“There are definitely problems that would come from putting the OCC under appropriations–I don’t relish the thought of politicized bank regulation. But the choice isn’t between politicized bank regulation and perfect bank regulation. Instead, the choice is between politicized bank regulation and captured bank regulation. And I’d take the former 7 times a week and twice on Sundays. Politicized bank regulation wouldn’t necessarily mean wild see-saws. Instead, I might keep the OCC in check and moderate because the OCC would know that there’s an election every two years, so it had best not get out of hand either way.“
More Rot in the OCC Foreclosure Reviews
Michael Olenick, Gretchen Morgenson, and Yves Smith have all written pretty damning things about the foreclosure reviews persuant to the OCC consent orders with major mortgage servicers. (For my own previous thoughts, see here and here.) I’ve just started to peruse some of the engagement letters with the firms conducting the reviews, and the rot is even worse that these other critics portray.
What follows is in no way a comprehensive cataloging of the problems in the OCC foreclosure review process–this is just what I spotted from the briefest of perusals. Yet it is clear that there are two types of serious problems: conflicts of interest and flawed substance of the review process. I’ll lay both out below and then give some thoughts as to what could and should be done to remedy this farcical process in order to ensure some accountability to the public and justice for homeowners. The post concludes with some thoughts about the core problem–the OCC–and what can be done to remedy it.
OCC Foreclosure Fraud Review Tips
First check your eligibility.
From the OCC Independent Review site, http://www.independentforeclosurereview.com/
Si usted habla español, tenemos representantes que pueden asistirle en su idioma.
Homeowners whose primary residence was part of a foreclosure action between January 1, 2009 and December 31, 2010, and whose home loan was serviced by a participating servicer, may be eligible for an Independent Foreclosure Review.
The Board of Governors of the Federal Reserve System and the Office of the Comptroller of the Currency (federal bank regulators) have required an Independent Foreclosure Review by an independent consultant to identify eligible customers who may have been financially injured due to errors, misrepresentations or other deficiencies in their foreclosure process. If the review finds that financial injury occurred, the customer may receive compensation or other remedy.
To qualify, your mortgage loan would need to meet the initial eligibility criteria:
- Your mortgage loan was serviced by one of the participating mortgage servicers.
- Your mortgage loan was active in the foreclosure process between January 1, 2009 and December 31, 2010.
- The property was your primary residence.
Eligible customers will be mailed a letter by December 31, 2011 that explains the Independent Foreclosure Review process and a Request for Review Form that identifies some examples of situations that may have led to financial injury. The form must be completed and postmarked no later than April 30, 2012.
Julie Williams, First Senior Deputy Comptroller and Chief Counsel Office of the Comptroller of the Currency provided written and verbal testimony to Congress on December 13, 2011. She enumerated the faulty OCC Interdependent Foreclosure Fraud Review Process. Please read her testimony here.
Read all twenty-two items listed on page 13-15. Using the exact language, transcribe each and every item that fits your scenario.
Itemized list from testimony
- The borrower was not in default pursuant to the terms of the note and mortgage at the time the servicer initiated the foreclosure action.
- The servicer initiated foreclosure or conducted a foreclosure sale in advance of the time allowed for foreclosure under the terms of the note and mortgage or applicable state law.
- The borrower submitted payment to the servicer sufficient to cure the default pursuant tothe terms of the note and mortgage, but the servicer returned the payment incontravention of the terms of the note or mortgage, state or federal law, or the servicer’s stated policy covering payments when in default.
- The servicer misapplied borrower payments, did not timely credit borrower payments(including failure to properly account for funds in suspense), or did not correctly calculate the amount actually due from the borrower, in contravention of the terms of the note and mortgage, state or federal law, investor requirements, or the servicer’s stated policy covering application of payments.
- The borrower paid a fee or penalty that was impermissible.
- A deficiency judgment was obtained against the borrower that included the assessment of a fee or penalty that was impermissible.
- The servicer placed an escrow account on the mortgage and the placement resulted in monies paid by the borrower into escrow in contravention of the terms of the note or mortgage, state or federal law, or the servicer’s stated policy covering escrow accounts.
- The servicer placed insurance on the mortgage and the placement resulted in monies paid by the borrower towards insurance in contravention of the terms of the note or mortgage,state or federal law, or the servicer’s stated policy covering placed insurance.9.
- The servicer miscalculated the amount due on the mortgage and secured a judgment against the borrower for an amount greater than the borrower owed.
- A borrower’s remittance of funds to a third party acting on behalf of the servicer was no tcredited to the borrower’s account.
- The borrower was performing under the terms of an approved trial loan modification oran approved permanent loan modification, but the servicer proceeded to foreclosure incontravention of the terms of the modification offered by the servicer to the borrower.
