May 9, 2016
Judge Butchko, sitting in a Florida Circuit Court, granted a homeowner’s motion for involuntary dismissal of a foreclosure because of the servicer’s unclean hands. There is a lot of interest in the order, but it is worth quoting at length the Court’s discussion of the testimony of Sherry Keeley, the current servicer’s employee. Ms. Keeley is an employee of Ocwen, a servicer that has been in a lot of trouble recently.
Ms. Keeley was produced by the plaintiff to introduce Ocwen’s business records, including those of Litton Loan Servicing, a prior servicer:
30. Ms. Keeley testified the loan boarding process involved two steps. [“Loan boarding” refers to the process of moving loan information from the previous servicer’s system to the new servicer’s system.] First, Ocwen confirmed that the categories for each column of financial data from the prior servicer matched or corresponded to the same name Ocwen used for that same column of financial data. Second, Ocwen confirmed the figures from the prior servicer transferred over such that the top figure from Litton became the bottom figure for Ocwen. The court notes that when testifying about Ocwen’s boarding process, Ms. Keeley appeared to be merely repeating a mantra or parroting what she learned the so called boarding process is without being able to give specific details regarding the procedure itself. Her demeanor at trial although professional, was hesitant and lacking in confidence in this court’s estimation as the trier of fact.
32. Ms. Keeley admitted there was absolutely no math done to check the accuracy of the prior servicer’s records or numbers. The loan boarding process’ verification to ensure the trustworthiness of the prior servicer’s records is therefore a legal fiction. In this case, Ocwen simply accepted the prior servicer’s numbers as true without any effort to audit or confirm their accuracy. The only confirmation appears to have been the check a carryover of figures from one servicer’s columns to the columns of another.
33. Moreover, Ms. Keeley testified loans with “red flags” would never be allowed to board onto Ocwen’s system until the prior servicer resolved them. However, Ms. Keeley also admitted she has witnessed loans that went through the boarding process that had misapplied payments and substantially incomplete loan payment histories from the prior servicer.
34. The existence of misapplied payments and incomplete payment histories in loans that went through the loan boarding process contradicts any suggestion that the boarding process identifies red flags and/or clears them, such that Courts can trust the reliability of their records.
35. To support the court’s concern regarding the lack of foundation of the so called boarded records in this case, the Court takes Judicial Notice of the Consent Order entered in the matter of Ocwen Financial Corporation, Ocwen Loan Servicing, LLC by the New York State Department of Financial Services dated December 22, 2014. This Consent Order documents Ocwen’s practice of backdating business records that it failed to fully resolve “more than a year after its initial discovery.”
36. Therefore, the Court finds Plaintiff failed to inquire into the accuracy, reliability or trustworthiness of the prior servicer’s payment history. Ocwen’s own payment history merely accepts the prior servicer’s records as accurate without question unless the numbers were challenged at some point after the loan boarding process. That is simply not enough to for this court to accept the prior servicer’s records as trustworthy and admit them into evidence here. A mere reliance by a successor business on records created by others, although an important part of establishing trustworthiness, without more is insufficient. As such, this Court exercised its discretion to sustain Defendant’s objections to both payment histories as inadmissible hearsay. Therefore Plaintiff lacked evidence of an essential element of proof, damages, warranting an involuntary dismissal. (7-8, footnote and citation omitted, emphasis added)
This passage contains within it a microcosm of what is remains wrong with the servicing industry, notwithstanding massive settlements and increased regulatory attention being paid to this this hidden corner of the mortgage industry:
- employees who recite from scripts instead of understanding the records before them
- feeble attempts confirm the accuracy of the amounts that borrowers are told that they owe
- contradictory statements that tend to hide facts that benefit the servicer
- history of missapplied payments and incomplete payment histories
- backdated business records
- failure to resolve identified problems, such as backdated business records
Ultimately, the Court said that it found the servicer was not trustworthy. That is a big problem for homeowners. In this case, at least, it is also a big problem for a servicer. The servicer industry as a whole remains untrustworthy. Regulators have a lot more to do before distressed homeowners should feel that they are being treated fairly by them.
HT April Charney
May 6, 2016
Arthur Miller, the playwright who brought us Death of A Salesman, wrote an essay titled Tragedy and The Common Man. It opens,
In this age few tragedies are written. It has often been held that the lack is due to a paucity of heroes among us, or else that modern man has had the blood drawn out of his organs of belief by the skepticism of science, and the heroic attack on life cannot feed on an attitude of reserve and circumspection. For one reason or another, we are often held to be below tragedy-or tragedy above us. The inevitable conclusion is, of course, that the tragic mode is archaic, fit only for the very highly placed, the kings or the kingly, and where this admission is not made in so many words it is most often implied.
When I read the financial services industry’s critique of the CFPB’s proposed rule regarding Arbitration Agreements, it sounds like they believe that litigation, like tragedy “is archaic, fit only for the very highly placed, the kings or the kingly . . .”
The U.S. Chamber of Commerce has criticized the CFPB for proposing this rule because it will, according to them,
cause significant harm to the very consumers it is supposed to protect. The regulation will effectively eliminate the ability of consumers to use arbitration to seek redress for allegedly improper late fees, overdraft fees, or other small individualized claims that they cannot otherwise resolve with their financial service companies’ customer service departments. A “solution” in search of a problem, the bureau’s rule would replace arbitration — a consumer friendly system that is fast, convenient, and inexpensive — with America’s broken class action system. That’s great for class action plaintiffs’ attorneys but a bad deal for consumers.
