE or registered and bonded as a foreclosure consultant (see Questions 26 to 38).
• Whether the negotiator is qualified to perform short sale negotiation services.
• Whether the negotiator actually performs services to facilitate and expedite the short sale process.
• Whether the negotiator’s fee is fully disclosed in a meaningful manner to, and approved by, the parties and lenders involved.
• Whether the negotiator’s fee is reasonable, based upon, among other things, the negotiator’s qualifications to conduct short sale negotiations and the fee charged by other negotiators.
• Whether the individual paying for the negotiator’s services voluntarily agrees to pay for those services, and is given an opportunity to consult with a real estate agent, attorney, accountant, or other professional as deemed appropriate.
• Whether the negotiator does not get paid until after the negotiator fully completes each and every service the negotiator promises to perform.
• Whether the negotiator complies with agency laws, RESPA, laws against fraud, and other laws and MLS rules.
The above list is an illustrative, not exhaustive list of factors to consider for a legitimate short sale negotiator. Compliance with all these factors does not guarantee that a short sale negotiator is legitimate or qualified. Similarly, not complying with one or more factor does not necessarily mean, depending on the specific circumstances, that a short sale negotiator is a scam artist, as ultimately decided by a judge, jury, arbitrator, or DRE Commissioner.
Q 20. What is a scam involving a short sale package?
A A short sale package scam generally involves intentional misrepresentations made in a short sale package for the purpose of obtaining a short sale lender’s approval. These misrepresentations may be made in the original short sale package submitted to the lender or in subsequent dealings with the lender. Knowing a short sale lender’s general requirements, a scam artist will manipulate the truth to improve the chances that a short sale package will be approved by the lender and the deal will close escrow.
Some of the improper tactics that may be used include, but are not limited to, misstating the truth, making up stories, concealing pertinent facts, submitting false documents, and forging signatures. More specifically, examples of improper tactics involving short sale packages include, without limitation, the following:
• Fabricating a seller hardship and creating bogus supporting documentation, when in fact the seller does not have a hardship that satisfies the short sale lender’s requirements.
• Making a sales transaction appear to be an arms-length transaction, such as using a straw buyer (e.g., a relative with a different last name), when in fact the seller is selling the property to a related person in contradiction of the short sale lender’s requirements.
• Making a property appear to be owner-occupied to improve the chances of a short sale approval, when in fact the property is being rented out to, and occupied by, a tenant.
• Making it appear as if a property has been actively listed for sale in an open market for many months and sold for fair market value, when in fact the sale is a prearranged sale to a straw buyer for a price below fair market value to effectuate the AB sale in an AB-BC short sale flip.
• Making it appear as if the property has been sold in good faith to a buyer for fair market value, when in fact the scammer used improper means to ascertain the lowest price the short sale lender would approve and simply wrote that price into the sales contract.
• Making it appear to the short sale lender that the sales documents are the sum total of the agreement between the seller, buyer, and others, when in fact other arrangements have been secretly made for money to exchange hands (see also Questions 22 and 23).
For a discussion of the legal claims that may be asserted against fraud in short sale packages, see Question 21.
Q 21. What are the legal problems with fraudulent short sale packages?
A Illegal or improper tactics used in a short sale package may give rise to a host of legal claims. Most notably, submitting false information in a short sale package to a short sale lender may constitute mortgage fraud. As discussed above, mortgage fraud is broadly defined to include anyone who knowingly makes a false statement for the purpose of influencing a federally-insured mortgage lender or other financial institution as specified (18 U.S.C. § 1014). A violation of federal mortgage fraud law is punishable by 30 years imprisonment, plus a $1 million fine (18 U.S.C. § 1014).
Depending on the specific circumstances, other legal claims that may be asserted against submitting false information in short sale packages includes, without limitation, breach of contract, common law fraud, RESPA, and perjury. Depending on the extent of a real estate agent’s participation in a scheme, these civil and criminal claims may be raised against the agent, who may also be subject to license revocation or other disciplinary action taken by the DRE.
D. IMPROPER PAYMENTS
Short sale scams often involve the improper payment of money, such as undisclosed payments (see Question 22 and 23) and upfront fees (see Questions 24 and 25).
Q 22. What is a scam involving undisclosed payments in a short sale transaction?
A An undisclosed payment in a short sale transaction involves the payment of money or other things of value without the knowledge of an interested party, such as the seller’s short sale lender or buyer’s lender. The undisclosed payment is typically paid outside of escrow in an attempt to escape the purview of interested parties.
One common scenario is when a short sale seller's senior lender authorizes a payment of, for example, $3,000 to extinguish a junior lien, but the junior lender demands that the buyer or someone else pays an additional $9,000 outside of escrow. Concealing this additional payment from the senior lender may constitute mortgage fraud as discussed above (18 U.S.C. § 1014). Furthermore, omitting from the HUD-1 Statement any charges paid at settlement by either a buyer or seller may violate RESPA (Appendix A to 24 C.F.R. Part 3500).
Another common scenario is when a scam artist uses monetary incentives to lure a seller into participating in a fraudulent scheme. A scam artist may arrange for money to be paid to the seller by the scam artist, buyer, buyer’s agent, listing agent, or someone else. Sometimes the arrangement is simply for the payment of money, whereas other times the payment is presumably for the purchase of the seller’s furniture, for the seller’s moving expenses, or for other reasons. Oftentimes, the payment is made outside of escrow to escape the purview of the short sale lender. Again, this type of undisclosed payment may constitute, among other things, mortgage fraud and a violation of RESPA.
Undisclosed payments may also violate other laws and regulations, and depending on a real estate agent's participation in the scheme, these civil and criminal claims may be raised against the agent, who may also be subject to a breach of fiduciary duty claim, as well as license revocation or other disciplinary action taken by the DRE.
