Dodd-Frank Reform 2.0
The Post-Election FinTech World: Are Happy Days (for Bankers) Here Again?
K&L Gates Congressional Meet & Greet – Congressman French Hill (R-AR-2)
FHA Seeks Statutory Authority to Transfer Mortgage Servicing Rights
Consumer Financial Services Industry, Meet Your New Regulator
Analysis of the Consumer Financial Protection Agency Legislation: Top Ten Issues

Dodd-Frank Reform 2.0

By: Daniel F. C. Crowley, Bruce J. Heiman, William A. Kirk, Karishma Shah Page, Dean A. Brazier, Eric A. Love, Eli M. Schooley

Recent activity in Congress suggests that the return from the July 4th recess will see a continued push to reform the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) before year’s end. This alert provides an overview of the current state of play and the most likely outcome.

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K&L Gates Congressional Meet & Greet – Congressman French Hill (R-AR-2)

4 March 2015
8:30 a.m. ET
Congressional Meet & Greet

K&L Gates is pleased to invite you to our March 4th meet and greet breakfast with Congressman French Hill (R-AR-2).

Congressman Hill was elected in November 2014 to represent Arkansas’s 2nd Congressional District. The 2nd District includes White County, Van Buren County, Conway County, Perry County, Saline County, Faulkner County, and Pulaski County.

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FHA Seeks Statutory Authority to Transfer Mortgage Servicing Rights

By: Laurence E. Platt,  Kathryn M. Baugher

For at least the third time in recent months, the Federal Housing Administration (“FHA”) has asked Congress for legislative authority to force underperforming loan servicers to transfer the servicing of FHA-insured loans to another servicer.

FHA Requests for Authority to Transfer Servicing

FHA’s latest request came on June 4, 2013, when FHA Commissioner Carol Galante testified before the Senate Committee on Appropriations. In her written testimony, she proposed that Congress provide legislative authority for FHA to require the transfer of servicing “when a servicer is at or below a servicer tier ranking score (TRS) of III, or when the Secretary deems the action necessary to protect the interests of the MMI [Mutual Mortgage Insurance] Fund.” Under these circumstances, FHA would like the power to “(1) transfer servicing from the current servicer to a specialty servicer designated by FHA; (2) require a servicer to enter into a sub-servicing arrangement with an entity identified by FHA; and/or (3) require a servicer to engage a third-party contractor to assist in some aspect of loss mitigation (e.g. borrower outreach).”

At the hearing, Commissioner Galante indicated that some servicers appear to be meeting individual loss mitigation requirements, but their portfolios still have a lower rate of successful loan modifications relative to other servicers. Commissioner Galante stated that there appears to be “something deeper going on” with these servicers that FHA reviews are unable to identify. In situations where FHA cannot get the servicer to improve loss mitigation outcomes “through other means,” FHA would like to require a transfer of servicing.

While Commissioner Galante’s testimony created some buzz in industry publications, her proposal is not a new one. In fact, FHA made identical requests in November and December of 2012. In December 2012, for example, U.S. Department of Housing and Urban Development Secretary Shaun Donovan called the requested authority “a critical step,” and said that it would “send a very strong message to those servicers that are underperforming.” Secretary Donovan also made clear that FHA needs legislative authority in order to force the transfer of servicing as proposed.

Risks Associated with FHA’s Proposal

In making this legislative request, FHA did not discuss the interplay between FHA and Ginnie Mae, or the impact that FHA authority to transfer servicing might have on Ginnie Mae. While FHA insures certain of the pooled mortgage loans underlying Ginnie Mae securities, FHA is not a counter-party to the servicing agreements for such loans. In the ordinary course, Ginnie Mae would be the counter-party under the Guaranty Agreements pursuant to which Ginnie Mae guarantees the servicer’s (or in Ginnie Mae parlance, the “issuer’s”) payment obligations to security holders. Thus, any remedy demanded by FHA will have a ripple effect on the Ginnie Mae servicing rights. In addition, any requirement to transfer servicing or appoint a sub-servicer presumably would have to be accomplished in accordance with Ginnie Mae guidelines.

The risk of FHA forcing a transfer of servicing may dilute the value of the contract right to service, because the servicer may be forced into a distressed sale, particularly if the required time period for the transfer is short. It may lead to a cross-default under other commercial agreements, such as a revolving credit agreement that financed the acquisition or holding of such rights. If it is deemed to be a regulatory action or sanction, FHA’s requirement may have an adverse impact on state mortgage servicing and origination licenses. And the circumstances that give rise to the forced transfer of servicing or appointment of a sub-servicer might be used by Ginnie Mae as an event of default under the Guaranty Agreement and provide an independent basis for Ginnie Mae to terminate the servicing (“issuer responsibility”) with cause.

The bottom line is that FHA’s request for new statutory authority should be carefully considered. While a requirement to transfer servicing is a less drastic alternative than the loss of FHA approval from the perspective of an approved mortgagee, the inability to realize fair market value for the mortgage servicing rights in question could have a significant adverse effect on a servicer. We would hope that any proposed legislation in this area would not authorize FHA to impair valuable mortgage servicing rights without, at a minimum, building in robust “due process” protections and standards of materiality or material adverse effect.

Consumer Financial Services Industry, Meet Your New Regulator

By: Melanie H. Brody, Stephanie C. Robinson

The centerpiece of the Dodd-Frank Act from a consumer protection standpoint is Title X, the Consumer Financial Protection Act of 2010. The Act will create a powerful consumer financial protection watchdog, the Bureau of Consumer Financial Protection. The majority of existing federal consumer financial protection laws will come under the Bureau’s purview, and the Bureau will have broad authority to enforce those laws and to issue its own rules under the Act. This alert describes the Bureau, including its structure, objectives, functions, jurisdiction, rulemaking authority and enforcement powers.

To view the complete alert online, click here.

This client alert is part of a series of alerts focused on monitoring financial regulatory reform. Below is a list of other alerts in the series:

New Executive Compensation and Governance Requirements in Financial Reform Legislation – July 7, 2010

Financial Regulatory Reform – The Next Chapter: Unprecedented Rulemaking and Congressional Activity – July 7, 2010

Investor Protection Provisions of Dodd-Frank – July 1, 2010

Senate Financial Reform Bill Would Dramatically Step Up Regulation of U.S. and Non-U.S. Private Fund Advisers – June 8, 2010

Approaching the Home Stretch: Senate Passes “Restoring American Financial Stability Act of 2010” – June 8, 2010

Analysis of the Consumer Financial Protection Agency Legislation: Top Ten Issues

By:  Stephanie C. Robinson

The Obama Administration’s Financial Regulatory Reform plan is progressing through Congress. Last week, the House Financial Services Committee voted to approve H.R. 3126, the bill that would create a Consumer Financial Protection Agency. As we reported in a prior publication, the agency would have extremely broad regulatory and enforcement authority over providers of consumer financial products and services, with the power to impose high penalties. See our Mortgage Banking & Consumer Financial Products alert, Million Dollar Baby: The Consumer Financial Protection Agency Act of 2009, for a complete discussion of the bill as introduced.

The committee spent the past couple of days considering and voting on dozens of proposed amendments to Chairman Barney Frank’s (D-MA) original version of the bill. This alert highlights some of the issues we are being asked about most and what has changed since the bill’s July 8, 2009 introduction.

To view the complete alert online, click here.

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