It sounds to me like the Chamber believes that the consumer is below litigation-or litigation is above them and should be reserved for the kingly alone.
The fact remains, however, that the Chamber has pushed for mandatory arbitration because it is good for the large corporations who count themselves among its members. And, in fact, the proposed rule would not eliminate the “ability of consumers to use arbitration;” rather, it would prohibit financial services corporations from using arbitration agreements “to bar the consumer from filing or participating in a class action . . .” (Proposed Rule at 1)
You can be sure that the financial services industry will be commenting broadly and deeply on this rule. Those who care about consumer protection from a policy perspective should be sure to put in their two cents too. Comments are due in early August. so get crackin’.
May 3, 2016
Money quoted me in 4 Things to Know Before You Prune a Tree. It opens,
It turns out money does grow on trees. Mature specimens can add 10% or more to your property value, according to Greenwich, Conn., arborist and tree appraiser Scott Cullen. But trees can cost big money, too—if a giant oak falls and crushes your garage during the next big storm, for example. Here’s what you need to know about maintaining the trees on your property.
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Understand insurance coverage
In urban and suburban neighborhoods, it’s common for trees to grow along property lines. As a general rule, the owner of the property where the tree meets the ground is the owner of the tree—and responsible for it, says real estate attorney and professor of law at Brooklyn Law School David Reiss. If you own an obviously diseased and dying tree that falls and damages a neighbor’s house or, worse, hurts someone, you could be financially liable for the damage. But in general, if it’s a healthy tree that has been routinely cared for and inspected by a professional, the owners of the property that gets damaged by your tree will likely be covered by their own insurance for damage to their buildings or vehicles.
Know your right to prune
Just as leaves and branches that fall on your land are yours to clean up, regardless of whose tree they came from, you also generally have the right to trim any part of a tree that’s on your property. So if a limb from your neighbor’s tree is bringing squirrels onto your roof or dropping walnuts onto your new car, you are within your rights to have the limb removed. You can’t cut it beyond your property line, however, and if any trimming you do were to kill the tree (or render it unstable or unhealthy), you could be liable for paying its owner for lost value.
In any case, living by the letter of the law is rarely the best solution when it comes to neighborhood relations. Discuss tree issues with all parties involved before anyone fires up a chainsaw, says Reiss. If a tree is yours—in other words, if it leaves the ground in your yard—it’s essentially your tree and your responsibility to keep properly maintained and pruned. Even if you technically aren’t responsible for shaping the limbs over on the neighbor’s side, the increased cost for doing that while a tree guy is on site is well worth the good relations it will engender. If the tree trunk splits the property line, discuss the needed tree work and ask your neighbor to split the bill.
May 2, 2016
The Office of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) has released its Quarterly Report to Congress (April 27, 2016). The Report focuses on how nonbank servicers raise risks for homeowners participating in the Home Affordable Modification Program (HAMP) of the Troubled Asset Relief Program (TARP). (65) The report states that
Mortgage servicers are the single largest factor in determining whether homeowners applying for, or participating in, TARP’s signature foreclosure prevention program HAMP are given a fair shot, and whether the program runs effectively and efficiently. This is because Treasury has contracted with mortgage servicers to play a predominant role in HAMP, by making the day-to-day decisions related to HAMP that have enormous implications for homeowners seeking relief. Mortgage servicers decide whether homeowners are eligible for HAMP, whether homeowners get a trial run in the program, and whether that trial run should result in the servicer permanently modifying the homeowners’ mortgages. Mortgage servicers decide how the mortgage will be modified, such as whether a homeowner will get a lower interest rate, and if so, what rate. Mortgage servicers decide how much the homeowner will have to pay each month. Mortgage servicers also apply payments they receive, and they make decisions on whether a homeowner should be terminated from the program. Because of this outsized role, all mortgage servicers are required to comply with HAMP rules, and federal laws. Following HAMP rules and federal laws is necessary to protect homeowners from harm.
Non-banks who service mortgages have increased their participation in HAMP, and now play a larger role in HAMP than bank servicers, but that was not always the case.
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HAMP and its related programs have become a lucrative business and reliable source of income for non-bank servicers. Treasury pays mortgage servicers for every homeowner who receives a permanent mortgage modification in HAMP. Nonbank mortgage servicers have received $1.1 billion in Federal TARP dollars from Treasury through the HAMP program.
As non-bank servicers increase their role in HAMP, the risk to homeowners has also increased. Non-bank servicers have less federal regulation than banks that service mortgages. Some of the largest non-bank servicers have already been found to have violated laws in their treatment of homeowners, and have been the subject of enforcement actions by the federal or a state government. Some of the largest non-bank servicers also have been found to have violated HAMP’s rules in their treatment of homeowners. This increased risk to homeowners must be met with increased oversight to ensure that homeowners are treated fairly, and that HAMP and its related programs are effective and efficient. (65, notes removed)
Regulators and other government agencies have been taking a hard look at servicers recently (take a look at this and this). It is important for federal regulators to get their oversight of servicers right because they can and do cause mountains of misery for homeowners when things goes wrong.