Payments made outside of escrow have other risks and consequences as well. For example, absent the safeguards provided by escrow as a neutral third-party, someone who receives cash outside of escrow could abscond with the money without performing on the sales contract.
Payments made outside of escrow have other risks and consequences as well. For example, absent the safeguards provided by escrow as a neutral third-party, someone who receives cash outside of escrow could abscond with the money without performing on the sales contract.
Q 23. Why is it problematic for the buyer of a short sale property to pay cash for the seller’s furniture outside of escrow?
A In a short sale scam situation, funds are paid to the seller outside of escrow to conceal that arrangement from the short sale lender. Oftentimes, a scam artist will urge others into a fraudulent scheme by claiming that a payment for the seller’s furniture or similar arrangement need not be disclose to the short sale lender because it is unrelated to the real estate transaction, when in fact it is related. Additionally, such payment directly contradicts a short sale lender’s requirement, if any, for the seller to certify the absence of any hidden arrangements or receipt of funds. If the short sale lender knew that the buyer had, for example, $5,000 for the seller’s furniture, the lender would likely want that money for itself to lessen its own loss.
Q 24. What is a short sale scam involving an upfront fee?
A In this type of scam, the scam artist offers to negotiate with the short sale lender or perform other short sale services in exchange for an upfront fee. Also known as phantom help, the scammer will in reality perform little or no service at all and eventually absconds with the money. Whatever services the scam artist does provide, the scam victim typically could have done on his or her own. The victim ends up not only losing the money, but often loses valuable time to make other short sale arrangements before foreclosure.
To dupe unsuspecting victims out of their money, a phantom help scam artist usually knows exactly what to offer, how to pitch the offer, and what twists to add to lend credibility to the scheme. For example, a scammer posing as a short sale negotiator may guarantee a short sale lender’s approval in two weeks, which may be precisely what a homeowner facing foreclosure wants to hear. To bolster the claim, the scammer may explain that, as a close relative of the loan officer or loss mitigator, the negotiator has special access to an inside track at the bank.
Q 25. What are the legal problems with an upfront fee in a short sale situation?
A The law generally prohibits anyone who negotiates, attempts to negotiate, arranges, attempts to arrange, or offers to perform a loan modification or other form of mortgage loan forbearance, from claiming or demanding any upfront compensation (Cal. Civil Code § 2944.7(a)). This rule, which is likely to encompass short sale negotiations, pertains to loans secured by one-to-four residential units (Cal. Civil Code § 2944.7(d)). This rule will remain in effect until January 1, 2013 (Cal. Civil Code § 2944.7(e)).
The statutory prohibition against upfront fees applies to both real estate licensees and attorneys, among others. Advance fees for real estate licensees are further regulated under Cal. Bus. & Prof. Code § 10026.
In the subprime aftermath, legislative authorities have beefed up regulations protecting consumers against unscrupulous practices. Checking someone’s legitimacy and qualifications to conduct short sale activities should include looking up real estate licenses, and foreclosure consultant registrations if applicable.
Q 32. How do unlicensed scam artists get around the licensing requirements?
A A common tactic used by unlicensed scam artists is to make bogus excuses as to why they do not need a real estate license. Some of the false claims that may be made to justify the lack of a real estate license when conducting short sale negotiation are as follows:
• “I don’t need to be licensed to help the seller negotiate debt forgiveness.”
• “We have an in-house attorney who will negotiate the short sale” (see Question 35).
• “We’re merely processing the paperwork.”
• “I’m negotiating the short sale on my own behalf as the buyer of the property.”
• “Everyone else is doing it.”
Another common tactic is for unlicensed individuals to work for a licensed company. For example, let’s say an unscrupulous and unlicensed individual, John Doe, purports to work for Short Sale Advocates, Inc. doing short sale negotiations. If the client asks for licensing information, John Doe would just show the client that Short Sale Advocates, Inc. is properly licensed, and not reveal to the client that John Doe himself is not but should also be licensed to conduct short sale negotiations through Short Sale Advocates, Inc. John Doe may also not reveal to the client that Short Sale Advocates, Inc. is just a shell company that could be here today and gone tomorrow.
Q 33. What are the penalties for real estate license violations?
A Any person acting as a real estate broker or salesperson without a license is guilty of a crime punishable by six months imprisonment in the county jail, plus a fine up to $20,000 (Cal. Bus. & Prof. Code § 10139). Anyone who pays an unlicensed person for performing real estate licensed activities is guilty of a misdemeanor punishable by a fine up to $100 for each offense (Cal. Bus. & Prof. Code § 10138). Additionally, if a real estate licensee engages in misrepresentations, fraud, dishonest dealings, or improperly pays an unlicensed person, the licensee may be subjected to license revocation or other disciplinary action taken by the DRE (Cal. Bus. & Prof. Code §§ 10138, 10176 and 10177).
B. ATTORNEYS
Q 34. Is an attorney engaged in short sale activities exempt from the real estate licensing requirements?
A It depends. An attorney rendering legal services to a client is exempt from licensing requirements if the attorney is not using or attempting to use the exemption for the purpose of evading the licensing laws (Cal. Bus. & Prof. Code § 10133(a)(3)). Furthermore, when negotiating loans, the attorney exception only applies if all of the following conditions are met:
• The attorney is licensed to practice law in California;
• The attorney renders services in the course of his or her practice as an attorney;
• The attorney is not actively and principally engaged in the business of negotiating loans secured by real property;
• The attorney’s disbursements are not charges or costs and expenses regulated by or subject to the limitations for Article 7 loans (commencing with Cal. Bus. & Prof. Code § 10240); and
• The attorney’s fees and disbursements are not shared, directly or indirectly, with the person negotiating the loan or the lender.
