CFPB Servicing Rules Episode VI: Return of the Rulemakings Melanie Brody Jonathan D. Jaffe David A. Tallman Partner, Washington DC Partner, Palo Alto Partner, Houston Jeremy M. McLaughlin Christopher E. Shelton September 2016 Associate, Palo Alto Associate, Washington DC Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe-Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown Mexico, S.C., a sociedad civil formed under the laws of the State of Durango, Mexico; Mayer Brown JSM, a Hong Kong partnership and its associated legal practices in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. Mayer Brown Consulting (Singapore) Pte. Ltd and its subsidiary, which are affiliated with Mayer Brown, provide customs and trade advisory and consultancy services, not legal services. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
Jonathan Jaffe DEFINITION OF DELINQUENCY 2
Definition of Delinquency: General • Reg X has no generally-applicable definition • Defines delinquency for early intervention and continuity of contact provisions • Does not define for other sections of Subpart C of Regulation X, including the provision (§ 1024.41(f)(1)) that Regulation X, including the provision (§ 1024.41(f)(1)) that prohibits servicers from making the first foreclosure notice or filing until the loan is more than 120 days delinquent • Posed uncertainties for servicers 3
Definition of Delinquency: General • Now general definition of delinquency in § 1024.31 will apply to all sections of Subpart C: – “a borrower and a borrower’s mortgage loan are delinquent beginning on the date a periodic payment sufficient to cover principal, interest, and escrow becomes due and unpaid, until no periodic payment is due and unpaid” no periodic payment is due and unpaid” • Primary distinction – substantially the same, with primary distinction on when the payment is due and unpaid for a given billing cycle, versus until no periodic payment is due and unpaid. 4
Definition of Delinquency: General • Will impact servicers: – timing of when servicers must assign personnel to a delinquent borrower within 45 days of the borrower’s delinquency – when the servicer may initiate foreclosure proceedings • The preparation of periodic statements under Regulation • The preparation of periodic statements under Regulation Z, since essentially the same definition of “delinquency” as applies to Subpart C of Regulation X also applies to Regulation Z’s periodic statement provisions • Definition not intended to alter existing requirements imposed by other laws or regulations 5
Definition of Delinquency: Other Issues • Grace Period – Date of delinquency is measured from the date the periodic payment becomes due and unpaid, without regard to any grace period • Application of Payments • Application of Payments – If servicer applies payments to oldest outstanding payment (required by Fannie Mae, Freddie Mac and some states), a payment by a delinquent borrower will advance the date the borrower’s delinquency began – In short, 120-day foreclosure referral waiting period is also advanced 6
Definition of Delinquency: Other Issues • Short Payments – If servicer chooses not to treat a short payment as delinquent, borrower is not delinquent – Once servicer has established the policy, the servicer may not change its decision to treat the payment as timely for purposes change its decision to treat the payment as timely for purposes of determining the date on which the borrower’s delinquency began 7
Definition of Delinquency: Other Issues • Right to Accelerate – Servicer is not prohibited from exercising contractual right to accelerate, and failure to pay amount due after acceleration will begin or continue delinquency – If borrower reinstates or cures following acceleration, borrower – If borrower reinstates or cures following acceleration, borrower is no longer delinquent and delinquency period ends • Loan Modification – Even though contractual payments remain unpaid, has made all periodic payments due and owing under modified contract so not delinquent 8
Jeremy McLaughlin PROMPT PAYMENT CREDITING 9
Payment Crediting • Payment processing for borrowers under temporary loss mitigation programs – Clarifies 2013 Rule comments – Payments should generally be treated as partial payments (New Comment .36(c)(1)(i)-4) Comment .36(c)(1)(i)-4) • Payment processing for borrowers under modified loan contract – Periodic payment is determined under new contract terms (New Comment .36(c)(1)(i)-5) 10
Jeremy McLaughlin PERIODIC STATEMENTS 11
Periodic Statements: Layout • “Close proximity” standard for certain disclosures – Current Comment: no intervening text – Revised Comment (.41(d)-1): no unrelated text • Text is unrelated if it does not explain or expand upon the required disclosures required disclosures 12
Periodic Statements: Content • Borrowers under temporary loss mitigation program – Disclosures regarding how payments are applied should be based on the loan contract, not on payment due under loss mitigation program (New Comment .41(d)-4) • Disclosures concerning account activity “since the last • Disclosures concerning account activity “since the last statement” – What about after a § 1026.41 exemption expires? – Disclosures need cover only account activity since the last payment due date that occurred during the exemption (New Comment .41(d)-5) – So, not literally “since the last statement,” i.e., the duration of the entire exemption period 13
Periodic Statements: Amount Due – Acceleration • Must identify only the lesser amount that will be accepted, if applicable (New Comment .41(d)(1)-1) • Should indicate, if applicable, the amount due is accurate only for a specified period of time. E.g. : – “as of [date]” – “as of [date]” – “good through [date]” 14
Periodic Statements: Explanation of Amount Due – Acceleration • Must include both the reinstatement amount and the accelerated amount, and must not include the monthly payment amount (New Comment .41(d)(2)-1) – Contra the actual disclosure • Must include an explanation that reinstatement amount will be • Must include an explanation that reinstatement amount will be accepted to reinstate the loan through a certain date, if applicable • Must include any special instructions for submitting payment • May not be provided in separate letter • May include related information 15
Periodic Statements: Amount Due – Temporary Loss Mitigation Program & Loan Modification • Temporary Loss Mitigation: may identify either: – Payment due under temporary loss mitigation program, or – Payment due under loan contract – (New Comment .41(d)(1)-2) • Loan Modification Loan Modification – Must identify only the amount due under the modified contract (New Comment .41(d)(1)-3) 16
Periodic Statements: Explanation of Amount Due – Temporary Loss Mitigation Program • Must include both the amount due under the loan contract and the payment due under the temporary loss mitigation program (New Comment .41(d)(2)-2) • Must explain that, if applicable, the disclosed amount due is different because of the loss mitigation program is different because of the loss mitigation program • Various options for how and where to provide the explanation 17
Periodic Statements: Bankruptcy Exemption – Applicability • Now applies only if two criteria are met: – Must be a debtor in bankruptcy under Title 11 or must have discharged personal liability pursuant to 11 U.S.C. § § 727, 1141, 1228, or 1328; and – One of the following conditions must apply: • Consumer requests in writing that the servicer cease providing periodic statements; • Bankruptcy plan provides that the consumer will surrender the dwelling, provides for the avoidance of the lien securing the loan, or otherwise does not provide for payment of pre-bankruptcy arrearage or the maintenance of payments under the loan; • Bankruptcy court orders the lien avoided, lifts the automatic stay, or requires the servicer not to provide periodic statements; or • Consumer files statement of intention to surrender the dwelling and has not made partial or periodic statement since commencement of bankruptcy 18
Periodic Statements: Bankruptcy Exemption – Modified Statements • If the exemption (as now modified) does not apply, servicer may alter periodic statement to account for bankrupt status – May omit certain delinquency information – Must include certain informational disclosures about – Must include certain informational disclosures about bankruptcy – Special modification required for borrowers in bankruptcy under Chapter 12 or 13 19
Christopher Shelton EARLY INTERVENTION 20
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