- A borrower was denied a modification in contravention of the terms of the governing modification program or the servicer’s stated policy covering modifications.
- There is evidence that the borrower provided or made efforts to provide completed documentation necessary to qualify for a modification within the period such documentation was required to be provided by the governing modification program and the servicer denied the loan modification in contravention of the terms of the governing modification program or the servicer’s stated policy covering modifications
- The servicer initiated foreclosure or completed a foreclosure sale without providingadequate notice as required under applicable state law
- The servicer foreclosed on or sold real property owned by an active military servicemember in violation of SCRA.
- The servicer did not lower the interest rate on a mortgage loan entered into by a military servicemember, or by the service member and his or her spouse jointly, in accordance with the requirements of SCRA.
- The servicer failed to honor a borrower’s bona fide efforts to redeem a sale under applicable state law during the redemption period.
- The borrower was protected by the automatic stay under the bankruptcy code and a courthad not granted a request for relief from the automatic stay or other appropriate exceptionunder the bankruptcy code.
- The borrower was making timely pre-petition arrearage payments required under an approved bankruptcy plan and was current with their post-petition payments.
- The borrower purchased a payment protection plan; was or should have been receiving benefits under the plan; and those benefits were not applied pursuant to the contract.14
- The servicer was not the proper party, or authorized to act on behalf of the proper party,under the applicable state law to foreclose on the borrower’s home, and this resulted in or may result in multiple foreclosure actions or proceedings.22. The servicer failed to comply with applicable legal requirements, including those governing the form and content of affidavits, pleadings, or other foreclosure-related documents, where such failure directly contributed to: (a) the borrower paying fees,charges, or costs, or making other expenditures that otherwise would not have been paid or made; or (b) the initiation of a foreclosure action or proceeding against a borrower who otherwise would not have met the requirements for initiating such an action
Add details and documents that are specific to your case.
Don’t neglect other issues; escrow manipulation, misapplication of payments, and the recording/use of false/fraudulent/questionable/fabricated documents for the purpose of foreclosing.
Quote any applicable state statutes (ie: notarization procedures, felony recording false property records) that apply.
From the same Congressional hearing is full testimony of Alys Cohen from the National Consumer Law Review which provides more insight and pitfalls of the process here. A warning quote from her testimony may provide guidance on adding written language to the application that states one is explicitly refusing to waive rights in exchange for any available relief.
The consent orders and the foreclosure review process as enunciated to date lack the rigor and breadth to ensure that homeowners are protected during the review process. The process may also be affirmatively harmful. Homeowners could be required to waive their rights in exchange for any available relief. Homeowners may be discouraged from pursuing other avenues of saving their homes by their misplaced reliance on this process. If so, homeowners could ultimately lose their homes in exchange for the uncertain and limited compensation provided under the foreclosure reviews.
From the US Senate Banking Committee site on the December 13, 2011 hearing:
Helping Homeowners Harmed by Foreclosures: Ensuring Accountability and Transparency in Foreclosure Reviews
Housing, Transportation, and Community Development
Tuesday, December 13, 2011
02:30 PM – 04:30 PM
538 Dirksen Senate Office Building
Met in OPEN SESSION to conduct a hearing entitled “Helping Homeowners Harmed by Foreclosures: Ensuring Accountability and Transparency in Appeals.” The witness on Panel I will be: Ms. Julie Williams, First Senior Deputy Comptroller and Chief Counsel, Office of the Comptroller of the Currency. The witnesses on Panel II will be: Ms. Alys Cohen, Staff Attorney, National Consumer Law Center; Mr. David Holland, Executive Vice President, Rust Consulting, Inc.; Mr. Paul Leonard, Vice President of Government Affairs, Housing Policy Council of the Financial Services Roundtable. Additional witnesses may be announced.
- Honorable Julie Williams [view testimony]
First Senior Deputy Comptroller and General Counsel
Office of the Comptroller of the Currency
- Ms. Alys Cohen [view testimony]
National Consumer Law Center
- Mr. David Holland [view testimony]
Executive Vice President
Rust Consulting, Inc.
- Mr. Paul Leonard [view testimony]
Vice President of Government Affairs
Housing Policy Council of the Financial Services Roundtable
- Dr. Anthony B. Sanders [view testimony]
Professor of Finance
George Mason University School of Management
- Ms. Ann M. Kenyon [view testimony]
Deloitte & Touche LLP
- Mr. Konrad Alt [view testimony]
Promontory Financial Group, LLC
The OCC Press Release from Nov 2011 on the Independent Review process with links & phone numbers is here.
Dec 15, 2011 National Consumer Law Center press release demanding the reviews be removed from the OCC and taken over by the Consumer Financial Protection Bureau here.
Please keep us updated. We are very interested in tracking and reporting about this process.