(Cal. Bus. & Prof. Code § 10133.1(a)(5).) As an example, a law firm called Short Sale Legal Services could be a group of attorneys properly licensed by the State Bar of California, but if the firm principally engages in short sale negotiations, a DRE license may also be required.
Q 35. Can someone circumvent the licensing requirements by affiliating or associating with an attorney?
A No, in most cases. REALTORS® and their clients should be wary of people who claim that their affiliation or association with an attorney enables them to practice real estate without a license.
One common scenario is someone working for a short sale business enterprise who claims that neither the individual nor the company need to be real estate licensees because they have an in-house attorney or an affiliation with an attorney or law firm for negotiating short sales with the sellers’ lenders. In truth, however, an individual person or short sale business is not exempt from the real estate licensing requirements merely because that person or business is affiliated or associated with an attorney or law firm. Furthermore, attorneys and law firms are not exempt from the real estate licensing requirements unless certain parameters are met (see Question 34). Another common problem with these types of arrangements is, among other things, attorneys and law firms are generally prohibited from “fee splitting” or sharing legal fees with non-attorneys (Cal. Rules of Prof. Conduct Rule 1 320(A)).
C. FORECLOSURE CONSULTANTS
Q 37. What is a foreclosure consultant?
A A foreclosure consultant is an individual who provides, or offer to provide, foreclosure-related consultation services, such as helping certain homeowners stop or postpone a foreclosure sale, or obtain any forbearance from a lender (Cal. Civil Code § 2945.1(a)). The foreclosure consultant law generally pertains to properties that are owner-occupied with one-to-four residential units and an outstanding notice of default recorded (Cal. Civil Code § 2945.1(f)).
Foreclosure consultants are strictly regulated under California law. They must be bonded and registered with the California Department of Justice (Cal. Civil Code § 2945.45). They must have written service contracts (Cal. Civil Code § 2945.3). They cannot, among other things, collect an upfront fee, take a power of attorney, or take a lien on real property (Cal. Civil Code § 2945.4).
Real estate agents are generally exempt from the foreclosure consultant law (Cal. Civil Code § 2945.1(b)(3)).
For more information about Foreclosure Consultants, C.A.R. has a legal article entitled Foreclosure Scams and the Foreclosure Consultant Law, available for members at http://www.car.org/legal/2008articles/foreclosure-scams/.
Q 38. How do I determine whether a foreclosure consultant is properly registered with the California Department of Justice?
A To check whether a foreclosure consultant is properly registered with the California Department of Justice, look up the person’s name at http://ag.ca.gov/loanmod/index.php.
Q 39. To whom should a short sale scam be reported?
A The following is a list of government enforcement agencies and other organizations for reporting fraud activities. Some of these agencies and organizations are also excellent resources for obtaining more information about short sale fraud.
Office of the Attorney General
California Department of Justice
Attn. Public Inquiry Unit
P. O. Box 944255
Sacramento, California 94244-2550
(916) 322-3360
(800) 952-5225 (in California only)
http://ag.ca.gov/consumers/general.php (For filing consumer complaints)
California Department of Justice
Attn. Public Inquiry Unit
P. O. Box 944255
Sacramento, California 94244-2550
(916) 322-3360
(800) 952-5225 (in California only)
http://ag.ca.gov/consumers/general.php (For filing consumer complaints)
California Department of Real Estate
P. O. Box 187000
Sacramento, California 95818-7000
(916) 227-0864
http://www.dre.ca.gov/cons_complaint.html (For filing consumer complaints)
http://www.dre.ca.gov/cons_alerts.html (Consumer alerts)
P. O. Box 187000
Sacramento, California 95818-7000
(916) 227-0864
http://www.dre.ca.gov/cons_complaint.html (For filing consumer complaints)
http://www.dre.ca.gov/cons_alerts.html (Consumer alerts)
State Bar of California
180 Howard Street
San Francisco, California 94105
(800) 843-9053 (Attorney Complaint Hotline)
http://www.calbar.ca.gov/Attorneys/LawyerRegulation.aspx (For filing complaint)
180 Howard Street
San Francisco, California 94105
(800) 843-9053 (Attorney Complaint Hotline)
http://www.calbar.ca.gov/Attorneys/LawyerRegulation.aspx (For filing complaint)
Federal Bureau of Investigation (FBI) Headquarters
J. Edgar Hoover Building
935 Pennsylvania Avenue, NW
Washington, D.C. 20535-0001
(202) 324-3000
Or contact your local FBI field office
https://tips.fbi.gov/ (FBI tips and public leads)
J. Edgar Hoover Building
935 Pennsylvania Avenue, NW
Washington, D.C. 20535-0001
(202) 324-3000
Or contact your local FBI field office
https://tips.fbi.gov/ (FBI tips and public leads)
Department of Housing and Urban Development (HUD) Headquarters
HUD Office of Inspector General Hotline (GFI)
451 7th Street, SW
Washington, D.C. 20410
(800) 347-3735
Or contact your local HUD field office
http://www.hud.gov/offices/oig/hotline/ (Office of Inspector General hotline)
HUD Office of Inspector General Hotline (GFI)
451 7th Street, SW
Washington, D.C. 20410
(800) 347-3735
Or contact your local HUD field office
http://www.hud.gov/offices/oig/hotline/ (Office of Inspector General hotline)
Federal Trade Commission
Consumer Response Center
600 Pennsylvania Avenue, NW
Washington, D.C. 20580
(877) 382-4357
http://www.ftc.gov/ftc/contact.shtm
Consumer Response Center
600 Pennsylvania Avenue, NW
Washington, D.C. 20580
(877) 382-4357
http://www.ftc.gov/ftc/contact.shtm
Better Business Bureau
The Council of Better Business Bureaus
4200 Wilson Boulevard, Suite 800
Arlington, Virginia 22203-1838
Contact your local bureau
http://www.bbb.org/
The Council of Better Business Bureaus
4200 Wilson Boulevard, Suite 800
Arlington, Virginia 22203-1838
Contact your local bureau
http://www.bbb.org/
Q 40. Where can I obtain more information about short sale scams?
A Some of the agencies and organizations listed in Question 39 are good resources of short sale scams. Additional resources are available as follows:
• DRE’s Consumer Alert: Warning Regarding Residential Short Sales, available athttp://www.dre.ca.gov/pdf_docs/ca/ConsumerAlert_ShortSales.pdf.
• DRE’s Short Sales – An Overview and Warning to Real Estate Licensees Re: Fraud, and Legal and Ethical Minefields, available at http://www.dre.ca.gov/pdf_docs/Article_ShortSales03_2010.pdf.
• DRE’s Update to DRE Issued Consumer and Industry Alert(s) Regarding Short Sales Fraud, and Related Issues (September 2010), available at http://www.dre.ca.gov/pdf_docs/Article_ShortSales03_2010.pdf.
• Fannie Mae’s Mortgage Fraud Program, available at https://www.efanniemae.com/utility/legal/antifraud.jsp.
• Freddie Mac’s Mortgage Fraud Prevention is at http://www.freddiemac.com/singlefamily/preventfraud/
• Freddie Mac’s Emerging Fraud Trends: Short Payoff Fraud available athttp://www.freddiemac.com/singlefamily/news/2010/0412_payoff_fraud.html
Tuesday, September 20, 2011
Comptroller of the Currency - Insight into how our Government is TRYING to help us?
Remarks By
John Walsh
Acting Comptroller of the Currency
Before
The American Banker Regulatory Symposium
Washington, D.C.
September 19, 2011
Good afternoon. Thank you, Rob, for that kind introduction, and thank you for inviting
me to participate in this important symposium. Many months ago, when I agreed that the OCC
would participate in this program, I did so with confidence that a new Comptroller of the
Currency would be nominated and confirmed, and I would never have to write a single word to
say to this audience. But the process did not work quite as I anticipated and here I am.
I expected the role of acting Comptroller to be measured in months, but I have now
started my second year – and a challenging and surprisingly controversial year it has been. It is
an interesting experience to pass from anonymity to notoriety overnight.
For all the challenges of my now extended tenure, I do expect to turn over the OCC in
good condition to the next Comptroller. The pending nominee, Tom Curry, is someone with
whom I have had the pleasure of working on the board of the FDIC for the last year, and he
brings long experience in bank supervision to the job. I wish I could assure him that the road
ahead will be smooth and free of bumps, but of course that wouldn’t be true. As an FDIC board
member, he knows full well that we are continuing to work our way through the worst financial
crisis of our lifetime, and a very stubborn economic downturn. And as Comptroller, he will be
1 dealing with these broad challenges as well as the unique set of issues as the chief prudential
regulator of the nation’s largest banks.
Among the issues that will be front and center for the new Comptroller are mortgage
foreclosures and mortgage servicing. Although the OCC is not the only agency addressing these
issues, we do have substantial responsibilities for them. Federally chartered servicers handle
two-thirds of the nation’s mortgage loans, and as you know, we are in the midst of implementing
a set of enforcement actions that are among the most complex and most significant of any that
the OCC has ever initiated. So, I’d like to spend my time today talking about foreclosures and
servicing. I’ll provide an update on where we are with respect to our enforcement actions, and
I’ll offer a glimpse of the future for the servicing business.
It’s hard to overstate the importance of the foreclosure and servicing issues. They are a
major drag on the struggling housing industry, and a well-functioning housing sector is vital to
the health of local communities and our national economy. Recovery in the housing sector
would move us a long way toward achieving a sustained economic recovery, but it’s hard to
imagine the housing sector recovering until we work through the mortgage modification process,
address the large back-log of foreclosures, and restore a fair and functional foreclosure process in
the housing market.
These are matters of particular concern to me as Comptroller because the mortgage
business has always been a big part of the OCC’s portfolio, and it has assumed even greater
importance with the integration of the OTS’s responsibilities for federal thrift supervision into
the OCC. The thrift industry came into being to support home ownership, and while thrifts have
gotten involved in many areas of consumer lending over time, mortgage lending remains their
major focus.
2 The improper practices in foreclosure processing and mortgage servicing that have come
to light have major safety and soundness implications for banks, in addition to their financial
consequences for troubled homeowners and the economy. They have had a very damaging
effect on the reputation of the institutions involved; in fact, on the reputation of the industry as a
whole. Loss of a home through foreclosure is a financial and personal tragedy for a family; and,
the widespread foreclosures taking place can create economic blight for a community. It is
unfortunately true that significant numbers will face the loss of their homes in the current
economic environment, but it must also be true that troubled borrowers can expect to be treated
fairly and afforded every protection provided under the law. I am confident that our enforcement
actions will do just that: ensure that at-risk borrowers get a fair chance to stay in their homes,
while assuring that those who do find themselves in foreclosure receive appropriate protection
and due process under the law.
I am proud of the excellent work done by our staff in these enforcement actions, but if
confidence in the system is to be restored, it is also important that the full extent of the actions
we are taking is well understood by the public. That has not been the case, in part, because this
is a large and complex undertaking that can’t all be completed at once.
When we announced the actions, I said they were intended to fix what was broken,
compensate those who were harmed, and, where appropriate, assess penalties for abuses. We are
doing just that. We have directed servicers to undertake major systems and processing
improvements that will be quite expensive to implement. And servicers must provide restitution
or other forms of remediation to borrowers who have suffered financial harm, with no limit on
total cost.
3 All of this takes time, and the full effect, full cost, and full benefit of remediation will be
known only at the end. Not knowing what all of this will ultimately cost means we haven’t been
able to announce a big dollar figure to capture the severity of our enforcement actions.
Engagement letters and action plans are the critical steps in resolving the foreclosure processing
mess, but they lack the sex appeal of a big dollar settlement or the sound bite that summarizes
the process in a word or two. Since it is not a story that lends itself to easy synopsis, I’d like to
spend a few minutes highlighting its key elements.
First, the scope of the enforcement actions that we took in April is very broad and
comprehensive, and I think that’s been poorly understood. Looking at the details of the
foreclosure review, the enforcement orders tackle a large number of problems that need to be
fixed. While “robo-signing” has become a shorthand for the broken process, these orders go far
beyond just fixing “robo-signing” of documents. They address the entire system of controls that
must be in place to ensure that those practices don’t occur in the first place.
The orders ensure accountability. They were signed by each member of the board of
directors at each of the banks, and each servicer was directed to establish a compliance
committee including at least three of its directors, each of whom is accountable to the OCC and
the Fed for the oversight and implementation of the corrective actions required by our orders.
The scope of compliance responsibilities that this committee is accountable for is extensive, and
failure to deliver effective compliance can carry personal consequence for directors, as well as
for the servicers.
The orders also raise the bar for the oversight and management of third-party service
providers who process loss mitigation applications and foreclosures, and manage acquired
properties, including law firms that provide services and counsel for all of these processes. You
4 can delegate and outsource the work, but you can’t outsource the responsibility for ensuring the
work is carried out in a safe and sound manner.
Because of the complexity of these processes and the amount of detail involved in every
mortgage serviced by these large companies, our orders also require significant enhancement to
the management information systems used by these companies. Of course, reliable MIS is a
basic requirement for doing the business of banking. But the reality is that the rapid
consolidation of the industry meant that very large firms often had multiple systems performing
servicing and loss mitigation functions, and the integration and functionality of these systems did
not always keep pace. That is a criticism, not an excuse, but it is a fair description of how things
evolved that must now be fixed under our enforcement actions.
Improving accountability, third-party oversight, and information systems won’t fix the
problem unless the basic standard of mortgage servicing is reformed. Consequently, we targeted
several aspects of these standards and practices that posed the greatest risk to the process. For
example, we are requiring servicers to establish a single point of contact for borrowers and to
establish procedures to end dual tracking: that is, to ensure foreclosure actions stop when a
borrower is approved for a trial or permanent modification.
All of the steps I’ve described thus far are aimed at ensuring the process works going
forward – the “fixing what’s broken” piece. But for homeowners who ended up in foreclosure,
the critical issue is whether they were financially harmed due to servicer deficiencies, errors or
misrepresentation and, if they were, what kind of restitution should be provided. That is the
most ambitious and complex aspect of our enforcement actions – the independent foreclosure
review.
5 This independent review sets out to identify borrowers who suffered financial injury as a
result of errors, misrepresentations, or other deficiencies in the foreclosure process. The scope of
this review includes any mortgage serviced by these companies on a borrower’s primary
residence that was in any stage of foreclosure between January 1, 2009 and December 31, 2010.
So we are looking not just at those foreclosures that resulted in foreclosures sales, but at
foreclosures that were pending at any point in that period. They could have been cancelled or
still pending, given how long foreclosures take today: nearly four and a half million mortgages
are in that total pool, each with its own special facts and circumstances.
In our initial examination of this problem, we looked at a sample of 200 loans at each of
the 14 institutions – enough to make a judgment about whether enforcement actions were
justified, but not nearly enough to answer all questions. Foreclosure file reviews conducted by
examiners were very labor intensive, and this phase of the process took about three months to
complete. The banking agencies certainly don’t have the examiner and legal resources to expand
our file reviews to identify financial injury or harm in this huge potential population of
foreclosures. So a basic requirement we placed on the servicers at the outset was to devise a
comprehensive process that could provide an independent review of a large number of
foreclosure cases, determine if there was any harm to the borrower, and provide restitution
where appropriate.
We had begun defining an acceptable process even before we issued the enforcement
orders in April: independent consultants and law firms to advise them would have to be hired to
administer the review under our direction; a comprehensive complaint process for borrowers to
submit claims was deemed a critical and necessary component of the foreclosure review; and
sampling was greatly expanded to help catch foreclosure cases with potential for financial injury.
6 These elements are reflected in the engagement letters developed by the independent consultants
and submitted by the servicers.
We have coordinated with the Department of Justice throughout this process, and as you
know, we agreed to delay submission of the action plans by 30 days to allow time for additional
coordination with the states. We continue to work with the Department of Justice and other
federal and state regulators to harmonize new mortgage servicing standards. I continue to
believe that we will be able to harmonize the mortgage servicing requirements in our orders with
those of other regulators if and when they are reached. In fact, I think it is absolutely essential
that we do so.
Since the submission of plans in July, we have been working with the servicers and
independent consultants to refine the plans so that the reviews meet our high expectations. The
independent foreclosure review was the most public and highly anticipated aspect of our orders,
so it was especially important to get it right. For example, we set detailed expectations for the
sampling process. The foreclosure population is being divided into targeted segments to identify
foreclosure cases that have the highest potential for financial injury. In some cases, independent
consultants will be reviewing hundreds of thousands of case files for just one servicer. Sampling
can be an extremely useful tool for identifying errors in a large population, but it is only a
starting point that may require more thorough investigation if issues are identified.
As we explored the best means of ensuring that injured homeowners had the opportunity
to seek relief, it became clear that what was needed was a robust, transparent, and accessible
complaint process that will give borrowers the opportunity to request an independent foreclosure
review. I’m happy to say in the next several weeks you’ll see the roll out of just such a process.
7 Homeowners who faced foreclosure of their primary residence will be able to request a
review of their case if they believe they suffered financial injury as a result of errors,
misrepresentations, or other deficiencies in the foreclosure process between January 1, 2009 and
December 31, 2010. Affected borrowers in this timeframe will be contacted through direct
mailings and other tracing techniques. The independent consultants will also launch a
coordinated advertising campaign to help contact borrowers who cannot be reached through
direct mailings or other means.
Rather than instituting 14 different servicer processes, which would surely be a source of
confusion for homeowners, we insisted that all of the independent consultants use a single claims
processing vendor that will provide common intake forms, a single Web site, and a common
phone number for eligible individuals who want a review of their case. We expect this process
to kick off in the next few weeks. Individuals seeking a review will be able to go to a Web site
and either file a request for review online or ask for a form that can be filled out and submitted
by mail. There will be a toll-free number for individuals who need assistance filing their request
or who want to ask questions about the review.
I know that many who went through foreclosure in recent years emerged pretty jaded by
the confusion and inefficiency of the experience, so I’d like to explain just what they can expect
if they request review of a foreclosure on their primary residence during the review period. First,
their case will be reviewed by an independent consultant to identify financial injury or harm
under the terms of the OCC’s enforcement orders. If the consultant identifies cases of financial
harm, servicers will be required to develop a remediation plan and make appropriate restitution.
Remediation plans are subject to OCC and Federal Reserve approval.
8 Everyone who asks for a review of their case will receive confirmation that the request
has been received, and they may be asked for additional detail and information. While the
reviews are independent, the servicer will provide relevant documentation related to the case and
may be asked to clarify or confirm facts and disclose reasons for decisions made or actions taken
during the process. At the conclusion of the review, which will take several months, a letter will
be provided explaining the outcome, and providing information about restitution where
appropriate.
The nature and severity of any financial injury will be case specific, so remedies could
vary substantially. Remediation and restitution will not be approached as a one-size-fits-all
proposition. It will depend on the facts of the individual case and that requires thorough and
careful consideration, as well as a strong quality control process to ensure each institution is
treating cases of financial harm in a consistent way.
The OCC expects independent consultants to employ a robust quality assurance process,
and our examiners will review and assess this process on a continuing basis. If we find material
issues, we will require prompt corrective action. To ensure consistency, we issued guidance on
financial injury, and instructed the independent consultants to use it.
Our enforcement actions require independent consultants to develop a Foreclosure
Review Report identifying financial injuries with recommendations for remediation. We will
review these reports individually, and we also plan to conduct a horizontal review of the reports
to ensure there are no material inconsistencies. These reports will be used by servicers to
develop and submit the remediation plans required by our orders.
While I wish that there was a faster way to address the problems, provide relief, and
restore the smooth functioning of the housing market, the fact is that this process will take some
9 time to complete. Then there are the other federal enforcement actions and negotiations with
state AGs, private lawsuits over foreclosures and securitizations, and an extensive agenda of
rulemaking in the mortgage area that will further cloud the industry’s outlook for some time to
come.
While it may seem hard to be optimistic in the near term, we are focused on putting the
process right for the long term by establishing uniform national mortgage servicing standards
that apply to all mortgages and protect all borrowers. We have already begun this effort, and are
working with the Fed, the FDIC, the FHFA, and the CFPB on new and comprehensive standards.
In fact, our enforcement actions have already set some of the standards that will be part of an
eventual package, including the ban on dual tracking and the requirement for a single point of
contact. So we are well on the way.
The challenges before us are substantial, but we have taken substantial steps to resolve
them. The path to recovery will be longer than anyone would like, but we are clearing the path
forward and finding ways to settle outstanding issues as quickly as possible so as to restore
confidence in the system and respect the needs of all who have suffered in the process.
Thank you.
10
John Walsh
Acting Comptroller of the Currency
Before
The American Banker Regulatory Symposium
Washington, D.C.
September 19, 2011
Good afternoon. Thank you, Rob, for that kind introduction, and thank you for inviting
me to participate in this important symposium. Many months ago, when I agreed that the OCC
would participate in this program, I did so with confidence that a new Comptroller of the
Currency would be nominated and confirmed, and I would never have to write a single word to
say to this audience. But the process did not work quite as I anticipated and here I am.
I expected the role of acting Comptroller to be measured in months, but I have now
started my second year – and a challenging and surprisingly controversial year it has been. It is
an interesting experience to pass from anonymity to notoriety overnight.
For all the challenges of my now extended tenure, I do expect to turn over the OCC in
good condition to the next Comptroller. The pending nominee, Tom Curry, is someone with
whom I have had the pleasure of working on the board of the FDIC for the last year, and he
brings long experience in bank supervision to the job. I wish I could assure him that the road
ahead will be smooth and free of bumps, but of course that wouldn’t be true. As an FDIC board
member, he knows full well that we are continuing to work our way through the worst financial
crisis of our lifetime, and a very stubborn economic downturn. And as Comptroller, he will be
1 dealing with these broad challenges as well as the unique set of issues as the chief prudential
regulator of the nation’s largest banks.
Among the issues that will be front and center for the new Comptroller are mortgage
foreclosures and mortgage servicing. Although the OCC is not the only agency addressing these
issues, we do have substantial responsibilities for them. Federally chartered servicers handle
two-thirds of the nation’s mortgage loans, and as you know, we are in the midst of implementing
a set of enforcement actions that are among the most complex and most significant of any that
the OCC has ever initiated. So, I’d like to spend my time today talking about foreclosures and
servicing. I’ll provide an update on where we are with respect to our enforcement actions, and
I’ll offer a glimpse of the future for the servicing business.
It’s hard to overstate the importance of the foreclosure and servicing issues. They are a
major drag on the struggling housing industry, and a well-functioning housing sector is vital to
the health of local communities and our national economy. Recovery in the housing sector
would move us a long way toward achieving a sustained economic recovery, but it’s hard to
imagine the housing sector recovering until we work through the mortgage modification process,
address the large back-log of foreclosures, and restore a fair and functional foreclosure process in
the housing market.
These are matters of particular concern to me as Comptroller because the mortgage
business has always been a big part of the OCC’s portfolio, and it has assumed even greater
importance with the integration of the OTS’s responsibilities for federal thrift supervision into
the OCC. The thrift industry came into being to support home ownership, and while thrifts have
gotten involved in many areas of consumer lending over time, mortgage lending remains their
major focus.
2 The improper practices in foreclosure processing and mortgage servicing that have come
to light have major safety and soundness implications for banks, in addition to their financial
consequences for troubled homeowners and the economy. They have had a very damaging
effect on the reputation of the institutions involved; in fact, on the reputation of the industry as a
whole. Loss of a home through foreclosure is a financial and personal tragedy for a family; and,
the widespread foreclosures taking place can create economic blight for a community. It is
unfortunately true that significant numbers will face the loss of their homes in the current
economic environment, but it must also be true that troubled borrowers can expect to be treated
fairly and afforded every protection provided under the law. I am confident that our enforcement
actions will do just that: ensure that at-risk borrowers get a fair chance to stay in their homes,
while assuring that those who do find themselves in foreclosure receive appropriate protection
and due process under the law.
I am proud of the excellent work done by our staff in these enforcement actions, but if
confidence in the system is to be restored, it is also important that the full extent of the actions
we are taking is well understood by the public. That has not been the case, in part, because this
is a large and complex undertaking that can’t all be completed at once.
When we announced the actions, I said they were intended to fix what was broken,
compensate those who were harmed, and, where appropriate, assess penalties for abuses. We are
doing just that. We have directed servicers to undertake major systems and processing
improvements that will be quite expensive to implement. And servicers must provide restitution
or other forms of remediation to borrowers who have suffered financial harm, with no limit on
total cost.
3 All of this takes time, and the full effect, full cost, and full benefit of remediation will be
known only at the end. Not knowing what all of this will ultimately cost means we haven’t been
able to announce a big dollar figure to capture the severity of our enforcement actions.
Engagement letters and action plans are the critical steps in resolving the foreclosure processing
mess, but they lack the sex appeal of a big dollar settlement or the sound bite that summarizes
the process in a word or two. Since it is not a story that lends itself to easy synopsis, I’d like to
spend a few minutes highlighting its key elements.
First, the scope of the enforcement actions that we took in April is very broad and
comprehensive, and I think that’s been poorly understood. Looking at the details of the
foreclosure review, the enforcement orders tackle a large number of problems that need to be
fixed. While “robo-signing” has become a shorthand for the broken process, these orders go far
beyond just fixing “robo-signing” of documents. They address the entire system of controls that
must be in place to ensure that those practices don’t occur in the first place.
The orders ensure accountability. They were signed by each member of the board of
directors at each of the banks, and each servicer was directed to establish a compliance
committee including at least three of its directors, each of whom is accountable to the OCC and
the Fed for the oversight and implementation of the corrective actions required by our orders.
The scope of compliance responsibilities that this committee is accountable for is extensive, and
failure to deliver effective compliance can carry personal consequence for directors, as well as
for the servicers.
The orders also raise the bar for the oversight and management of third-party service
providers who process loss mitigation applications and foreclosures, and manage acquired
properties, including law firms that provide services and counsel for all of these processes. You
4 can delegate and outsource the work, but you can’t outsource the responsibility for ensuring the
work is carried out in a safe and sound manner.
Because of the complexity of these processes and the amount of detail involved in every
mortgage serviced by these large companies, our orders also require significant enhancement to
the management information systems used by these companies. Of course, reliable MIS is a
basic requirement for doing the business of banking. But the reality is that the rapid
consolidation of the industry meant that very large firms often had multiple systems performing
servicing and loss mitigation functions, and the integration and functionality of these systems did
not always keep pace. That is a criticism, not an excuse, but it is a fair description of how things
evolved that must now be fixed under our enforcement actions.
Improving accountability, third-party oversight, and information systems won’t fix the
problem unless the basic standard of mortgage servicing is reformed. Consequently, we targeted
several aspects of these standards and practices that posed the greatest risk to the process. For
example, we are requiring servicers to establish a single point of contact for borrowers and to
establish procedures to end dual tracking: that is, to ensure foreclosure actions stop when a
borrower is approved for a trial or permanent modification.
All of the steps I’ve described thus far are aimed at ensuring the process works going
forward – the “fixing what’s broken” piece. But for homeowners who ended up in foreclosure,
the critical issue is whether they were financially harmed due to servicer deficiencies, errors or
misrepresentation and, if they were, what kind of restitution should be provided. That is the
most ambitious and complex aspect of our enforcement actions – the independent foreclosure
review.
5 This independent review sets out to identify borrowers who suffered financial injury as a
result of errors, misrepresentations, or other deficiencies in the foreclosure process. The scope of
this review includes any mortgage serviced by these companies on a borrower’s primary
residence that was in any stage of foreclosure between January 1, 2009 and December 31, 2010.
So we are looking not just at those foreclosures that resulted in foreclosures sales, but at
foreclosures that were pending at any point in that period. They could have been cancelled or
still pending, given how long foreclosures take today: nearly four and a half million mortgages
are in that total pool, each with its own special facts and circumstances.
In our initial examination of this problem, we looked at a sample of 200 loans at each of
the 14 institutions – enough to make a judgment about whether enforcement actions were
justified, but not nearly enough to answer all questions. Foreclosure file reviews conducted by
examiners were very labor intensive, and this phase of the process took about three months to
complete. The banking agencies certainly don’t have the examiner and legal resources to expand
our file reviews to identify financial injury or harm in this huge potential population of
foreclosures. So a basic requirement we placed on the servicers at the outset was to devise a
comprehensive process that could provide an independent review of a large number of
foreclosure cases, determine if there was any harm to the borrower, and provide restitution
where appropriate.
We had begun defining an acceptable process even before we issued the enforcement
orders in April: independent consultants and law firms to advise them would have to be hired to
administer the review under our direction; a comprehensive complaint process for borrowers to
submit claims was deemed a critical and necessary component of the foreclosure review; and
sampling was greatly expanded to help catch foreclosure cases with potential for financial injury.
6 These elements are reflected in the engagement letters developed by the independent consultants
and submitted by the servicers.
We have coordinated with the Department of Justice throughout this process, and as you
know, we agreed to delay submission of the action plans by 30 days to allow time for additional
coordination with the states. We continue to work with the Department of Justice and other
federal and state regulators to harmonize new mortgage servicing standards. I continue to
believe that we will be able to harmonize the mortgage servicing requirements in our orders with
those of other regulators if and when they are reached. In fact, I think it is absolutely essential
that we do so.
Since the submission of plans in July, we have been working with the servicers and
independent consultants to refine the plans so that the reviews meet our high expectations. The
independent foreclosure review was the most public and highly anticipated aspect of our orders,
so it was especially important to get it right. For example, we set detailed expectations for the
sampling process. The foreclosure population is being divided into targeted segments to identify
foreclosure cases that have the highest potential for financial injury. In some cases, independent
consultants will be reviewing hundreds of thousands of case files for just one servicer. Sampling
can be an extremely useful tool for identifying errors in a large population, but it is only a
starting point that may require more thorough investigation if issues are identified.
As we explored the best means of ensuring that injured homeowners had the opportunity
to seek relief, it became clear that what was needed was a robust, transparent, and accessible
complaint process that will give borrowers the opportunity to request an independent foreclosure
review. I’m happy to say in the next several weeks you’ll see the roll out of just such a process.
7 Homeowners who faced foreclosure of their primary residence will be able to request a
review of their case if they believe they suffered financial injury as a result of errors,
misrepresentations, or other deficiencies in the foreclosure process between January 1, 2009 and
December 31, 2010. Affected borrowers in this timeframe will be contacted through direct
mailings and other tracing techniques. The independent consultants will also launch a
coordinated advertising campaign to help contact borrowers who cannot be reached through
direct mailings or other means.
Rather than instituting 14 different servicer processes, which would surely be a source of
confusion for homeowners, we insisted that all of the independent consultants use a single claims
processing vendor that will provide common intake forms, a single Web site, and a common
phone number for eligible individuals who want a review of their case. We expect this process
to kick off in the next few weeks. Individuals seeking a review will be able to go to a Web site
and either file a request for review online or ask for a form that can be filled out and submitted
by mail. There will be a toll-free number for individuals who need assistance filing their request
or who want to ask questions about the review.
I know that many who went through foreclosure in recent years emerged pretty jaded by
the confusion and inefficiency of the experience, so I’d like to explain just what they can expect
if they request review of a foreclosure on their primary residence during the review period. First,
their case will be reviewed by an independent consultant to identify financial injury or harm
under the terms of the OCC’s enforcement orders. If the consultant identifies cases of financial
harm, servicers will be required to develop a remediation plan and make appropriate restitution.
Remediation plans are subject to OCC and Federal Reserve approval.
8 Everyone who asks for a review of their case will receive confirmation that the request
has been received, and they may be asked for additional detail and information. While the
reviews are independent, the servicer will provide relevant documentation related to the case and
may be asked to clarify or confirm facts and disclose reasons for decisions made or actions taken
during the process. At the conclusion of the review, which will take several months, a letter will
be provided explaining the outcome, and providing information about restitution where
appropriate.
The nature and severity of any financial injury will be case specific, so remedies could
vary substantially. Remediation and restitution will not be approached as a one-size-fits-all
proposition. It will depend on the facts of the individual case and that requires thorough and
careful consideration, as well as a strong quality control process to ensure each institution is
treating cases of financial harm in a consistent way.
The OCC expects independent consultants to employ a robust quality assurance process,
and our examiners will review and assess this process on a continuing basis. If we find material
issues, we will require prompt corrective action. To ensure consistency, we issued guidance on
financial injury, and instructed the independent consultants to use it.
Our enforcement actions require independent consultants to develop a Foreclosure
Review Report identifying financial injuries with recommendations for remediation. We will
review these reports individually, and we also plan to conduct a horizontal review of the reports
to ensure there are no material inconsistencies. These reports will be used by servicers to
develop and submit the remediation plans required by our orders.
While I wish that there was a faster way to address the problems, provide relief, and
restore the smooth functioning of the housing market, the fact is that this process will take some
9 time to complete. Then there are the other federal enforcement actions and negotiations with
state AGs, private lawsuits over foreclosures and securitizations, and an extensive agenda of
rulemaking in the mortgage area that will further cloud the industry’s outlook for some time to
come.
While it may seem hard to be optimistic in the near term, we are focused on putting the
process right for the long term by establishing uniform national mortgage servicing standards
that apply to all mortgages and protect all borrowers. We have already begun this effort, and are
working with the Fed, the FDIC, the FHFA, and the CFPB on new and comprehensive standards.
In fact, our enforcement actions have already set some of the standards that will be part of an
eventual package, including the ban on dual tracking and the requirement for a single point of
contact. So we are well on the way.
The challenges before us are substantial, but we have taken substantial steps to resolve
them. The path to recovery will be longer than anyone would like, but we are clearing the path
forward and finding ways to settle outstanding issues as quickly as possible so as to restore
confidence in the system and respect the needs of all who have suffered in the process.
Thank you.
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